Have 22 states in the US criminalised LGBTQ?

Member of Parliament for Ningo Prampram, Samuel Nartey George, has said that some States in the United States of America (USA) have passed laws that criminalise or ban homosexuality.

Speaking in an interview on TV3’s Hot Issues, Sam George added that 510 anti-LGBTQ bills were introduced in state legislatures across the United States in just 2023 alone, listing some 24 states that have passed laws against homosexuality.

Last night, I was hosted by @alfred_3fm on @tv3_ghana #HotIssues. It was a pretty interesting interaction. For God, our Children and Country. ???????????????? pic.twitter.com/hKAUkJjuKV

— Sam ‘Dzata’ George ???????????? (@samgeorgegh) March 11, 2024

 “In the US for example, about 22 States have passed legislations that criminalised or banned homosexuality in one way or the other,” he said.

In this explainer, Fact-Check Ghana provides an overview of the legislation surrounding homosexuality in the US.

Following the passage of the Human Sexual Rights and Family Values Bill, commonly known as the anti-LGBTQ bill, on Wednesday, February 28, 2024, there have been diverse conversations about the law and its impact on human rights and other sectors of the country.

The Member of Parliament for Ningo Prampram, Samuel Nartey George, who is one of the frontline champions of the anti-LGBTQ bill has made several claims about the criminalisation of homosexuality including claims that gays are more than 400% likely to commit suicide which Fact-Check Ghana has found to be false.

Is homosexuality illegal in the US?

Until 2003, it was illegal to engage in homosexual conduct in the US. The US Supreme Court, in the case of Lawrence v. Texas, invalidated the existing “homosexual conduct” law, thereby decriminalising same-sex sexual activities.

This ruling of the Lawrence v. Texas case also invalidated the sodomy law across the United States, making same-sex sexual activity legal in every State and United States territory.

Despite the court’s decision, a report by the New York Times shows that Florida, Georgia, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Mississippi, North Carolina, Oklahoma, South Carolina and Texas have not repealed their sodomy laws.

The rise of anti-LGBTQ laws in the US

Since 2018, the US has seen an increasing number of anti-LGBTQ bills at the state level.

A report by CNN indicates that 42 bills were introduced in 2018; 51 bills were introduced in 2019; 77 bills were introduced in 2020. In 2021, the bills increased to 154 and 180 in 2022.

2023 recorded the highest the country has seen so far. 510 bills were introduced in state legislatures across the US, making the claim by Sam George true. Among these bills, 314 were education related while 167 were health care related.

Additionally, 84 bills that restrict LGBTQ rights were passed in 23 states in 2023. It is important to note that some of these laws and statutes against LGBTQ persons are being challenged in court and are prone to changes in the future.

Same-sex marriage

In 2015, the US Supreme Court declared that same-sex marriage or gay marriage is legal at the federal level. Despite this decision, same-sex marriage is still banned in some states.

There are two main types of bans on same-sex marriage in states in the US: statutory bans and constitutional bans. A statutory ban on same-sex marriage refers to laws enacted by the state legislature that explicitly prohibit or restrict the recognition of marriages between individuals of the same sex. These bans are typically found within the state’s family law statutes.

Constitutional bans on same-sex marriage are provisions embedded within the state constitution that specifically forbid or limit the legal recognition of marriages between individuals of the same sex. Constitutional bans carry a higher level of legal authority and are more difficult to overturn than statutory bans, as they require amendments to the state constitution through specific processes such as voter referendums or legislative action.

State-level bans on same-sex marriage fall into four major categories: Banned by both constitutional amendment and a statute; Banned by a state constitutional amendment; Banned by state statute; Neither statute nor amendment ban marriage( No ban).

Fact-Check Ghana found that 35 states have statutes and/or constitutional amendments in place prohibiting same-sex marriage.

States that discriminate against LGBTQ persons

Following the 2003 and 2015 Supreme Court ruling on LGBTQ, on February 11, 2021, the Federal Department of Housing and Urban Development (HUD) issued a memorandum confirming that it is illegal to discriminate in housing based on sexual orientation and gender identity.

However, some states allow discrimination against LGBTQ in housing, employment, education and public accommodations.

A publication by the University of California Los Angeles (UCLA) shows that more than a dozen states allow discrimination against LGBTQ persons due to the lack of non-discriminatory laws. The publication reported the following:

• 27 States do not have statutes that prohibit discrimination against LGBTQ persons in employment.
• 32 States do not have statutes that prohibit discrimination against LGBTQ persons in education.
• 28 States do not have statutes that prohibit discrimination against LGBTQ persons in public accommodations.
• 27 States do not have statutes that prohibit discrimination against LGBTQ persons in housing.

It is worth noting that, there may be some changes that may occur as some of the States have cases on the statutes pending in court.

Have 22 states criminalised LGBTQ?

Following the decriminalisation of same-sex sexual activities across the country by the US Supreme Court, no state has passed a contrary law.

Fact-Check Ghana found no evidence to support the claim by Sam George that 22 states in the US have criminalised homosexuality. Rather we found that there are laws or statutes that either restrict LGBTQ rights or ban LGBTQ persons from accessing some opportunities such as gender-affirming care.

For instance, Idaho State banned gender-affirming care for trans minors, it made it a felony, punishable by up to 10 years in prison and a $5,000 fine, to provide such care.  North Dakota criminalised the provision of gender-affirming care as well, making it a felony to perform gender-affirming surgery on a minor for the purpose of transition.

Banning homosexuality involves legal measures that restrict individuals from openly expressing or engaging in same-sex relationships or behaviours while criminalising homosexuality entails making such relationships or behaviours illegal under the law, often resulting in penalties such as fines or imprisonment.

In conclusion, Fact-Check Ghana found no evidence to support the claim that 22 states have criminalised LGBTQ. Rather there are state laws or State constitutional amendments that restrict or ban LGBTQ persons from accessing some services and some of these laws are being challenged in various courts in the US.