LGBT rights in Florida

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LGBT rights in Florida
Map of USA FL.svg
Florida (USA)
StatusLegal since 2003
(Lawrence v. Texas)
Gender identityAltering sex on birth certificate does not require surgery
Discrimination protectionsProtections in employment, housing and public accommodations
Family rights
Recognition of relationshipsSame-sex marriage legal since 2015
AdoptionSame-sex couples allowed to adopt

Lesbian, gay, bisexual, and transgender (LGBT) people in the U.S. state of Florida may face legal challenges not experienced by non-LGBT residents. Same-sex sexual activity became legal in the state after the U.S. Supreme Court's decision in Lawrence v. Texas on June 26, 2003, and same-sex marriage has been legal in the state since January 6, 2015. Discrimination on account of sexual orientation and gender identity in employment, housing and public accommodations is outlawed following the U.S. Supreme Court's ruling in Bostock v. Clayton County. In addition, several cities and counties, comprising about 55% of Florida's population, have enacted anti-discrimination ordinances. These include Jacksonville, Miami, Tampa, Orlando, St. Petersburg, Tallahassee and West Palm Beach, among others. Conversion therapy is also banned in a number of cities in the state, mainly in Palm Beach County and the Miami metropolitan area.

Legality of same-sex sexual activity[]

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]

In September 2020, Hillsborough County officials arrested 11 men on misdemeanor charges. Each of the 11 men had gone to a local park and struck up a conversation with another man with both eventually agreeing to having consensual sex. They were arrested on misdemeanor charges that do not involve sex crimes. The Hillsborough County Sheriff's Office published the names and mugshots of all 11 men to local news outlets. Critics accused the Sheriff's Office of deliberately targeting gay men, asking if undercover deputies would have also arrested a man and a woman for meeting in public and agreeing to have sex.[8]

Recognition of same-sex relationships[]

Main articles: Same-sex marriage in Florida and Recognition of same-sex unions in Florida

The state enacted legislation banning same-sex marriage in 1977.[9] 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:[10]

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.[11] 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 Florida House of Representatives 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, and it went into effect on July 1, 2016.[12][13][14]

Adoption and parenting[]

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;[15] 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.[16][17]

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.[18]

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.[19] On April 15, the Florida Senate passed the bill on a 27–11 vote.[20] Republican Governor Rick Scott signed the bill into law on June 11, and it went into effect on July 1, 2015.[21][22]

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.[23] 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.[24] Additionally, gay male couples are permitted to undertake gestational and traditional surrogacy arrangements under the same terms and conditions as different-sex couples.[25]

Discrimination protections[]

Further information: LGBT employment discrimination in the United States and List of cities and counties in the United States offering an LGBT non-discrimination ordinance
Map of Florida counties and cities that had sexual orientation and/or gender identity anti–employment discrimination ordinances prior to Bostock
  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 employment¹
¹Since 2020 as a result of Bostock, discrimination on account of sexual orientation or gender identity in public and private employment is outlawed throughout the state.

Since 2000, and amended in 2007, nursing homes and hospitals cannot discriminate on the basis of sexual orientation, but gender identity is not addressed.[26] Florida statutes do not address discrimination based on gender identity or sexual orientation in employment, housing or other areas.[16]

The counties of Alachua,[27] Broward,[28] Duval,[29] Hillsborough,[30] Leon,[28] Miami-Dade,[31] Monroe,[28] Orange,[32] Osceola,[33] Palm Beach,[28] Pinellas,[34] and Volusia,[28] and the cities and towns of Atlantic Beach,[35] Boynton Beach,[36] Delray Beach,[37] Dunedin,[28] Fernandina Beach,[38] Fort Lauderdale,[39] Gainesville,[28] Greenacres,[40] Gulfport,[28] Haverhill,[29][41] Jacksonville,[42] Juno Beach,[23] Key West,[28] Lake Clarke Shores,[43] Lake Park, Lake Worth Beach,[28] Largo,[44] Leesburg,[45] Mascotte,[46] Miami,[36] Miami Beach,[28] Mount Dora,[29] North Palm Beach,[23] North Port,[28] Oakland Park,[28] Ocean Ridge,[23] Orlando,[47] Pembroke Pines,[48] Riviera Beach,[23] Sarasota,[31][49] St. Petersburg,[50] Tallahassee,[31] Tampa,[28] Tequesta,[29] Venice,[51] Wellington,[52] West Palm Beach,[28] Westlake,[23] 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.[28]

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][48][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]

Glenn v. Brumby[]

Main article: Glenn v. Brumby

In December 2011, the United States Court of Appeals for the Eleventh Circuit (which covers Alabama, Florida and Georgia) ruled that Vandy Beth Glenn, a transgender woman living in Georgia, had been unfairly terminated from her job at the Georgia Legislative Assembly due to her transgender status. Relying on Price Waterhouse v. Hopkins and other Title VII precedent, the court concluded that the plaintiff was discriminated against based on her sex because she was transitioning from male to female. The court stated that a person is considered transgender "precisely because of the perception that his or her behavior transgresses gender stereotypes." As a result, there is "congruence" between discriminating against transgender individuals and discrimination on the basis of "gender-based behavioral norms." "Because everyone is protected against discrimination based on sex stereotypes, such protections cannot be denied to transgender individuals", the court ruled.[66] The court held that employment discrimination based on transgender status is tantamount to discrimination on the basis of sex, as defined by the Civil Rights Act of 1964.

Bostock v. Clayton County[]

Main article: Bostock v. Clayton County

On June 15, 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County, consolidated with Altitude Express, Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission that discrimination in the workplace on the basis of sexual orientation or gender identity is discrimination on the basis of sex, and Title VII therefore protects LGBT employees from discrimination.[67][68][69]

LGBT advocacy groups in Florida hailed the decision, urging the state to pass legislation extending discrimination protections to housing, credit, health care and public accommodations.[70]

In February 2021, the Florida Commission on Human Relations, the state's civil rights enforcement agency, announced it will enforce the Bostock ruling. The agency announced it will investigate claims of discrimination in employment, housing and public accommodations.[71] The Human Rights Campaign hailed the decision:[72]

Today's action by the Florida Commission on Human Relations is an enormous victory for LGBTQ people across the state who will now be protected under state law against discrimination in employment, housing, and public accommodations. Florida is home to one of the largest LGBTQ populations in the country and the impact of this action will vastly improve the health, safety, prosperity, and lives of hundreds of thousands of LGBTQ Floridians. Today's decision should also serve as a reminder that leaders in every state have the power to take action to improve the lives of LGBTQ people and deliver on the promise of equality for all. Florida joins a list of states controlled by both Republicans and Democrats that have already taken this simple but monumental action. We look forward to other states following suit.

Hate crime law[]

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][75]

Transgender rights[]

See also: Transgender rights in the United States

Transgender people in Florida are allowed to change their legal gender on official documents, including birth certificates, driver's licenses and state IDs. The Bureau of Vital Statistics will issue an amended birth certificate with a corrected gender marker upon receipt of an "Application to Amend a Florida Birth Record", an "Affidavit of Amendment of Certificate of Live Birth" signed in front of a notary, a letter from a physician confirming "appropriate clinical treatment for gender transition", and the payment of the amendment fee.[76] "Appropriate clinical treatment for gender transition" does not include the need to undergo sex reassignment surgery or sterilization.[77] The Department of Highway Services and Motor Vehicles previously required evidence of sex reassignment surgery in order to change the gender marker on a Florida ID and driver's license. In 2011, the Department changed its requirements. In order to update a name and/or gender on a Florida ID or driver's license, the applicant must submit a court order for a name change and/or a signed original statement on office letterhead from the attending physician stating that the applicant is undergoing "appropriate clinical treatment for gender transition".

In August 2020, the U.S. Eleventh Circuit Court of Appeals ruled that a high school in Ponte Vedra Beach violated the law by refusing to allow transgender student Andrew Adams to use the restroom consistent with his gender identity.[78]

Transgender sports ban[]

On June 1, 2021, Governor of Florida Ron DeSantis signed a bill to exclude transgender women from participating in sports designated for female students.[79] The bill had been passed by the Florida House of Representatives on April 14,[80][81] then was shelved in the Florida Senate on April 20,[82] but on April 28 the Florida Legislature passed a "revived last minute bill" with last-minute legislative "procedural maneuvers."[83][84][85] A lawsuit is pending in both state and federal courts into the transgender sports ban within Florida - immediately right after the Governor's signature into law on June 1. The HRC kicked off the campaign to try and stop the law from going into effect (called "nullification") on midnight July 1.[86]

Gay and trans panic defense[]

In March 2021, a bill to repeal the gay and trans panic defense passed the Criminal Justice Committee in the Senate by a vote of 6–2. The bill heads to the floor awaiting another vote.[87] The gay panic defense is a legal strategy in which defendants accused of violent offenses claim that unwanted same-sex sexual advances provoked them into reacting by way of self-defense. Occasionally, the defendant may see their charges decrease from murder to the lesser charge of manslaughter.

Conversion therapy[]

See also: List of U.S. jurisdictions banning conversion therapy

On September 3, 2015, State Representative David Richardson filed a bill to ban the use of conversion therapy on LGBT minors.[88] The bill was introduced to the Florida Legislature on January 12, 2016. However, it died in a House subcommittee on March 11, 2016.[89] A similar bill died in 2017.[90]

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.[91]

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.[92][93]

Local bans[]

As of February 2020, several cities and counties in Florida have passed their own bans on conversion therapy on minors, namely Miami Beach,[94][95] Wilton Manors,[96] Miami,[97] North Bay Village,[98] West Palm Beach,[99] Bay Harbor Islands,[100] Lake Worth,[101] El Portal, Key West, Boynton Beach,[102] Tampa,[103] Delray Beach,[104] Riviera Beach,[105] Wellington,[106] Greenacres, Boca Raton, Oakland Park,[107] Palm Beach County,[108] Gainesville,[109] Broward County,[110] Alachua County,[111] Fort Lauderdale,[39] and Tallahassee.[112] Conversion therapy bans have also been proposed or pending in other cities, for example in Sarasota,[113] and St. Petersburg.[103]

On January 31, 2019, a federal judge granted a temporary injunction against part of the Tampa ordinance. The judge stopped the city from enforcing its ban on talk therapy, while a lawsuit, Vazzo v. City of Tampa, was allowed to proceed. Other forms of therapy, such as electroshock therapy, are still explicitly banned. The city filed a motion to dismiss.[114]

In November 2020, the 11th Circuit Court of Appeals voted 2–1 to declare ordinances banning conversion therapy on minors in Boca Raton and surrounding Palm Beach County a violation of the First Amendment of the Constitution.[115][116][117][118][119] The majority opinion ignores a "mountain of rigorous evidence" that conversion therapy is harmful. The American Academy of Pediatrics and the American Psychiatric Association are fully opposed to this pseudoscientific practice. This decision caused a circuit split; the Third Circuit and Ninth Circuit courts of appeals have upheld conversion therapy bans as constitutional.

Living conditions[]

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 victories 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.[120] 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,[121] 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,[122] 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.[123][124]

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.[125] In June 2021, the Governor of Florida vetoed an "item-lined budget bill" - that legally provides mental health, counseling and compensation, directly towards victims of the June 2016 Pulse nightclub Orlando shootings within Florida. Instead US Congress federally instead implemented "a permanent rememberace memorial" to the Pulse nightclub area. The bill sits on the desk of Joe Biden.[126][127][128]

Public opinion[]

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.[129]

Public opinion for LGBT anti-discrimination laws in Florida
Poll source Date(s)
administered 		Sample
size 		Margin of
error 		% support % opposition % no opinion
Public Religion Research Institute January 2-December 30, 2019 3,866 ? 72% 21% 7%
Public Religion Research Institute January 3-December 30, 2018 3,455 ? 68% 25% 7%
Public Religion Research Institute April 5-December 23, 2017 4,374 ? 71% 22% 7%
Public Religion Research Institute April 29, 2015-January 7, 2016 4,917 ? 70% 24% 6%

Summary table[]

Same-sex sexual activity legal Yes (Since 2003)
Equal age of consent Yes (Since 2003)
Anti-discrimination laws for sexual orientation Yes (For employment, housing and public accommodations, following Bostock v. Clayton County and subsequent decision of the Florida Commission on Human Relations)[a]
Anti-discrimination laws for gender identity or expression Yes (For employment, housing and public accommodations, following Bostock v. Clayton County and subsequent decision of the Florida Commission on Human Relations)[a]
Same-sex marriages Yes (Since 2015)
Stepchild and joint adoption by same-sex couples Yes (Since 2010)
Lesbian, gay and bisexual people allowed to serve openly in the military Yes (Since 2011)
Transgender people allowed to serve openly in the military Yes (Since 2021)[130]
Intersex people allowed to serve openly in the military X (Current DoD policy bans "hermaphrodites" from serving or enlisting in the military)[131]
Right to change legal sex or gender without surgery or sterilization Yes (Both birth certificates and drivers licences)
Transgender sports or athletics legal ban Yes (Becomes effective July 1, 2021 - unless a lawsuit is successful prior to that date to "nullify the law")
Conversion therapy banned on minors No (Bans in several cities currently unenforceable)
Access to IVF for lesbian couples Yes
Surrogacy arrangements legal for gay male couples Yes[25]
MSMs allowed to donate blood No/Yes (Since 2020; 3-month deferral period)[132]

See also[]

Notes[]

  1. ^ Jump up to: a b Several municipalities, including the state capital Tallahassee, as well as Miami, Jacksonville, Orlando, Tampa, etc., have also passed ordinances protecting LGBT people from unfair discrimination in employment, housing and public accommodations.

References[]

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