A brief history of LGBTQ+ legislation in Mississippi

by Allison Santa-Cruz, Mississippi Today
July 19, 2022

Question:

Is there any legislation currently that puts existing rights and liberties in jeopardy?

Answer:

Some local governments in Mississippi have passed resolutions to protect LGBTQ+ rights, and recently proposed legislation attempting to restrict transgender people's rights died in committee during the 2022 legislative session. However, there is concern about the lack of legislation that explicitly prohibits discrimination based on gender and sexual identity.

A Timeline:

View the timeline and historic details below for a brief history of state legislation.

In  1802, Mississippi adopted a code that made sodomy a criminal offense. In 1890, when Mississippi created its new state constitution, it included the sodomy law. This law remains on Mississippi's books but was invalidated by the federal law enacted from the Lawrence v. Texas case. However, after Roe v. Wade was overturned, U.S. Supreme Court Justice Clarence Thomas included in his opinion that the Supreme Court should reconsider the validity of Lawrence v. Texas. 

A state law prohibited same-sex couples from being able to adopt. It was only on March 31, 2016, that Chief United States District Judge Daniel P. Jordan III issued a preliminary injunction striking down Mississippi's ban on same-sex couples adopting, ruling that the law violates the Equal Protection Clause. 

This injunction followed the 2015 landmark decision of Obergefell v. Hodges, in which same-sex marriage was federally legalized and protected. In a swift response, the Mississippi Legislature in 2016 passed House Bill 1523 (H.B. 1523), also called the Religious Liberty Accommodations Act or Protecting Freedom of Conscience from Government Discrimination Act. 

H.B. 1523 states “The sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that:

(a) Marriage is or should be recognized as the union of one man and one woman;
(b) Sexual relations are properly reserved to such a marriage; and 
(c) Male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.” 

This piece of legislation was a roundabout attempt to enable discrimination of LGBTQ+ citizens to continue under a thin veneer of expression of religious freedom. 

After the passing of H.B. 1523, many state and local city governments, such as Minnesota, New York, Vermont and Washington banned government employees from non-essential publicly funded travel to Mississippi. The bans were intended to illustrate the widespread dissent with Mississippi's law.

No provision of Mississippi law explicitly addresses gender identity-based discrimination. State non-discrimination laws extend to categories of “race, religious principles, color, sex, national origin, ancestry and handicap.” Miss. Code Ann. §§ 43-33-723 (2001); 25-9-103 (2001).

According to the Human Rights Campaign, no provision of Mississippi law addresses discrimination based on sexual orientation or addresses gender identity-based discrimination.

Various resolutions passed by local city governments protect LGBTQ+ rights. Hattiesburg, Oxford, Bay St. Louis, and Jackson are among the few cities that have all passed non-discrimination resolutions to support LGBTQ+ residents. 

Mississippi has not prohibited the use of the gay or transgender panic defense as a legal strategy. This legal strategy is employed by lawyers who try to excuse their defendant's crimes, such as murder or assault, by claiming that the victim being gay or trans caused the defendant to react violently. 

While Mississippi does not protect people's sexual orientation or gender identity in its existing hate crime law, the federal Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act allows the federal government to prosecute hate crimes, including those based on sexual orientation and gender identity.

Recently, “Real You Act of 2022,” which died in committee, was introduced by Sen. Chad McMahan, R-Guntown, to limit some people from changing their name and gender. This piece of legislation is aimed at curtailing transgender rights, as it would disallow incarcerated individuals from petitioning the court to legally change their name or update their gender marker during their sentence. The bill also makes it impossible for minors to change their gender marker if they so desire. 

Another stressor for Mississippi LGBTQ+ minors is that they are not protected by state law against conversion therapy, where minors could be subjected to harmful practices in an attempt to change their sexual orientation. 

VIDEO: Capital City Pride's Jason McCarty talks Pride in Mississippi with Robin McGehee

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.