NEW YORK COURT OF APPEALS RULES IN LESBIAN CUSTODY AND...

June 2010
NEW YORK COURT OF APPEALS RULES IN LESBIAN CUSTODY AND CHILD SUPPORT DISPUTES
On May 4, 2010, the New York Court of Appeals published two opinions concerning parentage rights of same-sex couples. In Debra H.
v. Janice R., the court ruled that, under New
York law, the non-biological parent of a samesex couple may not sue for custody or visitation
absent the presence of second-parent adoption.
However, in a potentially important step, the
court extended comity to a Vermont civil union
that the couple had contracted shortly before
the birth of the child, finding that under Vermont law the non-biological parent would be
recognized and so should be for purposes of this
case. 2010 WL 1752168. In H.M. v. E.T., the
court ruled that the New York Family Court has
subject matter jurisdiction over a custody petition brought by a same-sex co-parent pursuant
to the Uniform Interstate Family Support Act.
2010 WL 1752180.
Debra H. and Janice R. met in 2002. In November of 2003, the couple entered into a civil
union in Vermont and, a month later, celebrated
the birth of M.R., Janice’s biological son. Although Debra wanted to adopt M.R., Janice refused. The relationship soured in 2006 and Debra’s visitation with M.R. became continually
restricted. Debra brought suit in 2008 for joint
legal and physical custody.
The Supreme Court found in Debra’s favor,
ruling that Janice could be estopped from severing the relationship between Debra and the
child. The Appellate Division reversed, holding that, under New York precedent, Debra, a
non-biological and non-adoptive parent, had
no standing to bring the suit. The Court of Appeals agreed with the Appellate Division that
Debra had no standing as a matter of New York
family law, but reversed the Appellate Division
by finding that comity requires recognition of
the parental rights created by Vermont civil unions.
In agreeing with the Appellate Division’s
analysis on the New York law question, Judge
Susan Phillips Read, writing for the majority,
reviewed the applicable precedent. In Alison D.
v. Virginia M., 77 N.Y.2d 651 (1991), the court
had held that a “biological stranger” had no
standing to sue for custody under New York law
unless she had adopted the child. Subsequent
LESBIAN/GAY LAW NOTES
developments in the law granted standing to
grandparents and siblings and allowed
second-parent adoption by same-sex couples.
In Shondel J. v. Mark D., 7 N.Y.3d 320 (2006),
the court estopped a man who had previously
held himself out to be a child’s father from denying paternity when pursued for child support,
even though he was not the biological father of
the child..
Debra argued that Shondel J. had ushered in
a functional test of parentage, giving nonbiological parents an avenue to court-ordered
visitation. Judge Read forcefully rejected this
argument, noting that Shondel J. arose in the
unique circumstance of determining paternity
and did not give Debra a right to parentage over
the objections of Janice, the biological mother.
In reaffirming Alison D., Judge Read noted that
this result gave a “simple and understandable
rule” by which couples could guide their relationships.
Although New York law did not give Debra
standing to sue for custody, Judge Read held
that the rules of comity require recognition of
the parentage created by Vermont civil unions.
In Vermont, a child born by donor insemination
to civil union partners is deemed the child of
both partners. Just as New York recognizes parentage created by adoption in a foreign nation,
the rules of comity would require this kind of
recognition of the creation of parentage in another state. Further, entering into a civil union is
an easily determinable event and thus does not
erode the clarity and certainty of Alison D. Limiting the scope of the court’s holding, Judge
Read wrote that the court agrees with Debra’s
comity argument, “and thus in this case decide
only that New York will recognize parentage
created by a civil union in Vermont. Our determination that Debra H. is M.R.’s parent allows
her to seek visitation and custody at a bestinterest hearing. There, she will have to establish facts demonstrating a relationship with
M.R. that warrants an award in her favor.”
Judge Victoria A. Graffeo concurred in the
result, writing separately to reiterate Judge
Read’s assertion that the rule of Alison D. gives
couples a dependable rule and prevents protracted litigation during custody battles
June 2010
Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NYC 10013, 212–431–2156, fax 431–1804; e-mail: [email protected] or
[email protected]
Contributing Writers: Chris Benecke, Esq., NYC; Bryan Johnson, Esq. NYC; Daniel Redman, Esq., San Francisco; Stephen E. Woods, J.D., NYC; Eric Wursthorn,
Esq., NYC; Kelly Garner, NYLS ‘12.
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©2010 by the LeGaL Foundation of the LGBT Law Association of Greater New York
ISSN 8755–9021
brought by adults with no biological link to a
child. Judge Graffeo also deferred to the legislature to devise a multi-faceted definition of
parenthood for same-sex couples, should it so
choose.
Judge Carmen Beauchamp Ciparick, also
concurring in the result, advocated for overruling Alison D. as “outmoded and unworkable.”
Judge Ciparick argued that Alison D. took an
“unwarranted hard line stance, fixing biology
above all else” rather than the “better, more
flexible, multi-factored approaches” used by
some other states to arrive at a functional definition of parenthood.
H.M. v. E.T., the other opinion published by
the Court of Appeals on May 4, 2010, concerned a lesbian couple, H.M. and E.T., whose
relationship dissolved months after H.M. gave
birth to a son. H.M., a Canadian citizen, moved
back to Canada with the child after the relationship dissolved. In 2006, when the child was
twelve years old, H.M. sought a declaration of
parentage and retroactive support from E.T. in a
Canadian court. Pursuant to the Uniform Interstate Family Support Act, the application was
transferred to Family Court in Rockland
County, New York. A Family Court magistrate
dismissed the petition on jurisdictional
grounds, but Family Court reversed, ordering a
hearing to determine whether E.T. should be
equitably estopped from denying parental
status. The Appellate Division reversed, ordering the case dismissed for lack of subject matter
jurisdiction, and H.M. appealed.
E.T. argued that the Family Court had no jurisdiction to hear the case because she is not a
parent and thus cannot be subjected to a support obligation. Judge Ciparick, writing for the
court, analyzed Article 4 of the Family Court
Act, where the Family Court’s powers are enumerated. Noting that Article 4 clearly gave jurisdiction to hear whether an individual is responsible for support of a child when a petition
is filed alleging that the respondent is the
child’s parent, she concluded that the Family
Court must also have the “inherent authority”
to determine whether an individual is a parent.
Since H.M. charges that E.T. is a parent and
owes support, Family Court has jurisdiction
over the case. The court was careful not to opine
on the merits of the claim, confining its ruling
solely to the question directly presented on appeal: whether Family Court had jurisdiction of
the case.
Judge Robert S. Smith wrote a concurring
opinion to both Debra H. v. Janice R. and H.M. v.
E.T., submitting the same argument in both
cases. Judge Smith felt that Alison D. was no
longer a workable precedent, but he also disfa-
80
vored the multi-factored tests developed by
other states. Judge Smith instead proposed a
“different bright-line rule’”: when a child is
conceived to one member of a same-sex couple
living together by artificial donor insemination,
with consent and knowledge of the other, the
conceived child is, as a matter of law, the child
of both. Judge Smith would thus hold that Debra H. and E.T. are both parents of the children
at issue, deserving of the right to seek visitation
in the former case and potentially chargeable
with the duty of child support in the latter case.
June 2010
Judge Theodore T. Jones, dissenting from
H.M. v. E.T., argued that the Family Court would
have no jurisdiction in the case. Under Alison
D., he observed, E.T. is not a parent, as she has
no biological or legal connection to the child.
Under Article 4, Family Court has no authority
to declare, through equitable estoppel, that E.T.
is the child’s parent, he argued. Without this
initial determination, he asserted, the Family
Court cannot move on to determine what support, if any, E.T. owes to H.M.
Having ruled that the Family Court had jurisdiction based on H.M.’s allegation in her com-
Lesbian/Gay Law Notes
plaint that E.T. is a parent of the child, the court
reversed the Appellate Division and remanded
“for consideration of questions raised but not
determined on the appeal to that court.”
In Debra H. v. Janice R., Lambda Legal attorney Susan L. Sommer argued for Debra H.,
Sherri L. Eisenpress argued for Janice R., and
Jennifer L. Colyer argued as counsel for the
child. Numerous organizations participated as
amici. In H.M. v. E.T., Peter J.W. Sherwin represented H.M. and David H. Tennant represented
E.T. Amicus support for H.M. came from the
New York County Lawyers’ Association and the
New York City Bar Association. Christopher Benecke
LESBIAN/GAY LEGAL NEWS
Federal Court Rules Against Wisconsin in
Transsexual Prisoner Cases
Chief U.S. District Judge Charles N. Clevert, Jr.,
issued two lengthy opinions rejecting the state
of Wisconsin’s stance on medical treatment for
transsexual prison inmates. In one case, Fields
v. Smith, 2010 Westlaw 1929819 (E.D.Wis.,
May 13, 2010), Clevert provided the detailed
discussion promised earlier in a short order he
had issued finding that the state had violated
the 8th and 14th Amendment rights of transsexual prisoners by legislating that such prisoners
could not be provided with hormones as a treatment for their gender identity disorder. In the
other, Konitzer v. Frank, 2010 Westlaw 1904776
(E.D.Wis., May 10, 2010), the judge rejected
the state’s motion for summary judgment as to
all but one of the claims asserted by a transsexual inmate concerning the refusal of prison
authorities to allow the inmate to live as a
woman, the lone exception being the judge’s
determination that the inmate’s constitutional
rights would not be violated by the prison adhering to a requirement that the inmate only be
subjected to strip and pat-down searches by
male corrections officers.
The coincidence of the two opinions being issued within days of each other is easily explainable by the practicality of the court having
ruled preliminarily on March 31 that the challenged state law, Wis. Stat. sec. 302.386(5m),
also known as Act 105, was unconstitutional as
a prelude to ruling on the pending summary
judgment motion in Konitzer. Once that was
done, it made sense to release the two opinions
almost simultaneously, as they contain a virtually identical discussion of the case law on constitutional treatment rights of transsexual prisoners, an important segment of both opinions.
The bottom line here is that Judge Clevert
seems to “get it,” to understand as a result of the
careful study of detailed expert testimony offered in both cases (by many of the same experts) that gender identity disorder is a serious
medical condition calling for individualized
treatment which may need to include hormone
therapy and may need to include allowing the
individual to live as a member of their preferred
gender, depending upon how “severe” is the
discordance between the individual’s gender
identity and their body.
Thus, a state law categorically ruling out a
treatment that medical experts consider to be
necessary for some transsexual individuals, depriving prison health officials of the ability to
prescribe the treatment that they believe to be
appropriate for the inmate, would constitute deliberate indifference to a serious medical condition in violation of the 8th Amendment. Judge
Clevert rejected the state’s argument that as
long as they were providing some treatment, regardless how wrongheaded or out of sync with
prevailing professional medical views, they
were not guilty of deliberate indifference.
Furthermore, since the Department of Corrections is allowed by state law to offer hormone
therapy to inmates for other conditions, but just
prohibited from providing such therapy “in order to alter the person’s physical appearance so
that the person appears more like the opposite
gender,” the court found an Equal Protection
violation. Judge Clevert was not persuaded that
the state had met the rational basis test of providing a legitimate penological reason for withholding from one group of inmates a medical
treatment that was made available to other inmates. The state’s main justification articulated
in support of its summary judgment motion
concerned safety issues around “feminized”
inmates in male prisons, but this was a nonsense justification when the state provided no
evidence that there had been a serious safety
problem prior to the enactment of the law. That
is, the law was not enacted in response to a
documented problem, but was rather a politically motivated response to adverse press commentary about state funds being used to support
gender transition for prison inmates.
The Konitzer case was the more interesting
one to read, partly because it was apparently local press publicity about inmate Konitzer being
provided with hormone therapy that had led the
legislature to pass the challenged statute. Prior
to that statute, Wisconsin’s prison system had
followed a course similar to many others, providing that persons who were already receiving
hormone therapy for gender identity disorder
prior to incarceration would be continued on
their hormones if appropriate medical documentation was in order, and that those seeking
such therapy after being incarcerated would be
dealt with on an individual basis, with decisions being made by a medical review committee in line with the Standards of Care specified
by the Harry Benjamin International Gender
Dysphoria Association’s published standards,
now in their 6th version. Konitzer had been receiving hormone treatments pursuant to this
policy, but rather inflexible prison rules were
invoked to prevent correctional officials from
calling her by her preferred name, or allowing
her to wear feminine underwear and a bra or to
use make-up.
When Act 105 was enacted, prison officials
began to wean transsexual inmates off their hormone therapy, with predictably adverse effects
on their physical and mental health. A preliminary injunction issued in the case challenging
the statute required the state to resume hormone therapy for inmates who had been receiving it, which generally reversed the ill effects of
discontinuance.
Judge Clevert was persuaded by plaintiffs’
experts in Donna Dawn Konitzer’s case that the
arguments being made by the Department of
Corrections were not sufficient to justify granting summary judgment to the state, with the exception noted above about the searches. (The
court found that it would impose an undue administrative burden to require the prison to
abandon its rules on inmate searches in order to
accommodate transsexual inmates.) Indeed,
Clevert found that the state’s own expert on
prison security actually provided more support
for Konitzer’s position on the other issues than
for the state’s position, since he testified about
another state prison system that allowed trans-
Lesbian/Gay Law Notes
sexual inmates to live in their preferred gender
without the security and safety problems that
the state provided as its rationale for denying
such treatment for Konitzer.
Because the ruling in the Konitzer case was
responding solely to defendants’ motion for
summary judgment, there is not yet a final judgment in the case, but it seems unlikely that the
State’s Department of Justice, upon analyzing
Clevert’s strongly worded opinion rejecting
their motion, would want to prolong this case
with further litigation on the merits. Even if
they were to come up with a new expert on security and safety who would testify in support of
their arguments, they would then have quite a
credibility problem, since the expert they used
in support of their motion is one of the nation’s
leading consultants on prison security. The ruling in Fields is a final ruling on the merits.
Judge Clevert indicated that the “specific language of the injunction” that will be issued to
enforce the court’s order will be determined at
an upcoming status conference. This will be interesting to see, because Act 105 prohibits both
hormone therapy and sex reassignment surgery,
but Clevert’s ruling only pertains to hormone
therapy, since that was the specific issue posed
in the challenge. Thus, it seems likely that the
final injunction will only strike the portion of
Act 105 dealing with hormone therapy, and the
ban on state funding of sex reassignment surgery (or surgery generally to enhance gender
appearance) will probably stand.
Andrea Fields, Matthew Davison and Vankemah Moaton, the plaintiffs in Fields, are represented by John R. Knight (ACLU Foundation),
Laurence J. Dupuis (ACLU of Wisconsin Foundation), Dru M. Levasseur (Lambda Legal) and
Erik R. Guenther of Hurley Burish & Stanton
SC (Madison, Wisconsin). Konitzer’s legal
team consists of Brian E. Cothroll, David M.
Lucey, and Thomas L. Shriner, Jr., of Foley &
Lardner LLP (Milwaukee, Wisconsin). A.S.L.
11th Circuit Remands Venezuelan Gay HIV+
Asylum Case, Finding BIA Opinion “Riddled With
Errors”
The U.S. Court of Appeals for the 11th Circuit
has remanded to the Board of Immigration Appeals the case of a gay Venezuelan claiming he
had suffered persecution on account of his
sexuality and political opinion, holding that the
Board’s decision was “riddled with errors,” in
Ayala v. U.S. Attorney General, 2010 WL
1816683 (May 7, 2010). The Petitioner came to
the United States in 2004 and overstayed his
visitor visa.
The Petitioner claimed that he identified as
homosexual from an early age, but that he hid
his sexuality from family and coworkers. Petitioner testified that he contracted HIV in 1995.
Although he denied coming to the United States
to obtain better health care, he claimed he
June 2010
would not have access to the same quality of
healthcare as he did here in the United States.
He testified that in Venezuela, employers required employers to take HIV tests, and that
they refused to hire applicants that tested positive for HIV. Further, he claimed that in 2001,
there was a shortage of HIV medication in
Venezuela.
In 2000, his family learned of his sexuality
and rejected him, and in 2003 his coworkers
saw him in a gay pride march and thereafter
harassed him. His manager told him he would
not be promoted, reassigned him, and told him
“homosexuals are mentally deviated people.”
Petitioner testified that he was openly opposed to the government of President Chavez,
and that he was threatened by a neighbor who
told him he “did not want a queer living within
the compounds of his living quarters [who was
against Chavez],” and that he moved out of the
apartment fearful for his safety.
On International AIDS Day in 2004, when he
was leaving a gay nightclub, Petitioner was approached by police officers. The officers threw
him into a wall, took his wallet, hit him in the
stomach, handcuffed him, and forced him into a
patrol car. Petitioner claimed he was very
scared, that the officers placed a hood over his
face and threatened him, and that they forced
him to perform oral sex on one of the officers.
The officers drove Petitioner to an empty marketplace and released him, but threatened him
and told him not to report the incident. Petitioner further testified that in 2005, while wearing an anti-Chavez visor, he was assaulted by
members of a rival political party, who beat him
and called him “queer.” Petitioner testified that
he reported the incident to nearby police officers, but that they refused to help him.
Petitioner was eventually placed in removal
proceedings for having overstayed his visa, and
applied for asylum, withholding of removal,
and Convention Against Torture (CAT) relief.
The Immigration Judge found Petitioner credible, but held that he failed to establish that he
was persecuted on account of his membership
in the social group of HIV+ gay men. The Immigration Judge held that Petitioner failed to
establish that the harm he suffered from the police was “a function of municipal or national
government” rather than “criminal acts perpetrated by individuals,” and denied Petitioner’s
applications for relief.
The Board of Immigration Appeals affirmed
the Immigration Judge’s decision, stating that it
agreed with the Immigration Judge that “the
mistreatment [Petitioner] suffered did not rise
to the level of persecution,” although the Judge
made no such explicit finding.
Petitioner appealed the decision, and a panel
of the 11th Circuit held that the Board’s decision was “deficient.” Circuit Judge William H.
Pryor, writing for the panel, held that in addition
to the Board’s error in affirming a “finding” that
81
the Immigration Judge never made, the Board
“credited [Petitioner’s] testimony, but ignored
the import of that credited testimony.”
Judge Pryor wrote that “the Board also failed
to provide a reasoned explanation for its finding
that the police officers were not motivated to
harm [Petitioner] on account of a protected
ground.” He also stated that Petitioner’s claim
was not diminished by his failure to report the
sexual assault to the authorities, as “the failure
to report persecution [is] excused where the petitioner convincingly demonstrates that those
authorities would have been unable or unwilling to protect [him].”
Finally, Judge Pryor held that since the
Board failed to “render a reasoned decision,”
the panel was unable to consider Petitioner’s
arguments about future persecution, and therefore that the court must “remand to the agency
for further proceedings.” Bryan C. Johnson
Federal Civil Litigation Notes
Supreme Court — The Supreme Court has refused to review a decision by the 9th Circuit upholding a lower-court ruling that the city of San
Diego acted inappropriately in leasing public
campground space to a San Diego-area Boy
Scouts unit, on the ground that the Scouts discriminate on the ground of religion. BarnesWallace v. City of San Diego, 551 F.3d 891 (9th
Cir. 2008), certiorari denied, sub nom Boy
Scouts of America v. Barnes-Wallace, 2010 WL
1740539 (May 3, 2010). The case originated
with a lawsuit by a lesbian couple and an agnostic couple against the City of San Diego for renting space in a city park to an organization that
maintains an exclusionary membership policy
in violation of local law. The trial judge, U.S.
District Judge Napoleon Jones, Jr., ruled in
2003 that the City erred in renting to the Scouts,
a ruling that was upheld by the 9th Circuit. The
Scouts had petition the Supreme Court to review the case.
9th Circuit — A 9th Circuit panel upheld a
decision to deny asylum, withholding of removal and protection under the Convention
Against Torture to a native and citizen of the
Russian Federation who was seeking relief on
account of his sexual orientation. Belykh v.
Holder, 2010 WL 1986244 (May 5, 2010) (not
officially published). The Immigration Judge
found that the petitioner lacked credibility due
to inconsistencies in his testimony about a military pre-induction physical examination that
was assertedly the basis for the government
having a record of his homosexuality, and for
having left a key claim concerning past persecution out of his initial asylum petition: that he
had been subjected to a month-long involuntary psychiatric hospitalization. When questioned about this discrepancy during his testimony, the petitioner answered “I forgot about
it.” The appeal to the court concerned the BIA’s
82
refusal to re-open the case for more testimony
before deporting the petitioner. The court found
no abuse of discretion as to this, according the
BIA the presumption that it had actually reviewed all the evidence presented before affirming the IJ. Second, the BIA did not abuse its
discretion in finding that [petitioner] failed to
demonstrate changed circumstances that would
warrant reopening,” wrote the court. “As the BIA
noted, the new evidence regarding the cancellation of the first gay pride parade and proposed
legislation to recriminalize homosexuality,
which was similar to a failed bill that had been
introduced in 2002, does not demonstrate that
conditions had worsened for gay and lesbian individuals in Russia such that [petitioner] met his
heavy burden of proving that the new evidence
would likely change the result in the case.” The
petitioner is represented by Judith L. Wood for
the Human Rights Project, Los Angeles.
9th Circuit — Now that the U.S. Supreme
Court has refused to review the 9th Circuit’s decision that plaintiffs have standing in a suit
challenging the sweetheart lease between the
City of San Diego and the Desert Pacific Council of the Boy Scouts of America, see BarnesWallace v. City of San Diego, 530 F.3d 776 (9th
Cir. 2008), cert. denied, 2009 WL 888298
(March 31, 2009), the 9th Circuit has renewed
its request to the California Supreme Court for
an advisory ruling about whether the leases in
question violate California law in three particulars: do they interfere with free exercise and enjoyment of religion by granting preference for a
religious organization in violation of the No
Preference Clause in article I, sec. 4, of the
California Constitution; are the leases “aid” for
purposes of the No Aid Clause of article XVI,
sec. 5 of the California Constitution; if the
leases are aid, are they benefitting a “creed” or
“sectarian purpose” in violation of the No Aid
Clause? Plaintiffs are San Diego taxpayers who
are self-described as gay and agnostic and thus
assertedly disqualified from participating in
Boy Scouts activities under the openlyproclaimed discriminatory policy of that organization. Barnes-Wallace v. City of San Diego,
2010 WL 2197434 (9th Cir., June 3, 2010).
Wrote the court in making the new certification:
“We are aware of the California Supreme
Court’s demanding caseload and recognize that
our request adds to that load. But we feel compelled to request certification because this case
raises difficult questions of state constitutional
law with potentially broad implications for
California citizens’ civil and religious liberties.
Considerations of comity and federalism favor
the resolution of such questions by the State’s
highest court rather than this court.”
11th Circuit — An 11th Circuit panel denied
a petition for review of a decision by the Board
of Immigration Appeals to deny relief to a man
who claimed he was persecuted for being gay in
El Salvador. Cruz v. U.S. Attorney General, 2010
June 2010
WL 1803812 (May 6, 2010). According to the
per curiam ruling, both the BIA and the Immigration Judge “gave specific, cogent reasons for
finding [petitioner] not credible and for concluding that he was ineligible for withholding of
removal.” The adverse determination was
based on inconsistencies between his asylum
petition and his hearing testimony. In the petition, he claimed he was beaten up by MS-13
gang members because he was gay, and feared
he would suffer new assaults on that ground if
returned to El Salvador. At the hearing, he testified he did not know who his attackers were,
and only when the IJ pointed out inconsistency
with his petition did he revise his testimony to
identify them as gang members. The court also
agreed with the BIA and the IJ that a letter from
an emergency room doctor, dated ten years after
the fact, relating that petitioner claimed to have
been beaten up because he was gay, did not
compel belief in his story.
11th Circuit — Once a country has banned
sexual orientation discrimination, how likely is
it that a gay person from that country can claim
protection as a refugee in the U.S.? Not very
likely, judging by an 11th Circuit panel decision in Fernandes de Paula v. U.S. Attorney General, 2010 WL 2179514 (June 2, 2010) (not officially published), a case involving a gay man
from Brazil. The Petitioner sought review of the
BIA’s affirmance of a decision by an Immigration Judge to deny his petitions for asylum or
withholding of removal. He testified about harassment he suffered as a child, confrontations
with policy officers in the early morning hours
outside of gay bars, and being beaten by a gang
of youthful homophobes. The court found none
of this was sufficient to justify an award of asylum, finding that the police incidents were “isolated, sporadic, and did not result in his arrest,
detention, or any physical harm,” and that he
did not sustain any serious injuries from the attack by the young men. The court similarly discounted the Petitioner’s testimony about an incident during which police officers were
randomly shooting into a crowd and shouting
anti-gay threats, since, the court noted, Petitioner was not a specific target of the shooting
and was not personally harmed. Thus, having
found inadequate evidence of past persecution,
the court examined petitioner’s allegations of a
“pattern or practice in Brazil of persecuting homosexuals.” The court found that the record did
not “compel the conclusion that [Petitioner’s]
fear of future persecution is objectively reasonable. While the materials submitted by [Petitioner] indicate that violence against homosexuals, including murder, is a problem in
Brazil, the record evidence does not suggest
that the Brazilian government or a group that
the Brazilian government cannot control is responsible for such violence. Rather, the materials indicate that state and federal law prohibits
discrimination based on sexual orientation, and
Lesbian/Gay Law Notes
these laws are generally enforced.” Thus, the
court found that under the substantial evidence
test, the record adequately supported the BIA’s
decision to deny asylum or withholding.
California — U.S. District Judge Virginia
Phillips ruled on May 27 that the Log Cabin
Republicans do have standing to pursue their
lawsuit against the federal government challenging the constitutionality of the “Don’t Ask,
Don’t Tell” policy banning military service by
openly gay people and mandating the discharge
of service-members discovered to be gay. Log
Cabin Republicans v. Gates, No. 204CV08425
(VAP) (C.D.Cal.). According to press reports on
the ruling, Judge Phillips determined that the
legal standard for evaluating LCR’s 5th
Amendment claim was established by the 9th
Circuit’s decision in Witt v. Department of the
Air Force, 527 F.3d 806, motion for en banc review denied, 548 F.3d 1264 (Ct. App. 9th Cir.
2008). In that case, the court held that Margaret
Witt’s challenge to her discharge from the Air
Force should invoke the heightened scrutiny
standard, placing the burden on the government to justify its decision to terminate her excellent service due to her sexual orientation.
Judge Phillips gave the government until June
9 to file a pre-trial brief on the issue of appropriate standard review, with a reply brief due from
LCR by June 23. A trial date of June 14 had
been set, but the trial was postponed in light of
this new pre-trial briefing schedule. The trial
will probably be held in July.
Kansas — U.S. District Judge Carlos Murguia has rejected a constitutional challenge to
Kansas prison regulations barring the receipt of
sexually-oriented materials by state prison inmates. Sperry v. Werholtz, 2010 WL 1980305
(D. Kansas, May 18, 2010). Inmate Jeffrey J.
Sperry, proceeding pro se, contended that his
1st, 4th and 14th Amendment rights were violated by the policy. Over the past several decades, many inmates have brought similar futile
suits, only to come to grief on the belief of federal judges that corrections officials have credibly stated legitimate penological grounds for
excluding such materials. Among other things,
they assert that receipt of sexually-oriented materials can reveal the sexual proclivities — including homosexuality — of inmates, leading
to security concerns.
Louisiana — U.S. Magistrate Judge James D.
Kirk ruled in James v. Herzog, 2010 WL
1936109 (W.D.La., April 27, 2010), that a gay
state prison inmate who claimed that he had
been excluded from a trusty job and denied participation in a work release program had failed
to state a constitutional discrimination claim.
The inmate represented himself pro se. Magistrate Judge Kirk found that a sexual orientation
discrimination claim would be cognizable if it
was shown that the inmate suffered discrimination on that ground without a legitimate justification from prison officials. In this case, how-
Lesbian/Gay Law Notes
ever, the judge found that the inmate’s
exclusion was not due to his sexual orientation,
as such, but rather to his behavior, characterized by prison officials as “disruptive” and
“overt/aggressive homosexual behavior.” The
plaintiff denied this, although Judge Kirk observed that he had “implied” in his original
grievance that he had been charged with or convicted of some aggravated rules violation. Concluded Kirk on this point, “In any event, the
fact that he was not charged with a disciplinary
rules violation is irrelevant; that his very presence was disruptive is a sufficient and legitimate penological objective to justify the termination of his trusty status and the denial of work
release. In short, plaintiff fails to state a claim
with regard to his discrimination complaint.”
Kirk also dismissed a due process claim as
frivolous, finding that an inmate has no entitlement or property interest concerning trusty
status or participation in work release. The
court never relates in any detail the nature of
the misconduct charged against the plaintiff.
Maine — U.S. Magistrate John Rich III ruled
on May 23 that the National Organization for
Marriage, an advocacy group that contributed
almost $2 million to the campaign to repeal
Maine’s same-sex marriage law, was obligated
to comply with state law disclosure requirements and reveal the names of donors whose
contributions were used to fund the campaign.
Rich’s order does not become enforceable until
it is approved by the District Court, and NOM
filed an appeal challenging the ruling immediately. The Maine Commission on Governmental
Ethics and Election Practices voted in October
to exam NOM’s contributions after the organization failed to comply with state disclosure requirements. Rich rejected NOM’s claim to First
Amendment immunity from the filing requirements. Portland Herald Press, May 26. A.S.L.
State Civil Litigation Notes
California — In Bomersheim v. Los Angeles Gay
and Lesbian Center, 2010 WL 2089653
(Cal.App., 2nd Dist., May 26, 2010), the court
of appeal reversed a decision by Los Angeles
County Superior Court Judge Robert L. Hess to
rejected the plaintiff’s motion to certify a class
action on behalf of individuals allegedly subjected to medical malpractice at the Center’s
STD clinic. The court of appeals ordered that
the class be certified. According to the allegations of the complaint, the Center provided in
appropriate medical treatment to more than
600 clients during the period January 1999March 2004 with confirmed syphilis infections
or reported sexual contact with someone who
was known or suspected by be infected with
syphilis, by administering a medication that
was “incorrect” for the condition, an allegation
that was admitted by the Center’s medical director in a deposition. Upon discovering its er-
June 2010
ror, the Center attempted to contact clients and
issued a press release offering retreatment and
retesting, which was taken up by 442 clients. A
group of clients sued and sought certification of
a class of all those who were affected and had to
undergo retreatment. The trial court had found
“no community of interest existed because individual issues of causation and damages predominated over common issues of duty and
breach.” By contrast, the court of appeals found
that common issues predominated over individual ones to the extent that certifying a class
would be consistent with the applicable rules.
Bad news for the Center and its liability insurer!
California — In Warner v. City of Citrus
Heights Police Department, 2010 WL 1972935
(Cal. App., 3rd Dist., May 18, 2010) (unpublished disposition), the court dealt with an appeal by the defendants from the Superior
Court’s denial of defendants’ SLAPP motion
seeking to dispose of a complaint filed by three
lesbian Police Department employees claiming
sexual orientation discrimination. SLAPP
stands for Strategic Lawsuit Against Public Participation. The purpose of a SLAPP motion is to
cut short a lawsuit that has been brought for the
purpose of deterring legally protected conduct,
most often in the form of public advocacy
speech. In this case, the Police Department argued that the lawsuit was brought to chill the
Department from its normal process of investigating complaints and to stifle the free speech
of Department employees, to the extent that it
sought to attach liability to comments by police
officers made in the course of their employment
that the plaintiff’s found oppressive or offensive. The trial judge denied the motion in full,
finding that dismissing a Fair Employment
complaint through the device of a SLAPP motion would vitiate the statutory protection
against discrimination. The court of appeal
largely agreed, upholding dismissal of the motion as to several counts of the complaint, but
found that to the extent the lawsuit sought to
premise liability on statements made in official
Police Department proceedings or for carrying
out normal internal Department disciplinary
proceedings, the motion should be granted. The
bottom line is that the plaintiffs’ discrimination
suit survives, but its scope is cut down a bit in
terms of the extent of actionable conduct alleged against the defendants.
Minnesota — Three same-sex couples have
formed an organization, marrymeminnesota.org, and retained an attorney, Peter J.
Nickitas of Minneapolis, and filed a lawsuit
against the state of Minnesota on May 11 in
Hennepin County District Court, arguing that
the state’s enactment in 1997 of its Defense of
Marriage Act, banning same-sex marriages and
their recognition in Minnesota, violated constitutional principles of freedom of conscience,
freedom of associationm due process and equal
83
protection. They also contend that the 1997 enactment violated the “single subject” rule by
requiring voters to make two distinct policy decisions with one vote, and that the existing marriage law should be construed to allow samesex marriages. The plaintiffs are Duane Gajewski and Doug Benson, Lindzi Campbell and
Jesse Dykhuis, and John Rittman and Tom
Trisko. In 1971, the Minnesota Supreme Court
became the first appellate court in the United
States to rule that denying the right to marry to
same sex couples did not violate the federal
constitution, in Baker v. Nelson, 191 N.W.2d
185 (Minn.1971), appeal dismissed, 409 U.S.
810 (1972). In that case, the court also ruled
that the existing marriage law did not authorize
same-sex marriages. In a press release announcing the filing of the case, the plaintiffs’ organization indicated that they would seek immediate injunctive relief from the court. The
organization’s website did not include a link to
the complaint when we checked it, and it was
unclear from the press release and news reports
whether the complaint raises state constitutional claims (other than the single subject issue). The 1971 Baker decision discussed only
federal constitutional claims.
Vermont — On June 23, the Vermont Supreme Court will hear further arguments in the
Miller-Jenkins case, in which a state trial ordered transfer of custody from the biological
mother to the non-biological mother in a longrunning and hotly contested interstate custody
dispute. Lisa Miller and Janet Jenkins entered
a Vermont civil union in 2000. Miller bore their
daughter, Isabella Miller-Jenkins, in 2002. The
couple’s relationship ended in 2003, and
Miller moved to Virginia with the child, renouncing homosexuality and claiming to be a
Christian evangelical. Miller took action in Vermont to dissolve the civil union, during which
the court ordered that Jenkins have visitation
rights. After the move, Miller barred Jenkins
from contact with her daughter. Litigation ensued in both states, eventually eliciting opinions from both state supreme courts, holding
that Jenkins was entitled to visitation. When
Miller persisted in defying court orders and filing frivolous appeals in the Virginia courts,
Jenkins obtained an order from the Vermont
trial court switching custody to her, but then
Miller disappeared with the child. (Her attorneys claim they have had no contact with her,
but are pursuing the appeal of the custody order.) There are new reports that Lisa Miller and
Isabella may be in El Salvador, according to
Jenkins’ attorney, who said that a Virginia police officer told her that Miller and the girl had
flown to San Salvador from Juarez, Mexico.
Richmond Times Dispatch, June 4. A contempt
citation and arrest warrant for Miller were issued by the Vermont trial court, and the National Center for Missing and Exploited children has been distributing photos and
84
information to news outlets throughout Central
America seeking information about their
whereabouts. A.S.L.
Criminal Litigation Notes
Puerto Rico — Juan Jose Martinez Matos pled
guilty to the horrific homophobic murder and
dismembering of Jorge Steven Lopez Mercado,
a gay teen, and was sentenced to 99 years in
prison by Judge Mariam Camila Jusino at a May
12 hearing. The murder on Nov. 12, 2009,
caused widespread outrage and consternation,
generating demonstrations and demands that
Puerto Rican authorities invoke the hate crimes
law in the prosecution. Prosecutors charged
that Martinez stabbed Lopez to death, then decapitated, dismembered and partially burned
his body before dumping it in a remote area.
Edge News, May 12. A.S.L.
Legislative Notes
Federal — Late in May, the House of Representatives voted to add an amendment to the pending Defense Authorization Act that would conditionally repeal the “don’t ask, don’t tell”
military policy. Under the terms of the amendment, the policy would be repealed if the President, the Secretary of Defense and the Chairman of the Joint Chiefs of Staff certified to the
relevant congressional committees that ending
the policy would be consistent with the national
security interests of the nation, after having received, studied, and taken action based on the
Pentagon Working Group report that is due to
be submitted by December 1, 2010. The
amendment provides that such action may not
be taken until at least 60 days after the report is
submitted. The same amendment was approved in the Senate Armed Services Committee by a narrow vote. Several Republican Senators, led by John McCain of Arizona, vowed to
use every means necessary to prevent the
amendment from being approved on the floor of
the Senate. At the same time, the House attached a weapons spending measure to the
pending bill that invoked a veto threat from the
White House. So it was not clear whether some
version of this amendment will actually be enacted this year. In his State of the Union message, the President vowed to work with Congress to end DADT “this year.” Almost half of
the year is gone. Much remains to be done. * * *
In an appearance at Fort Bragg, N.C., on June 2,
at which he took questions from a military audience, Admiral Mike Mullen, chairman of the
Joint Chiefs, was specifically asked about possible disciplinary problems if gay personnel are
allowed to serve openly. He used the opportunity to reiterate his view that the policy must be
changed. “The law needs to change,” he said.
“Fundamentally, it’s an issue of our values. It’s
very critical for us as an institution, and I’m
June 2010
hard-pressed not to support policy and a law
that forces individuals to come in and lie every
day.” As to the suggestion that changing the
policy will lead to sexual harassment problems,
he commented: “Certainly any change in the
laws is not an excuse for anything like that to
ever happen. We are a disciplined force. We
have standards. Maintaining those standards,
sustaining that discipline, is our job, no matter
what happens. I have every expectation that not
only we will do this, but we will lead in a way it
gets done. . . that doesn’t mean we won’t have
challenges.” Defense Department Documents,
2010 WLNR 11408127 (June 3, 2010).
Federal — Lead sponsor Senator Al Franken
(D-Minn) has introduced the Student NonDiscrimination Act, intended to ensure that
federal laws prohibiting discrimination in
schools will include actual or perceived sexual
orientation or gender identity among the
grounds for which there is a federal cause of action. The introduction on May 20 immediately
attracted several dozen co-sponsors.
Florida — Leon County Commissioners
voted 5-2 on May 11 to amend the county’s Human Rights Ordinance to add sexual orientation and gender identity to the prohibited
grounds for discrimination in employment,
housing and public accommodations in the
county. Tallahassee Democrat, May 12.
Florida — City Commissioners are undertaking revisions of the residential zoning rules,
which as presently written could be construed
to exclude same-sex couples and their children
from living together under some circumstances.
The single-family zoning rules forbid more than
three people who are not related by blood, marriage or adoption from cohabiting in the same
house. Commissioner Suzanne Boisvenue is
calling on the commission to adopt a more inclusive definition of family to include domestic
partners, regardless of gender, as well as foster
children and all legal guardians. Ft. Lauderdale Sun Sentinel, May 31.
Massachusetts — Governor Deval Patrick
signed into law the anti-bullying bill that had
been passed by the legislature in April. The bill
focuses on reporting of incidents and training
for school staff on how to identify, prevent and
manage incidents of bullying. The bill also
seeks to promote cooperation between local
and state authorities to enhance the effectiveness of responding to bullying. The law also extends to electronic communications and cyberbullying. To help establish public awareness of
the problem, the bill establishes the fourth
Wednesday in January as an annual No Name
Calling Day in public schools. Advocate.com,
May 6.
Minnesota — On May 11, the Minnesota
House of Representatives approved the Final
Wishes/Wrongful Death bill (S.F. 341, 86th
Legislative Session) by a vote of 78-55. The bill
then passed the Senate on May 12 by a vote of
Lesbian/Gay Law Notes
41-24, and was sent to Governor Pawlenty, who
vetoed it on May 15, announcing that he considered it to be “unnecessary” and an attempt
to stir up political controversy. The bill, which
would have amended Minn. Stats. Secs.
3.736(6), 149A.80(2), 466.05(2), 573.02(1),
and 573.02(3), proposed to extend the right to
bring wrongful death actions and to exercise the
control and disposition of dead bodies to surviving domestic partners. Since the state does
not have a Domestic Partnership Law, as such,
the bill provides a detailed definition of domestic partner, limiting the status to same-sex partners and requiring such features as a common
domicile and primary residence, mutual assumption of responsibility for basic common
welfare, financial obligations and well being,
and an intent to continue a committed interdependent relationship indefinitely, to the exclusion of any other person. Perhaps the veto was
inevitable; the governor, a conservative Republican, is widely considered a prospective Republican presidential nominee, and one suspects that many Republican presidential
primary voters, especially those of the Tea Party
persuasion, might have objections to allowing
surviving same-sex partners enjoy the same
rights as surviving spouses in matters of wrongful death and disposition of remains.
New York — On May 12, the N.Y. State Senate approved S.1823-B, a bill that would create
a civil right of action for employees who are
subjected to an abusive work environment. At
present, employees subjected to such conditions can only sue of they can show that the
abuser has a discriminatory intent based on a
ground articulated in the state’s Human Rights
Law. If finally enacted, the bill would extend
such protection broadly to all employees suffering workplace abuse, regardless of the abuser’s
motivation. The measure is sponsored by Senator Thomas P. Morahan, who chairs of the Senate’s Committee on Mental Health and Developmental Disabilities.
Utah — The City Council in Logan, Utah,
voted unanimously on May 18 to adopt an ordinance banning discrimination on the basis of
sexual orientation or gender identity in housing
and employment. Deseret Morning News, May
24. On June 1, the City Council in West Valley
voted 5-1 to approve an ordinance prohibiting
discrimination in employment and housing because of sexual orientation or gender identity,
and Mayor Mike Winder, a Republican, was expected to sign it into law on June 8 at a city hall
ceremony sponsored by Equality Utah. BNA
Daily Labor Report, 105 DLR A-21 (June 3,
2010). A.S.L.
Lesbian/Gay Law Notes
Federal Office of Personnel Management
Publishes Final Regulation on Access to Federal
Long Term Care Insurance Program for
Same-Sex Domestic Partners of Federal
Employees
On June 17, 2009, President Barack Obama issued a Memorandum on Federal Benefits and
Non-Discrimination which, among other
things, requested the Office of Personnel Management (OPM ) to amend its regulations so as
to make same-sex domestic partners of federal
employees eligible to participate in the Federal
Long Term Care Insurance Program on the
same basis as legally-recognized spouses of
federal employees. (Under a federal law, the
Defense of Marriage Act of 1996, only
different-sex couples can be recognized by the
federal government as married, so same-sex
couples married in those jurisdictions that
authorize same-sex marriage were not already
covered under this program.) On September
14, 2009, OPM published a proposed regulatory amendment in the Federal Register, that
would expand the definition of “qualified relative” in 5 U.S.C. 9001(5)(D) for purposes of
participation in the program to include samesex domestic partners. The comment period for
the proposed regulation ended on November
13, 2009. OPM received 51 written comments.
Having reviewed and considered them, it decided to publish the proposed regulation without change on June 1 as a final rule.
The regulation adds a new Section 875.213
to volume 5 of the Code of Federal Regulations,
setting forth the requirements for same-sex
couples to participate. In effect, the federal employee and his or her same-sex partner will
have to submit an attestation that they meet the
requirements of being in a “committed relationship between two adults, of the same sex, in
which the partners (1) Are each other’s sole domestic partner and intend to remain so indefinitely; (2) Have a common residence, and intend to continue the arrangement indefinitely;
(3) Are at least 18 years of age and mentally
competent to consent to a contract; (4) Share
responsibility for a significant measure of each
other’s financial obligations; (5) Are not married to anyone else; (6) Are not a domestic partner of anyone else; (7) Are not related in a way
that, if they were of opposite sex, would prohibit
legal marriage in the State in which they reside;
and (8) Certify that they understand that willful
falsification of the documentation . . . may lead
to disciplinary action and the recovery of the
cost of benefits received related to such falsification and may constitute a criminal violation
under 18 U.S.C. 1001.”
Nothing in this regulatory definition would
preclude civil union partners or same-sex legal
spouses of federal employees from participating in the program. They would just have to
swallow their pride and file the form attesting to
June 2010
domestic partnership, which they apparently
could do without violating any of these qualifications. By extending this eligibility on the basis of a regulatory definition of domestic partner
rather than by the more obvious approach of
just recognizing the legal status of relationships
concluded under state law, OPM avoids the
prohibition of the Defense of Marriage Act,
which is actually never mentioned in the Federal Register announcement of the new regulation, published in 75 Fed. Reg. 30267 (June 1,
2010). In addition, by following this methodology, OPM opens up eligibility for the benefit to
all same-sex couples who meet the requirements spelled out in the regulations, regardless
of whether they have actually entered into a
state civil union, domestic partnership, or legal
marriage. A.S.L.
New Presidential Memo and Statement Confirm
Extension of Some Benefits for Same-Sex Partners
of Federal Employees
President Obama’s June 2009 memo directed
executive branch officials to examine employee
benefits that could be extended to same-sex
partners of federal employees without the need
for legislative action. Although in some cases
benefits eligibility is statutorily defined in ways
that may rule out administrative expansion of
eligibility, and the Defense of Marriage Act
looms as a potential barrier as well, the President announced on June 2 that several benefits
had been identified that could be extended
through administrative action.
In addition to the publication of the new
regulatory definition of “qualified relative” for
purposes of the Long Term Care Insurance Program, the President issued a new Memorandum, dated June 2, 2010, addressed to the
heads of executive departments and agencies,
directing a series of immediate steps to extend
benefits eligibility for a variety of things, including: Federal child-care subsidies for children of federal employees’ partners who are being jointly raised with the employee, extension
of eligibility for employee assistance programs
as “family members,” designating same-sex
partners as “family members” for noncompetitive appointments under EO 12721, adding retiree’s same-sex partners to the list of individuals assumed to have an insurable interest in the
employee, making clear that same-sex partners
and their children are “dependents” for purposes of evacuation payments made to assist in
relocating federal employees in various circumstances, extending various kinds of family
leave.
Each of these benefits in themselves may
seem relatively minor, but taken together they
are undoubtedly useful — and in some cases
crucially so — for particular federal employees
and their families. In general, the memorandum directs that to the extent possible benefits
85
be provided to the families of federal employees
and their same-sex partners equal to benefits
provided to married federal employees, and
that any new benefits programs adopted by
agencies should be similarly directed.
The Director of OPM is tasked with providing
a progress report on implementation by April 1,
2011. The memorandum notes that it does not
create any legally enforceable right or benefit.
The Director of OPEM is directed to publish the
Memorandum in the Federal Register. In the accompanying statement, the President called for
passage of the Domestic Partnership Benefits
and Obligations Act, pending in Congress, that
would make necessary legislative alterations so
that all federal employee benefits programs
could be equally extended to the families of
LGBT federal employees.
A good summary of the president’s action
was provided in the June 4 issue of BNA’s Daily
Labor Report, page A-9. A.S.L.
Internal Revenue Service Decides California
Domestic Partners Are Subject to Community
Property Rules for Federal Tax Purposes
When California expanded its Domestic Partnership law in 2005 to provide that registered
same-sex domestic partners would have all the
same rights, protections and benefits as married people, it carved out an exception, providing that “earned income may not be treated as
community property for state income tax purposes.” Thus, each member of a domestic partnership would be treated as a separate individual for tax purposes, rather than the couple
being treated as a unit. However, a year later,
the legislature reconsidered the issue and
passed a law repealing the carve-out language.
Thus, effective January 1, 2007, writes the IRS
in several documents dated May 5 and released
publicly late in May, “the earned income of a
registered domestic partner must be treated as
community property for state income tax purposes (unless the [registered domestic partners] execute an agreement opting out of community property treatment). This would mean
that for purposes of their state tax filing, each
would be credited with half of their combined
income, and could take half of whatever exemptions or credits were attributable to that income,
when filing separately. Of course, if they filed
their taxes jointly, the allocation would make no
difference.
The problem, of course, is that the federal
government does not normally recognize domestic partnerships or civil unions as having
any legal significance for federal tax purposes
(and, pursuant to the Defense of Marriage Act,
the IRS is prohibited by Congress from according any significance to same-sex marriages,
even if they are legal where they were performed).
86
Representatives of registered domestic partners in California seeking clarification about
these issues requested advice from the I.R.S.,
which issued two memoranda from the Office of
Chief Legal Counsel and a Private Letter Ruling, all making essentially the same point.
“Federal tax law generally respects state property law characterizations and definitions,”
wrote the IRS bureaucrats. “Applying the principle that federal law respects state law property characterizations, the federal tax treatment
of community property should apply to California registered domestic partners.”
The consequences, as spelled out in the various documents: A registered domestic partner
in California must report one-half of the community income, whether received in the form of
compensation for personal services or income
from property, on his federal income tax return.
Conversely, a registered domestic partner is entitled to be credited with half of the amount
withheld as a credit against the income tax imposed on the income. Thus, in preparing their
separate federal income tax returns, registered
domestic partners should cumulate both their
earnings and their amounts withheld by the
IRS, then divide them in half for purposes of reporting income and claiming credit for amounts
withheld. Because the community property
rules apply, the degree to which one partner
ends up with greater income than he had individual earned will not be treated as a transfer of
property from his partner for purposes of federal gift tax liability. Furthermore, when the IRS
is considering a taxpayer’s assets in determining a settlement of a tax claim, if the taxpayer is
a registered domestic partner, the IRS will require disclosure of the assets of the taxpayer’s
partner and will take them into account, just as
it takes into account the joint assets of a married
couple in deciding whether and how much to
compromise a tax claim.
The big news here is that California registered domestic partners are now relieved of one
of the greatest potential penalties that theoretically applies to same-sex couples of disparate
income: the potential liability for gift tax to the
extent that the partner with significantly greater
income assumes responsibility for a larger
share of the couple’s ongoing living expenses.
The documents are identified as follows: Private Letter Ruling, PLR-149319-09, Release
Number 201021048 (May 5, 2010); Memorandum from Office of Chief Counsel (Subject:
California Registered Domestic Partners),
PRESP-111796-10, Release 201021050 (May
5, 2010); Memorandum from Office of Chief
Counsel (Subject: Considerations of the Assets
of a Domestic Partner in the State of California
Under I.R.C. Section 7122), POSTS-13545009, Release 201021049 (May 5, 2010).
Commenting about this development on the
Tax Professor Law Blog, Prof. Theodore Seto of
Loyola Law School (Los Angeles), author of an
June 2010
article titled The Unintended Tax Advantages of
Gay Marriage, 65 Wash. & Lee L. Rev. 1529
(2008), wrote: “The IRS will apply Poe v. Seaborn to California registered domestic partners
for all federal tax purposes from 2007 on. The
positions distinguish CCA 200608038 on the
ground that California had not, at the time, applied its mandatory community property rules
for state income tax purposes. Since it has now
done so, Poe v. Seaborn rules. The consequence, as I have pointed out elsewhere, is that
married’ gay couples in California are now
taxed at substantially lower effective rates than
similarly situated heterosexual couples or than
similarly situated same-sex couples in other
states.” A.S.L.
Law & Society Notes
President of the United States — On May 28,
President Barack Obama issued his Lesbian,
Gay, Bisexual, and Transgender Pride Month
2010 Proclamation. The operative text, after
declaring Gay Pride Month, states: “I call upon
all Americans to observe this month by fighting
prejudice and discrimination in their own lives
and everywhere it exists.” The lengthy proclamation recites the Administration’s record to
date on gay rights, emphasizing the enactment
of the hate crimes bill, renewal of the Ryan
White Care Act, the elimination of the HIV
travel ban, and the president’s memorandum to
the Department of Health and Human Services,
directing that hospitals receiving federal funds
provide compassionate care and access for
LGBT patients and their partners. He also
noted the HUD initiative against anti-gay housing discrimination, and the creation of a resource center for LGBT elders in HHS. The
proclamation notes as unfinished business the
repeal of DOMA and extension of benefits
rights to gay couples, elimination of restrictions
on adoption rights, enactment of ENDA, and repeal of the military ban.
World Anglican Communion — Responding
to controversy stemming from the ordination of
Rev. Mary Glasspool, an openly-lesbian bishop
in Los Angeles, Archbishop of Canterbury
Rowan Williams, the head of the Anglican
Communion, announced that the Episcopal
Church in the U.S. would have to take a diminished role in the Communion, including abstaining from participating in the church committee that deals with questions of doctgrine
and authority. The leadership of the Communion has taken positions against authorization of
blessing services for same-sex couples and
consecrations of bishops living in same-sex relationships. CNN.com, June 1.
Immigration — The Boston Globe reported
on June 4 that federal immigration officials had
authorized humanitarian parole to allow Genesio Oliveira, a gay Brazilian, to enter the United
States for one year to be with his husband, Tim
Lesbian/Gay Law Notes
Coco, of Haverhill, Massachusetts. Oliveira,
who claims to have been a victim of injustice in
Brazil, where he was allegedly raped by a doctor when he was 16 and suffered anti-gay discrimination, came to the U.S. and applied for
asylum in 2002. Although an Immigration
Judge found his story credible, his asylum petition was denied, the judge finding that Oliveira
had returned to Brazil twice without incident
and thus did not have a reasonable fear of persecution in his home country. While the case
was going on, Oliveira and Coco were married.
(Same-sex marriage became available in Massachusetts in May 2004.) But the federal government does not recognize the marriage, due
to the Defense of Marriage Act. In 2007, all appeals having been exhausted, Oliveira was ordered to return to Brazil. For the ensuring three
years, Coco and Oliveira remained in constant
contact through the internet and Coco pursued
every possible avenue to find a way to get Oliveira back to the United States. The humanitarian parole was granted after extensive lobbying efforts, with the support of Senator John
Kerry, Attorney General Eric Holder and
Homeland Security Secretary Janet Napolitano. This buys them a year while Oliveira
seeks alternative ways to be able to stay in the
United States. According to the Boston Globe
article, “Though Brazil recognizes same-sex
marriage for immigration purposes, violence
against gays persists. More than 100 homosexuals and transvestites were killed last year
in Brazil, according to the U.S. Department of
State’s human rights report.” Ironic, isn’t it, that
despite this situation, U.S. immigration
authorities do not believe that gays from Brazil
can reasonably fear persecution of they are
forced to return there. See Fernandes de Paula v.
U.S. Attorney General, 2010 WL 2179514
(June 2, 2010) (not officially published), reported above, denying refugee status in the U.S.
to a gay Brazilian.
Florida — Attorney General Bill McCollum
personally requested that the Florida Department of Children & Families retain Dr. George
Rekers, a psychologist, co-founder of the antigay Family Research Council, and board member of a national organization devoted to attempting to convert gay people to heterosexuality, to be an expert witness in pending litigation
challenging Florida’s ban on gay people adopting children. News reports indicate that the
state paid Dr. Rekers over $120,000 for his testimonial role. The trial judge found his testimony about the deficiencies of gay people as
parents not to be credible. Then it came to light
that Dr. Rekers had hired a male escort, through
the website Rentboy.com, to accompany him on
an extended European trip. Rekers claimed
that the individual, doing business under the
name “Lucien,” was hired to be a companion
and baggage-handler, needed because of
Rekers’ weak back. The young man told media
Lesbian/Gay Law Notes
interviewers that part of the deal was for him to
give Rekers a nude massage every day, and that
he was required to sign a confidentiality agreement. The story came to light when a photographer from a local weekly paper took a photo of
Rekers and his escort waiting for an elevator at
the airport, with Rekers apparently pushing the
baggage cart and the escort idling next to him.
The Family Research Council insisted that
Rekers’ connection with the organization was
far in the past, but his membership on the board
of the ex-gay group was promptly terminated,
and late night TV personalities had a field day
with the story.
Texas — A same-sex marriage in Texas? The
insistence by Texas courts that chromosomes
trump gender identity seems to leave the way
open to some marriages that could be characterized as same-sex marriages. The Associated
Press reported about the wedding of Sabrina J.
Hill and Therese Bur on May 3 in San Antonio.
Hill was born with both male and female organs
but was classified male on the birth certificate.
Hill subsequently had gender reassignment
surgery and obtained new official identification
as female. When Hill and Bur sought a marriage license in El Paso, county officials were
flummoxed and stalled, sending a letter to the
Attorney General for an opinion. But San Antonio officials have given licenses to such couples
in the past, so Hill and Bur went to that city for
their wedding. El Paso County Attorney Jo
Anne Bernal’s letter to the attorney general discloses an odd situation: since the court rulings
on gender identity, the legislature has modified
Texas statutes to provide alternate ways of proving sex, leaving local officials in a bit of a quandary, since Hill has documents that could prove
either sex, depending which ones she submits.
The A.G., busy battling against same-sex divorce (not because he likes same-sex marriage,
but because he argues that granting divorces to
same-sex couples married out of state is a violation of Texas’s ban on recognizing same-sex
marriages), has not yet responded, and perhaps
the Hill-Bur nuptials in San Antonio take him
off the hook for now.
Fordham University — The Fordham Committee for Equality announced that Joseph M.
McShane, S.J., President of the Fordham, which
is a Catholic university, stated at a Faculty Senate meeting on May 30 that the university will
be providing medical and other benefits to “legally domiciled adults” who are partners of faculty and staff of the university, at a level of parity with those provided to spouses. LDA is one
of the euphemisms that some Catholic universities have used to extent benefits to domestic
partners without specifically recognizing such
relationships.
FedEx — Chastened at being dropped from
some lists lauding corporate diversity because
it does not provides domestic partnership benefits, FedEx has announced that it is working on
June 2010
implementing a domestic partnership benefits
plan — but it probably will not be effective until January 2012. Somehow, the company that
promises overnight delivery can’t move quickly
when it comes to implementing a new benefits
plan.
Exxon — Exxon hangs tough. Shareholders
have again rejected a resolution to add sexual
orientation to the company ’s nondiscrimination policy. Prior to the Exxon-Mobil
merger several years ago, Mobil employees enjoyed both a non-discrimination policy and domestic partner benefits. After the merger,
Exxon abolished both policies for the combined
company and has refused to consider reinstating them or extending them to the entire corporation.
Great Britain — British newspapers noted
the recent death of Antony Grey, described by
The Guardian as “arguably the most important
British gay rights campaigner of the 20th century.” Grey (born 1927) worked during the
1950s and 1960s toward the repeal of criminal
sodomy laws by the Parliament, and then held
important leadership positions with a variety of
gay rights organizations in the U.K. He was the
author of Quest for Justice: Towards Homosexual Emancipation (1992), and a personal memoir, Personal Tapestry (2008). He is survived by
his partner of half a century, Eric Thompson.
The men became civil partners under British
law in 2005. The Guardian published an excellent, lengthy obituary article on June 4. A.S.L.
International Notes
United Nations — Continuing efforts by the International Gay and Lesbian Human Rights
Commission to achieve “consultative status”
with the U.N. Economic and social Council
have been stymied yet again, as Egypt and
“other developing states” that continue to
criminalize gay sex have managed to block a
vote in the Council on whether to accredit the
organization. Los Angeles Times, June 4.
Argentina — The Chamber of Deputies, the
lower house of Argentina’s legislature, voted
125-109 with 6 abstentions and 15 members
absent to approve a bill that would allow samesex marriages. The May 4 vote came after
weeks of uncertainty during which some local
authorities performed weddings for same-sex
couples, which were then declared invalid by
some judges. The bill went to the Senate, where
its chances of passage were deemed uncertain.
President Cristina Fernandez has voiced support for same-sex marriage, and would sign the
bill if it passes the Senate. It is, of course, possible, that the Senate would amend the measure,
requiring further action by the lower house.
Wockner International News, #837.
Australia — A Pakistani man who is married
with four children but who claims to be gay has
lost his asylum bid in Australia. The man had
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lived in the United Arab Emirates from 2004
until arriving in Australia in 2007, where he applied for asylum on the ground that he feared
persecution on account of his homosexuality if
he had to return to Pakistan. The Refugee Review Tribunal rejected his claim, doubting his
credibility, and the High Court ruled May 26
that the Tribunal’s decision was not so illogical
or irrational as to give rise to jurisdictional error. Herald Sun (Australia), May 27.
Canada — Some consternation among gay
rights groups in Canada was reported as a result
of the federal government’s decision to abandon its past practice of providing financial support for Toronto’s big annual gay pride festival.
The Toronto Festival has long been seen as a
major draw for gay tourism to the city, and was
supported last year to the tune of $400,000 Canadian by the Marquee Tourism Events Program. Festival organizers claim that homophobia was behind the decision of the government
of Conservative Prime Minister Michael
Harper to discontinue the funding, but the Industry Minister, Tony Clement, insisted to the
press that the government had decided to fund
fewer events in big cities and spread the money
more equitably to smaller centers. Critics of the
decision claimed it showed a pattern of hostility, recently manifested by funding cuts to
women’s groups and omission of funding of
abortion under the government’s maternal
health initiative. The Canadian Press, May 8.
Canada — In Heintz v. Christian Horizons,
the Ontario Divisional Court in Toronto has issued a puzzling decision in a case where the
Ontario Human Rights Tribunal had ruled that
the defendant, a Christian social welfare
agency, could not dismiss a lesbian employee
on account of her sexual orientation. On the one
hand, the court ruled that religious organizations may establish codes of conduct and belief
requirements for their employees, but on the
other that these might not be applicable to employees who are not hired to effectuate the religious goals of the agency. We’ve seen several
newspaper reports, each struggling to characterize the ruling, which appears to uphold the
Tribunal’s action in finding Ms. Heintz’s discharge unlawful but also seems to give
religiously-affiliated employers permission on
some level to discriminate. Guelph Mercury,
May 20.
China — Lam Wing-may, a Hong Kong resident, and his Malaysian partner, Derek Chong
Shue Wang, are appealing their convictions on
fraud charges in connection with an alleged
scheme to have Derek marry a woman so that he
could gain permanent residence in Hong Kong.
“I have been with my boyfriend for eight years
and we still love each other, but we cannot get
married in Hong Kong,” Lam testified to Justice Michael Lunn in the Court of First Instance
in Hong Kong on May 12. They were convicted
in Sha Tin Court and jailed for eight months.
88
The man who found a woman willing to marry
Chong for a fee was also convicted and sentenced to five months in prison. The men are
out on bail pending their appeal. South China
Morning Post, May 13.
Denmark — Denmark, the first nation to create a legal status for same-sex couples (registered partnerships) in 1989, has finally added
joint adoption rights in legislation enacted on
May 5 to take effect on July 1. Under existing
law, individual gay adults can adopt children,
and courts have approved second parent adoptions of a partner’s biological child. Wockner International News#837.
Israel — Attorneys for Jerusalem Open
House have filed a disciplinary complaint
against Jerusalem Family Court Judge Phillip
Marcus, who is charged with inappropriately
denying orders for DNA testing to gay men
seeking to prove their parentage of children
conceived under surrogacy agreements with
women in India, in order to assure the right to
bring the children into the country as Israeli
citizens. Haaretz, an Israeli daily newspaper,
reported on incidents leading to the complaint
in its issues of May 17 and 18 and June 3. The
paper focused on the case of Dan Goldberg and
his twin sons, Itai and Liron, born to a surrogate
mother in India. Goldberg, an Israeli citizen
resident in Jerusalem, had to go outside the
country for this purpose because Israel only
permits surrogacy arrangements for married
couples. Goldberg applied to the Family Court
for permission to order the DNA tests to prove
paternity as gay men have routinely applied to
Family Court judges around Israel, and such
applications have normally been granted, but
not by Marcus, who denied them in several
cases. In the hearing in Goldberg’s case, Judge
Marcus claimed he did not have authority to order a paternity test, and said that if a man seeking to raise the children turns out to be “a pedophile or serial killer, these are things that the
state must examine.” Publicity to the case in
May led to the involvement of Prime Minister
Benjamin Netanyahu, who was questioned
about it in the Knesset and ordered the Interior
Ministry to “relax the law” and permit the family to return to the country intact. The Jerusalem District Attorney’s Office stated that there
was no basis for denying the paternity testing
for Goldberg. According to an email about the
case from Jerusalem Open House, the results of
the paternity test were confirmed and on May
28, Goldberg and his children arrived back in
Israel, where the children will be considered
citizens.
Lithuania — After an appeals court reversed
a lower court ruling and ordered that gay rights
supporters be allowed to stage a march in Vilnius on May 8, the event was marred by violence as anti-gay protesters attacked the
marchers. The Vilnius Country Administrative
Court had ordered the major to suspend per-
June 2010
mission for the march, on an application by the
attorney general and a member of the city council, citing both security concerns and that the
march clashed with traditional Lithuanian values. The Supreme Administration Court, however, said that “the rights to assembly and expression are guaranteed by the European
Convention and the government is obligated to
defend them,” according to an Associated
Press report.
Malawi — On May 18, Magistrate
Nyakwawa Usiwa Usiwa ruled that Tiwonge
Chimbalanga and Steven Monjeza were guilty
of unnatural acts and gross indecency because
they had engaged in a public engagement ceremony. The magistrate subsequently sentenced
the men to 14 years in prison, the maximum
authorized penalty under Malawi’s criminal
code. These actions were widely condemned by
the international human rights community and
major world powers. The U.S. State Department
announced that it was “appalled,” and United
Nations Secretary General Ban Ki-moon announced on May 25 that he would travel to Malawi to intercede with that country’s president,
Bingu wa Mutharika. Ban Ki-moon asserted
that the sentence violated human rights principles banning sexual orientation discrimination
and criminalization of consensual sex between
adults. Responding to the pressure of adverse
comment and possible adverse consequences
to Malawi in the world community, President
Mutharika announced on May 29 that he had
pardoned the two men and ordered them released from prison. However, a May 31 report in
The Guardian indicated that the two men were
sent back to their separate native villages with
instructions to stay there and not to be in contact with each other. They are to be permanently
separated, and fears have been expressed about
their safety, since their families have reacted
with hostility to the news reports about their
plight.
Pakistan — The incessant war on the transsexual/transvestite community in Peshawar by
the local police forces broke into the press when
policy arrested Malik Mohammad Iqbal on
charges he was attempting to have a marriage
ceremony with a transvestite named Rani. A
spokesperson for a local Transsexual Rights organization called a press conference to denounce the arrest, arguing that the event the police had raided on May 18 was actually a
birthday celebration for Rani. According to this
spokesperson, the police were angry with Mr.
Iqbal, a landlord of buildings where transsexuals and transvestites were living, who had refused the shakedown demands of the police as
well as their orders to expel his tenants. The
spokesperson, Almas Boby, demanded that
Pakistan’s Chief Justice, Iftikhar Hussain
Chaudhry, order a judicial inquiry into the action of the police. The Statesman (Pakistan),
June 3; Al Arabiya, June 1.
Lesbian/Gay Law Notes
Portugal — President Anibal Cavaco Silva
has signed into law a measure opening up marriage to same-sex partners in Portugal. Silva
had opposed the measure, but his ability to veto
it was curbed when the Constitutional Court issued an opinion finding that it was not barred
by the nation’s constitution. Under Portuguese
law, had he vetoed the measure, Parliament
could pass it over his veto; such subsequent
passage would have required him to ratify it.
Same-sex marriage ceremonies were expected
to begin early in June, after official publication
of the new law. Wockner International News,
May 24.
Russia — Although the Tversky District
court in Moscow ruled on May 28 that Yuri
Luzhkov, Mayor of Moscow, had been within his
rights to ban a Moscow Gay Pride march, Pride
organizers went ahead and staged a public protest, unfurling a rainbow banner on Leningradsky Avenue while chanting slogans. They had
undertaken a ruse to lure police to another location. Police arrived soon after the protest, but
protesters scattered quickly to avoid arrest.
One of the leaders of the protests asserted that
the court’s order upholding the ban did not take
effect until ten days after the court decision, so
the protest held earlier was not covered by the
court order. The mayor has consistently opposed any sort of gay rights activity in the city,
formally banning such activities for the past
five years. Activists have a complaint against
the city pending before the European Court of
Human Rights. GayRussia.ru, June 1; New
York Times, May 29.
Uganda — A special committee of the cabinet constituted to make recommendations
about the pending Bahati Bill, which would
drastically increase penalties for homosexual
conduct (including the death penalty in some
cases), recommended that the bill not pass. The
committee criticized the bill as having “technical defects in form and content,” and pointed
out that nearly all of the clauses were either redundant, repetitive of existing laws, or “useless,” although the committee saw some merit
to “Clause 13” outlawing the “promotion” of
homosexuality. Speaking of Clause 13, the
committee said, “This appears to be the core of
the (draft legislation) and should be upheld due
to the fact that there was massive recruitment to
entice people into homosexuality going on, especially among the youth.” President Museveni
has complained that the pendency of the bill
has harmed Uganda’s foreign relations. Saturday Monitor, Uganda, May 8.
United Kingdom — On May 10-12, the Supreme Court of the United Kingdom heard extended arguments in two cases brought by gay
men seeking asylum in the U.K. Applicant “T”,
from Cameroon, and Applicant “J”, from Iran,
were both denied asylum by the Home Office
and the lower courts, which insist that gay people can avoid persecution in those countries by
Lesbian/Gay Law Notes
being closeted and refraining from engaging
in homosexual relationships that could become
known to the public and/or the authorities. Advocates for the asylum-seekers noted that under
this standard, Ann Frank could not have sought
asylum in the U.K. during World War II, on the
ground that she could escape persecution from
the Nazi occupiers of the Netherlands by remaining locked up in her attic hideaway. The
press reported that a recent study showed that
the refusal rate for gay asylum claims in the
U.K. was 98%, compared with a 73% refusal
rate for asylum claims generally. It will be interesting to see whether the new ConservativeLiberal Democrat coalition might modify this
policy without being directed by the Supreme
Court, mooting the case. At the same time, it is
surprising that the former Labour government,
with its generally strong pro-gay rights stance,
has continued to maintain a position that has
generally been disclaimed in other Western
European countries. Guardian, May 10.
United Kingdom — An unhappy first.... A
gay man was sentenced to at least 13 years in
prison for the stabbing death of his civil partner,
in what was described in the press as “Britain’s
first domestic violence murder within a samesex marriage.” Michael Edwards stabbed John
Edwards in the heart during an argument over a
heating bill. In court it came out that the couple,
who had recently celebrated their second anniversary, had a “stormy marriage [that] was
blighted by domestic violences,” and that Michael Edwards had a prior conviction for stabbing an ex-partner. Mirror, May 7.
United Kingdom — While the National
Health Service does fund gender transition procedures, the High Court ruled May 25 that the
NHS could not be compelled to fund a breast
enlargement procedure for a transsexual
woman, identified in court papers as “C,” who
has been living as a woman for a decade and
sought larger breasts to make her “feel feminine.” According to a May 26 report in the
Daily Mail, the woman was diagnosed as transsexual in 1996. “She started hormone therapy
but was described as being in physical and psy-
June 2010
chological limbo’ after her bust failed to develop sufficiently,” and she had struggled with
local health care officials over her request for
breast enlargement surgery for several years
before filing suit. Justice Bean wrote, “There
was no duty in either public law or discrimination law to classify all treatment and procedures
sought by transsexuals as high priority or core
procedures.” The plaintiff reportedly plans to
file an appeal of the ruling.
United Kingdom — David Laws, a closeted
gay man who was serving as Chief Secretary to
the Treasury in the new coalition government,
resigned his position after a newspaper report
that he had drawn on a government second
home allowance to pay rent to his same-sex
partner, in violation of parliamentary rules
adopted a few years ago. The second home allowance recognizes that members of Parliament
who live far from London need to maintain a
second home in the capital. When Laws began
this arrangement with his partner, it was perfectly legal to pay rent to a family member for
using living accommodations in London. However, Parliament revised the rules to exclude
payments to family members. Laws, seeking to
keep his relationship a secret, continued to
draw the allowance rather than reveal his relationship with James Lundie. Although Laws resigned from the cabinet, he planned to retain
his seat as a Liberal Democrat MP, now reluctantly openly gay.
Zimbabwe — Two gay rights activists who
were arrested in Zimbabwe were released after
six days, claiming that they had been abused
and tortured in policy custody. Ellen Chadehama and Ignatius Mhambi were arrested late
in May, accused of possessing pornographic
material and insulting President Robert
Mugabe, a loud and virulent homophobe. They
are employed by Gays and Lesbians of Zimbabwe (Galz), a civil rights organization, which
released a statement asserting that the two had
been assaulted by police officers while in custody. A magistrate released them on bail pending a trial set for June 10, when they will face
89
potential penalties of imprisonment or fines.
Guardian, May 29. A.S.L.
Professional Notes
We note with sadness the death of Rhonda
Copelon, professor at the City University of
New York Law School and a vice president of
the Center for Constitutional Rights. Copelon
was a leader in the struggle for human rights
and equal rights, taking part in major litigation
both at CCR and with her students at CUNY,
and was an important mentor for LGBT legal
educators and scholars.
And now there are two openly lesbian prosecutors serving as Senate-confirmed United
States Attorneys appointed by President
Obama. On May 28, the Senate unanimously
confirmed Laura Duffy as U.S. Attorney for the
Southern District of California, having previously confirmed Jenny Durkan in September as
U.S. Attorney for the Western District of Washington. Duffy worked as a prosecutor and administrator in that office since 1997, having
previously worked directly in the Justice Department, for a private firm, and for a public defender office in Nebraska. Keen News Service,
May 27.
An openly lesbian judge, Linda Vanzi of the
New Mexico Court of Appeals, won the Democrat primary for election to her seat on June 1.
Appeals judges in New Mexico are initially appointed and then have to stand for election.
Governor Bill Richardson appointed Judge
Vanzi in 2008. There is no Republican candidate in the race. When elected in November,
Vanzi will be the first openly-LGBT candidate
to win a statewide election in New Mexico. During the same primary voting, lesbian attorney
Shannon Bacon won the Democratic primary
for a district court seat in Bernalillo County,
which includes the city of Albuquerque. She
faces no Republican opponent in the fall election. Advocate.com, June 2.
Attorney Ross Levi, who was a contributing
writer to Law Notes back in his student days,
has been named Executive Director of Empire
State Pride Agenda, New York’s statewide
LGBT rights lobbying group. A.S.L.
AIDS & RELATED LEGAL NOTES
Suspension of NYC Health Teacher for AIDS
Lesson Violates Due Process
U.S. District Judge Jack Weinstein (S.D.N.Y.)
denied summary judgment to the New York City
school system on a claim by a middle-school
teacher that her constitutional rights were violated when she was suspended with pay from
classroom teaching and suffered collateral consequences after parents complained to her
principal that vulgar terminology was used in
an HIV/AIDS education class that she con-
ducted for middle school students. Judge Weinstein found in Kramer v. New York City Board of
Education, 2010 WL 2010462 (May 20,
2010), that no rule promulgated by the Board of
Education had any clear application to the incident in question, that the rule initially cited
against the teacher was clearly inapplicable to
the facts, and that the rule subsequently cited
in a letter to her by her principal also did not apply to the situation.
Perhaps most significantly, Judge Weinstein
found that the most basic requirement of sub-
stantive due process, that a public employee
not suffer adverse consequences under vague
rules that would not inform a reasonably intelligent individual of what conduct is prohibited,
had been violated in the teacher’s case. Furthermore, it appeared to the court that the lesson the teacher had presented was consistent
with the school’s HIV/AIDS education curriculum, which actually encouraged teachers to
“brainstorm” with students and to let students
use vernacular language as part of the lesson to
ensure that they understood the concepts nec-
90
essary to appreciate which activities present
risks of HIV transmission.
Following the approved methodology, Faith
Kramer, a middle-school health teacher in
Staten Island, wrote the scientific terms for
various sexual organs and activities on the
blackboard and led a brainstorming session
during which students were encouraged to provide the words they would use for the specified
organs and activities. The curriculum suggests
that this should be done to make sure that all
the students understand the terms that are being used to describe sexual activities that may
spread HIV and other sexually-transmitted
pathogens. Evidently, students took down all
the words in their notebooks, and word got back
to parents about language that was used. When
parents contacted the principal, he suspended
Kramer from classroom teaching, then sought
to invoke obviously inapplicable disciplinary
rules. The school never pursued disciplinary
action against Kramer and she was eventually
reinstated to teaching, but due to the suspension her annual evaluation was adversely affected and she was deprived of various assignments that had normally generated extra
income for her, such as grading standardized
examinations.
Judge Weinstein noted that the language
found to have been used during this lesson (not
specified in the opinion) can also be found
widely used in popular culture, by respected
public figures, and in some cases even in books
that are used in the school curriculum. He
cited, ironically, a NY City Schools publication
on recommended reading for middle school
students that specifically listed some books
containing the kind of language — even some
of the disputed words — that were charged
against the teacher in this case. Thus, the basic
due process requirement could not be satisfied
by the assumption that the teacher would know
it was improper to allow this language to be
used during a health class on sexuallytransmitted diseases.
On the other hand, Judge Weinstein granted
the defendants’ summary judgment motion on
all the other legal claims in the complaint, including First Amendment claims. The area of
First Amendment protection for public school
teacher classroom speech is in quite a bit of turmoil, especially since the Supreme Court’s decision in Garcetti v. Cebalos, taking the position
that public employee speech within the scope
of their employment duties is not protected by
the 1st Amendment because it is “official
speech” subject to the control of the public employer. While the Supreme Court suggested in
Garcetti that its analysis might not apply in the
education context, due to academic freedom
concerns, lower courts have been divided, both
prior to and subsequent to Garcetti, about the
degree of leeway that teachers in public institutions should have to speak in ways that their
June 2010
employers might not approve. In any event, it is
unclear that the concern for academic freedom
articulated by the Supreme Court would extend
down to the middle school level. At the same
time, Judge Weinstein found that traditionally
public schools have been allowed to forbid
speech that the authorities consider lewd or too
sexually explicit. However, it was not necessary
to pursue the 1st Amendment analysis to a conclusion in this case since the due process violation was so clear.
Judge Weinstein granted summary judgment
to defendants on Kramer’s state law claims, including a claim of negligent supervision. The
judge found that a negligent supervision claim
would require factual allegations that the Board
of Education failed in its duty to train the
decision-makers whose “propensity” to commit constitutional violations was known to the
board, but that there were no factual allegations
in the complaint that such “propensity” was
known to the Board. While the conclusion is
correct as a matter of pleading the tort, it seems
clear from Judge Weinstein’s account of the
facts that the Education Department has not
provided adequate instruction to its administrators about how to deal with situations such as
the one created in this case. Some in-service
training seems to be in order.
Ms. Kramer is represented by Duane C. Felton of Staten Island. Now that the Education
Department has lost its summary judgment motion, it is likely that the defendants will offer a
settlement to Ms. Kramer, since the court’s
opinion makes clear that she would win a motion for summary judgment if she were to file
one, and that her various claims for injunctive
and monetary relief, as well as attorneys fees
and costs, remain to be decided. A.S.L.
3rd Circuit Panel Orders Removal of HIV+
Colombian Man
The U.S. Court of Appeals for the 3rd Circuit
denied a petition for review of a decision by the
Board of Immigration Appeals (BIA), which affirmed the order for removal to Colombia of an
HIV+ man, in Rodriguez v. US Attorney General, 2010 WL 1998836 (May 20, 2010). The
Petitioner, who is married to a US citizen, entered the United States in March 1999. After
his visa expired, Petitioner applied to have his
status adjusted based on his marriage to a US
citizen, but his application was denied when he
failed to appear at a scheduled hearing. After
removal proceedings were initiated in 2004,
Petitioner applied for withholding of removal
and protection under the Convention Against
Torture (CAT).
Petitioner fears that if he were to return to Colombia, he would not receive adequate medical
treatment and that his HIV+ status would lead
him to being categorized in Colombian society
as “either a drug addict, gay or a prostitute.”
Lesbian/Gay Law Notes
This categorization as an “anti-social,” Petitioner fears, will single him out for persecution
by the paramilitaries, and he contends that that
the Colombian government would do little to
provide him with protection against attacks
from these groups.
During his hearing, Petitioner testified that
he feared he would be tortured due to the association some groups in Colombia make between
an individual’s HIV status and their status as
an “anti-social” member of society.
In addition to his testimony, Petitioner submitted a collection of articles detailing the discrimination faced by gay people in Colombia.
One report (“HIV and AIDS in Latin America”)
that was also submitted with the articles, detailed the demands made by one group, the
United Self-Defense Forces of Colombia, stating that all people who were HIV+ must abandon Barrancabermeja, a city in the northern
portion of the country, within 24 hours of the demand being issued. No detail is given as to what
would occur if people did not leave the city
within the time frame.
The Immigration Judge held that Petitioner
did not provide sufficient evidence proving that
were he to return to Colombia he would most
likely be tortured. To receive protection under
the CAT, a person must establish “that it is
more likely than not that he would be tortured if
removed to his country of origin.” The IJ held
that Petitioner’s fears, in conjunction with the
reports and articles submitted, were insufficient to establish that a person who is HIV+
would necessarily be considered gay or antisocial and therefore likely to be tortured by
paramilitaries. In addition, the IJ drew attention to the fact that the Petitioner had not been
previously tortured while in Colombia, although no mention is made of what the Petitioner’s HIV status was at the time of any previous
visits to Colombia.
The IJ also based his denial of the request to
withhold removal on the failure of the Petitioner
to establish that his membership in a “particular social group” would cause him to be singled
out as a part of this particular group and subjected to torture. The judge held that sufficient
evidence had not been presented that proved
that being HIV+ places a person in a given social group in Colombian society, identifying the
person as someone that will likely be targeted
for persecution. Also, the judge held that as it
would be difficult for someone to determine the
Petitioner’s HIV status simply by looking at
him, it would be unlikely that he would face any
danger of being discriminated against or persecuted due to his medical status. On appeal, Petitioner argued that the judge violated his rights
to due process by failing to take into consideration that as he is currently receiving medical
treatment, any physical signs of his HIV+
status are not currently apparent, and that these
physical signs could become more so if he
Lesbian/Gay Law Notes
stopped receiving medical care, as he fears
would occur if he returned to Colombia.
Rather than focusing on whether the Petitioner would be considered part of a particular
social group, the court of appeals based its decision to deny review on the lack of evidence
presented as to actual, specific acts of torture
committed by paramilitaries against people
with HIV. The evidence of discrimination presented at the hearing was by itself, according to
the court, not sufficient to establish a clear correlation between discrimination against the gay
community and existence of any widespread
torture of those who are HIV+. Finding no error
in the BIA’s determination that Petitioner failed
to prove that he would most likely be tortured if
he returned to Colombia, the court determined
that the absence of evidence of previous torture
committed against either Petitioner or another
HIV+ individual, was enough to conclude that
there was insufficient evidence that torture may
occur in the future. Kelly Garner
11th Circuit Finds Alabama Prison Officials
Immune from HIV Privacy Suit by Inmate
A unanimous 11th Circuit panel ruled on May
18 that Alabama prison officials were immune
from a constitutional challenge to their requirement that the plaintiff, an HIV+ inmate, wear a
white wristband at all times while incarcerated
at the Limestone Correctional Facility. The inmate, Lester Reed, contends that the colorcoded wrist-band system enforced by the institution violates his 14th Amendment privacy
right because it effectively discloses his HIV+
status to other inmates. Reed v. Allen, 2010 WL
1959526 (not officially published).
Reed tested HIV+ in 1987 while incarcerated in another Alabama prison where HIV+
inmates were segregated from general population for all purposes, a policy of the Alabama
prison system that was upheld against constitutional challenge in Harris v. Thigpen, 941 F.2d
1495 (11th Cir. 1991). Reed was later transferred to Limestone. In 2004, the Department
of Corrections relaxed its segregation policy to
the extent of allowing the mingling of HIV+ inmates with other inmates in most educational
and vocational programs. In 2008, DOC further
altered its policy, integrating HIV+ inmates
with general population in visitation, educational, religious and social programs. However,
all the HIV+ inmates in Limestone were
housed in the same area of the prison. The officials adopted a color-coded wrist-band policy
to identity inmates housed in different parts of
the facility. Reed and all other HIV+ inmates
are housed in a unit requiring them to wear
white wrist-bands. Inmates housed in other
units wear red, purple, green, yellow or orange
wristbands, depending on their housing assignment.
June 2010
Reed objects that this wrist-band scheme effectively identifies those wearing white wristbands as HIV+, a violation of their privacy
rights with respect to their HIV status. The
prison contends that the color-coding system
serves several legitimate penological purposes:
first, effectuating enforcement of the rule restricting inmates from visiting dorms in which
they are not housed in order, which is necessary
to avoid various illicit activities such as theft,
sexual relations, gambling and fighting; second, helping prison officials to readily identify
inmates and their residence assignments in
case of fire, severe weather, or other emergency.
The defendants moved for summary judgment based on a qualified immunity argument,
contending that Reed had not shown the violation of a “clearly-established constitutional
right.” The immunity doctrine provides that
prison officials cannot be held liable for violation of constitutional rights unless the rights in
questions were “clearly established” at the
time the claim arose. Reed argued that the 11th
Circuit had recognized a right of privacy in the
information about an inmate’s HIV status in
Harris. The trial court disagreed, and granted
the motion.
In its per curiam ruling, the circuit panel
agreed with the trial judge, finding that in Harris the circuit panel, considering a challenge to
the complete segregation of HIV+ inmates
premised on such segregation being a violation
of privacy rights, had assumed the existence of
such a privacy right for purpose of its analysis,
then finding that the defendants’ asserted penological interests outweighed any such hypothetical privacy right. This, as far as the panel
was concerned, did not mean that such a privacy right was “clearly established” for purposes of 11th Circuit precedent.
Wrote the panel: “Reed argues that Harris
established a privacy right in prison inmates’
HIV-positive status and that Limestone’s wristband policy violated this right. Harris did not
speak so broadly. The Harris Court functionally
assumed a privacy right existed in HIV-positive
status and determined that the legitimate penological interests supporting full segregation
of HIV-positive inmates outweighed the inmates’ privacy rights, whatever they were. So
even if we were to assume, as did the Harris
Court, that Reed has a protected privacy right
in his HIV-positive status, our inquiry still is
whether Limestone’s wristband policy satisfies
a legitimate penological interest that outweighs
Reed’s privacy right. And beyond that, the
qualified immunity test also requires Reed to
show that the privacy right violated was clearly
established to a reasonable government actor at
the time of violation.”
The panel found that it “need not consider
the constitutional issue,” because, “Even assuming Reed’s complaint states a constitutional violation, the Defendants are entitled to
91
qualified immunity because the right Reed asserts was not clearly established.” Since at the
time the wristband policy was devised the governing precedent under Harris allowed for complete segregation of HIV+ inmates, a “less restrictive” policy could not be held to be clearly
unconstitutional. This reasoning seems a bit
disengenous to this writer, inasmuch as the
question before the court is not whether the new
policy is “less restrictive” in that it relaxes the
strict segregation that was previously imposed,
but rather whether the justifications for the policy are sufficiently weighty to overcome the severely compromised privacy of HIV+ inmates
whose status is now being broadcast immediately to other inmates with whom they are mixing in a wide variety of activities. The situation
strikes this writer as different enough to have
required a fresh analysis, which the court
avoids through its simplistic reasoning.
Lester Reed represented himself pro se on
this appeal. It would be terrific if a prisoners
rights or HIV civil rights organization could intervene to seek en banc reconsideration in this
case on his behalf. A.S.L.
Michigan Court Finds Saliva of HIV+ Defendant
Not a “Harmful Biological Substance”
Macomb County (Michigan) Circuit Judge Peter J. Maceroni ruled on June 3 that an HIV+
man’s saliva was not a “harmful biological substance,” granting a motion to dismiss one count
of a three-count complaint against Daniel Allen, charged with biting a neighbor during an
altercation. People v. Allen, Case No. 20094960-FH.
According to news accounts in the Detroit
papers, Allen and neighbor Winfred Fernandis
got into a fight after Fernandez’s son threw a
ball into Allen’s yard. One news account suggests that the neighbors had been feuding for
years, “with Allen calling the police to report
raucous parties at Fernandis’ home three doors
down, and children in the neighborhood spitting in Allen’s driveway and on his car.” Detroit
Free Press, June 3. Allen was charged with assault with intent to harm, assault with intent to
do great bodily harm less than murder, and unlawful possession of a harmful device.
Press accounts of the case referred to Count
III, dismissed by Judge Maceroni, as a “bioterrorism charge.” The statute, MCL 750.200i,
provides: “A person shall not manufacture, deliver, possess, transport, place, use, or release
any of the following for an unlawful purpose: (a)
A harmful biological substance or a harmful
biological device.” MCL.200h, a definition
provision, specifies that “for an unlawful purpose” may include “intent to do any of the following: frighten, terrorize, intimidate, threaten,
harass, injury, or kill any person,” and includes
within the definition of “harmful biological
substance” a “virus. . . that can be used to
92
cause death, injury, or disease in humans, animals or plants.” By preferring a charge against
Allen under this provision, the prosecutor was
effectively charging him with “bioterrorism,” at
least as the case was discussed in the press.
While it is undoubtedly true that HIV infection, when not treated effectively, can be deadly
and can cause injury to the person infected, Allen argued that the facts alleged against him by
the prosecutor were insufficient to bring this
case within the statute. There was some difference of opinion between Allen and the prosecutor over whether he had stipulated early in the
case that he was HIV+. But, more significantly,
there was no allegation that Allen’s conduct had
exposed Fernandis to Allen’s blood, which
proved determinative to Judge Maceroni.
The prosecution based its case on a prior
Michigan ruling, People v. Odom, 740 N.W.2d
557 (2007), in which the state’s court of appeals upheld an enhancement of sentencing for
an HIV+ inmate who spat at a corrections officer, on the ground that the victim was exposed
to a “harmful biological substance.” In that
case, however, the court of appeals took judicial
notice that “blood is commonly known to be a
means of spreading HIV,” and concluded that
“HIV-infected blood is a harmful biological
substance,’ as defined by Michigan statute.”
“Conversely,” wrote Maceroni, in the current
case, “there is no evidence that defendant’s
blood was present at the time of the alleged bite.
There was no testimony that defendant was
bleeding from the mouth, or from any part of his
body, when he allegedly bit the complaining
witness. Defendant was solely bound over on
this charge based on the stipulated fact that he
was HIV positive and testimony that defendant
bit the complaining witness. . . Although in
Odom, supra, the Court took judicial notice of
the fact that blood is commonly known to be a
means of spreading HIV, there is no evidence of
the presence of blood in this matter. Based on
the medical evidence presented, the Court cannot conclude that saliva presents the same risk
of spreading HIV as blood presents.” The court
referred to a published statement by the U.S.
Centers for Disease Control and Prevention that
“contact with saliva, tears, or sweat has never
been shown to result in transmission of HIV.”
Thus, Maceroni concluded, “The Court finds
there is no evidence to support the conclusion
that saliva of a person infected with HIV is a
harmful biological substance’ under the definition in the statute,” and that “the mere fact that
defendant was HIV positive when he allegedly
bit the complaining witness is insufficient to
meet the elements of MCL 750.200i(1)(a).
There is no evidence that demonstrates defendant manufactured or possessed a harmful biological substance, i.e., HIV infected blood, with
the intent to frighten, terrorize, intimidate,
threaten, harass, injure or kill any person, i.e.
for an unlawful purpose. . . The fact that defen-
June 2010
dant is HIV positive, alone, cannot demonstrate
he manufactured or possessed his HIV infected
blood for an unlawful purpose. In addition, defendant’s alleged action of biting the complaining witness, without the presence of blood, is
not a documented manner in which HIV can be
transmitted. Therefore, the Court is unable to
conclude, under these circumstances, that
there was sufficient circumstantial evidence
that defendant possessed the harmful biological substance for an unlawful purpose.”
Since the evidence viewed in the light most
favorable to the prosecution would not support
a conviction under Count III, the judge ordered
that count dismissed. However, the remaining
two counts are still in effect, and the court
scheduled another hearing for June 24 on the
remaining counts. After the decision was announced on June 3, Allen’s defense lawyer,
James Galen, told reporters that he would “welcome the chance to have Allen plead to a misdemeanor charge to end the case, although he
believes his client has been continually provoked because he’s gay. You never known what
a Macomb County jury may do with an African
American man who’s HIV positive,’ Galen said,
adding that even discussing homophobia in this
area is politically incorrect.” Detroit Free Press,
June 3.
The decision is unusual in carefully distinguishing between the risks presented by saliva
and by blood when an individual is HIV+. All
too often, courts have conflated the two and imposed felony liability on HIV+ individuals
whose offense consisted solely of spitting on
corrections officers or law enforcement officials, without any sound evidence that the defendants’ conduct had presented any serious
risk of HIV transmission to their victims. That
the court made this distinction in a biting case
is particularly noteworthy, especially when one
considers that the Odom decision was not
nearly so nuanced in its approach to the issue.
The court referred to amicus briefs submitted in support of the motion to dismiss Count III
by the ACLU Fund of Michigan and Lambda
Legal, Community AIDS Resource and Education Services, Michigan Positive Action Coalition, and Michigan Protection and Advocacy
Service, Inc. A.S.L.
AIDS Litigation Notes
Florida — In Hair v. Morton, 2010 WL
1875577 (May 12, 2010), the 3rd District
Court of Appeal of Florida reversed a trial court
order dismissing a personal injury suit brought
by an HIV+ woman who was the victim of an
auto accident. Ruby Hair alleges that she suffered serious injuries when Richard Morton ran
a stop sign at high speed, colliding with her car.
The trial court dismissed the case on Morton’s
motion, finding that Hair’s deposition testimony about her medical condition conflicted
Lesbian/Gay Law Notes
with her complaint and interrogatory responses. Among other things, her deposition
turned up lots of details about her HIV medication regimen and various physical complaints
associated with it, some of which seemed to
overlap with her damage claims for the auto accident. The court of appeal opined that this was
not grounds for throwing out her case. “While
Hare’s discovery responses might preclude
some of her claimed damages regarding her
lower back,” wrote Judge Lagoa, “they do not
address the issue of liability, nor address all of
Hair’s claimed damages so as to justify dismissal of the action. Indeed, any allegations
against Hair regarding inconsistencies, nondisclosure or even falseness are more appropriately dealt with through cross-examination or
impeachment before a jury — not through dismissal of her action.”
New York — Not surprisingly, N.Y. Supreme
Court Justice Carol R. Edmead found no merit
to a lawsuit against Duane Reade, the ubiquitous New York City drugstore chain, in which
the plaintiff contends that he should be entitled
to compensation for alleged emotional distress
stemming from fear of contracting HIV, AIDS
and hepatitis as a result of cutting himself while
shaving with “dangerous and defective” razor
cartridges purportedly manufactured by Gillette and sold by Duane Reade. O’Sullivan v.
Duane Reade, Inc., 2010 WL 1726079, 2010
N.Y. Slip Op. 50757 (unpublished) (N.Y.Co.,
April 20, 2010). According to Justice Edmead’s decision, the razor cartridges ultimately
turned out to be “counterfeit.” No evidence was
presented that the cartridges, which O’Sullivan
discarded and thus are not available for testing,
were contaminated with any infectious agents,
and there is no indication that either Mr. or Mrs.
O’Sullivan has actually been infected with anything as a result of his mishaps with the razor.
O’Sullivan was seeking “to recover for the exacerbation of his Crohn’s disease as a result of
the stress and anxiety from the incident, not for
the minimal nicks and cuts to his face caused
by the counterfeit blades.” Justice Edmead
found that New York’s requirements that there
be either “actual exposure” to an infectious
agent or “special circumstances” supporting a
belief in the genuineness of plaintiff’s claim
were not met in this case. Gillette, which had
been brought in as a third-party defendant,
sought sanctions for failure to prove that it had
anything to do with the counterfeit blades sold
by Duane Reade under the Gillette label, but
Justice Edmead rejected this demand.
Washington — King County prosecutors
have charge Oliberio Moreno, 22, who is
HIV+, with intentionally exposing others to the
virus through his activities as a male sex escort.
Moreno’s ex-partner contacted Seattle police in
April after discovering that Moreno was advertising on Craigslist for “adult services.” The
ex-partner expressed his fear that Moreno, who
Lesbian/Gay Law Notes
had recently tested HIV+, might be exposing
others to the virus. An undercover detective
found the Craigslist ad and called Moreno to
make an appointment. When they met, according to a report in the Tacoma News Tribune
(June 4), Moreno allegedly told the detective
that he would not be using a condom, that he’d
just been tested and was “clean.” He was then
arrested. At different times, according to police,
Moreno has admitted to having unprotected sex
with five men and, alternatively has denied
having had unprotected sex. Detectives reportedly interviewed some of Moreno’s sexual part-
June 2010
ners, two of whom said they had specifically
asked Moreno whether he had any sexuallytransmitted diseases and that he had said “no.”
He is being charged with reckless endangerment and was being held on $40,000 bail, with
a court appearance set for June 15. A.S.L.
Social Security Disability Cases
Iowa — In Cullins v. Astrue, 2010 WL 2024494
(N.D. Iowa, May 18, 2010), U.S. Magistrate
Judge Jon Stuart Scoles found that in the course
of denying the HIV+ plaintiff’s disability
93
benefits claim, the ALJ had failed to fully develop and deal with the medical record and thus
failed to support a decision that the plaintiff was
not credibility in claiming inability to perform
gainful employment. In particular, noted the
judge, the ALJ had failed to deal adequately
with medical evidence that did not support the
ALJ’s conclusion that the plaintiff was capable
of performing his prior occupation of youth
counselor. The judge determined that the appropriate remedy was to remand the case for
further fact-finding, directing the ALJ to develop the medical record fully and explain why
evidence that supported the plaintiff’s claim
was rejected. A.S.L.
PUBLICATIONS NOTED & ANNOUNCEMENTS
2010 LAVENDER LAW CONFERENCE IN AUGUST
Lavender Law 2010 Career Fair and Conference will be held at the Loews Miami Beach
Hotel on August 26-28, 2010. For information
about registration for the conference and the
hotel, as well as a tentative schedule of events,
check the website of the National Lesbian &
Gay Law Association.
MOVEMENT POSITION ANNOUNCEMENT
The ACLU of Alaska solicits applicants for the
position of LGBT Rights Project Advocacy and
Campaign Manager. This individual “will have
primary responsibility for developing and managing an organizing and advocacy campaign to
advance and defend LGBT rights in Alaska.”
Letters of itnerest, resumes, writing samples
and contact information for three references
should be sent to: Jeffrey Mittman, Executive
Director, ACLU of Alaska Foundation, 1057 W.
Fireweed Lane, Suite 207, Anchorage AK
99503-1760. Applications may also be submitted by fax to 907-258-0288, or by email to [email protected]. More information is available
on the organization’s website. Application
deadline is June 30, 2010, or until the position
is filled. Compensation is commensurate with
experience within the parameters of Alaska
non-profit environment, and includes generous
benefits.
Annual Dukeminier Awards Announced
The Williams Institute at UCLA Law School
has announced the 2010 Dukeminier Awards
for scholarship on LGBT legal issues. The
awards are named to memorialize Professor
Jesse Dukeminier (1925-2003), an openly gay
man who was one of the preeminent scholars in
his field. The Journal prizes are awarded for the
following articles: Aeyal Gross, Gender Outlaws Before the Law: The Courts of the Borderlands, 32 Harv. J. L. & Gender 165 (2009);
Zachary A. Kramer, Heterosexuality and Title
VII, 103 Northwestern Univ. L. Rev. 205
(2009); Russell K. Robinson, Racing the
Closet, 61 Stan. L. Rev. 1463 (2009); Gabriel
Arkles, Safety and Solidarity Across Gender
Lines: Rethinking the Segregation of Transgender People in Detention, 18 Temp. Pol. & Civ.
Rts. L. Rev. 515 (2009).
In addition to the Dukeminier Journal
Awards, the Williams Institute announced the
following prizes for LGBT legal scholarship:
The Jeffrey S. Haber Prize for student scholarship is awarded to Yamuna Menon for Denied
the Finish Line: Sex Verification Testing for Intersex Athletes Under the International Athletic
Association of Federations. The Michael Cunningham Prize to Clifford J. Roskey for Like Father, Like Son: Homosexuality, Parenthood, and
the Gender of Homo-Phobia, 20 Yale J. L. &
Gender 1 (2009). The Stu Walter Prize to
Nancy J. Knauer for LGBT Elder Law: Toward
Equity in Aging, 32 Harv. J. L. & Gender 1
(2009).
LESBIAN & GAY & RELATED LEGAL ISSUES:
Anastopoulo, Constance, and Thomas P.
Gressette, Jr., Teaching Privacy in the Age of
Octomom: Enhancing Case/Socratic Method
With Structured Class Discussion, 44 Val. U. L.
Rev. 391 (Winter 2010).
Banks, Ralph Richard, Why Do So Many
People Oppose Same-Sex Marriage?, essay, 5
Stan. J. Civ. Rts. & Civ. Lib. 409 (Oct. 2009).
Barnes, Mario L., Erwin Chemerinsky, and
Trina Jones, A Post-race Equal Protection?, 98
Georgetown L.J. 967 (April 2010).
Beckstrom, Darryn Cathryn, Reconciling the
Public Employee Speech Doctrine and Academic Speech After Garcetti v. Cebalos, 94
Minn. L. Rev. 1202 (April 2010).
Buchhandler-Raphael, Michal, Criminalizing Coerced Submission in the Workplace and in
the Academy, 19 Colum. J. Gender & L. 409
(2010).
Burke, Alafair S., When Family Matters, 119
Yale L.J. 1210 (April 2010).
Burleson, Elizabeth, From Nondiscrimination to Civil Marriage, 19 Cornell J.L. & Pub.
Pol’y 383 (Spring 2010).
Burleson, Elizabeth, International Human
Rights Law, Co-Parent Adoption, and the Recognition of Gay and Lesbian Families, 55
Loyola L. Rev. 791 (Winter 2009).
Cadoppi, Alberto, and Michael Vitiello, A
Kiss Is Just a Kiss, Or Is It? A Comparative Look
at Italian and American Sex Crimes, 40 Seton
Hall L. Rev. 191 (2010).
Chazan, Alana, Good Vibrations: Liberating
Sexuality From the Commercial Regulation of
Sexual Devices, 18 Tex. J. Women & L. 263
(Spring 2009).
Cisneros, Lisa J., and Catherine Sakimura,
Recognizing and Responding to the Needs of
Low-Income Lesbian, Gay, Bisexual, and Transgender Clients, 43 Clearinghouse Rev. 515
(March-April 2010).
Cooter, Robert D., and Michael D. Gilbert, A
Theory of Direct Democracy and the Single Subject Rule, 110 Colum. L. Rev. 687 (April 2010)
(point of much contention in challenges to ballot propositions that ban both same-sex marriages and civil unions or domestic partnerships).
Elrod, Linda D., and Robert G. Spector, A Review of the Year in Family Law: Looking at Interjurisdictional Recognition, 43 Fam. L. Q. 923
(Winter 2010).
Faucette, Judith Avory, Human Rights in
Context: The Lessons of Section 377 Challenges
for Western Gay Rights Legal Reformers in the
Development World, 13 J. Gender, Race & Justice 413 (Winter 2010) (Section 377 refers to
the penal code sodomy provision in the laws of
many former British colonies).
Franklin, Cary, The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law,
85 N.Y.U.L. Rev. 83 (April 2010).
Grant, Elyse Whitney, Assessing the Constitutionality of Reproductive Technologies Regulation: A Bioethical Approach, 61 Hastings L.J.
997 (March 2010).
94
Higdon, Michael J., Something Judicious
This Way Comes. . . The Use of Foreshadowing
as a Persuasive Device in Judicial Narrative, 44
U. Rich. L. Rev. 1213 (May 2010) (draws from
several important gay rights cases for illustrations of theory about judges use device of “foreshadowing” in their opinions to lead the reader
to certain attitudes).
Hinger, Sarah, Finding the Fundamental:
Shaping Identity in Gender and Sexual Orientation Based Asylum Claims, 19 Colum. J. Gender & L. 367 (2010).
Infanti, Anthony C., Surveying the Legal
Landscape for Pennsylvania Same-Sex Couples,
71 U. Pitt. L. Rev. 187 (Winter 2009).
Isaacson, Ruth Butterfield, “Teachable Moments”: The Use of Child-Centered Arguments
in the Same-Sex Marriage Debate, 98 Cal. L.
Rev. 121 (Feb. 2010).
Joslin, Courtney G., Travel Insurance: Protecting Lesbian and Gay Families Across State
Lines, 4 Harv. L. & Pol’y Rev. 31 (Winter
2010).
Kupka, Thomas, Names and Designations in
Law: Towards a Nominalist Approach to Constitutional Jurisprudence, (2010) J. Juris 121 (examination of California Supreme Court’s
Strauss v. Horton ruling on Prop. 8).
Lourie, David, Rethinking Donor Disclosure
After the Proposition 8 Campaign, 83 S. Cal. L.
Rev. 133 (Nov. 2009).
Love, Jean C., The Synergistic Evolution of
Liberty and Equality in the Marriage Cases
Brought by Same-Sex Couples in State Courts,
13 J. Gender, Race & Justice 275 (Winter
2010).
Lund, Christopher C., Exploring Free Exercise Doctrine: Equal Liberty and Religious Exemptions, 77 Tenn. L. Rev. 351 (Winter 2010).
McCalla, Meghan, The “Socially Endorsed,
Legally Framed, Normative Template”: What
Has In re Marriage Cases Really Done For
Same-Sex Marriage?, 1 Est. Plan. & Community Prop. L.J. 203 (Fall 2008).
Murray, Melissa, Marriage Rights and Parental Rights: Parents, the State, and Proposition 8, 5 Stan. J. Civ. Rts. & Civ. Lib. 357 (Oct.
2009).
Polikoff, Nancy D., A Mother Should Not
Have to Adopt Her Own Child: Parentage Laws
for Children of Lesbian Couples in the TwentyFirst Century, 5 Stan. J. Civ. Rts. & Civ. Lib. 201
(Oct. 2009).
Recent Proposed Legislation, Employment
Discrimination — Congress Considers Bill to
Prohibit Employment Discrimination on the
Basis of Sexual Orientation and Gender Identity. Employment Nondiscrimination Act of
2009, H.R. 3017, 111th Cong. (2009), 123
Harv. L. Rev. 1803 (May 2010).
June 2010
Reinhard, D’Arcy, Recognition of NonBiological, Non-Adoptive Parents in Arkansas,
Florida, Mississippi, and Utah: A De Facto Parent Doctrine to Protect the Best Interests of the
Child, 13 J. Gender, Race & Justice 441 (Winter 2010).
Richards, Jacob, Autonomy, Imperfect Consent, and Polygamist Sex Rights Claims, 98
Cal. L. Rev. 197 (Feb. 2010).
Ristroph, Alice, and Melissa Murray, Disestablishing the Family, 119 Yale L.J. 1236 (April
2010).
Ritter, Michael J., Child Pornography, the
First Amendment, and Mistakes of Age: An
Age-Old Debate, 88 Tex. L. Rev. 1101 (April
2010).
Robb, Katherine, What We Don’t Know
Might Hurt Us: Subjective Knowledge and the
Eighth Amendment’s Deliberate Indifference
Standard for Sexual Abuse in Prisons, 65 N.Y.U.
Ann. Surv. Am. L. 705 (2010).
Spiropoulos, Andrew C., Rights Done Right:
A Critique of Libertarian Originalism, 78
UMKC L. Rev. 661 (Spring 2010).
Titshaw, Scott C., The Meaning of Marriage:
Immigration Rules and Their Implications for
Same-Sex Spouses in a World Without
DOMA,16 Wm. & Mary J. Women & L. 537
(Spring 2010).
Vorwald, Courtney, When Parental and Minors’ Rights Conflict: Minors’ Constitutional
Rights & Gay-Straight Alliances, 13 J. Gender,
Race & Justice 465 (Winter 2010).
Ward, Haven, “I’m Not Gay, M’Kay?”:
Should Falsely Calling Someone a Homosexual
Be Defamatory?, 44 Ga. L. Rev. 739 (Spring
2010).
White, Roederick C., Sr., How the Wheels
Come Off: The Inevitable Crash of Irreconcilable
Jurisprudence: Laws Based on Orthodox
Judeo-Christian Theology in a Pluralistic Society, 37 S.U.L.Rev. 127 (Fall 2009).
Womack, Katherine A., Please Check One —
Male or Female?: Confronting Gender Identity
Discrimination in Collegiate Residential Life,
44 U. Rich. L. Rev. 1365 (May 2010).
Specially Noted:
Beacon Press has announced the publication of
From the Closet to the Courtroom: Five LGBT
Rights Lawsuits That Have Changed Our Nation, by Carlos A. Ball, professor at Rutgers
University Law School and a leading, prolific
scholar of LGBT law. Professor Ball provides a
behind-the-scenes look at the stories and litigation strategies of five seminal LGBT rights
cases: Braschi v. Stahl Associates, Nabozny v.
Podlesny, Romer v. Evans, Baehr v. Lewin, and
Lawrence v. Texas. This should become a basic
text for college LGBT studies courses and can
Lesbian/Gay Law Notes
be read with profit by all students of LGBT law,
but it is also aimed at a more general audience
and is recommendable to non-specialists as
well. As closely as we have followed and reported on all of these cases, we learned new
things from Prof. Ball’s accounts, which are set
forth in the enjoyable prose of a writer who has
also produced quality fiction and poetry.
Symposium: Progressive Visions of the American Family, 4 Harv. L. & Pol’y Rev. No. 1 (Winter 2010), including articles by Anne L. Alstott,
Courtney G. Joslin, David R. Katner, and Karen
Kornbluh & Rachel Homer. Joslin article noted
above.
AIDS & RELATED LEGAL ISSUES:
Cook, Gina M., When the Duty to Provide a Reasonable Accommodation Seems Unreasonable:
Accommodating and Managing Employees
with Episodic Impairments or Impairments in
Remission Under the ADA Amendments Act of
2008, 32 N. Carolina Central L. Rev. 1 (2009).
Sauer, Evan, The ADA Amendments Act of
2008: The Mitigating Measures Issue, No
Longer a Catch-22, XXXVI Ohio Northern
Univ. L. Rev. 215 (2010).
Stein, Michael Ashley, Michael E. Waterstone, and David B. Wilkins, Book Review,
Cause Lawyering for People with Disabilities:
Law and the Contradictions of the Disability
Rights Movement. By Samuel R. Bagenstos,
123 Harv. L. Rev. 1658 (May 2010).
Taylor, John E., Family Values, Courts, and
Culture War: The Case of Abstinence-Only Sex
Education, 18 Wm. & Mary Bill Rts. J. 1053
(May 2010).
Wojcik, Mark E., Some Lessons Learned from
the AIDS Pandemic, 19 Annals of Health L. 63
(2009-2010).
Wypijewski, JoAnn, What We’ve Become, The
Nation, June 7, 2010, p. 6 (account of the struggles of Nushawn Williams, an HIV+ man convicted in NY a decade ago for having sex with
several women without revealing his HIV
status, to obtain release after having served his
sentence).
EDITOR’S NOTE:
All points of view expressed in Lesbian/Gay
Law Notes are those of identified writers, and
are not official positions of the Lesbian & Gay
Law Association of Greater New York or the LeGaL Foundation, Inc. All comments in Publications Noted are attributable to the Editor. Correspondence pertinent to issues covered in
Lesbian/Gay Law Notes is welcome and will be
published subject to editing. Please address
correspondence to the Editor or send via email.