Same-sex couples can legally marry in Puerto Rico, the Virgin Islands, Guam and the Northern Mariana Islands.
Puerto Rico has the highest ranking of the five territories with a 21.75 out of a possible 40.5 points.
The U.S. commonwealth bans employment discrimination based on sexual orientation and gender identity. Puerto Rico’s hate crimes and anti-bullying laws are also LGBT-inclusive and trans people can legally change the gender on their birth certificates and other ID documents.
The report places Puerto Rico in the “high” category along with 17 states and D.C., even though activists with whom the Washington Blade has spoken maintain LGBT Puerto Ricans became even more vulnerable to violence and discrimination after Hurricane Maria devastated the island in 2017. The report also ranks the Virgin Islands, Guam, the Northern Mariana Islands and American Samoa in the “low” category.
Guam has an overall tally of seven out of 40.5 points.
The island bans employment discrimination based on sexual orientation and gender identity. Guam’s anti-bullying laws also cover LGBT students.
The Virgin Islands has an overall tally of 5.5 out of 40.5 points.
The territory allows second-parent adoption for same-sex couples. The Virgin Islands’ hate crimes and anti-bullying laws includes sexual orientation and gender identity. The territory also bans discrimination against LGBT government employees.
American Samoa has an overall tally of 1.5 out of 40.5 points. The Northern Mariana Islands, which has an overall tally of .5 out of 40.5 points, bans discrimination against government employees based on sexual orientation.
“There is progress happening in territories and there is fertile ground for more progress to happen,” MAP Policy Research Director Naomi Goldberg told the Blade on June 7 during a telephone interview. “There is an investment that we need to be making to further that progress on the ground by helping folks on the ground.”
American Samoa does not allow same-sex marriage
The report states more than 3.5 million people live in the five territories, with the vast majority of them living in Puerto Rico. It also notes Puerto Rico, the Virgin Islands, Guam and the Northern Mariana Islands are part of the federal court system.
“The political status and the relationship within the U.S. filters into any constitutional case about rights in the territories,” Omar Gonzalez-Pagan, a staff attorney for Lambda Legal, told the Blade last week during a telephone interview. “The judges are mindful of that.”
This ambiguity came into sharp focus during the fight to secure marriage rights for same-sex couples throughout the U.S.
Guam and the Northern Mariana Islands both fall under the jurisdiction of the 9th U.S. Circuit Court of Appeals.
The 9th Circuit in October 2014 struck down same-sex marriage bans in Idaho and Nevada. The first same-sex couple legally married in Guam on June 9, 2015, after a federal judge struck down the island’s law that defined marriage as between a man and a woman.
The government of the Northern Mariana Islands only allowed same-sex couples to marry after the U.S. Supreme Court on June 26, 2015, issued its ruling in the Obergefell case.
Then-Virgin Islands Gov. Kenneth Mapp on July 9, 2015, signed an executive order that required officials to allow same-sex couples to legally marry. Gays and lesbians have been able to tie the knot in Puerto Rico since July 17, 2015.
U.S. District Court Judge Juan Pérez-Giménez on March 8, 2016, said the ruling in the Obergefell case does not apply to Puerto Rico because it is not a state, even though the 1st U.S. Circuit Court of Appeals previously declared the island’s same-sex marriage ban unconstitutional. The 1st Circuit and a federal judge later upheld their previous decisions.
The report notes American Samoa is not part of the federal court system and the territory’s residents are considered “American nationals” as opposed to U.S. citizens. Advocates have said the Obergefell decision applies to American Samoa, even if officials in the territory were to refuse to issue marriage licenses to same-sex couples.
“As federal courts began striking down state marriage bans, the applicability and impact of these rulings to these U.S. territories was not clear,” reads the report. “Put differently, if residents of the territories do not enjoy the U.S. Constitution’s full protections, did the fundamental right to marry apply equally within the territories? The implication of the marriage rulings was also unclear for American Samoa, which does not have a federal court at all.”
Gonzalez-Pagan told the Blade the territories’ political status remains an additional barrier to rights for their citizens.
“The sad reality that in the U.S. there are millions of people that are living in colonies, effectively, and don’t enjoy full political and constitutional rights,” said Gonzalez-Pagan, noting D.C. is also not a state and does not have full representation in Congress. “It is important to take note of that and to bring to the fore that there are 3.5 million people who live under the flag and don’t enjoy political rights.”