Laws affecting the lives of homosexuals, bisexuals, and transgendered persons range from oppressive to protective. Listed below are various legal mechanisms and their status in Kentucky. This information is based on research by a lay citizen as an informational source and does not constitute legal advice. Always consult an attorney or other legal professional for legal advice.
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June 1999 Map of US Areas with Non-Bias Laws
In its 1996 ruling in Romer v. Evans regarding Colorado's Amendment 2 (which sought to amend the Colorado state constitution to prohibit local and state governments from passing legislation barring discrimination against bisexuals and homosexuals [but not heterosexuals]), the US Supreme Court ruled that such laws were unconstitutional because they sought to specifically deny one group access to full and equal treatment under the law and full participation in the political process.
In 1968 on the heels of the African-American civil rights movement Congress passed federal law 18 U.S.C. Sec. 245. This law penalizes crimes directed at an individual due to her or his race, color, religion, or national origin because (not simply while) that person was engaged in voting, jury duty, attending public school, or another federally protected right. The provision that such crimes must extend from both a person's group status and engagement in a federal right poses limitations on this law's enforcement against the majority of bias-related violence. Indeed in 1991 the Federal Bureau of Investigation, the FBI, documented over 50,000 hate crimes but only 37 cases were filed under 18 U.S.C. Sec. 245.
Although DOMA seeks to head off the potential of same-sex marriages, legal same-sex marriages are not legal anywhere within the USA currently.
Following on the Nobovny case, a Spencer County, KY, girl and her family sued Spencer County schools over a pattern of harassment, threats, assaults, and other actions by students over the perception of the young woman as a lesbian. A Federal appeals court upheld in fall 2000 the penalty against the school for failing to properly protect the girl.
In Nov. 2000 the school system in Somerset, KY, settled with a young man who faced on-going harassment, threats, and assault due to being perceived as gay.
The Lexington-Fayette Urban County Human Rights Commission, however, has collected reports on sexual orientation discrimination since July 1993.
*Maine voters narrowly repealed the state's gay rights law in November 1997 some months after it was put in place. Thus, Maine now has no laws protecting its citizens from discrimination based upon sexual orientation (at least at the state level).
These states protect people from such discrimination either under a single piece of legislation or a cluster of related laws. Some of the statutes are more comprehensive and cover discrimination involving public and private employment, credit, insurance, housing, and public accomodations. Others focus primarily on private and public employment. Generally small businesses with <3 employees and religious organizations are exempt. The newer statutes tend to be more comprehensive.
Nine other states ban discrimination in public employment for the state and/or contractors with the state. Colorado also has a statute barring discrimination based on sexual orientation covering purchasing insurance.
See Lambda Legal's Updated Anti-Bias Law Map
Well over 100 municipalities and county governments have voted to prohibit discrimination based on sexual orientation. This list includes most of the nation's larger cities as well as many small college towns.
June 1999 Map of US Areas with Non-Bias Laws
Several cities now offer domestic partnership registration. The New York courts have ruled that same-sex couples are spousal equivalents regarding rent control and inheritance of such rents. San Francisco now requires all companies doing business with the city to provide domestic partnership benefits to both unmarried mixed-sex couples and same-sex couples. This decision is now being contested in the courts by a consortium of airlines.
Historically, these laws were used in the 19th and early 20th century far more often against African-Americans as a way to oppress, humiliate, and control people under segregation. Today in states that continue to enforce their sodomy laws such as North Carolina, the laws are used almost exclusively against gay and lesbian people. In North Carolina, this is especially egregious considering the law outlaws oral and anal sex between adults regardless of the couple's genders. There have been instances, however, where heterosexuals have used these laws in legal suits involving adultery and military personnel. Primarily, however, these laws are most commonly used against lesbians in relation to child custody issues. They are also used as the rationale behind attempts at banning gay student groups (Alabama and Utah), university domestic partnerships (Virginia), and refusals to hire gay people for government and police positions (Georgia and Texas). Such laws also come up in cases involving intimidation of primarily men (many married and identifying as heterosexuals) seeking sex in public areas such as parks. Several states including Kentucky also used these laws to perform sting operations in gay bars where a police officer would lead on a gay person into asking him home and then arresting him for solicition of sodomy (see the Wasson case below). Most of the existing laws do not distinguish between private and public sex which allows the police to arrest gay couples in their own bedrooms technically (see Bowers v. Hardwick above).
Beginning with Illinois in 1961, most states, however, abolished their sodomy laws through revisions of their penal code. Several states also repealed their sodomy statutes through legislative action. Most of the states did away with these laws in the 1970s and early 1980s. The advent of AIDS and its public fear stalled sodomy law reform for most of the 1980s until Kentucky's Supreme Court overturned its sodomy law in 1992. Subsequently, Nevada's legislature has repealed their sodomy law while the Georgia and Tennessee high courts have effectively overturned their sodomy laws.
On the other hand, a few states such as Massachusetts have stated that they will recognize such marriages if they become legal in Hawaii. Other states have successfully refused to pass anti-marriage laws such as in Kentucky in 1996. The anti-marriage laws passed in several states and DOMA have not yet faced a court challenge and may well be unconstitutional under the Fair Faith and Credit clause of the US Constitution.
On December 20, 1999, the Vermont Supreme Court ruled that the state legislature must provide equal benefits to same-sex couples as to those given to mixed-sex couples via civil marriage. The court left it up to the legislature as to whether to do this via traditional marriage or via a parallel system of domestic partnership.
The Vermont legislature decided to provide a parallel system of benefits to same-sex couples called civil unions rather than granting equal marriage rights. Civil unions grant couples around 200 rights under Vermont law that currently are given to mixed-sex married couples. Vermont cannot provide federal benefits since they are a) outside the state's jurisdiction and b) because of DOMA.
Any KY couples getting a civil union in Vermont do not receive state benefits in Kentucky. While they can live outside of Vermont and have a civil union there, they can only dissolve the civil union if they reside for a period of months in Vermont as legal Vermont residents. Getting recognition of this civil union in Kentucky would also likely have to challenge the federal DOMA and the Kentucky HB 13 laws in court before they could receive equal benefits.
A number of other states (California, Connecticut, etc.) offer some limited benefits to resident same-sex couples. These domestic partnership benefits range from hospital visitation rights to inheritance and insurance.
It is expected that the issue of gay rights will be fought in US courts well into the first decade of the 21st century.
Tables (Courtesy of Chris Hargis) (not updated to show the repeal of the Henderson ordinance)
Chart of Kentucky Non-Discrimination Ordinances
Exemptions to Kentucky Civil Rights
In 2000 the KY General Assembly also passed over Gov. Patton's veto HB 70. This law exempts religious-owned and -ran businesses from many civil rights laws including local ordinances governing sexual orientation bias. It is likely unconstitutional and likely conflicts with federal law but is yet unchallenged (August 2000).
In 1996 the City of Henderson's city council voted to make discrimination based on sexual orientation in city/public employment illegal. This personnel policy only covers city workers. Thus, Henderson has become the first government in Kentucky to take this step for human rights. This historic step was later repealed in 2001.
In January 1999 after over a decade of work on this issue by Louisville Fairness, the City of Louisville Board of Aldermen passed an ordinance banning sexual orientation and gender identity discrimination in public and private employment. This ordinance does not apply to Jefferson County but Jefferson County passed a similar ordinance that is county-wide on October 12, 1999. After a court battle, the Jefferson County ordinance was ruled to apply to ALL of Jefferson County including Louisville and the 80+ other incorporated towns in the county. also.
On July 8, 1999, the Lexington-Fayette Urban County Council approved by a 12 to 3 vote an amendment to the city-county's human rights ordinance that bans discrimination due to an individual's actual or imputed sexual orientation or gender identity in employment, housing, and public accommodations (including credit). Sexual orientation covers heterosexual, bisexual, and homosexual orientations. Gender identity is covered for individuals who have had a sex change operation or who manifest a gender identity psychologically or otherwise contrary to their biological sex in a manner other than dress. The ordinance also was amended to delineate that businesses can enforce gender-specific bathrooms and dress codes appropriate to a person's biological sex. Another amendment also exempts religious organizations and their charitable or educational ventures when these public businesses receive less than 50% of their annual funding from public (local, state, or federal) monies. Businesses ran by religious groups that do receive a majority of their annual funding from public money are not exempt.
The Lexington-Fayette County ordinance does not allow for individuals to sue businesses or individuals they claim have discriminated against them. Instead, complaints must be taken to the Lexington-Fayette Urban County Human Rights Commission. The Commission follows a process whereby reconciliation and mediation are sought between the two conflicting parties. If unable to reconcile the issue, the Commission can then hear the complaint and levy fines or the complaint can be taken by the Commission to Fayette Circuit Court on behalf of the plaintiff if judged to be a valid complaint.
On September 28, 1999, the City of Henderson also adopted an ordinance banning discrimination on the basis of an individual's sexual orientation. This ordinance covers employment, housing, and public accommodations and has penalties limited to $250 for an infraction. This ordinance was repealed in 2001.
Various chapters of Fairness are seeking anti-discrimination ordinances on a city and statewide basis.
In the Spring 1998 General Assembly, state Senator Tim Philpot (R-Fayette) filed a bill limiting EPOs (Emergency Protective Orders), legal tools to protect individuals from potentially abusive, stalking, or violent former partners, to heterosexual couples only. This bill was widely opposed by Kentucky domestic violence agencies and was never heard by the General Assembly either in committee or on the floor. Kentucky law regarding EPOs thus remains gender-neutral and open to both mixed-sex and same-sex couples.
Although not apparently tested in court, the Central Kentucky Blood Center intake form for blood donors carries the following statement on this law: "I also understand that, under Kentucky law, if I know that I am infected with or am at risk of AIDS or certain other diseases but donate anyway, I may be guilty of a Class D felony." Men who have had sex even once with another man since 1977 regardless of HIV status are viewed under FDA regulations as "at risk." Thus, a gay man who has been celibate for the last 5 years and whom has repeatedly tested negative for HIV is still considered prosecutable for a felony if he donates blood.
These regulations are based on national statistics of people infected with HIV. Other groups who statistically make up "at risk" populations such as African-American women are currently not excluded as a group regardless of behavioral risks as are gay and bisexual men.
Until 1992 fourth degree sodomy (consensual sodomy between adults of the same-sex) was illegal and enforced (often via police entrapment) in Kentucky. The same sex acts between adults of opposites sexes, however, was legal. Sodomy in this case was defined as oral-genital, oral-anal, gential-anal contact between members of the same sex. Ruling that the fourth degree/consensual sodomy law violated equal protection by the law and the Kentucky constitution's explicit right to privacy, the Kentucky Supreme Court overturned the sodomy law in 1992. Subsequently the justices voting to overturn this law received death threats.
Although several people were arrested monthly under this law and it was used to withhold child custody to gay parents in several cases, it was not successfully challenged until Jeffrey Wasson agreed to pursue his arrest for sodomy solicitation to the courts. In 1986 Wasson was approached by an undercover policeman while leaving The Bar Complex in Lexington. Eventually asking the undercover officer home, he was arrested for soliciting sodomy. Due to his pursuing this issue in the courts, Wasson lost two jobs. For his bravery, the annual Volunteer of the Year award presented in Lexington by the Tri-State Gay Rodeo Association is named for Wasson.
This ruling marked the first time a U.S. sodomy law had been abolished since the advent of AIDS. This case has been cited in similar court challenges in other states.
Various right-wing groups and legislators in Kentucky continue to pursue getting a ballot issue put before Kentucky voters that would create a state constitutional amendment giving the legislature the right to re-criminalize certain consensual sex acts. To date these efforts have failed.
Please email me any corrections or constructive suggestions for this page. Copyright 2002 © by Jeff Jones
