Lesbian, gay, bisexual, transgender, and queer (LGBTQ) people in the U.S. state of Arizona may face legal challenges not experienced by non-LGBTQ residents. Same-sex sexual activity is legal in Arizona, and same-sex couples are able to marry and adopt. Nevertheless, the state provides only limited protections against discrimination on the basis of sexual orientation and gender identity. Several cities, including Phoenix and Tucson, have enacted ordinances to protect LGBTQ people from unfair discrimination in employment, housing and public accommodations.
Phoenix and Tucson are home to prominent LGBTQ communities. The first Phoenix Pride parade took place in 1981, and now attracts thousands of attendees every year.Thousands of people attend Phoenix Pride Parade Tucson Pride, founded in 1977, was the first in the state. 2019 polling from the Public Religion Research Institute showed that 71% of Arizona residents supported non-discrimination legislation protecting LGBTQ people.
History and legality of same-sex sexual activity Arizona has been inhabited by indigenous peoples for thousands of years. 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. (See also "LGBT rights in the Navajo Nation")
The Tohono O'odham recognize the term wi:k’ovat, which refers to individuals who are assigned male at birth but act, dress and behave as female. Other people groups recognize similar terms in reference to transgender people and gender variance; male-to-female individuals are hova among the Hopi, alyha among the Mohave, ilyaxai' among the Maricopa, tüwasawuts among the Southern Paiute, ndéʼsdzan among the Western Apache, elxa' among the Quechan, and elha among the Cocopah, whereas female-to-male individuals are hwame among the Mohave, kwiraxame' among the Maricopa, kwe'rhame among the Quechan, and warrhameh among the Cocopah. Nowadays, the term "two-spirit" is increasingly used to refer to these identities.
The relative openness to these different gender identities mostly disappeared after European settlement and colonization. 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 Europeans, nádleehi became the subject of ridicule. Today, LGBT 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.
Sodomy laws were first enacted after modern-day Arizona became part of the Spanish Empire, later joining the newly independent Mexico and finally the United States. Shortly after the Arizona Territory was established in 1863, the Arizona Territorial Legislature passed a criminal code containing provisions banning sodomy with five years' to life imprisonment. It was extended to include fellatio in 1912, while the penalty for sodomy was reduced to one to five years' imprisonment. As was the case for sodomy laws at the time, the code punished both heterosexual and homosexual conduct. In 1951, the penalty was changed to five to twenty years' imprisonment, and further crackdowns on homosexual activity were passed, requiring all those convicted under the sodomy laws to register with the local sheriff and report any change in address. Over the following years, the Arizona Supreme Court rejected multiple challenges that the law was vague and unconstitutional.
In the summer of 1979, the Spiritual Conference for Radical Fairies took place at the Sri Ram Ashram near Benson, in which participants sought to expand the ideas of spirituality within the context of gay liberation.Hay, Harry, with Will Roscoe (ed.) (1996). Radically Gay: Gay Liberation in the Words of its Founder. Boston: Beacon Press.
The Arizona Equity Act of 2001 repealed the state's sodomy laws and legalized homosexuality.Lee Walzer, Gay Rights on Trial: A Reference Handbook (2002), 82
Recognition of same-sex relationships
Arizona has recognized same-sex marriage since being forced to end enforcement of its statutory and constitutional bans on same-sex marriage by the decision of a U.S. district court on October 17, 2014.
Despite the court ruling, the same-sex marriage ban still remains in the state's constitution, and on the Arizona State Legislature's website makes no mention that the ban was struck down or otherwise rendered inoperative. Likewise, the state's statutory ban on same-sex marriage, as well as its ban on recognizing same-sex marriages conducted in places where it is legalized, remain in the Arizona Revised Statutes, Although the statutory ban is unenforceable due to Obergefell v. Hodges, and the ban on recognition of same-sex marriage contracted outside of Arizona is unenforceable due to the passage of the Respect for Marriage Act in 2022.
Prior ban In November 2006, Arizona voters rejected Proposition 107, which would have banned same-sex marriage and any legal status similar to marriage (such as civil unions or domestic partnerships).
Two years later, however, Arizona voters approved a less restrictive Proposition 102 which amended the Constitution to ban the recognition of same-sex marriage.
With no constitutional ban on domestic partnerships or civil unions, several cities, including Phoenix, Bisbee, Tucson, Flagstaff and more, subsequently enacted such measures.
Adoption and parenting Arizona permits adoption by individuals. There are no explicit prohibitions on adoption by same-sex couples or on second-parent adoptions. However, state law requires adoption agencies to give primary consideration to adoptive placement with a married couple. Agencies may place a child with a legally single person if it is in the child's best interest or if there is not a married couple available.
Lesbian couples have access to assisted reproduction services, such as 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.
In September 2017, the Arizona Supreme Court ruled unanimously that same-sex spouses have the same parental rights as opposite-sex spouses under state law. Basing their ruling on Obergefell v. Hodges and Pavan v. Smith, the court concluded that married same-sex couples have the right to list both their names on their child(ren)'s birth certificate(s). Following some more legal process at the trial court, in October 2020 the Arizona Court of Appeals ruled that birth certificates must accommodate same-sex parents.
Surrogacy, whether gestational or traditional, is prohibited under Arizona law. Despite this, in light of the 1994 court case of Soos v. Superior Court, which held that intended parents can rebut the statutory presumption that the gestational carrier is the legal mother of the child, couples began to petition courts for a pre-birth order, which would declare them the legal parents of the child rather than the surrogate. The contracts remain unenforceable and consequently some attorneys will not prepare surrogacy agreements. Only the biological parents can obtain a pre-birth order, meaning that for same-sex couples the non-biological parent must complete a second-parent adoption to be legally recognized as a parent.
In April 2022, a bill passed by the Arizona State Legislature and signed into law effective immediately (with an emergency clause) by the Governor of Arizona Doug Ducey - that allows religious organizations to "legally discriminate" against same-sex couples (and other groups or characteristics) that want to adopt or foster children.
Discrimination protections
As part of the United States, Arizona is covered under the Bostock v. Clayton County, Altitude Express, Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission rulings in 2020, which ruled 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.
Beside the rulings, various anti-discrimination provisions have been promulgated by the Arizona state government, as well as various Arizona municipalities, since at least the 1990s.
1992 Phoenix's city council approved a non-discrimination ordinance that bans workplace discrimination against gays and lesbians who work for the city, or at companies with city contracts and at least 35 employees.
1999 Tucson's city council passed a non-discrimination ordinance.
2003 Then-Governor Janet Napolitano issued an executive order prohibiting discrimination on the basis of sexual orientation against state employees.
2013 In February, Phoenix's city council revised its non-discrimination ordinance to ban discrimination in employment, housing and public accommodations based on sexual orientation, gender identity, or gender expression.
In March, Flagstaff's city council passed a civil rights ordinance that bans discrimination on the basis of sexual orientation, gender identity and military veteran status in the area of employment and public accommodations. Exemptions were made for religious-based organizations, "expressive groups," government agencies, and businesses with fewer than 15 employees.
2014 In February, Tempe's city council approved, in a unanimous vote, an ordinance that bans discrimination in employment, housing and public accommodations, with exceptions for religious groups and private clubs.
During that same month, then-Governor Jan Brewer vetoed a "religious freedom" bill which would have granted any individual or legal entity an exemption from any state law if it substantially burdened their exercise of religion, widely reported as targeting LGBTQ people. The bill had drawn international criticism.
2015