Lesbian, gay, bisexual, transgender, and queer (LGBTQ) people in the U.S. state of New Mexico enjoy the same rights as non-LGBTQ people. New Mexico has seen prominent advances in gay and lesbian rights in recent decades. Same-sex sexual activity has been legal since 1975. Same-sex marriage is legal statewide in New Mexico, as is adoption and access to fertility treatments for lesbian couples. Same-sex couples have had the same rights as heterosexual married couples since 2013. Discrimination on the basis of sexual orientation and gender identity is banned statewide in the areas of employment, housing and public accommodations. Additionally, conversion therapy on minors is prohibited in the state, and transgender people are able to change their legal gender.
The state capital, Santa Fe, is often cited as one of the United States' gay capitals, and the state's largest city Albuquerque, including its large metropolitan area, is often referred to as a "gay-friendly" city. Opinion polls have shown that a majority of New Mexicans support LGBTQ rights and same-sex marriage; 2018 polling from the Public Religion Research Institute showed that 73% of New Mexicans supported anti-discrimination legislation protecting LGBTQ people.
History
In modern-day New Mexico, Native American people groups include the Navajo, the Zuni, the Apache, the Tewa, the Tiwa, and the Keres people. Similarly to many Native American tribes in the United States, these groups have traditions of cross-dressing and gender variance and had perceptions of gender and human sexuality different from that of the Western world. There were no legal or social punishments for engaging in same-sex sexual activity.
Nádleehi ( or nádleehé; literally one who constantly transforms) refers to individuals who are a "male-bodied person with a feminine nature". Historically, the Navajo recognized four gender roles: asdzáán (feminine female), hastiin (masculine male), dilbaa (masculine female), and nádleehi (feminine male). The nádleehi identity is fluid, and such individuals may display both male and female characteristics. Due to the perceived "balance" between both sexes, they were typically chosen for certain societal and communal roles, such as spiritual healers. They would traditionally wear female clothes and do female work, and some would have sexual relations with men which was accepted by the tribe. The Zuni people also recognize these types of gender roles. The terms lhamana (literally behave like a woman) refers to people assigned male at birth but who typically dress, act and behave as female, and katsotse refers to female-bodied people who live and behave as male. Other tribes have similar individuals, known as ńdé?isdzan among the Mescalero Apache, lhunide among the Tiwa people, kwido among the Tewa, kokwimu among the Acoma and Laguna pueblos, and kokwima among the San Felipe, Santa Ana and Kewa pueblos. Nowadays, the term "two-spirit" is increasingly used to refer to these identities.Two-Spirit and Okiciyap As a result of colonization, much of this cultural acceptance has disappeared. Even among the Native Americans, societal perceptions began to change. Owing to the introduction of a more stringent set of beliefs on gender and sexuality by the colonizers, Navajo nádleehi became the subject of ridicule. Today, LGBTQ Navajo may find it difficult being accepted by their family, with 70% of LGBT Navajo youth reportedly attempting suicide. Spanish missionaries took repeated notes of these traditions, with one Franciscan missionary stating "that these accursed people will disappear with the growth of the missions. The abominable vice will be eliminated to the extent that the Catholic faith and all the other virtues are firmly implanted there, for the glory of God and the benefits of these poor ignorants". Among the Hopi, Christian converts were prohibited from attending the traditional snake dance because "male cross-dressing could be observed". Jonathan Ned Katz notes, "the Christianization of Native Americans and the colonial appropriation of the continent by white, Western 'civilization' included the attempt by the conquerors to eliminate various traditional forms of Indian homosexuality—as part of their attempt to destroy that Native culture which might fuel resistance—a form of cultural genocide involving both Native Americans and gay people". Will Roscoe in his work The Zuni Man-Woman writes that the "prevalence of sodomy" and the tolerance or even respect of transgender people fueled the Spanish explorers' argument for the colonization of native peoples and their lands in the name of Christianity.
Shortly following the creation of the New Mexico Territory, the Territorial Legislature passed a law adopting the common law in criminal cases in 1851, thus making sodomy a capital offense. In 1876, the territory's first sodomy law was enacted, providing a penalty of at least one year imprisonment and/or a fine of 1,000 dollars, with no established maximums. As was the case for most of the United States at the time, the statute prohibited both homosexual and heterosexual sodomy, and applied to consenting adults as well. In 1953, the New Mexico Supreme Court held that fellatio was not outlawed by the state's sodomy statute. Two year later, the New Mexico Legislature reworded the sodomy statute to include acts of fellatio. The penalty was set at 10 years' imprisonment. In 1967, in the case of State v. Putman, the New Mexico Court of Appeals held that cunnilingus was criminal under state law—again whether heterosexual or homosexual.The History of Sodomy Laws in the United States - New Mexico
Legality of same-sex sexual activity New Mexico repealed its anti-sodomy law in 1975, making it one of the first U.S. states to do so.
The first attempt at repealing the state's sodomy law occurred in 1961. The bill passed the House of Representatives by a vote of 37 to 28, but was not successful in the Senate. The proposed bill uniquely referred to anal sex and oral sex as "variant sexual practices" rather than "deviate" as was commonly the case in U.S. state statutes at the time.
In 1972, Judge Lewis R. Sutin, dissenting in the case of State v. Trejo, described the sodomy law as "unconstitutional and void because it is vague, overbroad, uncertain, and is an unreasonable exercise of the police power of the state." He went on to ask if it does not
An attempt to reinstate the sodomy law failed in 1986.
Recognition of same-sex relationships
State marriage laws do not explicitly require married couples to be of different genders and prior to December 2013 state courts had not ruled on the question of same-sex marriage.Albuquerque Journal: Susan Montoya Bryan, "Same-Sex Couples Line Up in Sandoval County To Get Married ," February 20, 2004 . Retrieved April 2, 2011 New Mexico has never recognised alternative relationship recognition schemes, such as civil unions or domestic partnerships.Arthur S. Leonard, Homosexuality and the Constitution, vol. 4 Homosexuality and the Family (NY: Garland, 1997), 175, available online. Retrieved April 9, 2011 In January 2011, state Attorney General Gary King issued an opinion that valid same-sex marriages contracted in other states "would likely be valid in New Mexico".
On December 19, 2013, the New Mexico Supreme Court ruled that the state must provide same-sex couples with the same marriage rights as different-sex couples, making New Mexico the 17th U.S. state to recognize same-sex marriage.
New Mexico has provided benefits to same-sex partners of state employees since 2003.National Conference of State Legislatures: "States offering benefits for same-sex partners of state employees" . Retrieved April 16, 2011
In March 2019, the New Mexico Legislature passed a bill in both chambers unanimously (62–0 in the House and 39–0 in the Senate) to codify same-sex marriage in state statutes. The bill was signed into law in April by Governor Michelle Lujan Grisham and went into effect on July 1, 2019.
Adoption and parenting New Mexico allows single persons to adopt children. The state has no prohibition on adoption by same-sex couples or second-parent adoptions, and as stated, allows those adoptions.Human Rights Campaign: New Mexico Adoption Law , accessed April 9, 2011
Lesbian couples can access in vitro fertilization and donor insemination without regard to their sexual orientation or marital status. State law recognizes the non-genetic, non-gestational mother as a legal parent to a child born via donor insemination, irrespective of the marital status of the parents. In addition, no statute or case law prohibits surrogacy. As a result, both gestational and traditional surrogacy are practiced in the state, and such contracts are generally recognized by the courts.
In June 2012, following the separation of a lesbian couple, the state's highest court granted parental rights to the one who had been unable to adopt her partner's adopted child but who had helped raise and had supported the child financially.The Advocate: Neal Broverman, "A Win for Gay Mothers in New Mexico," June 2, 2012, accessed June 4, 2012
Discrimination protections
Since the passage of An Act Relating to Human Rights, which became effective on July 1, 2003, New Mexico law has outlawed unfair discrimination based on sexual orientation and gender identity "in matters of employment, housing, credit, public accommodations and union membership." An executive order issued by Governor Toney Anaya in 1985 prohibits discrimination in public employment on the basis of sexual orientation.HRC: New Mexico Non-Discrimination Law , accessed June 3, 2012
In June 2012, a three-judge panel of the New Mexico Court of Appeals unanimously upheld a claim against a photography studio that refused to take pictures of a same-sex couple's commitment ceremony in 2006. On August 22, 2013, the New Mexico Supreme Court upheld that ruling in a unanimous decision in Elane Photography v. Willock. It held that enforcing the anti-discrimination provisions of state law did not violate the photographer's free speech rights. The U.S. Supreme Court announced it would not consider an appeal in the case on April 7, 2014.
In March 2019, the New Mexico Legislature passed a bill in both chambers unanimously (59–0 in the House and 36–0 in the Senate) to repeal an explicit "15 or more employees" exemption, which had exempted businesses with less than 15 employees from the state's anti-discrimination law. The bill was signed into law by Governor Michelle Lujan Grisham and went into effect on July 1, 2019.
In March 2023, a bill passed the New Mexico Legislature to remove loopholes and explicitly include local entities and counties (i.e. schools, universities and/or government-run agencies) - to prevent discrimination and human rights violations within New Mexico. The Governor of New Mexico signed the bill into law, effective immediately under an "emergency clause".
In May 2024, Albuquerque City Council voted to amend the city's Human Rights Ordinance to align with the state law including prohibitions on discrimination based on sexual orientation, gender identity, and/or pregnancy status alongside other changes recommended by the Albuquerque Human Rights Board.
Hate crime law Since 2003, New Mexico's hate crime law has directly and explicitly addressed violence and hate crimes committed solely based on the victim's or victims' actual or perceived race, religion, color, ancestry, national origin, gender, sexual orientation or gender identity.
Bullying in schools