June 24, 2008
Excessive Force Caught on Tape
A Memphis police officer used what appears to be blatant excessive force against a transsexual woman because she refused to answer to epithets. The entire incident was caught on tape and can be viewed at alternet.org. The officer hit her, sprayed her with mace, and another officer assisted him by holding her shoulders even though she was not hitting back and was unarmed. The officer who held the woman was fired and the other officer was placed on administrative leave. The video has been reviewed by the FBI and the District Attorney for possible civil rights violations.
The victim's attorneys point out that this is particularly disturbing because the officers are supposed to protect us, not hurt us. It is also disturbing that the officers appear to believe that it was perfectly appropriate to make derogatory comments to and use force against the victim due to her transsexual status.
January 18, 2008
Majority of Maryland Voters Support Same-Sex Unions
Well, not all of the voters support gay marriage, but the majority (58%) support some sort of legally recognized partnership between same-sex partners (i.e. civil unions). Only 19% support gay marriage and 31% disagree with granting same-sex partners any type of marriage-like status. However, only half of those anti-gay marriage individuals would support a constitutional amendment banning gay marriage. More to come as this State gears up for debates about gay marriage/civil union legislation. See Baltimore Sun Article.
November 16, 2007
Court Overturns PA Hate Crimes Bill
A Pennsylvania State Court judge overturned a Pennsylvania bill adding language to a hate crimes bill. It listed as a hate crime certain crimes motivated by the sexual orientation or disability of the victim.
The original purpose of the bill was to protect against "agricultural vandalism and crop destruction." The judge stated that the bill must be overturned because, "no matter how salutary the purpose of a bill may be, it still must comport with constitutionally mandated requirements for passage . . . ." See Article in Philly.com entitled "Court Throws Out PA's Hate Crimes Law."
November 13, 2007
Montgomery County, Maryland Transgender Bill
The County Council for Montgomer County, Maryland is considering a bill granting housing and employment protection to transgendered individuals. However, it also included a provision that would permit transgendered individuals to use public restrooms. Those opposing the bill were up in arms about this provision, claiming that it would result in "indecent exposure." See the Washington Post's Coverage of the issue (Nov. 11, 2007; Transgender Bill May Be Close to Passing). The bill's sponsor stated that she will pull the restroom language and thinks that the bill will pass without it. However, the broad language of the rest of the bill may be read to include the right to use public restrooms nonetheless.
This brings up an important point. Why are restrooms such a hot button issue? It seems that generally people are really offended by the idea of a male to female transsexual using the women's restroom when she has not yet had genital surgery. I have a litany of responses to this, but I will limit my comments to three:
(1) As I pointed out in an earlier blog post, women's restrooms generally have enclosed stalls. Thus, how would anyone suffer from "indecent exposure"? Also, even in male restrooms, there is generally at least one stall, so the same logic applies.
(2) Most male to female transsexuals would rather not have anyone see their "male" parts. Why would any transsexual individual "flash" her genitalia at the general public? In my view, this kind of concern is really a front for a deep seated fear of those who are different. In fact, it is similar to comparing transgendered individuals with sick individuals who like to expose their private parts in public to young children. It is an unacceptable comparison.
(3) Why don't we just add additional "family" or "gender neutral" single stall restrooms to public buildings? In this manner, we will never have the issue of forcing a transgendered individual to pick whether he feels like a male or a female today. Not to mention the fact that intersex individuals are put to the same task as well.
November 07, 2007
HOUSE PASSES ENDA
The U.S. House of Representatives passed the Employment Non-Discrimination Act today by a 235-184 vote.
According to the Human Rights Campaign, "[i]n 31 states, it is currently legal to fire someone based on their sexual orientation. In 39 states, it is legal to fire a person for being transgender."
Unfortunately, the ENDA that passed did not include protection for transgendered individuals due to a lack of support in the House. However, the fact that the ENDA passed is a sign that lawmakers are interested in protecting gays and lesbians against discrimination at work--and that is a start.
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 01, 2007
NY Dept. of Correctional Servs. Officer Wins $850,000 for Sexual Harassment
The NY Dept. of Corrections Officer was subjected to sexually offensive language, drawings, etc. by her supervisor at a maximum security prison. Humig v. New York State Dep't of Corr. Servs., N.Y. Div. of Human Rights, No. 7905228 (Oct. 11, 2007). The taunts stemmed from her status as a lesbian and a woman. Due to her sex and her sexual orientation, she was suffered from a hostile work environment and, when she reported the incident, retaliation.
The administrative law judge noted that the harassment was pervasive and that the facts of this case "shocks the conscience" because "Complainant's life was placed in grave danger solely because of her sexual orientation and her gender." Id. Her supervisor went so far as to write derogatory comments about the officer on the shared employee work calendar. Due to the hostile work environment and retaliation suffered when she reported the incident, the officer was awarded $850,000 in compensatory damages.
The facts of this case truly shock the conscience, as the DOJ Officer was subjected to threats and taunts by her supervisor. Not only was she injured by the comments and pervasive remarks, she was also at risk from the male inmates (who might have interpreted the disrespectful behavior as an appropriate way to treat the officer).
October 30, 2007
Sexual Orientation Law Teaching Fellowship
The UCLA-based Williams Project offers a two year teaching fellowship for recent law grads interested in becoming scholars/law professors in the area of Sexual Orientation and the Law. Interested applicants should submit an application by December 1, 2007.
The Law Fellow will teach at least two courses, receive mentorship for scholarly pursuits, assist with Williams Project events, etc.
This is a great opportunity for a recent graduate to gain valuable teaching/scholarship experience at a wonderful law school.
Additional information can be found on the Williams Project website.
October 29, 2007
Primary Residential Placement & Discrimination
Although it is illegal for a judge to discriminate when making a visitation or placement decision in child custody disputes, it occurs nonetheless.
A recent decision is a case in point: On Oct. 23, 2007, the Washington Court of Appeals affirmed the decision of a trial judge to place a child with its mother due to the father's transgendered status. In re Magnuson, 2007 WL 3072435 (Wash. Ct. App. Oct. 23, 2007). The trial court, in its finding of facts, concluded that "[t]he impact of gender reassignment surgery on the children is unknown." Id. at *1. Despite a case from the Washington Supreme Court admonishing that visitation rights must be determined on the basis of the best interest of the child, not the sexual preferences--or sexual orientation--of the parents, the court upheld the lower court's decision. Id. at *3 (citing In re Marriage of Cabalquinto, 669 P.2d 886 (Wash. 1983) (remanding the case because the court was unable to determine how the lower court made its decision)).
Granted, child placement decisions are very hard to overturn--considered on the basis of an abuse of discretion. Id. at *2. However, the strong dissenting opinion in the case presents an alternate view. The dissenting opinion agrees with the court's extension of the Cabalquinto decision to cover transgendered parents. But, the opinion points out that a judge has abused his discretion when he "applies the wrong legal standard or bases its ruling on an erroneous view of the law." Id. at *3 (Kulik, J. dissenting). The dissenting judge points out that the court found that the impact of the gender reassignment surgery on the children is "unknown" despite expert testimony that "transgender status does not ultimately have an impact on the parent's ability to parent[,]" the guardian ad litem report, and the advice of the court-appointed psychologist. Id. at *3-4. The guardian ad litem also found that Robbie, the transsexual parent, was more involved with the children on a day-to-day basis. Id. at *4. "Apparently, the only difference between the parents was that Robbie, the primary parent, planned to have gender reassignment surgery." Id.
The lower court could have split time between the two parents equally or taken the advice of the guardian ad litem and placed the children with Robbie, the primary caretaker. Instead, the court chose to focus on Robbie's transgender status and future gender reassignment surgery and placed the children with the other parent.
October 23, 2007
New Florida Bill Proposed--Homosexual Adoption . . . Sometimes
A new bill has been proposed in the Florida Senate (Senate Bill 200). The bill would grant a homosexual individual the opportunity to adopt a child, but only in some circumstances. Florida law has clearly prohibited homosexuals from adopting children for about 30 years.
The newly proposed law, however, would limit homosexual adoption to scenarios such as: when the child has already resided with the person, the child's parents are deceased, and the adoptive parent is the child's guardian. See Bay News 9 coverage from Oct. 23, 2007 ("New bill could challenge law against gay adoptions).
While it is a step in the right direction, it strikes me much like the ENDA debate does: a narrow provision, which should be more inclusive. It appears that this bill would not allow a gay person or couple to adopt a child if they have no prior connection to the child (unless the child's parents are deceased). This limited bill might let gay foster parents adopt, assuming they are the "guardian" of the child, but it would not allow a gay couple to simply adopt a child with no prior connection to that child. It still treats gay individuals in a manner different from straight individuals and, thus, seems to raise equal protection issues. (Obviously, the current law is worse, on that ground, however).
October 17, 2007
L.A. Queer Studies Conference--Oct. 19-20, 2007
The Queer Studies Conference is free and open to the public. It will take place at the UCLA campus on Oct. 19-20.
This UCLA website contains additional information.
The conference will include presentations about queer theory, political theory, immigration policies, military issues, and more.
Same Sex Partner May Be Liable for Child Support, Despite Inability to Seek Custody/Visitation
Child support obligations are strong. They apply even if the other party would not be able to seek custody or visitation as a de facto parent because the child was a "legal or biological stranger." H.M. v. E.T., 2007 N.Y. slip Op. 51711 (Family Court, Rockland County, NY Sept. 11, 2007) (citing controlling N.Y. cases--omitted here).
If the same-sex partner agreed to become a parent via artificial insemination, even though that parent never formally adopted the child and is not the biological parent, he or she may be held liable for child support, the Rockland County Family Court announced. Under a theory of equitable estoppel, the court reversed a magistrate decision dismissing the biological parent's petition for an establishment of paternity and child support.
The court found that despite the lack of a written agreement between the parties, the respondent could be equitably estopped from denying her implied promise to provide child support. The court noted that previous decisions had reached similar conclusions when: (1) two parties were planning to adopt a child, but had not yet finalized the adoption, (2) the respondent had executed an agreement indicating an obligation for support of the child, or (3) the respondent held himself out as the father of the child despite DNA evidence indicating otherwise.
The primary concern here, the court noted, is the best interest and welfare of the child. "Cutting off [ ] support, whether emotion or financial may leave the child in a worse position than if support had never been given." Shondel J. v. Mark D., 7 N.Y.3d 320, 330 (N.Y. 2006).
Thus, because the petitioner relied on the respondent's actions in agreeing to conceive of a child through artificial insemination, the respondent may "be equitably estopped to deny her responsibility to provide support to the subject child." H.M. v. E.T., slip op. at 9.
Thus, the court ruled that a hearing should be scheduled to determine, under the facts of this case, whether the respondent may be equitably estopped from denying responsibility for child support in this case.
It seems fair to hold a same-sex partner liable for child support if the biological parent (or the other parent, if a surrogate was used) can demonstrate such reliance on the other's promise to help support the child. It seems unfair, however, for that other "parent" (at least for purposes of child support) to have no standing, then, to seek visitation/custody rights as well. If there is a reason to deny visitation rights (such as abuse or neglect), then it seems fine to deny visitation rights while demanding child support payments. In this situation, however, it seems inequitable to the "parent" paying the child support. Of course, in practical terms, it would have been much better for the biological mother if she had gone through the process of a second-parent adoption. By legally adopting the child, the second parent would definitely be held liable for child support and would also have the added protection of child visitation rights/custody rights.
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 14, 2007
Case-law in California providing surrogate parents legal protection has spurred an influx of same-sex partners to the state for procreation. One such case, regarding an American couple living in Australia, was recently in the news. They sought in-vitro fertalization in California due to restrictive Australian laws (prohibiting surrogacy). The couple also made international news headlines because they chose the birth sex of their child in the IVF process. See The Daily Telegraph at News.Com.au/dailytelegraph (Oct. 14, 2007--"Gay couple buys 'designer' sons from US").
Genetic issues aside, California case-law provides protection by enforcing surragocy contracts and legally protecting same-sex parents' intentions to parent a child (either through their own biological materials or through donated eggs/sperm) through a surrogate.
Although second-parent adoption is often a good choice for potential same-sex parents, it is not always the preferred choice. Many couples wish to raise a child of "their own," using biological sperm/eggs of the birth parents.
Case-law varies by jurisdiction and the legal questions get even murkier across state lines.
Interestingly, some scholars have argued that a surrogate contract is a matter of interstate commerce, which should be regulated uniformly by Congress presumably under its commerce clause power. See Katherine Drabiak et. al, Ethics, Law & Commercial Surrogacy: A Call For Uniformity, 35 J.L. Med. & Ethics 300 (2007).
But, contract law is generally left within the purview of the states. Not to mention the fact that surrogacy is not a normal contract involving the sale of goods or services. And, yes, we have proposed uniform laws across states for the sale of goods worth a minimum of $500 (i.e., the Uniform Commercial Code). Similarly, we have Uniform Laws relating to child custody as well (i.e., the Uniform Child Custody Jurisdiction and Enforcement Act).
It seems that a uniform approach to parenthood was attempted through the Uniform Parentage Act, but, obviously, state treatment of surrogacy contracts is not uniform today (many states adopted the Uniform Parentage Act or other similar legislation, but not all of the Acts address surrogacy). For example, some states forbid payment for surrogacy contracts, others do not, etc.
However, the suggestion that such contracts deal with "interstate commerce" could raise ethical questions (which have obviously already come up for many states, as they forbid payment for surrogacy contracts). Are we now in the process of selling babies to the highest bidder? Or are we really engaging in a contract relating to services--ie., you will be the vessel carrying the child and I will pay you for this "service."
October 12, 2007
Post-Fair II: Second Circuit Denies Yale's Academic Freedom Claim
On Sept. 17, 2007, the Second Circuit issued a post-Fair II opinion dealing with stayed first amendment claims relating to academic freedom and freedom of association. Yale professors claimed that it violates their first amendment rights to academic freedom and association to force the school (with the threat of federal funding withdrawal) to allow military recruitment on campus despite the school's non-discrimination policy. Burt v. Gates, 2007 WL 2694439 (2d Cir. Sept. 17, 2007).
Obviously, the second issue, freedom of (dis)association, was clearly answered in the Fair II case. However, the Supreme Court did not directly address the "academic freedom" claim. Id. at *5. The Second Circuit notes that the Supreme Court was obviously aware of the claim, though, and would have rejected this argument. Id. at *5, 7 (noting that the Fair II court plainly rejected the argument that the Solomon Amendment requires the petitioners to associate with the military--thus, they may also freely "disassociate themselves from the recruiters by words and deeds.").
Thus, the Second Circuit addressed the claim of Yale professors (including the Dean of Yale Law School) that forcing the school to permit military recruitment on campus hinders academic freedom by stifling their "commitment to equal justice among their students, ensuring a diverse student body, and helping students frind appropriate careeers[.]" Id. at *5. The Second Circuit rejected this claim because "[t]he relationship between barring military recruiters and the free flow of ideas is . . . attenuated." Id. at *6. The court notes that nothing in "The Solomon Amendment [restricts] the content of teaching, the membership of teachers in organizations, the selection of students, or evaluation and retention of students." Id.
First, yes, the Supreme Court would probably reject this claim. Id. at *2 (noting that the Fair II decision was unanimous). Especially due to the plain language of the Fair II case. Forum for Academic & Inst. Rights v. Rumsfeld, 544 U.S. 1017, 1307 (2005) (noting that the Solomon Amendment regulates "conduct, not speech" and "affects what law schools must do-afford equal access to military recruiters-not what they may or may not say."). However, I still think it is worthwhile to think these claims through, as the right to academic freedom is central to the purpose of any educational institution.
Although the Solomon Amendment does not restrict the content of teaching (professors may express their opinions without restraint), it certainly restricts the ability of the professors to promote an environment conducive to learning, which, after all, is the most important function of an institution of higher learning. One of the keys to effective teaching on any college campus is the inclusion of diverse viewpoints. See Grutter v. Bollinger, 539 U.S. 306, 328-29 (2003). By permitting the military to recruit on campus with a restrictive "don't ask, don't tell" policy, the school (along with its professors) contradicts its own message. Academics cannot express their commitment to diversity fully with the presence of discriminatory military recruiters. Thus, when individual professors discuss their commitment to an open and respectful classroom environment, students (particularly LGBT students) may feel that this message is insincere or untruthful due to the contradictory message conveyed by the presence of miliary recruiters on campus. The presence of military recruiters on campus hinders the message of those professors and academics who seek to create an atmosphere of inclusion inside their classrooms and on campus in general.
Attenuated? A bit. But, must a school-wide policy literally bind the mouths of the professors in order for them to present a valid academic freedom claim? Or, can one demonstrate an academic freedom claim when the government undermines one of the key messages the professors intend to convey in the classroom? Also, what is the point in seeking to recruit a diverse student body if one cannot then promote an environment conducive to the expression of multiple viewpoints? In other words, unless the diverse student body feels comfortable, the students will not participate in classroom discussions and debates--defeating the "compelling interest" of diversity on campus.
October 08, 2007
Conaway v. Deane
Well, it took me a while but I am finally writing more about the Maryland same sex marriage case. The most striking justification for denying the right to same sex marriage in this case is the old tried and true "procreation" defense.
The court has no problem stating that marriage is for procreation (at *77 of the opinion), thus, same sex marriage is not a fundamental right. This argument seems quite outdated. Surely, we quite often look to tradition when determining whether rights are fundamental. However, we also must recognize that the Constitution must adapt to changing times. Furthermore, was marriage ever solely about procreation? I am not a historian, but I am fairly certain that one of the main purposes of marriage was also financial in the past. See, e.g., E.J. Graff, What Is Marriage For? (2004) (note that the entire first chapter is devoted to discussing "money" as a historical reason for marriage).
Today, of course, it seems silly to say that the main purpose of marriage is for procreation. I like to think that the goal of marriage is love, companionship, and the like. Many married couples never have children and many others have them outside of wedlock.
California Tax Exemption for Domestic Partners OK
In a recent case decided on Oct. 2, 2007, a California Appellate Court upheld the decision of a trial court ruling that laws permitting tax benefits for domestic partners constitutional. Strong v. State Bd. of Equalization, 2007 WL 2834475 (Cal. Ct. App. Oct. 2, 2007).
Apparently, the rule permitting the extension of a spousal transfer of property tax exclusion (adopted by the California legislature in 2005, offended the local county tax assessors, who sued claiming that the law was unconstitutional. Id. at *1.
As the law was justified by a rational basis, the court upheld the tax protection afforded domestic partners under California law. Id. at *7.
The most interesting part of the case is the fact that the tax assessors felt it was important to bring this particular lawsuit. It demonstrates how adamant some opponents of gay rights are in trying to limit opportunities for same sex couples. The law was challenged as hinging on "social policy"--one that, apparently, was not well-regarded by the plaintiff tax assessors.
October 03, 2007
HRC Workplace Rating for LGBT Employees
The Human Rights Campaign has released its LGBT workplace ratings. It indicates that 195 major US companies received a 100% score for treatment of LGBT employees. See the HRC website here. This is good news, but it does not prevent the need for the ENDA. In fact, if these companies decide to change their policies towards LGBT employees, there is no remedy. If the ENDA is passed, LGBT employees will have some assurance of continued respectful treatment in the workplace and a remedy against discrimination.
October 02, 2007
ENDA on Hold
Well, the removal of transgendered individuals from the ENDA has caused an uproar amongst LGBT support groups. Due to the massive response to the change in the legislation, a vote on the Act has been post-poned.
According to an article in the San Francisco Chronicle, "the intense backlash by the gay community surprised House Democratic leaders." Really? It did not come as a surprise to me at all. Transgendered individuals are part of the LGBT community--and a partially helpful Employment Nondiscrimination Act is akin to a public announcement that only some individuals in the LGBT community deserve legal protection.
October 01, 2007
Transgender Protection Removed from ENDA
As predicted by William Turner's previous blog on the ENDA, transgender protections have been removed from the Act by the House of Representatives. This is a strange move, given that trangendered individuals are still included in the Hate Crimes Act, which was passed by the Senate last week. See San Francisco Chronicle Article from 9/28/07.
Regarding the change, Barney Frank, D.-Mass. said:
"Simply protecting, or trying to protect someone against assault is very different from saying you have to hire the person and let them live here and sleep here, etc., etc." Frank said. "Obviously, we didn't think that was persuasive." --San Francisco Chronicle.
It is not "persuasive" to state that transgendered individuals have a right to work free from harassment and discrimination? According to Frank, they only have a right to live in an environment that is "hate crime" free. But, arguably, the right to work free from discrimination is even more important. Without a job, an individual has nowhere to live, cannot afford to eat, etc.
How can you reconcile passing a bill to protect an entire group of individuals from hate induced crimes and a failure to protect the same group from discrimination at work in a subsequent bill (hate manifested in a different manner)?