Lesbian, gay, bisexual, transgender, and queer (LGBTQ) people in the U.S. state of Kentucky still face some legal challenges not experienced by other people. Same-sex sexual activity in Kentucky has been legally permitted since 1992, although the state legislature has not repealed its sodomy statute for same-sex couples. Same-sex marriage is legal in Kentucky under the U.S. Supreme Court ruling in Obergefell v. Hodges. The decision, which struck down Kentucky's statutory and constitutional bans on same-sex marriages and all other same-sex marriage bans elsewhere in the country, was handed down on June 26, 2015.
Like some Southern states in the U.S., Kentucky has generally been viewed as socially conservative; however, recent polls indicate that a slim majority (51 percent) of Kentuckians support same-sex marriage, and support has been increasing over time. In 2010, Lexington elected its first openly gay mayor, Jim Gray, who went on to become the first openly LGBT Senate candidate from Kentucky in 2016. Several cities in the state prohibit discrimination in employment, housing, and accommodations based on sexual orientation and gender identity. The Louisville-based Fairness Campaign, founded in 1991, is the state's oldest and largest LGBT advocacy organization in operation. In 2008, a Fairness Coalition was formed to collectively advance LGBT anti-discrimination protections in the commonwealth; its members are the American Civil Liberties Union of Kentucky, Fairness Campaign, Kentucky Commission on Human Rights, and Lexington Fairness.
Laws against homosexuality In 1992, the Kentucky Supreme Court ruled the section of Kentucky's sodomy statute criminalizing consensual sodomy violated the Kentucky state constitution. In overturning the consensual sodomy statute (KRS 510.100) in the Kentucky v. Wasson case, the Kentucky Supreme Court decriminalized consensual sodomy. The statute remains on the books but remains unenforceable. In Lawrence v. Texas, the 2003 U.S. Supreme Court ruling overturning the remaining state sodomy laws, the U.S. Supreme Court further affirmed that such statutes violate the U.S. Constitution.
The former Kentucky statute criminalized consensual sexual relations between people of the same sex, even if conducted in private. Specifically, the law criminalized genital-oral (oral sex), genital-anal (anal sex), and anal-oral (rimming) sex – but only between partners of the same sex. Such sexual activities between mixed-sex (male-female) couples were legal. Such conduct was a misdemeanor punishable by up to 12 months in jail and a fine of up to $500 for same sex relationships. Solicitation of the same was also a misdemeanor, punishable by up to 90 days in jail and a fine of up to $250.
Historically, Kentucky's sodomy statutes had changed over time. The 1860 sodomy statute criminalized anal penetration by a penis and applied to both male-female couples and male-male couples. Because the law focused exclusively on penile-anal penetration, consensual sex between women was technically legal in Kentucky until 1974. In fact, in 1909, the Kentucky Supreme Court issued a ruling in Commonwealth v. Poindexter involving two African-American men arrested for consensual oral sex. In this decision, the court upheld that the then-current sodomy law did not criminalize oral sex but only anal sex.
In 1974, Kentucky revised its statutes as part of a penal code reform advocated by the American Law Institute. While the American Law Institute urged states to decriminalize consensual sodomy and other victimless crimes, the Kentucky legislature chose to decriminalize anal sex involving male-female couples but to broaden the new statute to criminalize anal-genital, oral-genital, and oral-anal sexual contact involving same-sex couples (both male-male and female-female couples). Thus, the 1974 revised statute decriminalized consensual anal sex for mixed-sex couples but expanded criminalization of sexual acts to include both male and female same-sex couples. Kentucky also reduced consensual sodomy from a felony to a misdemeanor in 1974.William N. Eskridge, Dishonorable Passions: Sodomy Laws in America, 1861–2003 (NY: Penguin Group, 2008), 201n, available online, accessed April 10, 2010 It was this final remaining consensual sodomy statute, which criminalized only same-sex behavior, which was ruled unconstitutional by the Kentucky Supreme Court in Kentucky v. Wasson in 1992.Commonwealth v. Wasson, accessed April 13, 2011
Recognition of same-sex relationships
On November 9, 1973, the Kentucky Court of Appeals ruled in Jones v. Hallahan that two women were properly denied a marriage license based on dictionary definitions of marriage, although state statutes do not restrict marriage to a female-male couple. Its decision said that "in substance, the relationship proposed ... is not a marriage." Kentucky Court of Appeals: Jones v. Callahan, November 9, 1973
Kentucky voters adopted a constitutional amendment in November 2004 that defined marriage as the union of a man and a woman and prohibited the recognition of same-sex relationships under any other name.CNN: 2004 Ballot Measures, accessed April 13, 2011 Similar restrictions have appeared in the state statutes since July 1998 as well.
Kentucky has extended hospital visitation rights to same-sex couples through a designated visitor statute.
Federal lawsuits
Two lawsuits filed in federal court in (Bourke v. Beshear) 2013 and (Love v. Beshear) 2014 have challenged Kentucky's denial of marriage licenses to same-sex couples (Love case) as well as the state's refusal to recognize same-sex marriages established in other jurisdictions (Bourke case). The plaintiffs in the Bourke case won recognition of their marriages on February 12, 2014, and on February 14, 2014, the Love case was filed in order for couples to be allowed to marry in Kentucky. The Love was ruled on in July 2014 in the U.S. District Court in Louisville, Kentucky. On appeal, the Sixth Circuit Court of Appeals heard oral arguments on August 6, 2014. The Sixth Circuit overturned the rules in favor of the same-sex couples from Kentucky, Ohio, Tennessee, and Michigan. The cases were appealed to the U.S. Supreme Court under the Obergefell case name. On June 26, 2015, the Supreme Court ruled that all states in the U.S. were required to recognize the marriages of same-sex couples and issue marriage licenses to them.See Obergefell v. Hodges, 576 U.S. 644 (2015), https://supreme.justia.com/cases/federal/us/576/14-556/
In September 2023, a same-sex couple won $100,000 awards in damages in a court jury because Kentucky county clerk Kim Davis denied a marriage license to the couple eight years earlier.
Adoption and parenting Kentucky permits adoption by individuals or married couples only. In February 2009 Senate Bill 68 (SB 68) was introduced to the Kentucky Senate by Senator Gary Tapp (R-Waddy). If passed, SB 68 would have barred any unmarried cohabiting couples from fostering or adopting children in Kentucky. Many Kentucky fairness supporters, along with foster and adoption agencies, rallied against the bill. The Senate Judiciary Committee passed SB 68 in a hastily called, unadvertised meeting upon Senate adjournment March 5, 2009, but it died when the legislative session ended without the full Senate putting SB 68 to a vote. This was the first time a piece of anti-LGBT legislation had passed a Kentucky Senate Committee without also passing the full chamber. On January 5, 2010, House Bill 195 (HB 195) was introduced to the Kentucky House by Representative Tom Burch (D-Louisville). If passed, HB 195 would have redefined stepparent to include any non-relative adult person who the court finds as sharing parental responsibility for the child. The House Health and Welfare Committee held an informational hearing on HB 195 on March 11, 2010—the first-ever hearing of a pro-LGBT piece of legislation in the Kentucky General Assembly. HB 195 did not receive a vote but further informational hearings were requested.
Discrimination protections
Public employment Public employment discrimination against state workers based on sexual orientation or gender identity is illegal under an executive order by Governor Steve Beshear (Democrat) in June 2008. Such discrimination was originally banned by an executive order by Governor Paul Patton (Democrat) under an executive order issued by him in 2003. When Republican Governor Ernie Fletcher took office, however, he removed these protections in 2006. Thus, Beshear's order reinstates such protections.
In February 2013, Berea Mayor Steve Connelly banned discrimination based on actual or perceived sexual orientation via executive order. The order applies only to the town's 130 public employees.
Private employment Nineteen Kentucky cities have local non-discrimination ordinances—or Fairness Ordinances—covering sexual orientation and gender identity: Lexington-Fayette County (1999), Louisville Metro (1999), Covington (2003), Frankfort (2013), Morehead (2013), Vicco (2013), Danville (2014), Midway (2015), Paducah (2018), Maysville (2018), Bellevue (2019), Dayton (2019), Georgetown (2019), Henderson (2019), Highland Heights (2019), Versailles (2019), Cold Spring (2020), Fort Thomas (2020), and Newport (2020). Henderson originally adopted a non-discrimination ordinance in 1999, but a subsequent group of city commissioners removed the protections in 2001. A similar ordinance was passed into law there in 2019.
Some of Kentucky's largest employers also ban sexual orientation discrimination through company policies and include such employers as Lexmark, the University of Kentucky, the University of Louisville, Toyota, Ford Motor Company, General Electric, PNC Financial Services, Yum! Brands and United Parcel Service.
In January 2013 Vicco, Kentucky, a town with a population of 334 as of the 2010 census, with a gay mayor, Johnny Cummings, passed a town ordinance prohibiting "discrimination in employment, housing, and public accommodations based upon a person's actual or perceived sexual orientation and gender identity". Vicco joined Covington, which enacted a similar ordinance in 2003, and Lexington and Louisville, which enacted similar ordinances in 1999. Vicco, KY was said to be the smallest town in the United States to pass such an ordinance.
Religious Freedom Act of 2013 In March 2013, both houses of the Kentucky legislature passed the Religious Freedom Act which requires the state to show "clear and convincing evidence" for any statutes or policies that infringe on an individual's "sincerely held religious beliefs". The bill was supported by the Kentucky Family Foundation and the Kentucky Catholic Conference. More than 50 civil rights, public health, religious and other community groups urged Governor Steve Beshear to veto the legislation, including the Kentucky League of Cities, the Kentucky Association of Counties, the Kentucky ACLU and the mayors of Louisville and Covington. Opponents argued its wording was vague and could be used to override local non-discrimination ordinances. Supporters, including the bill's sponsor, Representative Bob Damron, argued it was needed to protect religious believers from state encroachment, citing the case of several Kentucky Amish who were arrested for refusing to put reflectors on their buggies when traveling government-maintained roads. Beshear vetoed the bill and the legislature overrode his veto by votes of 79–15 in the House and 32–6 in the Senate.
Senate Bill 17