Arkansas LGBT Laws

On 21 November 2013, the Arkansas Supreme Court overturned a lower court’s ruling in John Moix v. Libby Mois, declaring that judges may not restrict a parent’s visitation rights based solely on that parent’s cohabitation with a partner to whom they are not married [C2.6], [R2.5].

On 21 September 2011, the Court of Appeals affirmed the decision of Judge Vann Smith in the Pulaski County Circuit Court to award primary custody of two teenage children to their lesbian mother over the objections of their heterosexual dad, but it also upheld the onerous requirement that both parents “refrain from having any romantic partner to whom they were not married as overnight guests when the children were present”; [C2.4], [R2.3].

On 17 February 2011, Associate Justice Donald L Corbin, for the majority in a 5–2 decision of the Arkansas Supreme Court, upheld the award of visitation rights to a woman whose partner in a same-sex relationship gave birth to a child, a ruling the court says follows the law even though Arkansas has outlawed homosexual marriage [C1.2], [R1.1].

In November 2010, Eureka Springs, the only city in Arkansas with a domestic-partnership registry, announced that it would also become the first to provide health care coverage for the domestic partners of city workers [R1.1].

On 18 July 2016, the Board of Examiners and Counseling, which regulates 2,800 counselors and marriage and family therapists in the state, was reported to have approved a discriminatory rule that will allow counselors and therapists to refer a patient to someone else over sincerely held ”ethical, moral or religious principles” but only after careful consideration and consultation, and only if the counselor is unable to effectively serve the client. It also says counselors cannot abandon someone who seeks assistance [R1.12].

On 22 July 2015, Act 137 of this year came into effect prohibiting a city or county from adopting or enforcing an ordinance that creates a protected class or prohibits discrimination on any basis not already in state law. Arkansas’ civil-rights law does not include sexual orientation or gender identity as protected classes. Opinions vary as to whether there are conflicts between Act 137 and local ant-discrimination ordinances [R1.11].

On 02 April 2015, the Arkansas House voted 76-17 to pass a revised bill (SB975: “Religious Freedom Restoration Act”) that only addresses actions by the government, not by businesses or individuals and Governor Asa Hutchinson signed it into law (effective immediately). The earlier Bill HB1228 was withdrawn [L1.10], [R1.9].

On 01 April 2015, Governor Asa Hutchinson announced he would not sign HB1228 (the Religious Freedom Restoration Act) into law, calling on the legislature “… to remedy it, change current law, recall it, change language on it” [R1.8].

On 31 March 2015, the House passed 67-21 (non-voting 11, 1 present) the Senate amended HB1228 Religious Freedom Restoration Act that is nearly identical to the controversial Indiana law and transmitted it to Governor Asa Hutchinson for signature [L1.7], [R1.6].

On 27 March 2015, the Senate passed 24-7 Bill HB1228 (the Religious Freedom Restoration Act), allowing people and businesses to use religion to discriminate against others. To come into effect, the Senate-amended Bill must now pass the House and be signed into law by the Governor [R1.5].

On 23 February 2015, the deadline for Governor Asa Hutchinson to veto the anti-anti-discrimination Bill SB 202 – that seeks to prevent cities and counties from protecting the civil rights of gay people – passed and the Bill became law and will come into effect 90 days after the legislature formally adjourns, which is currently set for May [R1.4].

On 13 February 2015, the House of Representatives approved a bill 58-21 that would prevent cities and counties from enacting or enforcing laws that ban discrimination based on sexual orientation or gender identity. Gov. Asa Hutchinson said he will let it become law in 90 days without his signature [R1.3].

On 09 February 2015, the Arkansas Senate approved 24-8 legislation to prohibit cities and counties from enacting ordinances that prohibit discrimination based on their sexual orientation or gender identity, a basis not contained in state law. The proposal now heads to the House [R1.2].

In July 2002, discrimination on the ground of gender was unlawful in Arkansas, whilst discrimination on the ground of sexual orientation was not [R1.1]

On 12 May 2015, Pulaski County Quorum Court voted 9-3 to give initial approval to an ordinance (15-I-48) barring discrimination in hiring based on sexual orientation or gender identity. The measure faces a final vote on 26 May [R2.1].

On 31 January 2019, the State Supreme Court ruled the City of Fayetteville could not enforce the ordinance banning discrimination based on sexual orientation or gender identity, finding the measure violates a state law aimed at preventing local protections for LGBT people [C4.12], [R4.11].

On 30 September 2017, it was reported that Attorney General Leslie Rutledge filed a notice that she’s appealing a Washington County judge’s decision last week to deny the state’s request for a preliminary injunction against Fayetteville’s anti-discrimination ordinance [R4.10].

On 01 March 2016, Washington County Circuit Court Judge Doug Martin found that the Fayetteville anti-discrimination Ordinance 5781 was not unconstitutional. The ordinance, making discrimination on the grounds of gender identity and sexual orientation unlawful, was ratified by voters on 08 September 2015 [C4.5], [R4.4]. However, the state Supreme Court found the ordinance violates the plain wording of Act 137 [C4.9], [R4.8].

On 08 September 2015, at a Special Election voters in the City of Fayetteville approved the Uniform Civil Rights Protection Ordinance 5781 to add sexual orientation and gender identity to the local anti-discrimination ordinance making discrimination in employment, accommodations, property transactions, credit and other contractual transactions unlawful, though various religious organisations are exempt [L3.8], [R3.7].

On 12 May 2015, in Eureka Springs more than 70 percent of voters backed an anti-discrimination ordinance (2223) previously adopted by the town council [R3.6].

On 21 April 2015, Little Rock officials voted 7-2 to approve an ordinance prohibiting the city and companies contracting with it from discriminating based on sexual orientation or gender identity in hiring and city services, including those offered through outside vendors. The ordinance challenges a new Arkansas law criticized as anti-gay [R3.5].

On 24 February 2015, with immediate effect, the City Council in Conway voted 6-2 in favour of an ordinance that bans discrimination against city employees on the basis of both sexual orientation and gender identity or expression. The status of the ordinance may be questionable having regard to the State anti-anti-discrimination law passed 23 February but not yet in force [R3.4].

On 09 February 2015, the Eureka Springs City Council passed 5-0 Ordinance 2223 that bans discrimination on the basis of sexual orientation and gender identity and expression in areas of employment, public accommodations and housing. State Senate Bill SB202 would if passed into law make the creation or enforcement of such ordinances illegal [R3.3].

On 20 August 2014, in a 6-2 vote Fayetteville became the first city in Arkansas to enact a law prohibiting certain types of discrimination based on sexual orientation and gender identity in employment, housing and places of public accommodation [R3.2].

In February 1998, the mayor of Salt Lake City refused to veto the repeal of an ordinance protecting gays and lesbians from discrimination. The ordinance had only been in place a month before it was repealed [R3.1].

On 31 January 2019, the State Supreme Court ruled the City of Fayetteville could not enforce the ordinance banning discrimination based on sexual orientation or gender identity, finding the measure violates a state law aimed at preventing local protections for LGBT people [C4.12], [R4.11].

On 30 September 2017, it was reported that Attorney General Leslie Rutledge filed a notice that she’s appealing a Washington County judge’s decision last week to deny the state’s request for a preliminary injunction against Fayetteville’s anti-discrimination ordinance [R4.10].

On 23 February 2017, the Supreme Court of Arkansas struck down Fayetteville’s ordinance banning discrimination based on a person’s sexual orientation or gender identity, but stopped short of saying whether a state law aimed at prohibiting such local LGBT protections is constitutional. The Court found that Fayetteville’s ordinance violates the plain wording of Act 137 by extending discrimination laws in the city of Fayetteville to include two classifications not previously included under state law [C4.9], [R4.8].

On 10 November 2016, it was reported that a McDonald’s restaurant owned and operated by Mathews Management Company and Peach Orchard, Inc. in Bentonville, Ark., will pay $103,000 and furnish other relief to settle a disability discrimination lawsuit brought by the US Equal Employment Opportunity Commission (EEOC) on behalf of an employee fired by the restaurant within days of learning of his HIV-positive status [C4.7], [R4.6].

On 01 March 2016, Washington County Circuit Court Judge Doug Martin found that the Fayetteville anti-discrimination Ordinance 5781 was not unconstitutional. The ordinance, making discrimination on the grounds of gender identity and sexual orientation unlawful, was ratified by voters on 08 September 2015 [C4.5], [R4.4].

On 06 November 2015, Circuit Judge Doug Martin in the Washington County 4th Judicial Circuit Court denied Protect Fayetteville’s opponents’ request to stay implementation of Fayetteville Ordinance 5781 – protecting lesbian, gay, bisexual, and transgender citizens and visitors against discrimination in employment. housing accommodation, places of public resort and real estate within the City of Fayetteville city limits – and prevent its enforcement while their lawsuit continues. A motion to dismiss is scheduled for 01 December [R4.3].

On 15 September 2015, US District Judge Susan Webber Wright denied a motion for summary judgment filed by H&H Electric Inc., enabling the wrongful termination lawsuit filed by transgender Patricia Y Dawson to proceed. The suit alleges her dismissal was because of her sex contrary to Title VII of the Civil Rights Act of 1964 [C4.2], [R4.1].

On 17 December 2015, the United States Court of Appeals for the Eighth Circuit affirmed 2-1 the District Court ruling that as Andrew Reid, who identifies as female, did not meet the criteria for a Gender Identity Disorder diagnosis, the denial of hormone replacement therapy and general her medical treatment did not amount to a deliberate indifference to her medical needs. The Court also held that the claims against the defendants in their individual capacities were barred by qualified immunity [C1.4], [R1.3].

On 15 September 2015, US District Judge Susan Webber Wright denied a motion for summary judgment filed by H&H Electric Inc., enabling the wrongful termination lawsuit filed by transgender Patricia Y Dawson to proceed. The suit alleges her dismissal was because of her sex contrary to Title VII of the Civil Rights Act of 1964 [C1.2], [R1.1].

As at January 2003, there was no hate crimes law in Arkansas, which is one of five States without enhanced penalties for hate crimes [R1.1].

Sen. Tracy Steele of Little Rock, who succeeded Walker, was the lead sponsor for a new bill, which was revised slightly. The bill would allow increased penalties for certain crimes if the criminal acted because of the victim’s race, color, religion, ethnicity, ancestry, national origin, sexual orientation, gender or disbility [R1.1].

In 2001, Senate Bill 35 by then state Sen. Bill Walker, D-Little Rock, cleared a Senate panel on a four to one vote but died in the House of Representatives Judiciary Committee [R1.1].

On 17 December 2015, the United States Court of Appeaals for the Eighth Circuit affirmed 2-1 the District Court ruling that as Andrew Reid, who identifies as female, did not meet the criteria for a Gender Identity Disorder diagnosis, the denial of hormone replacement therapy and general her medical treatment did not amount to a deliberate indifference to her medical needs. The Court also held that the claims against the defendants in their individual capacities were barred by qualified immunity [C1.3], [R1.2].

In November 2010, Eureka Springs, the only city in Arkansas with a domestic-partnership registry, announced that it would also become the first to provide health care coverage for the domestic partners of city workers [R1.1].

On 10 November 2016, it was reported that a McDonald’s restaurant owned and operated by Mathews Management Company and Peach Orchard, Inc. in Bentonville, Ark., will pay $103,000 and furnish other relief to settle a disability discrimination lawsuit brought by the US Equal Employment Opportunity Commission (EEOC) on behalf of an employee fired by the restaurant within days of learning of his HIV-positive status [C1.2], [R1.1].

On 26 June 2003, as a consequence of the US Supreme Court ruling in Lawrence v. Texas, consensual sex between same-sex couples became lawful [C2.1].

Previously:

In 1996, anal and oral sex was unlawful for both homosexuals and heterosexuals [R1.1].

On 26 June 2003, the US Supreme Court ruled in Lawrence v. Texas that the Texas Penal Code, Section 21.06 was unconstitutional , Lawrence v. Texas, 539 U. S. 558 (2003) [C2.7]. The ruling is considered to overturn State laws.

In July 2002, the State Supreme Court ruled that a law passed by the legislature in 1997 barring sexual relations between people of the same gender was an unconstitutional invasion of privacy [R2.6].

In October 2001, Lambda Legal Defense and Education Fund, on behalf of seven Arkansas lesbians and gay men, was urging the Arkansas Supreme Court to strike down the state’s ban on sex between consenting adults of the same gender [R2.5].

In March 2001, a State circuit court struck down the law [C2.4], [R2.4].

In January 2001, a judge in Pulaski County circuit court heard arguments against the state’s sodomy law [R2.3].

On January 2001, the court in Arkansas was scheduled to hear arguments regarding the state’s sodomy law [R2.2].

On 28 January 1998, the Lambda Legal Defence and Education Fund (LLDEF) announced a lawsuit on behalf of seven lesbians and gay men against the state’s sodomy ban [R2.1].

In 2004, 75% of voters approved Constitutional Amendment 3 that defines marriage as between a man and a woman [R1.2].

On 13 February 1997, Governor Huckabee (R) signed a bill into law prohibiting same-sex marriages [R1.1].

See now 2. Courts & Tribunals

On 11 August 2015, the United States Court of Appeals for the Eighth Circuit formally affirmed lower court rulings striking down as unconstitutional the now-negated ban on gay marriage and civil unions in Arkansas, Nebraska and South Dakota [C2.22], [R2.21].

On 09 June 2014, Pulaski County judge Wendell Griffen ruled that the State must recognise about 500 couples who received marriage licenses during a brief window when clerks issued them to gay couples [R2.20].

On 29 April 2015, the Eighth Circuit Court of Appeals cancelled oral arguments in challenges to same-sex marriage bans from Arkansas, Nebraska, South Dakota, and Missouri until after the US Supreme Court issues its decision in Obergefell v. Hodges [C2.19], [R2.18].

On 23 December 2014, Arkansas Attorney General Dustin McDaniel filed a notice in federal court that he will appeal the 25 November ruling in Rita and Pam Jernigan and Becca and Tara Austin v. Larry Crane, that said voters were wrong to ban gay marriage during a referendum 10 years ago [R2.17].

On 09 December 2014, Elizabeth Linh Moore filed for divorce from Abigail Leigh Hill in the Washington County Circuit Court. Moore and Hill married 16 May when a number of same-sex marriage licenses were issued post Judge Christopher Piazza’s 09 Order and the raising the question as to whether those May marriages are legal and if the Court has jurisdiction to hear such divorces [R2.16].

On 25 November 2014, Judge Kristine G Baker in the US District Court struck down Arkansas’ voter-approved gay marriage ban as unconstitutional, staying her order pending the final disposition of any timely appeal to the Eighth Circuit Court of Appeals or until the time for filing a notice of appeal expires [C2.15], [R2.14].

On 23 October 2014, the Arkansas Supreme Court granted the application to expedite the same-sex marriage case and scheduled oral arguments for 20 November 2014 [R2.13].

On 16 May 2014, the Arkansas Supreme Court granted a stay of the 15 May 2014 order of Circuit Court Judge Christopher Piazza halting same-sex marriages pending an appeal [C2.12], [R2.11].

On 15 May 2014, Circuit Court Judge Christopher Piazza corrected and retroactively made final his 09 May Order. The state has filed its notice of appeal to the Arkansas Supreme Court [C2.10], [C2.9], [R2.8].

On 14 May 2014, the Arkansas Supreme Court contended that Circuit Court judge Chris Piazza’s order, which struck down statutory and constitutional prohibitions on same-sex marriage, was incomplete, as it did not render void all of the state’s laws referring to marriage as solely the union of one man and one woman, essentially putting an end to marriage equality in the state for the moment. The court returned the question of the legality of same-sex marriage to Piazza’s court [C2.7], [R2.6].

On 09 May 2014, Pulaski County Circuit Court Christopher Charles Piazza ruled the Arkansas constitutional and legislative ban on same-sex marriage through Act 144 of 1997 and Amendment 83 is unconstitutional. The judgment was not stayed [C2.5], [R2.4].

On 17 April 2014, Pulaski County Circuit Court Judge Chris Piazza heard argument challenging the voter-approved Amendment 83 anti-gay marriage measure and indicated he will issue a ruling in about two weeks [R2.3].

On 02 July 2013, a Complaint was filed in the Circuit Court of Pulaski County seeking a preliminary and permanent injunction to overturn Amendment 83 of 2004 that “denies homosexual couples the fundamental right to establish a familial institution with the protections and benefits enjoyed by heterosexual couples” [C2.2], [R2.1].

Arkansas Code: Title 9 Family Law, Subtitle 2 Domestic Relations, Chapter 9 Adoption, Subchapter 2 Revised Uniform Adoption Act, 9–9–204. Who May Adopt [L1.7]

The following individuals may adopt:

(1) A husband and wife together although one (1) or both are minors;
(2) An unmarried adult;
(3) The unmarried father or mother of the individual to be adopted;
(4) A married individual without the other spouse joining as a petitioner, if the individual to be adopted is not his or her spouse; and if:

(i) The other spouse is a parent of the individual to be adopted and consents to the adoption;
(ii) The petitioner and the other spouse are legally separated; or
(iii) The failure of the other spouse to join in the petition or to consent to the adoption is excused by the court by reason of prolonged unexplained absence, unavailability, incapacity, or circumstances constituting an unreasonable withholding of consent.

See 2. Courts & Tribunals [C2.6], [R2.5].

On 20 December 2017, Governor Asa Hutchinson was reported to have directed state officials to allow for same-sex parents to receive birth certificates with both of their names listed [R1.6].

On 07 December 2015, Arkansas Department of Health spokeswoman Meg Mirivel said “After further review of Judge Fox’s order, we have decided to issue amended birth certificates to same-sex couples who can show that they were married before the birth of their child”. The policy applies statewide subject to the Arkansas Supreme Court’s decision on the Attorney-General’s request for a stay [R1.5].

On 04 December 2015, it was reported that Jennifer Gardner-Glaze and her wife, Tracee succeeded in obtaining an amended birth certificate for their 4-month-old son, despite officials initially telling them they were unable to do because they were not parties to the lawsuit that resulted in Pulaski County Circuit Judge Tim Fox striking down part of a state law that barred same-sex couples from being listed on their children’s birth certificates [R2.9], [R1.4].

On 04 November 2008, Arkansas voters approved Act 1, a citizen-initiated ballot measure statutorily banning all unmarried, cohabitating couples from fostering or adopting children [R1.3].

See: 2. Courts & Tribunals [C2.6], [R2.5].

In March 2001, a bill that would have barred the Arkansas state department of human services from placing children with gay foster or adoptive parents failed 10–9 in a house committee [R1.2].

In January 1999, the Arkansas Child Welfare Agency approved by a vote of 6 to 1 a regulation barring gays and lesbians from becoming foster parents. The rule does not expressly forbid gays and lesbians from adopting children in the state’s care, but it is expected to make it more difficult [R1.1].

On 16 February 2018, Pulaski County Circuit Court Judge Tim Fox reportedly ruled that the state must pay attorney Cheryl Maples for her work leading to the ruling (in Nathaniel Smith, et al. v. Marisa N Pavan and Terrah D Pavan, et al) that Arkansas must issue birth certificates to married lesbian couples that list both spouses as the parents of their children [R2.24].

On 08 December 2017, Pulaski County Circuit Judge Tim Fox ordered injunctive relief in the Nathaniel Smith, et al. v. Marisa N Pavan and Terrah D Pavan, et al. case ordering the Department of Health to cease issuing all birth certificates unless and until such time as the the Department are able to issue birth certificates to all same sex spouses and opposite sex spouses in accordance with the mandate from the United States Supreme Court and the Arkansas Supreme Court. Within hours, the governor’s office ordered the Health Department to comply with a US Supreme Court ruling and list the spouse of the woman who gives birth as a parent, regardless of gender [C2.23], [R2.22].

On 27 November 2017, Pulaski County Circuit Judge Tim Fox ruled the Arkansas Department of Health must issue birth certificates to same sex parents on 05 January 2018 if the parties do not meet and confer to find agreed strikeouts to the present statutory language that will allow the defendant to constitutionally issue birth certificates to all residents and citizens [C2.21], [R2.20].

On 19 October 2017,Justice Robin F Wynne writing for the majority in the Supreme Court, ruled the state must change a law keeping same-sex couples from listing both of their names on their children’s birth certificates, but disagreed on whether a judge or legislators should do it [C2.19], [R2.18].

On 26 June 2017, the US Supreme Court reversed 6-3 an Arkansas Supreme Court ruling allowing the state to refuse to place a lesbian parent’s name on the birth certificate of their child if the parent isn’t the birth mother, on the basis it contravened the 2015 decision in Obergefell v. Hodges extending marriage equality nationwide [C2.17], [R2.16].

On 08 December 2016, a four-member court majority reversed Little Rock Circuit Judge Tim Fox’s finding on 10 December 2015 that the state’s insistence on identifying both mother and father were infringements on the constitutional due process rights of adoptive gay and lesbian couples, ruling birth certificates issued in Arkansas must identify the biological parents even if the child is subsequently adopted by a same-sex couple [C2.15], [R2.14].

On 03 November 2016, the appeal of the Nathaniel Smith, et al. v. Marisa N Pavan and Terrah D Pavan, et al. case concerning the recording of same-sex parents on children’s birth certificates was being heard in the state Supreme Court [R2.13].

On 10 December 2015, the Arkansas Supreme Court temporarily stayed the Pulaski County Circuit Court order of Judge Tim Fox that allowed same-sex parents throughout the state to be listed as parents on the birth certificates of their children, letting stand the certificates already obtained by three lesbian couples [C2.12], [R2.11].

On 23 November 2015, Pulaski County Judge Tim Fox ruled that three same-sex couples who sued the state for refusing to name both spouses on their children’s birth certificates can go to the Arkansas Department of Health to change the documents immediately. Fox said he will issue a written ruling soon [C2.10], [R2.9].

On 07 November 2013, John Moix asked the Arkansas Supreme Court to reverse a Pulaski County judge’s decision barring his gay partner from staying overnight when his 12-year-old son visits and imposing a blanket restriction on unmarried couples living together, alleging it is in violation of his constitutional rights. The Court reversed and remanded the case to the Circuit Court to determine as to whether the restriction was in the best interests of the child [C2.8], [R2.7].

On 07 April 2011, the Arkansas Supreme Court struck down the state’s law barring same-sex couples from adopting, concluding: “Act 1 directly and substantially burdens the privacy rights of ‘opposite-sex and same-sex individuals’ who engage in private, consensual sexual conduct in the bedroom by foreclosing their eligibility to foster or adopt children, should they choose to cohabit with their sexual partner” [C2.6], [R2.5].

On 27 January 2011, the Supreme Court reportedly scheduled 17 March for hearing oral arguments in an appeal over a state law that prohibits unmarried couples who live together from fostering or adopting children [R2.4].

On 16 April 2010, Pulaski County Circuit Court Judge Chris Piazza overturned the law (Act 1) banning unmarried couples living together from adopting or fostering children, saying the measure infringed on a person’s right to privacy. An appeal to the Arkansas Supreme Court. was mooted [R2.1].

On 16 March 2010, Pulaski County circuit judge Chris Piazza allowed three teenagers to join a lawsuit filed by the American Civil Liberties Union of Arkansas challenging the Arkansas law that prevents unmarried couples from fostering or adopting children. The trial was expected to start 10 May [R2.2].

In January 2009, the Arkansas chapter of the American Civil Liberties Union filed the lawsuit in Pulaski County Circuit Court on behalf of more than a dozen families seeking to overturn Act 1, which was approved by voters in November [R2.3].

On 09 August 2011, the US Court of Appeals for the 8th Circuit ruled that, in holding a school district liable for sexual harassment, it is not enough to show that a student suffered abusive behavior, no matter how extreme. A plaintiff must also prove the harassment was motivated by their sex or their failure to conform to gender stereotypes [C1.2], [R1.1].