Sexual Orientation and the Law Blog

What happens when a person transitions from male-to-female during marriage?

It really isn't clear.  In conservative states, the answer tends to be:  once a man, always a man.  In that case, the marriage would remain valid in spite of rules against same-sex marriage.  See, e.g., Littleton v. Prange, 9 S.W.3d 223 (Tex. App.--San Antonio 1999).

In other (liberal) states, like New Jersey, where courts recognize a sex change when the person's psychological sex matches their physical sex, see M.T. v. J.T., 355 A.2d 204 (N.J. 1976), the answer is murky.  In these states, courts would prefer not to rule that the marriage is invalid by recognizing the sex change.  (Of course, in Massachussetts, where same sex marriage is legal, this would not create a problem.)

The issue came up once again because one member of a couple (the Brunners) living in New Jersey transitioned from male-to-female during marriage.  In New Jersey, courts would recognize Denise Brunner as her new sex because now her physical characteristics match her psychological sex.  However, although civil unions are available in New Jersey, same sex marriage is not. In the eyes of the Brunners, to convert their marriage to a same-sex union would be a "downgrading of their relationship".  See New York Times Article entitled "Through Sickness, Health, and Sex Change" (April 27, 2008).  So, where does that currently leave them?  With a marriage that could be characterized as a same sex marriage (if challenged).

Transsexual Plaintiff Who Defeated Summary Judgment Settles Claim

The recent claim in the Southern District of Texas where a plaintiff argued that she was subject to discrimination because her job offer was rescinded on the basis of her sex after her employer discovered that she was transsexual through a background check settled.  Lambda legal says that the settlement was favorable.  Here is the Houston Chronicle Article detailing the outcome of the case.

Hospital Visitation Rights in North Carolina

A new statewide hospital policy will permit same sex partners to visit a hospitalized loved one in North Carolina.  Generally, only immediate family members can visit patients as a matter of right.  Now, same sex partners will be permitted to visit an injured loved one.

It is crucial to be able to visit a loved one in a time of need.  Now, same-sex partners and unmarried partners will be able to visit an injured loved one in a North Carolina hospital.  See full Article on 365Gay.com here.

First Same Sex Union in Latin America

Uruguay's "cohabitation union law" went into effect on Jan. 1, 2008. The first same sex union took place on Thursday, April 17, 2008. This was the first same sex union to take place in Latin America and represents a step forward for gay rights in South America. See the full article at Yahoo News here.

Obama on LGBT Issues

The Advocate recently interviewed Obama on LGBT Rights issues.  Among other things, he said that if he is elected, he expects to be able to eliminate "Don't Ask, Don't Tell" and help pass the ENDA.

However, he notes that he thinks it would be politically unfeasible to include gender identity in the bill.

Importantly, he mentioned that he would like to see equal federal benefits for civil unions.  This would be a major step forward, but would be difficult to do because it would require a repeal of DOMA.

You can read the full interview at Advocate.com.

Transgender exclusion from ENDA

The Workplace Professor Blog points out that Sen. Edward M. Kennedy has taken the position that the ENDA should cover sexual orientation (including gays, lesbians, and bisexuals), but not sexual identity or gender identity.

Then, the Bloggers point out that the ENDA should include gender identity/transgendered individuals instead of leaving the courts to grapple with the issue.

I couldn't agree more.  The courts can recognize protection for transsexual individuals by using the Price Waterhouse analysis under Title VII, but why not provide courts with clear guidance on the issue by including sexual identity/gender identity in the scope of ENDA?

SSRN Sexuality and the Law Abstracts

For those interested in scholarly articles relating to sexuality and the law, you might consider taking a look at the SSRN Sexuality and the Law Abstracts.  Nan Hunter explains that the "goal for the series is that it will become an interdisciplinary forum for posting completed works and works in progress that concern legal and social regulation of sexuality and expressions of sexual or gender identity, including not only minority forms but also critical assessments of the institutions and practices which construct dominant sexual identities as well." SEXUALITY & THE LAW ABSTRACTS Vol. 1, No. 1: Apr 1, 2008 NAN D. HUNTER, EDITOR Professor of Law, Brooklyn Law School, Legal Scholarship Director, Williams Institute, UCLA Law School nan.hunter@brooklaw.edu

Houston Chronicle Coverage of Lopez v. River Oaks case

The Houston Chronicle coverage of the Lopez v. River Oaks case can be found here.

Transsexual Plaintiff Defeats Summary Judgment--S. Dist. of Texas

The United States District Court for the Southern District of Texas denied both the plaintiff's and the defendant's motions for summary judgment in Lopez v. River Oaks on April 3, 2008.  This case is interesting because there is no current Fifth Circuit decisions addressing the issue of whether a transsexual can proceed with a Price Waterhouse-type gender non-conformity claim under Title VII.

In that case, a pre-operative male-to-female transsexual applied for a job with the defendant.  On her job application form, she provided multiple names (Izza and Raul--her legal name).  During her interview, she thought that the employer was aware of her transgender status.  She was offered a job, however, the job offer was rescinded after a background check revealed she was male.  Although she quit her other job to accept the position, she was informed by the defendant that the job offer was going to be rescinded due to her "misrepresentation" of her gender on her job application.

First, the court recognized that a transsexual plaintiff may state a cause of action for gender non-conformity using the Price Waterhouse sex stereotype analysis.  Although the court found that the plaintiff's argument that discrimination against transsexuals is sex discrimination per se was waived, the court recognized that transsexual plaintiffs can state a cause of action for sex stereotypes (in line with decisions like Smith v. City of Salem from the Sixth Circuit Court of Appeals).   

The court also found that there may have been direct evidence of discrimination in this case due to the letter rescinding the job offer based on her alleged "misrepresentation" of her sex.  Although a jury might find the letter reflected a neutral policy (against hiring individuals with application materials that are inconsistent with the background checks), the jury could also understand this explanation as pretextual and a cover-up for sex discrimination.  Thus, the court denied both parties' claims for summary judgment.  Where sex is not a bona fide occupational qualification (or an essential job qualification), the court found that a potential employee has no legal duty to reveal her Gender Identity Disorder or her biological sex to the employer.  The entire opinion can be found on the Lambda Legal webpage here.

Pregnant F-to-M Transsexual

Granted, this is not a "legal" blog entry, but I wanted to weigh in on this interesting cultural development. An F to M transsexual man is pregnant. His wife was unable to carry a child and he still had his female organs in place, so he was artificially impregnated to carry their child.

If you watch the video-news coverage, you can see the joy in the couple's faces when they learn that they are having a baby girl.

The thing that bothers me about the event is not the fact that a happy couple is about to enter parenthood, but the public spectacle that is being made out of this otherwise joyous occasion. Yes, the pregnancy itself is unconventional. But, the fact that a loving couple wishes to raise a child together is the most conventional practice around.

This exact kind of public shock surrounded intersex births. Doctors and parents were uncomfortable with the truth: sometimes, sex is not black and white. In the past, doctors treated intersex births as "emergencies" and encouraged parents to make a quick decision and "choose" a gender/sex for their child. Little boys with micropenises were transformed into girls. This type of quick decision-making is now discouraged in the medical community. Doctors and parents now recognize that sex is not always clear at birth.

Nor, as we can see today, is it always clear during pregnancy. (In the past, we could assume that a pregnant individual was a woman). As the boundaries between male and female blur we have the opportunity to become enlightened and to accept people for who they are. This pregnancy is one such example. Instead of treating these loving parents like a spectacle, we should wish them well and leave them alone.

Granted, the natural response to these comments is: but they chose to go public with their story. Why shouldn't we (the general public) be spectators in this event? True enough. However, I have a feeling that this pregnancy would have made the news with or without the couple's cooperation. At least they were able to present their side of the story by coming forward voluntarily. In any event, we can choose to continue to dwell on this unusual event or we can congratulate the couple, recognize that sex and gender are not binary categories as many insist, and move on. I choose the latter.

No Action Taken on Illinois Civil Union Bill

And it doesn't seem likely that a vote will occur soon, according to 365gay.com.

Interestingly, the Illinois General Assembly website has not been updated to reflect any new status on the bill. 

Symbolic Same Sex Marriage Ceremonies in State College, PA

The Mayor of State College, Pennsylvania (Mayor Bill Welch), performed  marriage ceremonies for four gay couples last week.  Although Pennsylvania law does not permit same sex marriages or civil unions, the Mayor made a symbolic statement in support of same sex marriage by presiding over the commitment ceremonies.  See Philly.com Article from March 30, 2008.

This type of public support for same sex marriage is welcomed at a time when the fight for gay marriage in the courts continues to press on.  For instance, gay rights supporters across the nation anxiously await the decision from the California Supreme Court (due by June) regarding whether it is constitutional to deny same sex couples marriage rights and, instead, provide them equivalent benefits as registered domestic partners.

Kerrigan & Mock, et al. v. Connecticut Department of Public Health

As we await the decision from the California Supreme Court (which is expected by June this summer) regarding the pending same sex marriage cases, another case is pending in Connecticut regarding the same issue.

Connecticut created civil unions in 2005, but same sex couples are currently challenging the law under the state constitution's due process and equal protection clauses.  See N.Y. Times Article dated March 17, 2008.

Interesting Article: Queer Teens and Legislative Bodies: The Cruel and Invidious Discrimination Behind Heterosexist Statutory Rape Laws

MIchael Higdon posted an interesting Article on the SSRN network that you might enjoy.  It discusses the implications of statutory rape laws for gay adolescents.  Specifically, Michael points out that many states have made exceptions for two youngsters who engage in sex consensually.  However, many of these exceptions are limited to heterosexual activity. 

Here is a link to the SSRN page, where you can download the Article.

Here is the abstract:

Most states make an exception to their statutory rape laws for sexual acts involving an adolescent victim, who is below the age of consent, when the defendant is close in age to the victim (i.e., generally no older than three or four years). However, a few states explicitly limit such exceptions (commonly referred to as Romeo and Juliet exceptions) to only those situations involving teens who are of the opposite gender. Thus, adolescents in these states who have sex with someone below the age of consent, and who are also the same gender as the defendant, cannot avail themselves to the exception.

As a result, these teens are faced with felony convictions, large fines and mandatory sex offender registration - penalties that would not attach had the victim been the opposite gender. My article argues that such disparate treatment is not only cruel, but is also invidious discrimination that violates the Equal Protection Clause given that these laws serve primarily to stigmatize LGBT adolescents, a class of individuals that is already one of the most stigmatized and at-risk groups in American society. 

-From SSRN, Michael J. Higdon, Queer Teens and Legislative Bodies:  The Cruel and Invidious Discrimination Behind Heterosexist Statutory Rape Laws (2008).

Illinois Civil Union Law Final Action Deadline = March 14

In just a few days, we will know whether the Illinois Civil Union bill has passed in the Illinois General Assembly House.

The final action date in the Illinois House for the Illinois Civil Union Law (entitled the Illinois Religious Freedom Protection and Civil Union Act) is currently scheduled for March 14, 2008.

You can find information about the status of the bill (HB 1826) on the website for the Illinois General Assembly.

Oral Arguments from Cal. S. Ct. case: In re Marriage Cases

On March 4, 2008, the California Supreme Court heard oral arguments in the In re Marriage Cases.  Shannon Minter, from the National Center for Lesbian Rights, argued on behalf of the same-sex couples.

The oral arguments are available on line, through the NCLR website.

Georgetown Law Conference--Sexual Orientation & Military Preparedness

Georgetown Univ. Law Center will hold a conference entitled "Sexual Orientation and Military Preparedness:  An International Perspective" on March 12, 2008 from 6-8 p.m. (Gerwitz Student Center 12th Floor).

Panelists include:

"Stuart O'Brien, Chief Petty Officer and Directorate of Navy Personnel Research, Australia

Michelle Douglas, Director, International Relations Group, Department of Justice, Canada

Patrick Lyster-Todd, Lieutenant Commander, Royal Navy of Great Britain (Retired)

Avner Even-Zohar, former Captain, Israeli Defense Forces"

See Georgetown Press Release for further details.

Note that the webcast will be available here if you cannot attend the event.

Williams Project Summer Fellowships

Calling all law students interesting in Sexual Orientation and the Law issues.

The Williams Institute at UCLA Law School will award two $5,000 grants to current law school students or recent graduates.

The Gleason/Kettel scholarship will allow you to work with a scholar or organization on LGBT related legal issues.

Applications are due by March 24, 2008.

New York Appellate Court Recognizes Canadian Same-Sex Marriage

The plaintiffs, a couple married in Canada in 2004, moved to New York and claimed employment spousal benefits from their employer, Monroe Community College.  Martinez v. County of Monroe, 2008 WL 275138 (N.Y. App. Div. Feb. 1, 2008).  The College denied the benefits, claiming that New York did not recognize same-sex marriages.  The plaintiffs asserted that the defendant violated the employee's rights by discriminating against her on the basis of her sexual orientation in violation of the state's equal protection clause and in violation of Executive Law Section 296 (forbidding employment discrimination on the basis of sexual orientation).  Id. at *1.  In other words, had she been heterosexual and married a man in another state, the College would have recognized her marriage and permitted her to obtain benefits for her husband.  Thus, she was discriminated against because she was a lesbian and married a same-sex partner.  The appellate court agreed, relating to the violation of Executive Law Section 296, and ordered the College to grant her spouse benefits. Id.

The court noted that out of state marriages are recognized in New York unless they are prohibited by:  (1) the "positive law" of New York (or are prohibited by statute); or (2) "natural law" (or moral prohibitions such as a ban on incest or polygamy).  Id.  The court explained that New York has not enacted a ban on same-sex marriages or a mini-DOMA.  Id. at *2.  Similarly, there is no indication that same-sex marriage violates New York public policy.  Id.  Although New York courts have not recognized a right to same-sex marriage under the State Constitution, the courts have not denied that the legislature could choose to pass laws permitting same-sex marriage.  Id.

Because the "sole reason for defendants' rejection of the marital status of the plaintiff is her sexual orientation," they violated the employment non-discrimination provisions of Executive Law Section 296.  Id.

Thus, the court avoided the thornier issue of the equal protection analysis.  This would have required the court to apply to the lowest form of review to the alleged sexual orientation discrimination.  See Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006).  In that instance, the court would have had to uphold the statute if the school could justify that the different treatment was rationally related to a legitimate governmental interest.  By deciding the issue under employment discrimination law, the court avoided having to apply the lowest form of review to the case and, potentially, permitting the State to discriminate based on a reasonable justification.

Disrespecting Family Mourning Ledger's Death Is Despicable

Sorry folks.  I know that this site is generally reserved for only law-related topics, but I just had to take a moment here to respond to all of the hate-speech surrounding Heath Ledger's death.

If you haven't heard it (thankfully), one particular radio host mocked the death in light of the actor's portrayal of a homosexual cowboy in Brokeback Mountain. 

First, is it appropriate to mock anyone's death?  No.  Is the death of a young actor any more devastating than the death of any other young adult?  No.  However, it is also not appropriate, in either instance, to mock someone's death.

Second, Heath Ledger was an actor.  Any individuals who choose to picket his funeral (another heinous example of hatred) because of a single role that he played in a movie obviously do not understand that actors play many roles. Some roles are reflective of who they are and what they believe and some are not.  Ledger just recently played a villain in the Batman series--should we defile his memory because he was "evil"? 

Third, even if Ledger took the Brokeback role because he endorsed the message of the film and you, personally, find the message offensive-- let him rest in peace.  This brings me back to point number 1--it is not appropriate to picket at a funeral.  Even if you do not respect Ledger or his views, can you at least respect the fact that his family is mourning his death?  He is survived by his parents, a sister, and a young child.  Let them honor his memory in peace.