LGBT rights in Florida

After Florida became a territory of the United States in 1821, the Territorial Legislature enacted laws against fornication, adultery, bigamy, and incest, as well as against "open lewdness, or ... any notorious act of public indecency, tending to debauch the morals of society."[1] Florida's first specific sodomy law, which was enacted in 1868 and made sodomy a felony, read: "Whoever commits the abominable and detestable crime against nature, either with mankind or with beast, shall be punished by imprisonment in the state prison not exceeding twenty years." In 1917, the Florida Legislature added a lesser crime, a second-degree misdemeanor: "Whoever commits any unnatural and lascivious act with another person shall be punished by fine not exceeding five hundred dollars, or by imprisonment not exceeding six months."[2]

Florida courts interpreted the 1868 law to prohibit all sexual activity between two men or two women. It also prohibited oral sex, anal sex and cunnilingus between heterosexual partners.[3] In 1971, the Florida Supreme Court, ruling in Franklin v. State, struck down the "crime against nature" statute as unconstitutionally vague. The court retained the state's prohibition on sodomy by ruling that anal and oral sex could still be prosecuted under the lesser charge of "lewd and lascivious" conduct.[4] Florida further enacted a "psychopathic offender law" in 1955, under which those convicted of sodomy (labelled as "criminal sexual psychopathic persons") would be periodically examined to determine if they had "improved to a degree that [they] will not be a menace to others". The law was repealed in 1979.[3]

In 1960, the state Attorney General issued an opinion that Florida's sodomy statute did not apply to Indian reservations. The opinion stated that crimes committed between Native Americans or between Native Americans and non-Native Americans were a matter for tribal courts. This meant that if the particular reservation had no law against it, sodomy would be legal on the reservation. However, sodomy between non-Native Americans on the reservation would fall under the jurisdiction of state law and would be liable to prosecution.[3]

Same-sex sexual activity remained illegal in Florida until 2003, when the United States Supreme Court struck down all state sodomy laws in Lawrence v. Texas.[5] As of 2020, the state's sodomy law, though unenforceable, has not been repealed by the Florida Legislature.[6]

In October 2018, during a gay sex undercover sting operation by Florida law enforcement, a judge ruled that gay sex is not illegal in a public space so long as it is within a room.[7]

The state enacted legislation banning same-sex marriage in 1977.[8] Since the passage of Florida Amendment 2 in November 2008 by a vote of 61.9% in favor and 38.1% opposed, both same-sex marriage and civil unions have been banned by the Florida Constitution.

Amendment 2 added Article I Section 27 to the Florida Constitution, which says:[9]

Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.

A U.S. district court ruled on August 21, 2014, in Brenner v. Scott that Florida's same-sex marriage ban was in violation of the Constitution of the United States. As a result of that ruling, same-sex marriage has been legal in the state since the court's temporary injunction took effect on January 6, 2015.[10] Judge Robert Lewis Hinkle wrote:

This order holds that marriage is a fundamental right as that term is used in cases arising under the Fourteenth Amendment's Due Process and Equal Protection Clauses, that Florida's same-sex marriage provisions thus must be reviewed under strict scrutiny, and that, when so reviewed, the provisions are unconstitutional.

Nine counties, thirty cities, and one town in Florida offer domestic partnership benefits to same-sex couples.

In March 2016, a bill passed the House by a vote of 112-5 and the Senate by a vote of 38-0 to repeal a 1868 ban on cohabitation between unmarried couples. Governor Rick Scott signed the bill into law on April 6, 2016. The law went into effect on July 1, 2016.[11][12][13]

In 1977, partly due to the anti-gay Save Our Children campaign led by Anita Bryant in Miami, the Florida Legislature passed a law specifically prohibiting homosexuals from adopting children;[14] the statute survived several court challenges, and was upheld by the Eleventh Circuit Court of Appeals in 2004 in Lofton v. Secretary of the Department of Children and Family Services.[15][16]

In 2010, in the case of In re: Gill, involving a same-sex couple raising two foster children whom they wanted to adopt, a state appeals court upheld the ruling by a lower court that the law violated equal protection rights of the couple and the children under the Florida Constitution. The Governor and Attorney General declined to appeal the ruling further, ending Florida's 33-year-old ban on same-sex adoptions.[17]

The Florida Legislature undertook comprehensive adoption reform in 2015. The legislation repealed the 1977 ban on homosexual adoption. It passed the Florida House of Representatives on a 68-50 vote on March 11.[18] On April 15, the Florida Senate passed the bill on a 27-11 vote.[19] Republican Governor Rick Scott signed the bill into law on June 11 and went into effect on July 1, 2015.[20][21]

Lesbian couples have access to in vitro fertilization. State law recognizes the non-genetic, non-gestational mother as a legal parent to a child born via donor insemination, but only if the parents are married.[22] The Florida Department of Health began automatically recognizing the non-biological mother as a legal parent on May 5, 2016. The move came after three same-sex couples filed a federal lawsuit against the state in July 2015 over its practice of treating married same-sex couples differently to married opposite-sex couples; the non-biological father is automatically recognized as a legal parent, but previously this was not the case for the non-biological mother.[23] Additionally, gay male couples are permitted to undertake gestational and traditional surrogacy arrangements under the same terms and conditions as different-sex couples.[24]

Map of Florida 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 and gender identity solely in public employment

  Sexual orientation in public employment

  Does not protect sexual orientation and gender identity in employment

Since 2000, and amended in 2007, nursing homes and hospitals cannot discriminate on the basis of sexual orientation, but gender identity is not addressed.[25] Florida statutes do not address discrimination based on gender identity or sexual orientation in employment, housing or other areas.[15]

The counties of Alachua,[26] Broward,[27] Duval,[28] Hillsborough,[29] Leon,[27] Miami-Dade,[30] Monroe,[27] Orange,[31] Osceola,[32] Palm Beach,[27] Pinellas,[33] and Volusia,[27] and the cities and towns of Atlantic Beach,[34] Boynton Beach,[35] Delray Beach,[36] Dunedin,[27] Fernandina Beach,[37] Fort Lauderdale,[38] Gainesville,[27] Greenacres,[39] Gulfport,[27] Haverhill,[28][40] Jacksonville,[41] Key West,[27] Lake Clarke Shores,[42] Lake Worth,[27] Largo,[43] Leesburg,[44] Mascotte,[45] Miami,[35] Miami Beach,[27] Mount Dora,[28] North Port,[27] Oakland Park,[27] Orlando,[46] Pembroke Pines,[47] Sarasota,[30][48] St. Petersburg,[49] Tallahassee,[30] Tampa,[27] Tequesta,[50] Venice,[51] West Palm Beach,[27] Wellington,[52] and Wilton Manors[53] prohibit discrimination in private and public employment, housing and public accommodations on account of sexual orientation and gender identity. St. Augustine Beach has similar protections, but for employment and housing only.[27]

Sarasota County,[54] Cape Coral,[55] Neptune Beach,[56] and Port St. Lucie prohibit discrimination in employment on the basis of sexual orientation and gender identity in the public sector only, i.e. against county or city employees only.[57] Likewise, Montverde prohibits public sector-discrimination but on the basis of sexual orientation only.[58][47][57]

The Florida Competitive Workforce Act would ban LGBT discrimination in employment, housing and public accommodations statewide. First introduced in 2009, it received its first public hearing in 2016. It stalled in a 6-6 vote amid disputes over the inclusion of gender identity protections and restrooms.[59] The bill is bipartisan and supported by a number of business groups.[60][61][62][63]

In January 2019, the Florida Department of Agriculture and Consumer Services added sexual orientation and gender identity to their discrimination workplace policy.[64][65]

In order for transgender people to change their legal gender in Florida, they must submit to the Bureau of Vital Statistics an application and affidavit to amend their birth certificate, a letter from a physician confirming appropriate clinical treatment for gender transition, and the payment of the amendment fee.[71] "Appropriate clinical treatment for gender transition" does not include the need to undergo sex reassignment surgery or sterilization.[72] Similar changes to driver's licenses and state IDs are also permitted.

Florida's hate crime law provides harsher legal penalties for crimes committed based on the victim(s)' sexual orientation, but not gender identity.[73][74][74][75]

On September 3, 2015, State Representative David Richardson filed a bill to ban the use of conversion therapy on LGBT minors.[76] The bill was introduced to the Florida Legislature on January 12, 2016. However, it died in a House subcommittee on March 11, 2016.[77] A similar bill died in 2017.[78]

Since July 2016, the Florida Department of Children and Families has prohibited facility staff from attempting to change or discourage a child's sexual orientation, gender identity or gender expression.[79]

According to an Orlando Political Observer-Gravis Marketing poll conducted in April 2017, 71% of Floridians supported banning conversion therapy for minors, 11% were against banning it and 18% were uncertain.[80][81]

LGBT Pride festival in Miami Beach, 2019

LGBT rainbow flag at South Beach, Miami in 2011

Memorials left on the fence of the Pulse nightclub in Orlando, Florida.

Societal attitudes regarding LGBT people and same-sex relationships have evolved drastically in recent decades, going from antipathy and hostility to acceptance and tolerance. Gay scenes existed in Florida, particularly in Miami, as far back as the 1930s, though not until the 1980s and 90s did LGBT groups begin to organize and enter the public eye. Faced initially with high homophobia, LGBT groups began slowly to raise awareness of their cause and movement. Several organizations and associations were established over the years, including SAVE Dade in 1993, The Pride Center at Equality Park in 1993 and Equality Florida in 1997, among others. LGBT organizations encountered their first legal successes in 1991 with the addition of sexual orientation to the state's hate crime law, and the passage of several anti-discrimination ordinances, namely in Miami-Dade, whose ordinance was later upheld by voters in 2002.[103] In 2003, the U.S. Supreme Court legalized same-sex sexual activity in the state, and nationwide, via the landmark case of Lawrence v. Texas.

Over the following years, LGBT causes became more and more mainstream. While a same-sex marriage ban was added to the Constitution of Florida in 2008, it was ruled unconstitutional by a U.S. district court in 2014 in Brenner v. Scott. Same-sex marriage was legalized in Florida on January 6, 2015. Similarly, the Florida Third District Court of Appeal ruled that the state's ban on same-sex couples adopting was unconstitutional in In re Gill in 2010.

The Miami metropolitan area is famous internationally for its LGBT culture, scene and nightlife,[104] with numerous bars, clubs, cafés and events catering to the LGBT community, leading Miami to be called a "gay mecca". The cities of Miami Beach (especially the neighborhood of South Beach) and Wilton Manors particularly are often referred to as gay villages. As is Key West, which elected one of the first openly gay mayors in the country; Richard A. Heyman served as mayor from 1983 to 1985 and again from 1987 to 1989. There is also a fairly large LGBT community in Fort Lauderdale. LGBT events include Miami Beach Pride, which drew an estimated 150,000 participants and spectators in 2019,[105] PrideFest Key West, the OutShine Film Festival, Pride Fort Lauderdale and Palm Beach Pride, held annually in late March in Lake Worth, among others. Outside of Southern Florida, events include Come Out with Pride in Orlando, St. Pete Pride in St. Petersburg, the Tampa International Gay and Lesbian Film Festival, River City Pride in Jacksonville, Gay Days at Walt Disney World, Memorial Day Pensacola Beach Pride, and Tallahassee Pridefest.[106][107]

On June 12, 2016, a shooting occurred at an Orlando gay nightclub, Pulse, the deadliest incident in the history of violence against LGBT people in the United States. However, media reported that the shooting resulted in little legislative advances in LGBT rights, with the Republican Party continuing to oppose legislation which would protect LGBT people from discrimination.[108]

A 2017 Public Religion Research Institute (PRRI) poll found that 61% of Florida residents supported same-sex marriage, while 30% were opposed. 9% were undecided. Additionally, 71% supported an anti-discrimination law covering sexual orientation and gender identity. 22% were against. The PRRI also found that 62% were against allowing public businesses to refuse to serve LGBT people due to religious beliefs, while 31% supported such religiously-based refusals.[109]

• Law of Florida
• LGBT culture in Miami
• LGBT history in Florida
• LGBT rights in the United States
• Politics of Florida
• SAVE Dade
• Florida Legislative Investigation Committee, also called the Johns Committee, which tried to eliminate homosexuals from universities and state employment in Florida, 1956–1965
• Homosexuality and Citizenship in Florida, anti-gay pamphlet published by the Johns Committee in 1964, notorious at the time because of its lewd photographs of men engaged in sexual activity