Expression to Adoption
The fight for LGBT+ rights has been a long and hard one. Even as things get better, it’s just as important to look back and see how far we’ve come as well as understand where we are now.
There are laws for everything that anyone does. From the regulations behind manufacturing a smoker that you can use longer in your backyard barbecue to the rules behind public celebrations, the law plays a role. For the LGBT+ community, in particular, the law has also had a large effect on how individuals can express themselves and conduct their daily lives.
State-by-state laws in reference to LGBT+ individuals vary. This makes it challenging to tackle it all at once. Focusing on a single state, like Hawaii, can help break down the information and start with the information that affects you most directly.
When it comes to what the LGBT+ community has legally been able to do, the legalities don’t just concern what these individuals can do such as getting married or adopting children. One of the most basic rights was to legally be who they are.
The legality of same-sex activity in Hawaii actually has a rather interesting history. This is because laws against same-sex practices weren’t fully and officially enacted until 1850 in an anti-sodomy law.
The law against same-sex behavior was repealed in Hawaii in 1972 although the last recorded case breaking the law was in 1958.
When it comes to same-sex activity, the legality of being in an openly queer relationship in public didn’t coincide with these couples having the same full rights as traditionally-recognized heterosexual couples. On June 26, 2015, in the case of Obergefell v. Hodges, the Supreme Court nationally recognized and legalized same-sex marriage.
Before this, though, the state-by-state laws on marriage equality varied widely. When Hawaii repealed its law on same-sex activity in 1972, marriage equality was still a distant vision. It wasn’t until September of 2013 that Governor Neil Abercrombie called a special session of the Hawaii state legislature to consider a bill on same-sex marriage.
After much debate, the bill was passed on November 13th of the same year. Same-sex couples officially started receiving marriage licenses by December 2, 2013.
Expression of Gender Identity
Before 2015, residents in Hawaii could only change their gender on official legal documents after fully transitioning which, in the eyes of the law, included sex reassignment surgery.
However, this law was far from inclusive. There are many transgender and non-binary individuals who don’t identify with their assigned sex at birth who don’t want or don’t have the resources to surgically transition.
The good news is that on May 5, 2015, the Hawaii Legislature passed a bill to change the law. Now, individuals can change their gender on legal documents without the prior expensive and invasive requirements.
The Hawaii State Legislature also passed a bill in a conference committee in May of 2019 to add a “Gender X” option on both birth certificates and drivers’ licenses to individuals that identify outside of the traditional gender binary. This legislation is set to come into effect on July 1, 2020.
Parenting, Adoption, and the LGBT+ Community
When it comes to parenting, LGBT+ parents are protected under Hawaii law. As far as adoption goes, the state allows all couples to apply and adopt children to start their own families.
For couples with two assigned-female-at birth partners, Hawaii also offers in vitro fertilization treatments as well as artificial insemination treatment. Furthermore, they also recognize the parent that did not carry the child as the legal parent if the couple is married.
When it comes to surrogacy, there isn’t a law against the practice in Hawaii. The state has even historically ruled in favor of recognizing homosexual couples in the case of surrogacy.
Legality of Conversion Therapy
One of the biggest threats to LGBT+ individuals – especially minors – is conversion therapy. This is the practice of using interventions and often pseudoscience-filled psychotherapy practices to change an individual’s sexuality. This is often a traumatizing experience that puts the minors forced into the programs at serious risk.
The first bill to ban conversion therapy on minors in Hawaii was introduced in 2013 but the bills didn’t go anywhere for a long time. Luckily, in April 2018, a bill was introduced once more to ban the practice and after rigorous debate, conversion therapy on minors was outlawed. The law officially went into effect on July 1, 2018.
Hate Crime Laws
A part of LGBT+ individuals being granted their rights to be who they are means that they need to be protected from more than just legal action. Unfortunately, the LGBT+ community is one of the communities with a high risk of hate crimes.
Hawaii offers hate crime protection to the LGBT+ community for both crimes incited against an individual’s sexual orientation or their gender identity.
Hawaii has also outlawed the so-called “panic defense.” By this defense, someone could claim that they committed a crime in a state of temporary insanity or panic when faced with same-sex advances. This was a defense that was called upon in the defense of hate crimes and the state has since banned it from use in court.
Discrimination Protections for LGBT+ Individuals
A risk to LGBT+ individuals that isn’t often as immediately visible as an inability to marry or adopt is the risk of discrimination. This can make tasks necessary to living such as finding employment, applying for housing, or using public accommodations a daunting challenge.
As a whole, Hawaii prohibits discrimination in housing, education, and public accommodations based on either sexual orientation or gender expression and identity. The first law to protect this was passed in 1991 when protections for individuals’ sexual orientation in the workplace were enacted.
The law was extended in 2005 to include housing and once again extended in 2006 to include public accommodations. By 2011, employment protections were edited to include gender expression and identity.
LGBT+ Students and the Law
In primary and secondary schools in Hawaii, there is an anti-bullying law to protect students. The anti-bullying law covers both in-person harassments as well as cyberbullying. This includes prohibitions on bullying based on any of the following:
- Sexual orientation
- Physical appearance
- Gender identity and expression
- Disability (physical and mental)
- Socio-economic class
Another protection that students rely on is Title IX which was originally introduced to prohibit the discrimination of students based on sex in the education system. Passed in July 2018, the protections of this act were extended to protect sexual orientation and gender identity by the Hawaii Legislature.
Starting in January 2019, students were officially protected from discrimination on this basis when trying to access school-related programs and extracurricular activities.
The laws that affect the LGBT+ community have changed drastically over the years – especially in the last few decades. Luckily, as a whole, it seems that Hawaii is moving in the right direction and often at a rate faster than the United States federally. It’s a state that’s moved in the right direction and is on track to do so in the future as well.