LGBT rights in Colorado

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Colorado enjoy the same rights as non-LGBT people. Same-sex sexual activity has been legal in Colorado since 1972. Same-sex marriage has been recognized since October 2014, and the state enacted civil unions in 2013, which provide some of the rights and benefits of marriage. State law also prohibits discrimination on account of sexual orientation and gender identity in employment, housing and public accommodations and the use of conversion therapy on minors. In July 2020, Colorado became the 11th US state to abolish the gay panic defense.[1]

LGBT rights in Colorado
StatusLegal since 1972
Gender identityState does not require surgery to change gender on official documents
Discrimination protectionsSexual orientation and gender identity/expression are protected categories
Family rights
Recognition of relationshipsSame-sex marriage legal since 2014
Civil unions legal since 2013
Designated beneficiary agreements legal since 2009
AdoptionSame-sex couples permitted to adopt

Colorado is frequently referred to as one of the most LGBT-friendly states in the Mountain West. The LGBT think tank Movement Advancement Project ranks Colorado second in the region for LGBT rights legislation, behind Nevada. 2019 polling from the Public Religion Research Institute showed that 77% of Colorado residents supported anti-discrimination legislation protecting LGBT people.

History and law regarding same-sex sexual activity
Two men accused of homosexual sexual activity being punished by wearing female clothing and wheeling heavy rocks, Cañon City, 1900-1910?

The Arapaho, who now live on the Wind River Indian Reservation in Wyoming, recognize male-bodied individuals who act, behave and live as women, referred to as haxu'xan. The haxu'xan, like women, are traditionally in charge of food preparation and dressing hides to make clothing and bedding. They form a "third gender" in Arapaho society, and can even marry men. The Arapaho believe their gender is "a supernatural gift from birds and animals".[2]

In 1860, sodomy was made illegal in Colorado, then the Jefferson Territory, under its first criminal code, which indirectly prohibited sodomy by expressly recognizing common law, under which the maximum penalty for sodomy was death. In 1861, the U.S. Congress created the Colorado Territory, whose government enacted a criminal code that punished sodomy (as defined by common law) with penalties ranging from one year to life in prison.[3] In 1922, the Colorado Supreme Court ruled that the ban did not prohibit fellatio (oral sex), even though the court felt that the behavior was "more vile and filthy than sodomy".[4] The law was revised in 1939 to expressly cover anal intercourse and oral sex, whether heterosexual or homosexual, and the maximum penalty was reduced to fourteen years. In 1953, Colorado enacted a psychopathic offender law that provided for indefinite institutionalization for committing sex crimes, thus putting homosexuals in the same category as rapists and child molesters. The law was struck down by the U.S. Supreme Court in 1967 in Specht v. Patterson, holding that the law was "unconstitutional because the defendants were not afforded basic due process of law in the proceedings". In 1970, the Colorado Supreme Court ruled that the sodomy ban also included cunnilingus.

In 1971, Colorado revised its penal code and decriminalized sodomy in cases that involved non-commercial, private acts between consenting adults.[5] At the same time, it instituted a public indecency law that banned public displays of affection between same-sex couples. The Colorado Supreme Court struck down that statute in 1974.[6]

Recognition of same-sex relationships
Main articles: Recognition of same-sex unions in Colorado and Same-sex marriage in Colorado

In 1975, the Boulder County Clerk issued marriage licenses to several same-sex couples after the local district attorney interpreted Colorado's statutes, which used the phrase "any two persons", to be gender-neutral with respect to marriage. State Attorney General J.D. MacFarlane issued a contrary opinion that those marriages were invalid.[7] When one of those married in Boulder tried to use it to sponsor his husband for immigration purposes, he lost his case, Adams v. Howerton, in federal court.[8] In 2016, U.S. Citizenship and Immigration Services reversed its decision from 1975 and granted permanent residency status to Anthony Sullivan, based on his marriage to Richard Adams in Boulder on April 21, 1975.[9]

In 1996, Governor Roy Romer vetoed legislation which would have banned recognition of same-sex marriages. In his notice to the General Assembly, Governor Romer wrote "It is one thing to believe, as I do, that marriage is for the union of a man and woman. It is quite another to believe that committed same sex relationships do not exist and should not be recognized by society."[10] In 2006, a state referendum added language to the Colorado Constitution that restricted marriage and common law marriage to couples of different sexes, without mentioning civil unions or domestic partnerships.[11]

In April 2009, Colorado enacted a designated beneficiaries law, effective July 1, that allowed anyone to make a same-sex partner the beneficiary of insurance, inheritance, hospital visitations, funeral arrangements and death benefits, and other important matters.[12]

In 2011 and 2012, state lawmakers attempted but failed to pass an act formally recognizing civil unions,[13] though Governor John Hickenlooper endorsed the legislation in his 2012 State of the State address.[14] In March 2013, both houses of the Democratic-controlled General Assembly passed legislation establishing civil unions that provide rights comparable to those provided to opposite-sex married couples and Governor Hickenlooper signed the bill into law on March 21, 2013. The law went into effect on May 1, 2013.[15]

Governor Hickenlooper signed a bill permitting joint state income tax filing for civil partners and out-of-state same-sex married couples.[16]

On February 19, 2014, nine same-sex couples, some unmarried and some married in other jurisdictions, filed a lawsuit in state court challenging the state's definition of marriage and arguing that civil unions created a "second-class level of citizenship" for gays and lesbians. The suit, McDaniel-Miccio v. Hickenlooper, named Governor Hickenlooper and the Denver City Clerk as defendants. The clerk expressed support for same-sex marriage.[17] Attorney General John Suthers, a Republican, announced he would defend the state's definition of marriage.[18] On October 6, Suthers asked the Tenth Circuit to dismiss his appeal and lift the stay after the U.S. Supreme Court left in place as binding precedent other Tenth Circuit decisions holding bans on same-sex marriage unconstitutional in Oklahoma and Utah.[19] Same-sex marriage became legal on October 7, 2014 after the Colorado Supreme Court lifted the last legal barriers and Attorney General John Suthers told clerks around the state to begin issuing licenses.[20]

In January 2021, the Colorado Supreme Court ruled that the state must retroactively recognize common-law same-sex marriages that occurred prior to legalization in 2014.[21]

Adoption and parenting

A single LGBT person and same-sex couples can petition to adopt in Colorado.[22] Second-parent adoptions are permitted under state law,[22] though the process is more elaborate and expensive than that required of married couples.[23]

Lesbian couples can access 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.[24] While there are no specific surrogacy laws in Colorado, the courts have ruled that the practice is legal and surrogacy contracts can be recognized as legally valid. Both gestational and traditional contracts are recognized, though the latter may result in potential legal conflicts and more litigation than the former. The state treats different-sex and same-sex couples equally under the same terms and conditions.[25]

Several Catholic adoption agencies do not place children either with single persons or with same-sex couples.[26][27]

Discrimination protections
PrideFest in Denver, June 2008

It has been illegal to discriminate on the basis of sexual orientation and gender identity or expression in employment, housing, public accommodations, education, and credit since the category "sexual orientation" was added to the state's anti-discrimination law in 2008. The bill was controversial and following its passage by the General Assembly opponents waged a media campaign that failed to persuade Governor Bill Ritter to withhold his signature.[28] State statutes define "sexual orientation" as "an individual's orientation toward heterosexuality, homosexuality, bisexuality, or transgender status or another individual's perception thereof."[29]

Moreover, the state's anti-bullying law prohibits bullying on the basis of disability, race, creed, color, sex, sexual orientation, gender identity, national origin, religion, ancestry, or need for special education services.[30] The law, which also includes cyberbullying, applies to all school districts, and requires them to "adopt a safe school plan and conduct and discipline code that contains a specific policy addressing bullying prevention and education", including regular surveys of students' impression, character building, the designation of a team of persons at each school to advise the school administration concerning the severity and frequency of bullying incidents, and requirements for how the conduct and discipline code must by publicized.[31]

On November 3, 1992, Colorado voters approved Initiative 2, an initiated constitutional amendment, which added language to the State Constitution that prohibited the state and all of its subdivisions from allowing "homosexual, lesbian or bisexual orientation, conduct, practices or relationships" to provide the basis for any "claim any minority status, quota preferences, protected status or claim of discrimination." In 1994, the Colorado Supreme Court found the amendment unconstitutional.[32] In 1996, the U.S. Supreme Court held in Romer v. Evans that the amendment, because it "allows discrimination against homosexuals and prevents the state from protecting them", was "motivated by animus towards homosexuals" and violated their rights under the equal protection clause of the Fourteenth Amendment.[33]

In June 2012, a gay couple who had married in Massachusetts tried to purchase a wedding cake at a bakery in Lakewood, and were refused. They sued to force the bakery to provide them with the same services as other customers,[34] and on December 6 Administrative Law Judge Robert N. Spencer ruled for the plaintiffs in Craig v. Masterpiece Cakeshop. He dismissed the bakery's claim that requiring the business to provide the service violated its owner's rights to free speech or religious expression.[35] In June 2018, this ruling was thrown out by the U.S. Supreme Court on a 7 to 2 ruling in favor of the defendant, in Masterpiece Cakeshop v. Colorado Civil Rights Commission.

Hate crime law

The state's hate crime law has provided protections based on both sexual orientation and gender identity or expression since 2001.[36] In 2009, in a case thought to be "the first in which a hate crime law was applied in a murder trial where the victim was transgender", a jury in Greeley convicted a man of first-degree murder and found that it was a hate crime under Colorado law.[37] The law provides penalty enhancements if a crime is motivated by the victim's actual or perceived sexual orientation or gender identity, amongst other categories.

Transgender rights
Further information: Transgender rights in the United States

Between January 1, 1984 to February 13, 2019, changing the gender marker on a birth certificate required undergoing sex reassignment surgery. In February 2019, the requirement to undertake such procedures was removed by a unanimous vote by the board of the Colorado Department of Public Health and Environment. The applicant for a gender change can simply do so by request, to the Division of Motor Vehicles (by completing a "Change of Sex Designation" form) if the change concerns a driver's license or a state ID, or to the Department of Health (by completing a "Birth Certificate Correction Form" and a "Sex Designation Form") if the change concerns a birth certificate. Minors are also permitted to change legal gender, but require the consent of a parent or guardian and a medical or mental health professional.[38]

Birth certificates have four sex descriptor; "M" (male), "F" (female), "Intersex" and "X". State IDs and driver's licenses have three descriptor; male, female and X.[39][40][41][42]

Conversion therapy
See also: List of U.S. jurisdictions banning conversion therapy

On March 10, 2015, the Colorado House of Representatives approved 35–29 a bill banning sexual orientation change efforts (conversion therapy) with minors.[43] However, the bill failed to pass the Colorado Senate.

On March 17, 2016, the House voted 35–29 in favor of a bill sponsored by Representative Dominick Moreno which would have outlawed the use of conversion therapy on LGBT minors.[44][45][46][47] The bill was postponed indefinitely in a Senate committee in a 3–2 vote on April 11, 2016.[48][49]

In March 2017, the Colorado House of Representatives passed for the third time a ban on conversion therapy on minors, but got blocked for the third time in three years in the Colorado Senate.[50][51]

In December 2018, Denver introduced an ordinance banning conversion therapy on LGBT minors. The proposal passed council committee and floor votes unanimously by a vote of 13–0 on January 7, 2019. The ordinance took effect immediately after signature from Mayor Michael Hancock a week later.[52][53] Denver became the first jurisdiction in the state to implement a ban on conversion therapy on LGBT minors.[54][55]

On February 19, 2019, the House passed a bill which would ban the use conversion therapy on minors, with a 42–19 majority.[56] The Senate approved the bill on March 25 with a 21–13 majority.[57] The bill was amended in the Senate, and sent back to the House for another vote, which voted in favor of the amended version.[58] On May 31, 2019, Governor Jared Polis, the United States' first openly gay governor, signed the bill into law.[59] Colorado became the 17th U.S. state (plus the District of Columbia) to ban the use of the discredited practice on minors.[60]

Gay panic defense

In June 2020, the Colorado General Assembly passed a bipartisan bill to abolish the gay panic defense.[61] In July 2020, the bill was signed into law by Governor Jared Polis, and went into effect immediately.[62][63]

Public opinion

A 2017 Public Religion Research Institute poll found that 71% of Colorado residents supported same-sex marriage, while 21% were opposed and 8% were unsure.[64]

Public opinion for LGBT anti-discrimination laws in Colorado
Poll source Date(s)
administered		 Sample
size		 Margin of
error		 % support % opposition % no opinion
Public Religion Research Institute January 2-December 30, 2019 1,065 ? 77% 18% 5%
Public Religion Research Institute January 3-December 30, 2018 880 ? 72% 21% 7%
Public Religion Research Institute April 5-December 23, 2017 1,210 ? 74% 19% 7%
Public Religion Research Institute April 29, 2015-January 7, 2016 1,346 ? 73% 23% 4%

Summary table
Same-sex sexual activity legal (Since 1972)
Equal age of consent (Since 1972)
Anti-discrimination laws in all areas (Since 2008 for sexual orientation and gender identity)
Same-sex marriages (Since 2014)
Recognition of same-sex couples (e.g. civil union) (Since 2013)
Joint and stepchild adoption by same-sex couples (Since 2014)
Lesbian, gay and bisexual people allowed to serve openly in the military (Since 2011)
Transgender people allowed to serve openly in the military (Since 2021)[65]
Intersex people allowed to serve openly in the military (Current DoD policy bans "hermaphrodites" from serving or enlisting in the military)[66]
Right to change legal gender without sex reassignment surgery (Since 2019)
Third gender option
Conversion therapy banned on minors (Since 2019)
Gay and trans panic defense banned (Since 2020)[62]
LGBT anti-bullying law in schools and colleges
Access to IVF for lesbian couples
Surrogacy arrangements legal for gay male couples
MSMs allowed to donate blood / (Since 2020; 3-month deferral period)[67]

See also

References
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  2. Sabine Lang, Men as Women, Women as Men ISBN 0292777957, 2010
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  4. The Pacific Reporter, vol. 263, 22: Robinson v. People, 23 Colo. 123, 46 p. 676
  5. Eskridge, William N. (2008). Dishonorable Passions: Sodomy Laws in America, 1861-2003. NY: Viking Penguin. pp. 177–8. ISBN 9780670018628.
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  8. Leagle, Inc.: Adams v. Howerton, 486 F. Supp. 1119 (C.D.Cal.1980) Archived March 21, 2012, at the Wayback Machine. Accessed July 30, 2011
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  20. Colorado AG: County clerks must issue gay marriage licenses
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  26. Rittiman, Brandon (January 25, 2013). "Catholic adoption agencies vow not to serve gay couples". 9news.com. Archived from the original on February 19, 2013. Retrieved January 29, 2013.
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  29. "C.R.S. 24-34-301 Definitions". Colorado Legal Ressources.
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  31. Colorado Anti-Bullying Laws & Policies
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  39. "Birth certificates". Department of Public Health and Environment. June 6, 2014.
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  61. CO HB1307, LegiScan
  62. Boyd, Shaun (July 14, 2020). "Gay Panic Defense And Trans Panic Defense No Longer Allowed In Colorado Courtrooms". CBS Denver.
  63. "Colorado bill barring panic as a defense for attacking gay, trans people headed to Polis". Colorado Politics. June 12, 2020.
  64. Consulting, Epicenter. "PRRI – American Values Atlas". ava.prri.org.
  65. Baldor, Lolita; Miller, Zeke (January 25, 2021). "Biden reverses Trump ban on transgender people in military". Associated Press.
  66. "Medical Conditions That Can Keep You From Joining the Military". Military.com.
  67. McNamara, Audrey (April 2, 2020). "FDA eases blood donation requirements for gay men amid "urgent" shortage". CBS News.
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