LGBT Rights in Wisconsin
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LGBT Rights in Wisconsin

Map of USA WI.svg
StatusLegal since 1983
Gender identitySex change legal, but requires sex reassignment surgery
Discrimination protectionsSexual orientation in all areas (but gender identity only within government employment)[1]
Family rights
Recognition of relationshipsSame-sex marriage legal since 2014
Domestic partnerships legal from 2009 to 2018
AdoptionYes

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, due in part to because 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. 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, and sexual orientation is a protected class in the state's hate crime laws. It approved such protections on discrimination in 1982, making it the first state in the United States to do so. However, Wisconsin is one of the most pro-LGBT states in the Midwestern region of the U.S.

Wisconsin is also the first state to have an LGBT U.S. senator, Democrat Tammy Baldwin. Recent polls have found that about two-thirds of Wisconsinites support same-sex marriage.[2]

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.

Before the arrival of the Europeans, there were no known legal or social punishments for engaging in homosexual activity. Several Native American tribes recognized individuals who would act, behave and live as the opposite biological sex, nowadays also called "two-spirit". The Potawatomi refer to male-bodied individuals who act as female as m'netokwe. They are ikwekaazo (literally "men who chose to function as women") among the Ojibwe. Likewise, female-bodied individuals who act and live as male are ininiikaazo (literally "women who choose to function as men").

Wisconsin was part of the 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. The law applied to private consensual activity as well.[3] The definition was expanded to include fellatio in 1897 as well as the new crime of "taking improper liberties" with a minor.[4] In the 1950s, following a series of high-profile sex crimes, Wisconsin criminalized cunnilingus and increased the penalties for "sexual perversion" to five years' imprisonment. In 1959, the state barred persons convicted of "sexual perversion" from using an automobile or any vehicle requiring a license.[3]

In 1913, the Wisconsin Legislature passed a law providing for the possible sterilization of criminals in state institutions, including those convicted under the sodomy statute. Through the end of 1934, 645 Wisconsinites had been sterilized under the law, all of them "insane or mentally retarded". The extent of the law's application on gay men and lesbians is unknown. The statute was repealed in 1978.[3]

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.[5]

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, punishable with nine months in jail and/or a fine of 10,000 U.S. dollars.[6]

In 1983, Wisconsin legalized private, non-commercial acts of sodomy between consenting adults.[7] 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."[8]

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.[9] 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.[10]

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.[11]

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.[12] 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".[13]

Wisconsin has provided benefits to same-sex partners of state employees since 2009.[14] 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.[15]

Wisconsin ended the domestic partnership registry on April 1, 2018.[16][17][18]

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.[19]

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.[19] 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.[19][20]

Domestic partner benefits for state employees ensured that the dependents of one partner are covered by the other partner's health insurance.[21]

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 list 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 register both their names on the birth certificate of their son.[22]

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 state employment

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."[23]

There are no state-level laws against discrimination based on gender identity.[24][25] However in January 2019, Governor Tony Evers issued an executive order prohibiting discrimination on the basis of gender identity in government employment.[1]

In addition, the counties of Dane,[26] and Milwaukee,[27] along with the cities of Appleton,[28]Cudahy,[28]De Pere,[29]Janesville,[30]Madison,[26] and Milwaukee[26] ban discrimination based on gender identity.[31] The cities of Oshkosh and Stevens Point have policies banning discrimination against transgender city employees only.[32][33]

Hate crime law

Wisconsin law punishes hate crimes based on sexual orientation, but not gender identity.[34]

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.[35]

Anti-bullying laws and policies

In 2001, Wisconsin legislators passed a law that prohibits discrimination based on sexual orientation in any school setting.[36]

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."[37]

Gender identity and expression

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.[38]

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.[39] The U.S. Supreme Court declined to hear the state's appeal of that decision on March 26, 2012.[40]

Since January 2019, sex reassignment surgery has to be explicitly included within Wisconsin Medicaid programs for government employees.[41] In May 2019, a federal judge ordered the program to be immediately extended to non-government employees as well, under the 14th Amendment of the United State Constitution ("Equal Protection Clause").[42]

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.[43] In July 2018, Madison, the state capital, similarly approved a conversion therapy ban.[44][45] The city of Eau Claire followed suit in October 2018.[46]

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."[47]

In January 2019, Cudahy became the fourth city in Wisconsin to legally ban conversion therapy on LGBT minors.[48][49]Shorewood and Racine followed suit in June and July 2019,[50] and Sheboygan and Superior passed similar ordinances in August 2019.[51][52]

Public opinion

A 2017 Public Religion Research Institute (PRRI) opinion poll found that 66% of Wisconsin residents supported same-sex marriage, while 26% opposed it and 8% were unsure. Additionally, 73% supported an anti-discrimination law covering sexual orientation and gender identity. 20% were opposed.[2]

Public opinion for LGBT anti-discrimination laws in Wisconsin
Poll source Date(s)
administered
Sample
size
Margin of
error
% support % opposition % no opinion
Public Religion Research Institute January 3-December 30, 2018 1,079 ? 67% 26% 7%
Public Religion Research Institute April 5-December 23, 2017 1,522 ? 73% 20% 1%
Public Religion Research Institute April 29, 2015-January 7, 2016 1,900 ? 73% 23% 4%

Summary table

Same-sex sexual activity legal Yes (Since 1983)
Equal age of consent Yes
Anti-discrimination laws for sexual orientation Yes (Since 1982)
Anti-discrimination laws for gender identity and expression No/Yes (Varies by county and city; discrimination against government employees outlawed since 2019)[1]
Hate crime laws include sexual orientation Yes (Since 1988)
Bullying in schools prohibited Yes (Since 2001)
Same-sex marriage Yes (Since 2014)
Stepchild adoption by same-sex couples Yes (Since 2014)
Joint adoption by same-sex couples Yes (Since 2014)
Gays, lesbians and bisexuals allowed to serve openly in the military Yes (Since 2011)
Transgender people allowed to serve openly in the military No
Right to change legal gender Yes (Requires sex reassignment surgery)
Conversion therapy on minors outlawed No/Yes (Varies by county and city)[50]
MSMs allowed to donate blood No/Yes (Since 2015, one year deferral period)

See also

References

  1. ^ a b c "Wisconsin Governor Tony Evers Signs Executive Order Protecting LGBTQ State Employees". Human Rights Campaign. January 7, 2019.
  2. ^ a b Public opinion on same-sex marriage by state: Wisconsin
  3. ^ a b c "The History of Sodomy Laws in the United States - Wisconsin". Glapn.org. Retrieved 2013.
  4. ^ William N. Eskridge, Dishonorable Passions: Sodomy Laws in America, 1861-2003 (Penguin, 2008), 50, 54
  5. ^ Wehrwein, Austin C. (April 10, 1966). "Freer Sex Plank Stirs Wisconsin" (PDF). New York Times. Retrieved 2012.
  6. ^ Eskridge, Dishonorable Passions, 201
  7. ^ Eskridge, Dishonorable Passions, 219
  8. ^ "Wisconsin Sodomy Law". Hrc.org. Retrieved 2013.
  9. ^ "Court overturns same-sex marriage ban". Retrieved 2014.
  10. ^ Liptak, Adam (October 6, 2014). "Supreme Court Clears Way for Gay Marriage in 5 States". New York Times. Retrieved 2014.
  11. ^ Forster, Stacey (July 1, 2009). "Wisconsin to recognize domestic partnerships". Journal Sentinel. Retrieved 2012.
  12. ^ "Wisconsin court upholds domestic partner registry". USA Today. December 21, 2012. Retrieved 2012.
  13. ^ DeFour, Matthew (July 31, 2014). "High court unanimously upholds Wisconsin domestic partner registry". Wisconsin State Journal. Retrieved 2014.
  14. ^ National Conference of State Legislatures: "States offering benefits for same-sex partners of state employees", accessed April 16, 2011
  15. ^ Weisberg, Louis (March 20, 2012). "Manitowoc adopts domestic partnership benefits". Wisconsin Gazette. Retrieved 2012.
  16. ^ CHAPTER 770: DOMESTIC PARTNERSHIP
  17. ^ The Latest: Panel Votes to End Domestic Partner Registry
  18. ^ Domestic Partnership
  19. ^ a b c Where is Gay Adoption Legal?, accessed April 8, 2012
  20. ^ Wisconsin Adoption Information Center: Gay Adoption Laws by State S-W, Accessed May 30, 2012
  21. ^ Wisconsin Department of Employee Trust Funds: State of Wisconsin Domestic Partner Benefits, accessed April 8, 2012
  22. ^ Wisconsin same-sex parents win suit over birth certificate Pioneer Press, September 15, 2016
  23. ^ Bauer, Scott (January 3, 2008). "Former Wis. governor Dreyfus dead at 81". Boston Globe. Retrieved 2012.
  24. ^ Human Rights Campaign: Wisconsin Non-Discrimination Law Archived March 11, 2012, at the Wayback Machine
  25. ^ "The Gay Rights State': Wisconsin's Pioneering Legislation to Prohibit Discrimination Based on Sexual Orientation". Papers.ssrn.com. January 25, 2007. SSRN 958815. Retrieved 2013.
  26. ^ a b c "Cities and Counties with Non-Discrimination Ordinances that Include Gender Identity". Human Rights Campaign. Retrieved 2013.
  27. ^ Schultze, Steven (April 24, 2014). "Board approves sexual orientation, gender identity protections". Jsonline.com. Retrieved 2014.
  28. ^ a b Wisconsin city adopts ordinance banning bias based on gender identity Archived September 4, 2014, at Archive.today
  29. ^ ORDINANCE #17-20
  30. ^ "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 2016.
  31. ^ "Gender Identity and Expression". Fair Wisconsin. Retrieved 2013.
  32. ^ City rule protects sexual orientation
  33. ^ OSHKOSH, WISCONSIN 2018 MUNICIPAL EQUALITY INDEX SCORECARD
  34. ^ Human Rights Campaign: Wisconsin Hate Crimes Law Archived March 11, 2012, at the Wayback Machine, accessed August 7, 2011
  35. ^ Anti-defamation League: Hate Crime Laws
  36. ^ "Wisconsin School Laws | Human Rights Campaign". Hrc.org. March 14, 2007. Retrieved 2013.
  37. ^ StopBullying.gov: Laws in Wisconsin, accessed April 8, 2012
  38. ^ Human Rights Campaign: Wisconsin Birth Certificate Law: Gender Identity Issues Archived March 11, 2012, at the Wayback Machine, accessed August 7, 2011
  39. ^ Milwaukee Journal Sentinel: Bruce Vielmetti, "Court upholds hormone therapy for transgender inmates," August 5, 2011, accessed August 7, 2011
  40. ^ Supreme Court declines to rule on hormone therapy for transgender inmates
  41. ^ "Wisconsin Medicaid will begin covering gender reassignment surgery today". TheBlaze. January 1, 2019.
  42. ^ Vielmetti, Bruce (April 24, 2019). "Federal judge expands Wisconsin Medicaid coveage of transgender surgery". Milwaukee Journal Sentinel.
  43. ^ Milwaukee officials OK ban on gay conversion therapy
  44. ^ Madison Becomes Second City In Wisconsin To Ban Conversion Therapy
  45. ^ Madison City Council Passes Measure to Protect LGBTQ Youth from Practice of "Conversion Therapy"
  46. ^ Eau Claire Becomes Third Wisconsin City To Ban Conversion Therapy
  47. ^ "BoardDocs® Agenda Item: 4.8 Adopt New Policy 453.7 - Student Mental Health and Wellness Education". www.boarddocs.com. Retrieved 2018.
  48. ^ "Fair Wisconsin: Cudahy becomes 4th Wisconsin city to enact protections against "conversion therapy" for LGBTQ youth". wispolitics.com. January 3, 2019.
  49. ^ "Cudahy 4th city in Wisconsin to ban conversion therapy". Milwaukee Journal Sentinel. January 8, 2019.
  50. ^ a b Schneiberg, Ella (July 18, 2019). "Racine Joins Five Other Wisconsin Municipalities in Protecting LGBTQ Youth from "Conversion Therapy"". Human Rights Campaign.
  51. ^ Diana Dombrowski (August 6, 2019). "Sheboygan bans conversion therapy on minors during packed Common Council meeting Monday". Sheboygan Press.
  52. ^ Brooks Johnson (August 23, 2019). "Superior, Wis., passes gay 'conversion therapy' ban". Star Tribune.

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