LGBT rights in Wisconsin

LGBT rights in Wisconsin
Same-sex sexual intercourse legal status Legal since 1983
Gender identity/expression Altering sex on birth certificate requires sex reassignment surgery
Discrimination protections Yes (sexual orientation only)
Family rights
Recognition of
relationships		 Same-sex marriage legal since 2014
Domestic partnerships legal from 2009 to 2018
Adoption Yes

Lesbian, gay, bisexual, and transgender (LGBT) people in the U.S. state of Wisconsin have many of the same rights and responsibilities as heterosexuals; however, the transgender community may face some legal issues not experienced by non-trans residents. Same-sex marriage has been legal in Wisconsin since October 6, 2014, when the U.S. Supreme Court refused to consider an appeal in the case of Wolf v. Walker. Discrimination based on sexual orientation is banned statewide in Wisconsin. It approved such protections in 1982, making it the first state in the United States to do so.

Wisconsin is also the first state to have an LGBT U.S. Senator, Democrat Tammy Baldwin. Recent polls have found that two-thirds of Wisconsinites support same-sex marriage.[1] However, discrimination based on gender identity is not included in Wisconsin's anti-discrimination laws, nor is it covered in the state's hate crime law.

Legality of same-sex sexual activity

Milwaukee Pride parade in 2017
Milwaukee Pride parade in 2017. The Allen-Bradley Clock Tower can be seen in the background.

Wisconsin was part Michigan territory in 1836, when it adopted a prohibition on sodomy that applied to both heterosexual and homosexual sexual activities, excluding cunnilingus. The criminal prohibition was retained when Wisconsin became a state in 1848.[2] The definition was expanded to include fellatio in 1897 as well as the new crime of "taking improper liberties" with a minor.[3] In the 1950s, following a series of high-profile sex crimes, Wisconsin criminalized cunnilingus and increased the penalties for "sexual perversion". In 1959, the state barred persons convicted of "sexual perversion" from using an automobile or any vehicle requiring a license.[2]

In 1966, the Wisconsin Young Democrats approved a resolution urging "the abolition of all legal restriction on sexual relations between consenting adults which do not violate the rights of others", one of the first major political organizations in the United States to do so. Republican Governor Warren P. Knowles referred to supporters of the resolution as "homocrats" and some Democrats of various ages distanced themselves from the language.[4]

In the 1970s, court challenges to the sodomy law on privacy grounds failed, but the Wisconsin Supreme Court ruled that the law should not apply to private and consensual acts between a husband and wife. In 1976, the state repealed its ban on newspapers' covering sodomy trials. In 1977, the state reclassified consensual sodomy as a misdemeanor.[5]

In 1983, Wisconsin legalized private, non-commercial acts of sodomy between consenting adults.[6] In order to obtain sufficient votes among legislators, the bill stated that Wisconsin did not approve of "any sexual conduct outside of the institution of marriage."[7]

Recognition of same-sex relationships

Marriage

On June 6, 2014, Judge Barbara Brandriff Crabb of the United States District Court for the Western District of Wisconsin, ruling in Wolf v. Walker, struck down the state's constitutional and legislative ban on same-sex marriage as a violation of the Fourteenth Amendment of the U.S. Constitution.[8] Her ruling was stayed until October 6, 2014, when the U.S. Supreme Court declined to hear an appeal in the case, allowing her ruling to take effect and ending Wisconsin's denial of marriage rights to same-sex couples.[9]

Domestic partnerships

Wisconsin also had a registry of domestic partnerships that provided same-sex couples with limited rights, specifically 43 of the more than 200 spousal rights afforded to different-sex couples. The registry, Chapter 770, was established in 2009 by a provision included in the state's biennial budget bill and signed into law by Democratic Governor Jim Doyle. Wisconsin's domestic partnership registry for same-sex couples did not grant stepchild adoptions. Wisconsin was the first state in the Midwest to enact a form of recognition for same-sex unions. Out of the several states that had bans on same-sex marriage and/or civil unions, Wisconsin was the first and only one to enact limited domestic partnerships.[10]

The registry survived a court challenge, originally Appling v. Doyle, that claimed it violated the state's constitutional amendment prohibiting the creation of a legal status "similar to that of marriage" for same-sex couples.[11] On July 31, 2014, the Wisconsin Supreme Court ruled unanimously in the case, now known as Appling v. Walker, that the registry was constitutional, citing statements made by proponents of the constitutional amendment at issue "that the Amendment simply would not preclude a mechanism for legislative grants of certain rights to same-sex couples".[12]

Wisconsin has provided benefits to same-sex partners of state employees since 2009.[13] In some jurisdictions, domestic partnership benefits for state employees had been expanded beyond those rights provided to other employees under the state's domestic partnership registry.[14]

Wisconsin ended the domestic partnership registry on April 1, 2018.[15][16][17]

Adoption and parenting

Wisconsin's domestic partner registry did not grant parental rights, but same-sex couples could obtain limited rights through a co-parenting agreement, which may not have always been enforced, or another legal arrangement granted by state courts.[18]

Residents of Wisconsin may adopt as individuals without respect to sexual orientation and LGBT individuals have been granted joint adoption rights by certain jurisdictions. Stepchild adoption was not legal under the state's domestic partner registry.[18] Adoption agencies in Wisconsin will ensure that once a spouse in a same-sex relationship attains parental rights the other spouse receives comparable parental rights or full guardianship.[18][19]

Domestic partner benefits for state employees ensured that the dependents of one partner are covered by the other partner's health insurance.[20]

Following the legalization of same-sex marriage in October 2014, joint adoption has also been allowed for married same-sex couples.

Birth certificates

In September 2016, a federal judge ruled that the state must put the names of both same-sex parents on the birth certificates of their children. The ruling was due to a lesbian couple who sued the Wisconsin Department of Health Services in 2015 after it refused to put both their names on the birth certificate of their son.[21]

Discrimination protections

Map of Wisconsin counties and cities that have sexual orientation and/or gender identity anti–employment discrimination ordinances
  Sexual orientation and gender identity with anti–employment discrimination ordinance
  Sexual orientation with anti–employment discrimination ordinance and gender identity solely in public employment
  Sexual orientation with anti–employment discrimination ordinance

In 1982, Wisconsin was the first state to ban discrimination based on sexual orientation in employment, housing, education, credit and all public accommodations. When Republican Governor Lee S. Dreyfus signed the law, he said that "It is a fundamental tenet of the Republican Party that government ought not intrude in the private lives of individuals where no state purpose is served, and there is nothing more private or intimate than who you live with and who you love."[22]

There are no state-level laws against discrimination based on gender identity.[23][24] The counties of Dane[25] and Milwaukee,[26] along with the cities of Appleton,[27] Cudahy,[27] De Pere,[28] Janesville,[29] Madison,[25] and Milwaukee[25] ban discrimination based on gender identity.[30]

Hate crime law

Wisconsin law punishes hate crimes based on sexual orientation, but not gender identity.[31]

Although gender identity is not explicitly included in Wisconsin's hate crime legislation, perceived sexual orientation is often used as a medium to prosecute individuals who commit a crime based the victim's on gender identity.[32]

Anti-bullying laws and policies

In 2001, Wisconsin legislators passed a law that prohibits discrimination based on sexual orientation in any school setting.[33]

Any school in the state of Wisconsin that receives federal funding (regardless of being public or private) "are required by federal law to address discrimination on a number of different personal characteristics."[34]

Gender identity and expression

LGBT flag map of Wisconsin.

Wisconsin allows a person born in the state who has completed sex reassignment surgery to amend their birth certificate once documentation of the surgery and of a change of name is provided.[35]

A 2005 Wisconsin statute denying hormone therapy to prisoners undergoing sex reassignment surgery, the Inmate Sex Change Prevention Act, was ruled unconstitutional in a unanimous opinion in the case of Fields v. Smith by a three-judge panel of United States Court of Appeals for the Seventh Circuit on August 5, 2011.[36]

The U.S. Supreme Court declined to hear the state's appeal of that decision on March 26, 2012.[37]

Conversion therapy

In March 2018, Milwaukee became the first city in Wisconsin to approve a conversion therapy ban on minors. The ordinance was signed into law by Mayor Tom Barrett on April 4, and it went into effect 10 days later.[38]

In July 2018, Madison, the state capital, became the second city to approve a conversion therapy ban.[39][40]

In September 2018, the Eau Claire School Board became the first school district in Wisconsin and in the United States to ban school-based health center agreements with health clinics and/or providers that "endorse or engage in the practice of conversion therapy."[41]

Summary table

Same-sex sexual activity legal (Since 1983)
Equal age of consent
Anti-discrimination laws for sexual orientation (Since 1982)
Anti-discrimination laws for gender identity and expression / (Varies by county and city)
Hate crime laws include sexual orientation (Since 1988)
Bullying in schools prohibited (Since 2001)
Same-sex marriage (Since 2014)
Stepchild adoption by same-sex couples (Since 2014)
Joint adoption by same-sex couples (Since 2014)
Gays, lesbians and bisexuals allowed to serve openly in the military (Since 2011)
Transgender people allowed to serve openly in the military (Since 2018)
Conversion therapy on minors outlawed / (Varies by county and city)
MSMs allowed to donate blood / (Since 2015, one year deferral period)

See also

References

  1. ↑ Public opinion on same-sex marriage by state: Wisconsin
  2. 1 2 "The History of Sodomy Laws in the United States - Wisconsin". Glapn.org. Retrieved November 2, 2013.
  3. ↑ William N. Eskridge, Dishonorable Passions: Sodomy Laws in America, 1861-2003 (Penguin, 2008), 50, 54
  4. ↑ Wehrwein, Austin C. (April 10, 1966). "Freer Sex Plank Stirs Wisconsin" (PDF). New York Times. Retrieved December 22, 2012.
  5. ↑ Eskridge, Dishonorable Passions, 201
  6. ↑ Eskridge, Dishonorable Passions, 219
  7. ↑ "Wisconsin Sodomy Law". Hrc.org. Retrieved November 2, 2013.
  8. ↑ "Court overturns same-sex marriage ban". Retrieved June 6, 2014.
  9. ↑ Liptak, Adam (October 6, 2014). "Supreme Court Clears Way for Gay Marriage in 5 States". New York Times. Retrieved October 6, 2014.
  10. ↑ Forster, Stacey (July 1, 2009). "Wisconsin to recognize domestic partnerships". Journal Sentinel. Retrieved December 21, 2012.
  11. ↑ "Wisconsin court upholds domestic partner registry". USA Today. December 21, 2012. Retrieved December 21, 2012.
  12. ↑ DeFour, Matthew (July 31, 2014). "High court unanimously upholds Wisconsin domestic partner registry". Wisconsin State Journal. Retrieved July 31, 2014.
  13. ↑ National Conference of State Legislatures: "States offering benefits for same-sex partners of state employees", accessed April 16, 2011
  14. ↑ Weisberg, Louis (March 20, 2012). "Manitowoc adopts domestic partnership benefits". Wisconsin Gazette. Retrieved December 21, 2012.
  15. ↑ CHAPTER 770: DOMESTIC PARTNERSHIP
  16. ↑ The Latest: Panel Votes to End Domestic Partner Registry
  17. ↑ Domestic Partnership
  18. 1 2 3 Where is Gay Adoption Legal?, accessed April 8, 2012
  19. ↑ Wisconsin Adoption Information Center: Gay Adoption Laws by State S-W, Accessed May 30, 2012
  20. ↑ Wisconsin Department of Employee Trust Funds: State of Wisconsin Domestic Partner Benefits, accessed April 8, 2012
  21. ↑ Wisconsin same-sex parents win suit over birth certificate Pioneer Press, September 15, 2016
  22. ↑ Bauer, Scott (January 3, 2008). "Former Wis. governor Dreyfus dead at 81". Boston Globe. Retrieved December 22, 2012.
  23. ↑ Human Rights Campaign: Wisconsin Non-Discrimination Law Archived March 11, 2012, at the Wayback Machine., accessed August 7, 2011
  24. ↑ "The Gay Rights State': Wisconsin's Pioneering Legislation to Prohibit Discrimination Based on Sexual Orientation". Papers.ssrn.com. January 25, 2007. SSRN 958815. Missing or empty |url= (help); |access-date= requires |url= (help)
  25. 1 2 3 "Cities and Counties with Non-Discrimination Ordinances that Include Gender Identity". Human Rights Campaign. Retrieved May 25, 2013.
  26. ↑ Schultze, Steven (April 24, 2014). "Board approves sexual orientation, gender identity protections". Jsonline.com. Retrieved June 29, 2014.
  27. 1 2 Wisconsin city adopts ordinance banning bias based on gender identity Archived September 4, 2014, at Archive.is
  28. ↑ ORDINANCE #17-20
  29. ↑ "Hometown of Paul Ryan Passes Transgender-Inclusive Nondiscrimination Ordinance". Freedom for All Americans. March 29, 2016. Archived from the original on March 29, 2016. Retrieved March 29, 2016.
  30. ↑ "Gender Identity and Expression". Fair Wisconsin. Retrieved November 2, 2013.
  31. ↑ Human Rights Campaign: Wisconsin Hate Crimes Law Archived March 11, 2012, at the Wayback Machine., accessed August 7, 2011
  32. ↑ Anti-defamation League: , Accessed April 8, 2012
  33. ↑ "Wisconsin School Laws | Human Rights Campaign". Hrc.org. March 14, 2007. Retrieved November 2, 2013.
  34. ↑ StopBullying.gov: Laws in Wisconsin, accessed April 8, 2012
  35. ↑ Human Rights Campaign: Wisconsin Birth Certificate Law: Gender Identity Issues Archived March 11, 2012, at the Wayback Machine., accessed August 7, 2011
  36. ↑ Milwaukee Journal Sentinel: Bruce Vielmetti, "Court upholds hormone therapy for transgender inmates," August 5, 2011, accessed August 7, 2011
  37. ↑ Supreme Court declines to rule on hormone therapy for transgender inmates
  38. ↑ Milwaukee officials OK ban on gay conversion therapy
  39. ↑ Madison Becomes Second City In Wisconsin To Ban Conversion Therapy
  40. ↑ Madison City Council Passes Measure to Protect LGBTQ Youth from Practive of "Conversion Therapy"
  41. ↑ "BoardDocs® Agenda Item: 4.8 Adopt New Policy 453.7 - Student Mental Health and Wellness Education". www.boarddocs.com. Retrieved 2018-09-25.
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