LGBT rights in Utah

Criminalization of same-sex sexual activity began since people of European descent first established a federally recognized government in the region. In 1851, the theocratic Utah Territorial Legislature of the newly formed Utah Territory passed the first law addressing same-sex sexual activity. Brigham Young acted as both the Territorial Governor and the president of the Church of Jesus Christ of Latter-day Saints (LDS Church) and oversaw the selection of legislators.[4] The law banned any "man or boy" from "sexual intercourse with any of the male creation" with penalties left to the courts' discretion.[5]^: 1200 Only one year later, a new criminal code was passed. It made no mention to sodomy or common-law crimes, thus legalizing sodomy in Utah. The lack of such a law was noted in 1864, when a soldier, Frederick Jones, was arrested on the grounds of sodomy but later released as there was no law punishing it. Shortly after his release, Jones was murdered by the father of his sexual partner. In 1876, the Utah Territorial Legislature enacted a new criminal code, which this time contained provisions outlawing sodomy. Punishment was set at five years' imprisonment, and 10 years for attempted sodomy. The law applied to both heterosexual and homosexual conduct, as well as to private and consensual activity. In 1913, in the case of State v. Johnson, the Utah Supreme Court held that fellatio (oral sex) was not a criminal offense. Despite expressing its disgust toward the practice and the fact that Johnson was "a negro", the court ruled that fellatio could not be criminal without defined legislation. In response, the state passed a law in 1923 prohibiting "sodomy or any other detestable and abominable crime against nature" that was committed "with either the sexual organs or the mouth", with a penalty varying between three and twenty years' imprisonment.[6]

In 1969, the Utah State Legislature reduced the penalty for sodomy from a felony to a misdemeanor. It also removed the reference to "detestable and abominable crime against nature" and reduced the penalty for consensual acts to a maximum of six months in county jail, and/or a fine of up to $299. In 1973, a comprehensive revision of the law resulted in married couples being exempt from prosecution. The revision also established that an act of sodomy could be completed by "any touching". The sodomy statute would remain in force until 2003 when the U.S. Supreme Court invalidated all state sodomy laws with its landmark 6 to 3 opinion in Lawrence v. Texas. The opinion stated that private consensual sexual conduct is protected by the due process and equal protection rights that are guaranteed by the United States Constitution.[6]

In 1925, the Utah State Legislature passed a sterilization law, providing for the possible sterilization of state inmates afflicted with "habitual sexual criminal tendencies". The statute was upheld by the state Supreme Court in 1929 in the case of Davis v. Walton. By the end of 1948, 555 persons had been sterilized in Utah, all of them "insane or mentally retarded". The law was amended in 1975 to apply only to the "mentally redarded".[6]

Openly gay Utah Senator Scott McCoy (D-Salt Lake) unsuccessfully sponsored the bill S.B. 169 ("Sodomy Amendments") in 2007. The bill would have amended the state sodomy law by repealing its unconstitutional parts. The bill failed without consideration.[7]

After lobbying in 2011 by gay activist David Nelson, the Utah Department of Public Safety amended its administrative rule which restricted the issuance of the state concealed-firearm permit to individuals who were ever convicted of violating the state sodomy law.[8]

On January 29, 2019, the state House approved a bill to repeal unconstitutional provisions in regard to sodomy and adultery in a 74–0 vote with 1 abstention. It was approved by the Senate on February 22 in a 25–2 vote with 2 abstentions, and signed by Governor Gary Herbert on March 25, 2019.[9][10]

Same-sex marriage in Utah has been legal since October 6, 2014, following the resolution of a lawsuit challenging the state's ban on same-sex marriage. Same-sex marriage was also legal in Utah from December 20, 2013 to January 6, 2014.

In response to the 1993 Baehr v. Miike court case on same-sex marriage in Hawaii, Representative Norm L. Nielsen (R-Utah County) sponsored the bill H.B. 366 ("Recognition of Marriages") in 1995. The bill passed the State Legislature. It prohibited state recognition of same-sex marriages which were performed in other states and nations. It was the first such law in the United States.[11]

Utah voters approved a ballot referendum, Utah Constitutional Amendment 3, in 2004 that constitutionally defined marriage as the legal union between a man and a woman and restricted unmarried domestic unions. The referendum was approved by a margin of 65.8 percent to 33.2 percent.[12]

On March 25, 2013, three same-sex couples, including one already married in Iowa, filed a lawsuit in the United States District Court for the District of Utah seeking to declare Utah's prohibition on the recognition of same-sex marriages unconstitutional under the Due Process and Equal Protection clauses of the United States Constitution.[13] The court heard arguments on December 4. The state argued that there was "nothing unusual" in enforcing policies that encourage "responsible procreation" and the "optimal mode of child-rearing". Plaintiffs' attorney contended that the policy is "based on prejudice and bias that is religiously grounded in this state".[14] On December 20, 2013, District Judge Robert J. Shelby found the same-sex marriage ban unconstitutional and ordered the state to cease enforcing the ban.[15] The U.S. Supreme Court stayed the order of the District Court on January 6, 2014 pending the appeal of its decision to the Tenth Circuit.[16] On June 25, 2014, the Tenth Circuit upheld the lower court ruling, a decision that sets a precedent for every state within the circuit. However, the Tenth Circuit stayed this ruling. The U.S. Supreme Court refused the appeal from the state on October 6, 2014, requiring Utah to license and recognize same-sex marriages.

Individuals and couples need to be married or single to be foster parents within Utah. Cohabiting or common-law couples are legally banned from being foster parents.[17]

Representative Nora B. Stephens (R-Davis County) sponsored a bill, H.B. 103 ("Amendments to Child Welfare"), in 1998. It passed the State Legislature. The law requires state agencies to give adoption priority to married couples and to prohibit adoptions by cohabitating unmarried couples. Openly lesbian Representative Jackie Biskupski (D-Salt Lake) spoke against the bill.[18]

A single person can adopt in Utah, except that by Utah law "a person who is cohabiting in a relationship that is not a legally valid and binding marriage" cannot adopt.[19] Utah law states that "a child may be adopted by adults who are legally married to each other in accordance with the laws of this state, including adoption by a stepparent."[19]

On December 20, 2013, same-sex marriage became legal in Utah; thus legalizing same-sex adoption for same-sex couples.[15] However, the U.S. Supreme court stayed the order. On October 6, 2014, the Supreme Court refused to hear the case, and the hold was lifted. In 2013, Utah's capital, Salt Lake City, and its suburbs had the highest rate — 26 percent — of same-sex couples sharing parenthood, according to an analysis of census data by the Williams Institute at the UCLA School of Law.[20]

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.[21] Gestational surrogacy arrangements are valid and legal in Utah but only for married couples.[22] In August 2019, the Utah Supreme Court, basing its decision on the Equal Protection Clause of the U.S. Constitution, ruled unconstitutional a piece of state law barring same-sex couples from reaching a surrogacy agreement with a woman they wish to carry their child. The decision says in part that "same-sex couples must be afforded all of the benefits the state has linked to marriage."[23]

Map of Utah cities and counties that had sexual orientation and/or gender identity anti–employment discrimination ordinances before enactment of the statewide anti-discrimination law

  Sexual orientation and gender identity with anti–employment discrimination ordinance

  Did not protect sexual orientation and gender identity in employment

On March 6, 2015, the Utah State Senate passed Utah SB 296 in a 23–5 vote. The law bans discrimination based on sexual orientation and gender identity in employment and housing (public accommodation not included) with exemptions for religious organizations and their affiliates such as schools and hospitals, as well as the Boy Scouts. The bill also would protect employees from being fired for talking about religious or moral beliefs, as long as the speech was reasonable and not harassing or disruptive. The measure was backed by the LDS Church.[24][25][26] It was approved by the state House on March 11, in a 65–10 vote.[27][28] On March 12, 2015, Governor Gary Herbert signed the bill into law.[29]

Prior to that, Representative Christine Johnson (D-Salt Lake) sponsored an anti-discrimination bill, H.B. 89 ("Antidiscrimination Act Amendments"), in 2008. The bill, however, failed to pass the State Legislature. It would have prohibited employment discrimination based on sexual orientation or gender identity.[30] She reintroduced the bill unsuccessfully in 2009 and 2010. She also sponsored H.B. 128 ("Antidiscrimination Study Related to Employment and Housing") in 2010. The bill would have required a study of employment and housing discrimination based on sexual orientation or gender identity.[31]

Governor Gary Herbert appointed openly gay Brian Doughty in 2011 to replace Utah Representative Jackie Biskupski (D-Salt Lake) when she resigned from the Utah House of Representatives.[32]

In March 2020, the Utah State Legislature passed a bill banning offensive number plates on vehicles on the basis of sexual orientation or gender identity, among other categories such as religion, sex or race.[33][34]

A rainbow flag at the 2014 Salt Lake City Pride parade

In 1992, the Utah House of Representatives Democratic Leader, Representative Frank R. Pignanelli (D-Salt Lake), successfully sponsored the bills, H.B. 111 ("Hate Crimes Statistics Act") and H.B. 112 ("Hate Crimes Penalties — Civil Rights Violation"). The laws require the state Department of Public Safety to collect and publish statistics about hate crimes which are committed in the state, and provide for an enhanced penalty for the commission of a hate crime. Utah gay activist David Nelson helped write the bills.[69][70][71][72] Attempts were made unsuccessfully from 1992 to 1999 for the adoption of an amendment to the laws.[73][74]

On March 5, 2019, the state Senate approved a bill to criminalize hate crimes based on sexual orientation or gender identity, in an 18–11 vote.[75][76] It was approved by the House with an amendment on March 12 in a 64–9 vote with 2 abstentions. The Senate concurred with the amendment the same day by 22 votes to 3.[77][78] The bill was signed by the Governor on April 2, 2019.[79]

In order for transgender people in Utah to change the gender marker on their birth certificates, they must submit to the Utah Office of Vital Records a certified court order changing their name and gender. Sex reassignment surgery is not required. Upon the receipt of the court order, "the amendment shall be registered with and become a part of the original certificate and a certified copy shall be issued to the applicant without additional cost".[80]

In 2009, Representative Carl Wimmer (R-Salt Lake) unsuccessfully sponsored a bill, H.B. 225 ("Driver License Amendments"), which would have provided that "if a person requests to change the sex designation on a driver's license or identification card, the Driver License Division shall issue a duplicate driver license or new identification card upon receiving: an application and fee for a duplicate driver license or identification card; and written verification from a licensed physician that the applicant has undergone and completed sex reassignment surgery."[81]

In 2011, Utah Driver License Division employees denied mistreatment of a transgender woman who was required to remove her makeup before she could be photographed for a new state identification card. A witness said that the employees appeared to be making fun of the transgender woman. The woman was invited to meet with the division director.[82][83]

Besides male (M) and female (F), Utah identity documents are available with an "X" sex descriptor. An individual seeking such a marker must receive approval from a judge.[84]

In May 2021, the Utah Supreme Court voted 4-1 granting and approving sex and name changes on personal birth certificate to transgender individuals setting a legal precedent - due to ongoing delays and red tape for years within the lower courts of Utah.[85][86][87]

In July 2019, the Utah Psychologists Licensing Board agreed to draft rules banning conversion therapy in the state, which were then sent to public consultation.[124]

On January 21, 2020, Governor Gary Herbert signed an executive order prohibiting conversion therapy on minors in Utah, which became the 19th state to do so. Previously, a bill to ban the pseudoscientific practice in the Utah State Senate resulted in extensive changes by conservative lawmakers to the point where even its sponsor, Craig Hall, had disowned it.[125] The ban does not apply to clergy, religious counselors, parents or grandparents as long as they are not acting as psychologists. In November 2019, Herbert said that the "stories of youth who have endured these so-called therapies are heart-rending" and that he's "grateful that we have found a way forward that will ban conversion therapy forever in our state". Every major American medical and mental health organization, including the American Medical Association and the American Academy of Child and Adolescent Psychiatry, have found no evidence to support conversion therapy and consider it a discredited medical practice.[126][127] In February 2023, a bill formally passed both houses of the Utah Legislature to "codify" the ban on conversion therapy on LGBT minors into legislation. The Governor of Utah is yet to either sign or veto the bill.[128]

An opinion poll which was conducted in 2010 by Columbia University found that Utah ranked last among all states in support of same-sex marriage. With 22% of respondents who favored it, the rate of support had increased 10% since 1994-1996.[130]

An opinion poll conducted in 2011 by Public Policy Polling found that 27% of Utah voters believed same-sex marriage should be legal, while 66% believed it should be illegal and 7% were not sure. A separate question in the survey found that 60% of respondents supported legal recognition of same-sex couples, with 23% supporting same-sex marriage and 37% supporting civil unions, while 39% opposed all legal recognition and 1% were not sure.[131]

A poll for The Salt Lake Tribune conducted by SurveyUSA from January 10–13, 2014 found that Utah residents were evenly split on whether same-sex couples in Utah should be allowed to receive state-issued marriage licences — 48% for and 48% against. 4% were uncertain. Some 72% said same-sex couples should be allowed to form civil unions that provide the same legal rights as marriage.[132]

A 2017 Public Religion Research Institute poll found that 54% of Utah residents supported same-sex marriage, while 38% were opposed and 8% were unsure. In addition, 80% were in favor of anti-discrimination laws covering sexual orientation and gender identity. 15% were against.[3]

• Homosexuality and the LDS Church
• Kitchen v. Herbert
• LGBT rights and the LDS Church
• LGBT rights in the United States
• Politics of Utah
• Rights and responsibilities of marriages in the United States
• Timeline of LGBT Mormon history

• Gay and Lesbian Community Center of Utah records. Accession number (Accn) 1918. Salt Lake City: Special Collections and Archives, J. Willard Marriott Library, University of Utah. 2001.