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United States – SOGI Legislation Country Report (2013)


Jurisdiction in the United States of America is divided between federal and state levels of government. The examples of Massachusetts and Washington legislation provided are illustrative, and not necessarily representative of state legislation across the country.


In Lawrence v Texas, 539 US 558 (2003), the United States Supreme Court found unconstitutional a state sodomy law, thus overruling its previous decision in Bowers v Hardwick.

The Patient Protection and Affordable Care Act, 2010, prohibits discrimination on the basis of sex in any federally run or assisted health program. “Sex” is defined by the U.S. Department of Health and Human Services to include “gender identity and sex stereotyping.” Sex stereotyping refers to stereotypical notions of masculinity and femininity. Accordingly, discrimination on the basis of sex stereotyping occurs if a person is discriminated against because of how he or she looks.

Hospitals that participate in the federal Medicare and Medicaid health insurance scheme are required to promote and protect patients’ visitation rights, which include the right to receive same-sex domestic partners (42 CFR Chapter 482).

The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, 2009, criminalizes the act of wilfully causing bodily injury or attempting to cause bodily injury to another person because of his or her actual or perceived sexual orientation or gender identity.

Since 2010, gay, lesbian and bisexual individuals can serve openly in the U.S. Armed Forces (Don’t Ask, Don’t Tell Repeal Act, 2010). Prior to the repeal act, a federal district court in California had found the Don’t Ask, Don’t Tell law unconstitutional.

The Defence of Marriage Act, 1996, a federal law defining marriage as the legal union of one man and one woman for federal and inter-state recognition purposes, is currently being challenged before the U.S. Supreme Court in the case of United States v. Windsor. Oral argument was held in March 2013. A number of lower federal courts had found provisions of the law unconstitutional.

State (Massachusetts)

The state of Massachusetts bars discrimination on the basis of sexual orientation and gender identity in the employment sector, real estate and housing sector, insurance transactions and in the provision of credit services (General Laws, Chapter 151B).

Same-sex sexual activity is legal in Massachusetts (General Laws, Chapter 265, ss. 22, 22A, 22B and 22C).

The age of consent is the same (16) for both opposite-sex and same-sex sexual activity in Massachusetts (General Laws, Chapter 265, Section 22A).

The state of Massachusetts provides harsher criminal penalties for anyone who commits assault or battery upon a person, or damages the real or personal property of person, for the purposes of intimidating that person because of his or her sexual orientation or gender identity (General Laws, Chapter 265, Section 39).

In Commonwealth v Welch, the Massachusetts Appeals Court held that the offence of criminal harassment (General Laws, Chapter 265, Section 43A) could apply to homophobic statements directed towards a specific person (444 Mass 80 (2005)).

Same-sex marriage was legalized in Massachusetts through a Massachusetts Supreme Court ruling that stated the arbitrary deprivation of membership in one of the community’s most cherished institutions is “incompatible with the constitutional principles of respect for individual autonomy and equality under the law” (Goodridge v Department of Public Health 440 Mass. 309 (2003)). Same-sex marriages have been performed in Massachusetts since 2004.

Joint adoption by same-sex couples is permitted in Massachusetts.

Adoption rights for same-sex couples are part of the common law, and also codified in legislation (In re Adoption of Tammy 416 Mass. 205 (1993) and General Laws, Chapter 210, Section 1).

In Massachusetts, the non-gestating partner is not automatically given parental rights, but can adopt the child that is the biological child of her same-sex partner (In re Adoption of Tammy 416 Mass. 205 (1993))

While there is no legislation that directly indicates whether same-sex couples are able to use different types of reproductive technology, Massachusetts courts have upheld rights to undergo in vitro fertilization for lesbian couples and surrogacy contracts in court (In re Adoption of Tammy 416 Mass. 205 (1993), Culliton v Beth Israel Deaconess 435 Mass. 285 (2001), Hodas v Morin 442 Mass. 544 (2004))

Massachusetts allows individuals to change sex markers on birth certificates after undergoing sex reassignment surgery (General Laws, Chapter 46, Section 13).

In Doe v Yunits et al, the Superior Court of Massachusetts, following Lawrence v Texas, stated that a transgender teenager could not be punished or prevented from wearing the clothing of the opposite sex and that it would violate rights guaranteed under the Declaration of Rights of the Massachusetts Constitution to hold otherwise (MA Sup Ct (2000).

Massachusetts law is interpreted to permit a same-sex partner to be a proxy for medical decisions (General Laws, Chapter 201D, Section 2).

State (Washington)

In Washington, the right to be free from discrimination on the grounds of sexual orientation, gender identity and gender expression is a civil right. Persons who violate this right are subject to civil penalties. In addition, they must cease and desist the discriminatory practice and take affirmative action to rectify the situation (Revised Code of Washington, Chapter 49.60).

Washington prohibits discrimination on the basis of sexual orientation, gender identity and gender expression in specific sectors: employment, real estate and housing, financial transactions, insurance transactions, credit transactions and the use of public facilities (Revised Code of Washington, Chapter 49.60).

Same-sex sexual activity is legal in Washington (Revised Code of Washington, Chapter 9A.44).

The age of consent is the same (16) for both opposite-sex and same-sex sexual activity in Washington (Revised Code of Washington, Chapter 9A.44.079).

Washington criminalizes the act of causing physical injury to another person, causing physical damage to another person’s property, or threatening another person so as to cause fear of harm to person or property because of that person’s sexual orientation, gender identity or gender expression (Revised Code of Washington, Chapter 9A.36.080).

Washington defines marriage in gender-neutral terms (Revised Code of Washington, Chapter 26.04.010).

Joint adoption by same-sex couples is permitted in Washington. In Washington, adoption rights were extended through legislation (Revised Code of Washington, Chapter 26.33.140).

Washington permits assisted reproduction and surrogacy for same-sex couples in a domestic partnership or in a marriage to the same extent as they are available to oppose-sex couples (Revised Code of Washington, Chapter 26.26).

While Washington does permit a person to officially and legally change his or her sex marker on his or her birth certificate, this process is not the result of legislation. The Department of Health has developed a policy that involves writing to the Department and including a letter from the requestor’s medical or osteopathic physician stating that the requestor has had the appropriate clinical treatment (as deemed by the physician) (The Rights of Transgender People in Washington State). There is a right to appeal this decision to a court if the Department of Health refuses to grant the sex change (Revised Code of Washington, Chapter 34.05.542(3)).

Washington allows a same-sex partner from a domestic partnership to be a proxy for medical decisions (Revised Code of Washington, Chapter 11.94.901).

link to full text in PDF: United States-SOGI Legislation Country Report-2013-eng