LGBT rights in Massachusetts

LGBT rights in Massachusetts

Same-sex sexual activity legal? Legal since 1974 (Commonwealth v. Balthazar)
Discrimination protections Yes, both sexual orientation and gender identity for employment, credit, union practices, housing (eff. October 1, 2016 gender identity public accommodation)
Family rights
Recognition of
Same-sex marriage since 2004
Adoption Yes

The establishment of LGBT rights in the U.S. state of Massachusetts is a recent phenomenon, with most advances in LGBT rights taking place since 1992. In 2004, it became the first U.S. state to grant marriage licenses to same-sex couples after the decision in Goodridge v. Department of Public Health.

Early steps

In September 1992, Governor William Weld issued an executive order allowing state employees to register as domestic partners "for purposes of bereavement leave and visitation rights in state prisons and hospitals."[1] That same year he appointed a Governor's Commission on Gay and Lesbian Youth, which in turn produced a report Making Schools Safe for Gay and Lesbian Youth (1993). Its recommendations required schools to create policies to protect gay and lesbian students, create school-based support groups for them, train teachers and staff on gay issues, and incorporate information on gay issues into curriculum and libraries.[2] Gov. Mitt Romney disbanded the commission as well as another board, the Governor's Task Force on Hate Crimes, in 2003, citing budgetary concerns.[3]

Same-sex sexual activity

Massachusetts does not restrict private sexual behavior between consenting adults. It has two statutes that implicate homosexual activity: § 34 prohibits the "abominable and detestable crime against nature" and § 35 prohibits "any unnatural and lascivious act with another person." In 1974 the Massachusetts Supreme Judicial Court found the second of these statutes "inapplicable to private, consensual conduct of adults" in Commonwealth v. Balthazar.[4] In 2001, Gay & Lesbian Advocates & Defenders (GLAD) sued the Massachusetts Attorney General and two District Attorneys challenging both statutes. The Supreme Judicial Court dismissed the case on February 21, 2002, because the plaintiffs did not present an instance of prosecution and therefore failed to meet the Court's "actual controversy requirement." The Court noted that the defendants' stipulation "that their offices will not prosecute anyone under the challenged laws absent probable cause to believe that the prohibited conduct occurred either in public or without consent" satisfied the Court's holding in Commonwealth v. Balthazar with respect to § 35. It also extended its holding that "consensual conduct in private between adults is not prohibited" to apply to § 34.[5]

Massachusetts has still not repealed it's sodomy law.[6][7] The Democratic Party controlled Massachusetts General Court has voted down bills in committee for years, to repeal and abolish the archaic anti-gay sodomy laws within sections of both §34 and §35.[8][9]

Recognition of same-sex relationships

Massachusetts authorized same-sex marriages within the state following the Supreme Judicial Court (SJC) ruling on November 18, 2003 in Goodridge v. Department of Public Health that it was unconstitutional under the state constitution for state agencies to restrict marriage to heterosexual couples. The Court gave the state legislature 180 days to enact laws pursuant to the judgment. In the absence of legislative action, Governor Mitt Romney ordered town clerks to begin issuing marriage certificates to same-sex couples beginning May 17, 2004. Attempts to enact an amendment to the state constitution to prohibit same-sex marriage, the last in 2007, have been unsuccessful.[10]

A 1913 state law that forbade non-residents from marrying in Massachusetts if their marriage would be void in their home state was repealed on July 31, 2008.[11]

On July 26, 2012, the SJC ruled in Elia-Warnken v. Elia that the state recognizes a civil union established in a different jurisdiction as the equivalent of marriage. It termed a Massachusetts marriage entered into by a man who was already a party to a Vermont civil union with a third party "polygamy" and therefore void.[12] On September 28, 2012, the SJC ruled in that "Because the parties to California [registered domestic partnerships] have rights and responsibilities identical to those of marriage", it is proper to treat such relationships "as equivalent to marriage" in Massachusetts.[13]

Discrimination protection

Since 1989, Massachusetts has prohibited discrimination based on sexual orientation in credit, public and private employment, union practices, housing, and public accommodation.[14] It was the second state to add sexual orientation to its anti-discrimination statute, following Wisconsin in 1982.[15]

On February 17, 2011, Governor Deval Patrick issued an executive order banning discrimination on the part of the state or its contractors against transgender employees of the state government. He reiterated his support for legislation to extend similar protection to all transgender persons in the state.[16] Massachusetts enacted such legislation prohibiting discrimination based on gender identity in credit, public and private employment, union practices and housing—but not public accommodations—on November 23, 2011, effective on July 1, 2012.[17][18] As of 2015, a bill is pending to add prohibit discrimination based on gender identity in public accommodations.[19] On May 12, 2016, the state Senate voted 33–4 to approve the bill.[20] The Massachusetts General Court on July 7, 2016 passed a bill by a vote of 117-36 to include gender identity to the public accommodations law. The conference committee passed a bill to include language that was controversial and an effective date of October 1, 2016. The bill was signed into law the next day, by the Massachusetts Republican Governor Charlie Baker.[21][22]

In June 2012, on instructions from Worcester's Roman Catholic Bishop Robert McManus, diocesan officials declined to sell a property owned by the diocese to a gay couple and in July lied about what happened when questioned about the sale.[23][24] In September the couple filed suit against the bishop and other parties to the negotiations.[25]

On January 29, 2014, Matthew Barrett represented by GLAD filed a complaint with the Massachusetts Commission Against Discrimination against Fontbonne Academy, a Catholic secondary school, because in July 2013 the school had withdrawn an offer of employment as food service manager when officials learned he was in a same-sex marriage.[26] The case moved to Massachusetts Superior Court, and on December 16, 2015, Judge Douglas H. Wilkins ruled in Barrett v. Fontbonne Academy that the Academy had violated the state's laws against discrimination on the basis of sexual orientation and gender.[27]

Adoption and parenting

In May 1985, in response to a public controversy about a same-sex couple that was acting as foster parents, Massachusetts issued regulations designed to prevent such couples from serving as foster parents.[28][29] The state rescinded those regulations in April 1990 as part of an out-of-court settlement of a suit brought by Gay & Lesbian Advocates & Defenders (GLAD) and the American Civil Liberties Union (ACLU), following a five-year campaign by an ad hoc group formed around the issue, Foster Equality.[30][31] The state has allowed second-parent adoption by a parent of the same sex as the existing parent since a court decision, In re Adoption of Tammy, in 1993.[32][33] In July 1999, the same court awarded visitation rights to each of two mothers after their separation.[34]

In 2004, following the legalization of same-sex marriage in Massachusetts, Gov. Mitt Romney prevented the state's Registry of Vital Records from revising its birth certificate forms to allow for options other than one mother and one father, instead requiring hand-written changes to the documents only after receiving approval from the governor's legal counsel. The forms were changed when Gov. Deval Patrick took office in 2007.[35]

In March 2006, Catholic Charities of Boston announced it would no longer provide adoption services because it could not comply with Massachusetts law prohibiting discrimination against homosexuals.[36]

In February 2011, Massachusetts Health Commissioner John Auerbach announced plans by the end of March to standardize birth certificates, formerly designed by each city or town, by providing hospitals with electronic forms with fields labeled "mother/parent" and "father/parent". He called the system "more sensitive to the circumstances of the family and to the children."[37]

Hate crime

Massachusetts added sexual orientation to the categories protected by its 1983 hate crimes legislation in June 1996.[38] The state defines a hate crime as "any criminal act coupled with overt actions motivated by bigotry and bias, including, but not limited to, a threatened, attempted or completed overt act motivated at least in part by racial, religious, ethnic, handicap, gender or sexual orientation prejudice, or which otherwise deprives another person of his constitutional rights by threats, intimidation or coercion, or which seek to interfere with or disrupt a person’s exercise of constitutional rights through harassment or intimidation.”[39]

Massachusetts adopted the Hate Crimes Reporting Act in 1990. The legislation created a Crime Reporting Unit to collect hate crime incident reports from law enforcement and required the unit to summarize and report on the information. Regulations establish criteria for determining whether a crime is a hate crime, provide a means for advocacy organizations to report hate incidents, specify the content of crime and incident reports, and specify the content of the annual report. The crime report unit of the State Police must also collect, summarize and report hate crime data to the state attorney general and to several legislative committees. The reports are available on public record.[40]

In 1991, the governor created the Task Force on Hate Crimes. The task force's principal tasks are (1) developing regulations to implement the Hate Crimes Reporting Act, (2) coordinating training efforts, (3) increasing submission of hate crime data, and (4) working with community organizations and victims' groups. Initiatives for 2000 include pilot programs in high schools, youth diversion programs, a new correctional diversity awareness program, outreach coordination, a victimization survey in schools, public awareness, creating civil rights investigative teams, encouragement of reporting by law enforcement, and continued training.[41]

Anti-bullying legislation was enacted in May 2010. It "requires schools to adopt clear procedures for reporting and investigating cases of bullying, as well as methods for preventing retaliation against those who report problems."[42]

The words "gender identity" were added to the state's hate crime statute effective July 1, 2012.[18]

Gender reassignment

Massachusetts allows a person who has completed sex-reassignment surgery to amend his or her birth certificate.[43]

See also


  1. Yuval Merin, Equality for Same-Sex Couples: The Legal Recognition of Gay Partnerships in Europe and the United States (University of Chicago Press, 2002), 204
  2. Jean M. Baker, How Homophobia Hurts Children: Nurturing Diversity at Home, at School, and in the Community (Binghamton, NY: Harrington Park Press, 2002), 13
  3. Boston Globe: Michael Levenson, "Debate on Romney's memory of incident," May 12, 2012, accessed May 30, 2012
  4. Massachusetts Cases: Commonwealth v. Richard L. Balthazar, 366 Mass. 298, accessed March 11, 2011
  5. Supreme Judicial Court of Massachusetts: GLAD v. Attorney General, February 21, 2002, accessed March 9, 2011; Merin, 332
  6. Boston Globe: Frank Phillips, "Legislators vote to defeat same-sex marriage ban," June 14, 2007, accessed March 9, 2011
  7. Boston Globe: Michael Levenson," Governor signs law allowing out-of-state gays to wed," July 31, 2008, accessed March 9, 2011
  8. Finucane, Martin (July 26, 2012). "Massachusetts high court says it recognizes Vermont civil unions as marriages". Boston Globe. Retrieved July 26, 2012.
  9. "SJC: Massachusetts Recognizes California Registered Domestic Partnerships". GLAD. Retrieved September 28, 2012.
  10. New York Times: "A Gay Rights Law Is Voted in Massachusetts," November 1, 1989, accessed July 29, 2011
  11. Pinello, Daniel R. (226). America's Struggle for Same-Sex Marriage. Cambridge University Press. p. 34. ISBN 978-0521848565.
  12. Levenson, Michael (February 18, 2011). "Transgender state workers get aid from governor". Boston Globe. Retrieved January 18, 2013.; O'Connell, Sue (February 17, 2011). "Patrick signs executive order protecting transgender state employees". Bay Windows. Retrieved January 18, 2013.
  13. Bill H.3810: An Act relative to gender identity, General Court of Massachusetts
  14. 1 2 Barusch, M.; Reuben, Catherine E. (May 8, 2012). "Transgender Equal Rights In Massachusetts: Likely Broader Than You Think". Boston Bar Journal. Retrieved September 28, 2012.
  15. "Transgender rights bill continues to languish in legislature". December 1, 2015.
  16. "Transgender rights bill advances in Massachusetts". Reuters. May 12, 2016.
  17. Williamson, Dianne (July 26, 2012). "'Plans' don't include sale to gay couple". Worcester Telegram. Retrieved July 27, 2012.
  18. Anderson, Karen. "Gay Couple Says Church Is Blocking Sale Of Historic Home". CBS Boston. Retrieved July 27, 2012.
  19. Wangsness, Lisa (September 10, 2012). "Gay couple says church denied Northbridge mansion sale to stop same-sex weddings". Boston Globe. Retrieved September 10, 2012.
  20. Valencia, Milton J. (January 30, 2014). "Gay married man says Catholic school rescinded job offer". Boston Globe. Retrieved February 12, 2014.
  21. Labbe, Mark (December 28, 2015). "Judge says Catholic school discriminated against man in same-sex marriage". National Catholic Reporter. Catholic News Service. Retrieved February 20, 2016.
  22. Cooper, Kenneth (May 25, 1985). "New Policy on Foster Care". Boston Globe.
  23. Nancy D. Polikoff, "Lesbian and Gay Couples Raising Children: The Law in the United States," in Robert Wintemute, Mads Tønnesson Andenæs, eds., Legal recognition of Same-Sex Partnerships: A Study of National, European and International Law (Portland, OR: Hart Publishing, 2001), 159-60
  24. Longcope, Kay (April 5, 1990). "Foster-Care Ban on Gays is Reversed". Boston Globe.
  25. Patricia A. Gozemba, Karen Kahn, Marilyn Humphries, eds., Courting Equality: A Documentary History of America's First Legal Same-Sex Marriages (Boston: Beacon Press, 2007), 48
  26. Yuval Merin, Equality for Same-Sex Couples, 182
  27. Wong, Doris Sue (September 11, 1993). "Lesbian couple allowed to adopt". Boston Globe. Retrieved July 25, 2013.
  28. "Equal rights: When Heather's Mommies Share Custody". Boston Globe. September 12, 1999. Retrieved July 25, 2013.
  29. Waas, Murray (October 25, 2012). "Romney rejected new birth certificates for gay parents". Boston Globe. Retrieved October 25, 2012.
  30. Boston Globe: "Catholic Charities Transfers Caseload, Staff," April 29, 2006, accessed March 9, 2011. See also: Robin Fretwell Wilson, "Matters of Conscience: Lessons for Same-Sex Marriage from the Healthcare Context," in Douglas Laycock, Robin Fretwell Wilson, eds., Same-sex Marriage and Religious Liberty: Emerging Conflicts (Lanham, MD: Rowman & Littlefield, 2008), 102, et passim
  31. Boston Globe: Stephen Smith, "Mass. moves to standardize birth certificates," February 17, 2011, accessed March 9, 2011
  32. Boston Globe: Doris Sue Wong, "Senate Expands Hate-crime Law," June 21, 1996 accessed March 9, 2011
  33. "Massachusetts General Laws". Definition: Hate Crime.
  34. General Laws of the Commonwealth of Massachusetts: Mass. Ann. Laws ch. 22C, §§ 34, accessed April 3, 2011
  35. Reinhart, Christopher. "OLR Research Report". Research Report. Retrieved April 2, 2011.
  36. Boston Globe: Sarah Schweitzer, "Activists urge lawmakers to expand bullying law," February 10, 2011, accessed March 9, 2011
  37. Human Rights Campaign: Massachusetts Birth Certificate Law, MASS. GEN. LAWS ANN. ch. 46, § 13(e), accessed March 10, 2011
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