November 06, 2007

Florida Amendment Banning Same-Sex Marriage Gaining Momentum

Florida law already prohibits same-sex marriage.  However, like many states, Florida voters and legislators wish to enact a State Constitutional Amendment banning gay marriage.  The drive stems from voter concern that Florida courts might recognize gay marriage, overturning current State legislation.

The text of the proposed Amendment states:

"Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized."  See Herald Tribune Article.

The language of the amendment is so broad, however, that it might impact gay and straight couples alike.  The term "substantial equivalent" could be a problem for straight couples who have not wed, but enjoy health and retirement benefits due to county domestic partnership protections. 

Domestic Parenter county laws have been upheld by Florida courts in the past.  Broward County, for example, enacted law that protected "domestic partners" by granting them limited economic benefits if they work for the county.  Lowe v. Broward County, 766 So. 2d 1199 (Fla. App. 2000).  For instance, an employee of Broward County may elect to add a domestic partner to his or her insurance policy (whether the domestic partner is of the same sex or opposite sex).  This statute was upheld against a challenge that it conflicted with the State DOMA Act.  Id.

However, as the language of the proposed Amendment is so broad, domestic partnership State benefits (for both gay and heterosexual couples) may not survive scrutiny.  Thus, heterosexual couples and gay couples alike could be impacted by the broad text of the Amendment, if it gains the 13,000 votes necessary to place it on the Nov. ballot and, subsequently, is adopted to the Florida Constitution.


November 6, 2007 in Equal Protection, Family Law, Sara R. Benson | Permalink | Comments (2) | TrackBack

October 16, 2007

Veto of California Marriage Bill

On October 12, Gov. Schwartzenegger vetoed the California marriage bill, as expected.  See SFGate news article.  The marriage cases are still pending in the California Supreme Court. 

This move is not at all surprising, as Schwartzenegger vetoed a very similar bill in 2005. 


October 16, 2007 in Equal Protection, Family Law, Sara R. Benson | Permalink | Comments (0) | TrackBack

September 26, 2007

10th Circuit Denies Title VII Protection to Transsexual Plaintiff

In Etsitty v. Utah Transit Authority, 2007 WL 2774160 (10th Cir. Sept. 20, 2007), the Tenth Circuit ruled that a transsexual is not protected by Title VII as a class and that this particular plaintiff could not establish "Price Waterhouse" gender non-conformity discrimination.

Krystal Etsitty worked for the Utah Transit Authority as a bus driver when she began to transition from male to female.  She could not afford genital reassignment surgery, so she retained her male genitalia while she began to dress in a more feminine manner and started using women's restrooms.  Id. at *1-2.  Etsitty's trouble stems from her use of women's restrooms along her bus routes, which ultimately led to termination of her employment.  Id. at *2.  Her supervisors claimed that she was fired due to their concern about the possibility of public concern and potential liability stemming from Etsitty's use of women's restrooms while retaining male genitalia. Id.

First, the court held that Title VII's prohibition against workplace discrimination on the basis of "sex" does not include transsexuals because it only protects against discrimination discrimination against '"women because they are women and men because they are men.'" Id. at *4 (quoting Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984)).  The court noted, however, that "[s]cientific research may someday cause a shift in the plain meaning of the term 'sex' so that it extends beyond the two starkly defined categories of male and female."  Id. at *5 (emphasis added).

Perhaps the Tenth Circuit is unaware of current data specifically explaining that "sex" (at least on a biological level) is not binary.  In other words, intersex individuals (with both male and female biological characteristics) exist and clear scientific and medical research provides positive proof of this fact.  See, e.g., Clinical Guidelines for the Management of Disorders of Sex Development in ChildhoodSee also Sara R. Benson, Hacking the Gender Binary Myth:  Recognizing Fundamental Rights for the Intersexed, 12 Cardozo J. L. & Gender 31 (2005).  In fact, courts have recognized this fact as well when addressing marriage and name changes for transgendered individuals.  See, e.g., In re Heilig, 816 A.2d 68, 72 (Md. 2002) (citing Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision between Law and Biology, 41 Ariz. L. Rev. 265 (1999)).

Thus, the Tenth Circuit's reasoning seems flawed, especially due to the fact that it relies so heavily on the claim that there are only two sexes when excluding transsexuals from Title VII protection.

Next, the court decided not to address the gender nonconformity issue as Etsitty failed to establish an issue of material fact as to whether the reason proffered by UTA in support of firing her was pretextual.  Etsitty, 2007 WL 2774160, at *6.

This element of Title VII (pretext) is meant to allow the plaintiff's claim to survive summary judgment so long as he or she can demonstrate that the employer's '"proffered explanation is unworthy of credence.'"  Id. at *8 (quoting Stinnett v. Safeway, Inc., 337 F.3d 1213, 1218 (10th Cir. 2003)). 

Here, UTA management claims that they are afraid of liability due to Etsitty's use of women's restrooms.  This potential "liability" would stem from the fact that women using such restrooms would observe a "UTA employee with male genitalia . . . using the female restroom."  Id. at *2. 

Honestly, how would such a thing happen?  I have never viewed another woman's private parts while using the restroom.  Why not?  Because women's restrooms have stalls!  Unlike male restrooms, where individuals use either a stall or standing urinal (where genitalia might be public), women's restroom stalls are quite private.  Are the employers in this case suggesting that this transsexual must be a exhibitionist due to her transsexual status?  In other words, do they think that simply because she is in transition she will flaunt her male genitalia for all to view in the restroom?  I think not.  Why?  Because transsexuals generally would rather be seen as their transition sex/gender, not a mix.  In fact, Etsitty clearly states that she would have had the operation already, but she could not afford it (which is no surprise as the operation itself is very expensive and generally not covered by health insurance companies).  Id.

In my humble opinion, Etsitty has established pretext and should be permitted to pursue her claim past the summary judgment stage.

Interestingly, UTA management said that they would gladly give Etsitty her job back once she has fully transitioned (ie. after the surgery). Id. However, she could not afford the surgery when she had a job, so how will she afford the surgery after her dismissal? 

Unsurprisingly, the court also dismisses her equal protection claim based on the analysis of her Title VII claim.  Id. at *10.

September 26, 2007 in Employment Discrimination, Equal Protection, Sara R. Benson | Permalink | Comments (3) | TrackBack

September 23, 2007

San Diego's Mayor Changes Tune

The Republican Mayor of San Diego recently changed his mind about gay marriage. He was determined to oppose same-sex marriage rights, but now he has changed his tune. His daughter, Lisa, is gay and he thinks that she should have the same rights as anyone else. See Article in USA Today.

It is nice to know that when the issue hits close to home, even the most conservative minds can change. However, it shouldn't take a gay son or daughter to help a politician recognize that preventing same-sex marriage is discriminatory and unconstituional.

At least the citizens of San Diego, under a new City Council Resolution passed by a 5-3 vote on Tuesday, Sept. 18, will be able to marry (for now). San Diego now joins many other California cities in voicing support for same-sex marriage to demonstrate a climate of support for gay marriage in wake of the pending state Supreme Court case.


September 23, 2007 in Equal Protection, Family Law, Sara R. Benson | Permalink | Comments (0) | TrackBack

August 29, 2007

Larry Craig

Of course everyone is a-twitter about news of Senator Larry Craig's admission that he pleaded guilty to disorderly conduct after allegedly soliciting sex with an undercover police officer in a men's restroom at the Minneapolis airport.  Craig (R-ID) appeared with his wife to announce that he is not gay.

From a queer perspective, that is a highly plausible, almost indisputable, claim.  According to queer theorists, the fact that a man has sex with other men does not necessarily make him "gay."  Gayness is largely a matter of self-identification. 

One argument that conservatives offer for formal discrimination against lesbians and gay men is that it will deter individuals from so identifying.  Craig is only the latest example demonstrating that this logic just doesn't work.

I should be very clear at the outset: I think the best reasons not to discriminate on the basis of sexual orientation or gender identity is that no valid reason exists for such discrimination (outside of churches, which of course are and should be free under the First Amendment to adopt whatever discriminatory policies they wish -- white supremacist, male supremacist, heterosexual supremacist, etc.), and that many valid reasons exist to prohibit such discrimination. 

But the point remains that, even if you think the world is a better place with fewer LGBT persons in it, the evidence overwhelmingly indicates that even persons with extremely strong motivations, such as a successful career in politics, for avoiding same-sex sexual activity find it almost impossible to do so.  Part of the problem with the debate is that, every time someone like a Republican United States Senator from a conservative state gets caught with his hands in another man's pants, most observers tend to have forgotten the last time it happened, such that they think this is an unusual event. 

This time around, of course, the New York Times recalled the Mark Foley episode of just a year or so ago.  Foley was a Republican member of the House from Florida who got caught sending suggestive e-mails to congressional pages.  But virtually everyone has forgotten about John Paulk.  Paulk appeared with his wife on the cover of Newsweek in 1998 as the poster boy of the "ex-gay" movement, which promotes the idea that lesbians and gay men can become heterosexual with the right combination of psychotherapy and Christian conversion. 

Paulk got caught in a gay bar in Washington, D.C. in 2000.  He said he only went in to use the bathroom.  He failed to explain what he planned to use the bathroom for. 

These episodes illustrate the utility of LGBT rights claims for thinking about the purpose of law.  For conservatives, the moral signal of sodomy statutes and prohibitions on recognizing same-sex marriages are essential to keep most individuals on the (ahem) straight and narrow path.  The fact that such signals are never 100% effective is no reason to get rid of them because they represent, at least according to conservatives, the prevailing moral sentiment of the culture. 

Liberals are more interested in evaluating the practical implications of legislation, but they are so in part because of their own moral imperatives. 

Liberals emphasize the harm that Larry Craig has just suffered, but also the harm his wife and other family members have suffered, because of the fact that Craig apparently has sexual urges that he finds very hard to control.  Heterosexual supremacy, in other words, is not a morally superior framework.  Instead, it creates moral hazards. 

Few LGBT activists couch their arguments in terms of morality, preferring instead to take the absurd position that the state should not try to regulate morality.  All law deals with morality.  Whether one obeys the speed limit is, in an important sense, a moral issue.  I agree with Chai Feldblum and Carlos Ball that LGBT activists should articulate the positive moral arguments on behalf of equality for LGBT persons, rather than conceding the morality argument to conservatives.  For further elaboration of my own thinking on this issue, see my article at SSRN. 

The solution is not to repeal statutes prohibiting public sex, although at least some gay men would advocate that course.  The solution is to create a society in which people like Larry Craig feel no need to conceal their sexual orientation, such that they can form healthy relationships that include legal forms of sexual activity. 

Regardless of what you think about same-sex relationships, insofar as one of the key issues for equal protection analysis in the constitutional doctrine of the United States is access to full participation in the political process, I guarantee that the same fears that keep people like Larry Craig in the closet also keep them from participating fully on their own behalf in the political process.  It sounds strange to say that a United States Senator cannot participate fully in the political process, and I don't mean here that his arrest and guilty plea in Minnesota might cause him to lose his next election.

I mean that we cannot now know what Larry Craig might have accomplished in his political career had he been able to marry a man rather than marrying his wife.  I guess the key reason why I'm not a conservative is that I don't understand why that would be a bad thing.


August 29, 2007 in Equal Protection | Permalink | Comments (1) | TrackBack

Chicago City Attys Claim EP Clause Does Not Protect Gays

In a strange legal move, the Attorneys for the City of Chicago filed a Motion to Dismiss claiming that gays (as a group) are not protected by the Equal Protection Clause.  This position seems strange, given the proper interpretation of the Equal Protection Clause, as set forth in cases like Romer v. Evans, 517 U.S. 620 (1996).  In Romer, the Supreme Court of the United States explained that:  "if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification [or, in this case, treatment under the law] so long as it bears a rational relation to some legitimate end."  Id. at 631.

Thus, even if gays and lesbians are not considered a suspect class and entitled to heightened strict or intermediate scrutiny, they are certainly protected, in some measure, under the Equal Protection Clause.  At the very least, the Equal Protection Clause requires the police (if the allegations of the plaintiff are true) to justify their actions under the lowest form of review.

This case arose when a man was arrested and placed in the backseat of a police car.  When he tried to use his phone, he alleges that he was dragged out of the car and beaten while the policemen used homosexual epithets.  When he began to bleed, he informed the police officers that he was HIV positive and he was taken to a hospital for treatment.  Subsequently, he filed a lawsuit against the police officers alleging that he was beaten due to his sexual orientation.  The full text of the story can be found in Vol. 8, No.51 of the Chicago Free Press (Aug. 22, 2007).


August 29, 2007 in Equal Protection, Sara R. Benson | Permalink | Comments (0) | TrackBack