LESBIAN/GAY LAW NOTES November 2011 223
FEDERAL COURT ORDERS DISCLOSURE OF PETITION SIGNERS FOR ANTI-GAY WASHINGTON STATE REFERENDUM Another chapter has been written in the Supreme Court, which had affirmed the 9th ous retribution because of their support long-running saga over the disclosure of the Circuit’s decision to reject Judge Settle’s for the repeal referendum. Yet counsel for names and addresses of those who signed ruling that disclosure of any referendum or plaintiffs made no effort to depose them or petitions in the state of Washington to put initiative petition is unconstitutional “as a offer any testimony about their experienc- a measure on the 2009 general election bal- general matter.” Doe v. Reed, 130 S.Ct. 2811 es, to the extent that they included people lot attempting to repeal a newly-enacted (2010). The Supreme Court found that the who were not already testifying as plain- state law expanding the rights of same-sex state has a strong interest in transparency tiffs in this case. Most of the documentary domestic partners. The statute was delayed in the initiative process, and unless petition evidence submitted to the court concerned in going into effect until the vote was held, signers could show that they would be sub- actions by opponents of California Propo- when a small but comfortable majority of ject to serious harm from disclosure of their sition 8 to exact retribution against people Washington voters cast their ballots in fa- identities, the balance of First Amendment who had supported that measure, and evi- vor of the challenged statute, which then interests weighed against them. dence of violence or serious harm arising went into effect. On October 17, 2011, two Thus, on remand, the issue was clearly from those activities was scant. years later, U.S. District Judge Benjamin H. framed. Plaintiffs could only prevail in Plaintiffs were up against a body of Su- Settle, who had initially ruled that it would keeping their identities “secret” if they preme Court precedent that made their violate the rights of petition signers to could credibly show that serious harm task rather difficult. The case law mainly make their names and addresses public as would flow from disclosure. Several of the involves situations where the Court or- required by state law, lifted his preliminary “John” and “Jane Doe” plaintiffs testified in dered exceptions to state disclosure laws injunction, concluding that plaintiffs had depositions about their experiences in pe- in circumstances involving “minor parties” failed to show that their 1st Amendment titioning for signatures, testifying against that took very unpopular positions, such rights would be violated by such disclosure the partners’ rights bill in the legislature, or as the Socialist Workers Party, or a famous at this time. State officials immediately -be voting against it as legislators. Virtually all case involving the NAACP (National As- gan releasing DVDs with the information of the deponents were publicly known as sociation for the Advancement of Colored to the press and members of the public who supporters of the repeal referendum, R-71, People) during the early years of the civil sought them, although the state suspended but apart from some public expressions of rights movement, where there was per- doing so on October 21 upon receiving no- disapproval and heated exchanges, none suasive evidence that a state law requiring tice that the plaintiffs had filed an- emer of which amounted to much, none of the disclosure of the membership of non-profit gency petition with the 9th Circuit. By deponents testified that they lived in great organizations was likely to lead in the case then, however, several of the DVDs were in fear of retribution from opponents of R-71, of NAACP to serious harassment and circulation and available to the media and or that they were frightened of what might harm to the organization’s members, ef- gay rights activists in the state. happen were their status as petition-signers fectively voiding their First Amendment The ruling in Doe v. Reed, Case No. disclosed. rights of freedom to associate to advance C09-5456BHS (W.D.Wash.), was not en- Actually, Judge Settle pointed out, there political goals. tirely unanticipated, in light of the meager was another, likely overlapping, set of peo- In this case, Judge Settle found, the evidence presented by the plaintiffs when ple whose experiences would have been proponents of repealing the state partners’ they were finally required to prove that dis- much more relevant. It seems that state law rights law were not a “minor party” or simi- closure would most likely subject petition also required disclosure of the identifies of lar political association whose existence signers to serious harassment or danger. people who donated money to support the would be threatened by disclosure of the Judge Settle was ruling on cross-motions organization that was formed to petition identity of petition signers. Such protec- for summary judgment, filed after plaintiffs for signatures and campaign for repeal of tion against disclosure in past cases was had an opportunity to present their case the partners’ rights law, and it would seem extended to “fringe” organizations with through deposition and documentary evi- most pertinent to know whether donors “unpopular or unorthodox beliefs” who dence. The case had already been to the U.S. whose names were disclosed suffered seri- were seeking to “further ideas that have
LESBIAN/GAY LAW NOTES November 2011
Editor: Prof. Arthur S. Leonard, New York Law School, 185 W. Broadway, NY, NY 10013, 212-431-2156; e-mail: [email protected] or arthur.leonard@ nyls.edu Contributing Writers: Bryan Johnson, Esq., New York City; Brad Snyder, Esq., New York City; Eric Wursthorn, Esq., New York City; Kelly Garner, New York Law School ’12; Stephen E. Woods, Esq., New York City. Circulation: Administrator, LEGAL, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118; e-mail: [email protected]. Inquire for rates. LeGaL Homepage: http://www.le-gal.org Law Notes on Internet: http://www.nyls.edu/jac ©2011 by the LeGaL Foundation of the LGBT Law Association of Greater New York ISSN 8755-9021 224 November 2011 LESBIAN/GAY LAW NOTES been ‘historically and pervasively rejected other examples of uncomfortable conversa- LESBIAN/GAY LEGAL and vilified by this country’s government tions that are not necessarily even related NEWS AND NOTES and its citizens.’” Indeed, this case has been or directly connected to the issue at hand,” virtually decided already by another dis- wrote Settle, “disclosure would become the Chicago 2006 Gay Games trict court in ProtectMarriage.com v. Bowen, exception instead of the rule. . . . The right Protesters Have Little Life Left 599 F.Supp. 2d 1197 (2009), in which the of individuals to speak openly and associ- After Appeal proponents of Proposition 8 failed to block ate with others who share common views disclosure of the identity of people finan- without justified fear of harm is at the very On October 4, 2011, the Seventh Circuit cially supporting the campaign to enact foundation of preserving a free and open U.S. Court of Appeals affirmed a district Proposition 8 in California. society,” wrote Settle, but “the facts before court decision which largely granted sum- As to the evidence of potential harm, the Court in this case, however, do not rise mary judgment dismissing a case brought wrote the judge, “Doe has provided the to the level of demonstrating that a reason- by anti-gay protesters at the 2006 Gay Court with a mountain of anecdotal evi- able probability of threats, harassment, or Games, premised on First Amendment and dence from around the country that offers reprisals exists as to the signers of R-71, other Constitutional violations. Marcavage merely a speculative possibility of threats, now nearly two years after R-71 was sub- et al. v. City of Chicago, 2011 WL 4552529 harassment, or reprisals,” but that evidence mitted to the voters in Washington State.” (7th Cir. [Ill.]). The Gay Games is an ath- failed to meet the requirement that it be Upon learning of the judge’s ruling, the letic competition with its stated mission “specifically and directly related to a group state immediately made the list of petition “to foster and augment the self-respect of or organization” with a direct tie to people signers publicly available and it was quickly gay men and women throughout the world who signed petitions for R-71. picked up by the Associated Press, so the and to engender respect and understanding Looking to the Supreme Court’s prior cat is now out of the bag. By the end of the from the non-gay world.” ruling in this case, and especially to the week, the plaintiffs had filed their -“emer The case at issue was commenced by concurring opinions, which explored in gency” appeal to the 9th Circuit, but since individual members of Repent America, a greater depth than the opinion for the the petitioner information had been pub- ministry of Christians whose self-described Court the issue of what plaintiffs would licly released for a week, their appeal seems goal is “to proclaim the Gospel of Jesus have to show in order to qualify for an ex- to be moot. Christ in the public square.” Although ception to the general rule of disclosure, On the one hand, this decision is an the opinion for the court by Circuit Judge Judge Settle found that the plaintiff ’s bur- important ruling for transparency in the Bauer was silent as to why members of Re- den was to provide evidence of “serious initiative and referendum process for next pent America were present at the 2006 Gay and widespread harassment that the State time around. On the other hand, the pro- Games, it is safe to assume that they were is unwilling or unable to control” (quoting ponents of R-71 were able to attain their there to protest and generally spoil the fun. from Justice Sotomayor’s concurring opin- short term goal by stalling the disclosure Plaintiffs James Deferio and Michael Mar- ion) or “strong evidence before conclud- of the names and identities of the petition- cavage sued the City of Chicago, as well ing that an indirect and speculative chain signers until long after they would be rel- as individual police officers there, and the of events imposes a substantial burden on evant in the context of the immediately Metropolitan Pier and Exposition Author- speech” (quoting from Justice Stevens’ con- pending vote on R-71. Thus one aspect of ity (the “MPEA”), the municipal corpora- curring opinion). democracy was stymied as the judicial pro- tion which owns and operates the space “Applied here,” wrote Settle, “the Court cess slowly ground to a decision with tem- where the July 2006 Gay Games were held. find that Doe has only supplied evidence porary injunctive relief in place when the The events giving rise to the plaintiffs’ that hurts rather than helps its case. Doe disclosure of the information might have claims were thoroughly detailed by the ap- has supplied minimal testimony from a few been most useful politically to supporters of pellate court. On July 15, 2006, the day the witnesses who, in their respective deposi- the partners’ rights law. But proponents of opening ceremonies were held, the plain- tion testimony, stated either that police ef- repeal lost the vote, showing that ultimate- tiffs spent two hours preaching, displaying forts to mitigate reported incidents was ly the forces opposed to legal recognition signs and banners and distributing Gospel sufficient or unnecessary.” In sum, plaintiffs for same-sex couples are fighting a losing, tracts at a place called Soldier Field. At one just failed to make their case, and, given the rearguard battle as society moves on with point, when they were blocking one area of passage of time, the defeat of R-71, and increased public support for such recogni- the sidewalk, a police officer directed them the cooling of tempers, it appears highly tion. A.S.L. to a gravel area adjacent to it. According to unlikely that disclosure at this point would the plaintiffs’ testimony, this order prevent- pose any serious risk, especially as the pub- ing them from engaging attendees “one- licly known supports of repeal all testified on-one” and presenting them with the that they had not suffered any harmful “Gospel of Jesus.” retribution apart from some empty threats The next afternoon, the plaintiffs tried and offensive gestures. to engage in the same activity on the Navy “If a group could succeed in an as-applied Pier in Chicago. However, security told challenge to the [Public Records Act] by them that they could not do so without an simply providing a few isolated incidents or MPEA permit authorizing demonstrations profane or indecent statements, gestures, or on the pier. Accordingly, security escorted LESBIAN/GAY LAW NOTES November 2011 225 the plaintiffs out. However, the plaintiffs between the two types of properties at issue 2006, after his sexual orientation came to refused and attempted to come back into here: the public properties and the MPEA- the attention of superior officers. Upon Navy Pier and/or Gateway Park. Police owned properties. The exercise of plain- discharge, he received separation pay of then responded to the disturbance, and tiff ’s expression at Navy Pier and Gateway $12,851.24. Officer Adam Andrews told the plaintiffs Park was governed by the MPEA’s written Normally, service members who have that they needed a permit to demonstrate policy for public expression whereby the served at least six years (but not long on the MPEA properties. Marcavage be- MPEA is charged with collecting and ad- enough to lock in a military pension, which gan arguing with Officer Andrews, and ministering permits. Apparently the Navy requires 20 years) and who are honor- was ultimately handcuffed and forced to sit Pier and Gateway Park are both subject to ably discharged involuntarily, are entitled down. Deferio was carrying a video cam- two different types of First Amendment by statute (10 U.S.C. sec. 1174) to receive era, and he and another member of Repent analysis: Navy Pier is a nonpublic forum “separation pay,” a sort of severance pay- America were arrested. Following their ar- given its commercial nature consisting of ment that is calculated based on a formula rests, Marcavage and several other people “event spaces, stores, restaurants, theaters multiplying their years of service by the were ordered to leave Gateway Park under and an amusement park” and Gateway monthly base pay they were receiving when threat of arrest. They complied. Park is a traditional public forum subject to they were discharged or released from duty. The next day at issue in the case was the heightened First Amendment protection. The Secretary of Defense is given some day on which the Gay Games closing cer- Therefore, the court remanded this issue discretion in deciding whether a particular emonies took place, July 26, 2006, at Wrig- back to the district court for the MPEA individual gets the full amount calculated ley Field. At 1 pm, the plaintiffs arrived. to defend its permit policy as it pertains to under this formula, half the amount, or no Marcavage walked around the stadium. He these two properties. Otherwise, the plain- separation pay. The Defense Department held a sign in one hand, and a video camera tiffs remaining arguments were largely re- regulations adopted to implement Sec- in the other. At one point, he stood at the jected out of hand. tion 1174 provide that people involuntarily intersection of two streets, “a main thor- There was a dissent. Circuit Judge Ham- discharged due to homosexuality get “half oughfare for attendees entering the sta- ilton disagreed with his colleagues, believ- pay,” like people who are discharged for dium.” An officer told Marcavage to “keep ing that remand was inappropriate because drug or alcohol abuse, for national security walking,” but Marcavage insisted he had a the plaintiffs had failed make a record of reasons, or a few other listed reasons in the right to stand there. The officer repeated his this particular argument. However, the regulations. order to cross the street many times, but appellate court was reviewing the case de Had the reason for Collins’ discharge Marcavage refused. He was ultimately ar- novo, and deciding issues of law, ao this res- not been on the regulatory list, he would rested and charged with disorderly conduct. olution was entirely consistent with those have been entitled to $25,702.48, or nine At the district court level, motions for principles. Eric J. Wursthorn. months of his base pay. He claims that the summary judgment were filed by the City inclusion of homosexuality on the “half of Chicago and the individual police of- Court of Federal Claims Denies pay” list is unconstitutionally discrimina- ficers (collectively referred to as the “City Government’s Motion to Dismiss tory. Collins filed suit seeking to represent Defendants”) as well as the plaintiffs. Dis- Military Separation Pay Case a class of all people who received honorable trict Judge Milton Shadur denied the plain- discharges under the DADT policy and tiffs’ motion, and granted the City Defen- Judge Christine Odell Cook Miller of the were not given the full separation pay au- dants’, finding that (1) the orders issued by U.S. Court of Federal Claims issued a rul- thorized under Section 1174 during a the the police during the events at the Games ing on October 18 refusing to dismiss a six-year period within the statute of limita- were content-neutral regulations narrowly lawsuit filed by Richard Collins, a gay man tions. tailored to serve the legitimate purpose of who was dismissed from the Air Force The government is taking the position maintaining an orderly and effective flow of under the Don’t Ask, Don’t Tell policy that the Court of Claims does not have ju- traffic and therefore did not violate the First (DADT) and who is challenging the De- risdiction to hear the case because the stat- Amendment; (2) the plaintiffs’ Equal Pro- fense Department’s policy of giving people ute leaves to the discretion of the Secretary tection claim failed because they could not in his situation only half the amount of of Defense the decision whether somebody identify any similarly-situated individuals “separation pay” that is normally given to gets full or half or no separation pay. Dis- at the Games who received more favorable individuals who are involuntarily dismissed cretionary decisions by government offi- treatment from the officers than they did; from the armed forces. Collins claims that cials that are within the parameters of stat- and (3) the plaintiffs’ Fourth Amendment this unequal treatment violates his equal utory authorization are generally immune claims failed because their arrests were protection rights under the 5th Amend- from monetary damage claims. A major supported by probable cause. The court ment of the U.S. Constitution. Collins v. exception, however, is where the statutory otherwise refused to exercise supplemental United States, No. 10-778C (U.S.Ct.Fed. authorization constrains that discretion in jurisdiction over the state-law claims and Cl., Oct. 18, 2011). such a way that the statute could be termed later granted a motion to dismiss in favor Collins enlisted in the Air Force in April a “money-mandating” statute; in effect, a of MPEA. 1997, and served “ably for over nine years,” command by Congress to make a payment The court of appeals largely affirmed wrote Judge Miller, “achieving the rank of to somebody. the district court’s decision, and only re- Staff Sargent.” However, he was honorably Judge Miller devotes the bulk of her manded the case based upon its distinction discharged from the service on March 10, opinion to a lengthy discussion of regula- 226 November 2011 LESBIAN/GAY LAW NOTES tory provisions and prior court decisions defendant’s motion to dismiss for failure to class,” so she evidently intends to move for- that lead her to conclude that Section 1174 state a claim,” she wrote. ward without delay to the next stage. is a money-mandating statute, in that it The problem is that full separation pay is Since DADT ended on September 20, creates an entitlement to separation pay for reserved for those involuntarily discharged this case may on the surface appear to be individuals with at least six but fewer than members who remain “fully qualified for mainly of historical interest, attempting to 20 years of service, who meet the general retention,” since separation pay was theo- establish claims to full separation pay for requirements set out in the statute, and it retically intended to compensate qualified people discharged in the past. But the case gives the Secretary discretion to cut the individuals who wanted to pursue a mili- provides yet another vehicle for challeng- amount in half or deny pay entirely in a tary career but whose desire could not be ing disparate treatment of gay people by an circumscribed set of circumstances. The accommodated due to the needs of the agency of the federal government. statute makes clear that full separation pay military. The statute was enacted anticipat- Also, it is interesting to note that the Air is the general rule, and that half-pay or no ing that the size of the armed forces could Force’s version of the separation pay regula- pay are reserved for exceptional cases. Al- expand or contract depending upon the de- tions, unlike the general regulation issued though Judge Miller characterized Section gree of engagement the U.S. has in military by the Defense Department, uses the phrase 1174 as “unique” compared to any other activities, and some people who wanted “homosexual conduct” rather than “homo- federal payment scheme that has been ana- to continue serving might be deprived of sexuality” as the determinant for half-pay as lyzed for this purpose, she found that it was that opportunity due to elimination of par- opposed to full pay. Under DADT, “homo- similar enough to those that had been held ticular programs or to general downsizing. sexual conduct” included saying that one to be “money-mandating” statutes to justify If such people hadn’t served long enough was gay, or engaging in conduct that would asserting jurisdiction in this case. to earn a military pension, separation pay reveal one’s gay sexual orientation to others. Alternatively, the government argued was some compensation for their loss of Now that DADT has bitten the dust, “ho- that the claim was not “justiciable” and that, the opportunity to continue serving long mosexual conduct” might be limited to the in fact, Collins’ allegation of discrimination enough for that reward. The delegation of sexual acts forbidden under the Uniform failed to state any sort of valid legal claim discretion to the Secretary to reduce com- Code of Military Justice, Article 125, the upon which the court could grant relief. pensation to half or no pay, depending on military sodomy statute, violation of which Justiciability has to do with whether there the circumstances, probably represents a would still be grounds for discharge. is any articulable standard against which judgment that even though the individuals So it remains possible that gay service the court can review the government’s ac- were given an honorable discharge in the members may still be discharged for en- tion. Once again, the government argued circumstances, they would not have been gaging in gay sex under circumstances that that because the decision being challenged allowed to continue serving in any event military courts do not judge to come with- (to include homosexuality on the list of rea- for disqualifying reasons. in the sphere of constitutional protection sons for discharge meriting half rather than The problem, wrote Judge Miller, is that described in Lawrence v. Texas, or where full separation pay) was confided to the dis- the phrase “fully qualified for retention” there are special military needs overriding cretion of the Secretary, it was not subject is not defined in the regulations, and the such constitutional protection. The DADT to judicial review, and once again the judge court was not willing to conclude as a mat- Repeal Act did not affect UCMJ 125, and disagreed, as she did with the government’s ter of law that the definition proffered by the Supreme Court has yet to pass on the argument that Collins’ complaint failed to the Defense Department — which would approach that the military courts have been state a legally valid claim. disqualify Collins — was necessarily the taking to deciding whether particular sexu- Ultimately, she concluded, the govern- correct one. Depending what definition the al conduct engaged in by military personnel ment was trying to argue the merits of the court adopts, it is possible that if the court that might violate UCMJ 125 is shielded case — that is, whether giving only half were to strike “homosexuality” from the from prosecution by the 5th Amendment separation pay to people who were honor- half-pay list, “then plaintiff might fall un- due process clause. It seems that when it ably discharged under DADT is a violation der the phrase ‘fully qualified for retention’ comes to gays in the military, there remains of equal protection — rather than confin- and be entitled to full pay.” Judge Miller no end of unresolved legal questions, de- ing its dismissal argument to the ques- concluded that it would be premature to spite the demise of DADT. tion whether, at least theoretically, Collins terminate the litigation now. Joshua A. Block of New York is Col- might have a case in which the court could The next step will be for the court to de- lins’ lead counsel, with the ACLU LGBT award him a remedy. The government failed cide whether to certify the case as a class Rights Project and various cooperating at- to persuade Judge Miller that even if she action, so that Collins would be suing not torneys assisting with the case. A.S.L. found “homosexuality” should not have only for his own separation pay but also in been included on the half-pay list, she a representative capacity for all those simi- Military Court Partially Dismisses would be precluded by other aspects of the larly situated whose discharges occurred Charges & Drastically Reduces regulations from awarding him any remedy. during the time period covered by the stat- Punishment for Marine Who The “defendant has not persuaded the court ute of limitations. Judge Miller set an Oc- Appeared in Several Gay Porn at this stage that plaintiff would be abso- tober 31 deadline for the parties to present Videos lutely barred from recovery of full separa- “a proposed schedule for any discovery and tion pay, which would be required to grant briefing on plaintiff ’s motion to certify the In U.S. v. Simmons, NMCCA 201100044 (US Navy-Marine Corps Court of Crimi- LESBIAN/GAY LAW NOTES November 2011 227 nal Appeals, Sept. 27, 2001), a case which With respect to the charges for misuse seems likely to continue his military career, indirectly settles the question of whether of a military uniform, the court noted the if not his career in porn videos, with a mini- the “Marines” in gay porn videos really are, unresolved question of what constitutes a mum amount, if any, of punishment. Brad sometimes, actual marines, a military court “uniform” as opposed to “components” of Snyder has partially dismissed the charges against a uniform (e.g., a Marine coat). Despite a service member who performed in sev- that uncertainty, the court then considered Australia’s Highest Court Rules eral commercial pornographic videos while whether Simmons’ appearances violated That Hysterectomy and Penis significantly reducing the potential punish- the portions of the regulation prohibiting Construction Not Needed for ment applicable for the remaining charges. the use of one’s official capacity for private Female-to-Male Transsexual to Be Senior Judge Booker wrote the opinion for gain and the wearing of a uniform when to Certified as Male the court. do so would create “an inference of official Matthew Simmons, a Sergeant in the sponsorship” for a commercial interest. The Surgery, and in particular, a hysterectomy U.S. Marines, was an active-duty bands- court found that at most Simmons revealed and construction of a penis, are not re- man who took leave to appear in several on the videos his status as an active-duty quired for a female to be legally reclassified pornographic videos involving “sodomy Marine. He never identified any particular as a male, holds the High Court of Austra- with numerous other men.” According to office and the mere mention of him being lia. So long as a female-to-male transsexual Simmons, he was paid $10,000 for his per- a Marine did not permit the conclusion is taking sex-change drugs, is living as a formances and acknowledged that some of that he was acting in an “official capacity.” male, and is identified by others as a male, the shots of him in the video showed him Moreover, the court determined that his the State of Western Australia must issue wearing a portion of his Marine uniform, wearing of partial elements of the uniform a gender reassignment certificate under a including his Marine dress coat with vari- could not permit the inference of a service state statute. The case, AB v Western Aus- ous Marine insignias and decorations af- endorsement of the activities; neither did tralia, 2011 HCA 42, 2011 W L 4583843 fixed. In the videos, Simmons also men- Simmons voice any official Marine support (Oct. 6, 2011), upholds a decision by the tioned that he was a Marine and out-takes for what he was doing, or any service views Western Australia State Administrative of the videos used for promotional pur- regarding his conduct. For all these reasons, Tribunal, which had been reversed by the poses showed Simmons wearing his blue the court set aside the guilty findings relat- Western Australia Supreme Court’s Court Marine coat. An acquaintance of Simmons, ing to this charge. of Appeal. a former Marine, learned of the videos and Notably, the fact that Simmons was en- The Gender Reassignment Act 2000 reported the information to military com- gaged in what appeared to be sodomy in (Western Australia) establishes that gen- mand. (Though the court only references these videos was apparently of no conse- der may be reassigned upon application that Simmons appeared under a “screen quence to the military court. to a Gender Reassignment Board set up name,” news outlets report that Simmons Turning to the charge relating to bring- under the statute. One whose gender has appeared under the name Christian Jade on ing discredit upon the armed forces, the been changed receives a certificate from the sites such as Active Duty, College Dudes court agreed with Simmons who, on ap- board. However, before a person can ap- and Corbin Fisher.) peal, raised for the first time the argument ply to the Board for a certificate, the per- In a court-martial proceeding before a that the charge failed to state an offense son must undergo a gender reassignment military judge, Simmons had pled guilty to for failing to allege necessary elements of procedure. This must be, according to the two offenses involving “general orders” — the charge. Nonetheless, the court noted statute, “a medical or surgical procedure (or specifically involving misuse of his military that Simmons had, in fact, pleaded guilty a combination of such procedures) to alter uniform — and one offense involving viola- to the offense after entering into a pretrial the genitals and other gender characteris- tions of Articles 92 and 134 of the Uniform agreement, receiving the correct statutory tics of a person, identified by a birth certifi- Code of Military Justice, which concerned elements and definitions from the -mili cate as male or female, so that the person (broadly speaking) conduct of a nature that tary judge and completing the providence will be identified as a person of the oppo- brings “discredit upon the armed forces” inquiry. In sum, the court affirmed the site sex . . . .” and adultery, respectively. Simmons was finding on this count because the techni- In denying the certificate to two female- sentenced to confinement for ninety days, cal defect was not enough to overcome the to-male transsexuals, the Western Austra- a fine of $10,000, and, most significantly, clear indicia that Simmons knowingly and lia Gender Reassignment Board, although a bad-conduct discharge from the Marine on the basis of proper advisement entered a it recognized that the appellants appeared Corps. Simmons appealed his conviction guilty plea to the underlying offense. to be male, decided that, since they failed to and sentence. With the offense based on wearing a shed their uteri, it was impossible for them At the outset, Judge Booker resolved uniform turned aside, the court turned its to truly be “male.” “There would be adverse any doubt that the relevant regulation attention to sentencing with respect to this social and legal consequences should the concerning the misuse of a military uni- general violation charge alone. The court appellants be issued a recognition certifi- form — Department of Defense Instruc- found that the offense should be punished cate whilst they have the capacity to bear tion 1334.01 of October 26, 2005 — was as a general neglect or disorder offense with children,” said the board. a “lawful general regulation” that had been a maximum punishment of confinement The two transsexuals in this case both properly issued by the Under Secretary of of 4 months and forfeiture of 2/3 pay per underwent double mastectomies, testos- Defense for Personnel and Readiness. month for 4 months. In short, Simmons terone treatment, and counseling as part 228 November 2011 LESBIAN/GAY LAW NOTES of their gender transformation. They are a gay rights case, ruling that Article 66 of the incident, and the disputed point is considered by physicians to be infertile as Costa Rica’s Technical Penitentiary Regu- whether one can maintain an action and a result of hormone treatment, even though lations, which authorizes “intimate visits” be compensated for such injuries under neither had their female reproductive sys- for inmates with visitors of the opposite the Federal Privacy Act. The district court tems removed or had phalloplasty, which is sex, must be construed to allow intimate ruled against him, but the 9th Circuit re- the surgery to create a penis. visits without regard for the sex of the visi- versed and remanded, see 622 F.3d 1016, The major issue in the case was whether tor. The Blog quotes a press release from the and the government is appealing, asserting one must have a hysterectomy in order to be court stating, “This Court considers that that the Act is limited to compensating for considered not female. The lower appellate [the regulation] contradicts, among other financial injury. The amicus brief, -stress court expressed its concern that, unless the things, the principles of equality and hu- ing the importance of confidentiality for female reproductive organs were removed, man dignity.” medical information submitted to the SSA the “men” could still become pregnant; thus, Public Defender Natalia Gamboa filed and the potentially severe impact that can one who has been certified “male” would a challenge to the restriction on behalf of flow from unauthorized disclosures,- sup still have one of the defining attributes of Manual Morales Urbina, an inmate at the ports Cooper’s claim that the Privacy Act being a “woman.” San Sebastian Admissions Unit, whose should be broadly construed to cover such a The appellants, however, considered bid for an “intimate visit” with a same-sex case. Lambda Deputy Legal Director Hay- themselves to be fully male, but they were partner had been denied. The Attorney ley Gorenberg is handling the matter for unwilling to undertake surgery, phalloplas- General of Costa Rica supported Urbina’s Lambda Legal. Raymond A. Cardozo of ty, that had not been perfected and could be suit. Attorney General Ana Lorena Brenes Reed Smith LLP (San Francisco) is coun- dangerous. In addition, they did not want stated, “There’s no objective or just reason sel of record for Cooper. to undergo surgery to remove their repro- to discriminate against homosexual pris- Supreme Court — The Supreme Court ductive organs when it was not medically oners, using sexual preference as the only denied a petition for certiorari to review necessary. They felt that the drugs that they criterion.” the 5th Circuit en banc decision in Adar were taking, in addition to their lifestyle, According to a local radio report, this v. Smith, 622 F.3d 426 (2010), in which a appearance, and state of mind, made them was the first time that the Constitutional majority of the en banc panel ruled that the fully male. Division of the Supreme Court has de- lower federal courts do not have jurisdiction The High Court agreed, stating that “it clared any national law or regulation to be over a claim that a state’s refusal to issue a requires only that the medical or surgi- in violation of the constitutional right of new birth certificate for a child born in the cal procedure alter the genitals and other equality and human dignity. Gay activists state but adopted by a same-sex couple in gender characteristics of a person. It does in Costa Rica expressed hope that the rul- a different state violates the Full Faith and not require that the person undertake every ing signaled that the court would be recep- Credit obligation of the state to recognize procedure to remove every vestige of the tive to other challenges to discriminatory the adoption judgment of the other state. gender which the person denies, including laws, and most particularly to Family Code The en banc majority also opined, in dicta, all sexual organs.’’ provisions that exclude same-sex couples that even if there were jurisdiction the state The court found it significant that “a from the right to marry. would have no duty to issue the revised male to female transsexual after surgery is The blog report is available on the West- birth certificate. This reversed a ruling by a no longer a functional male, but a female law service at 2011 WLNR 20980104 three-judge panel of the circuit. The dissent to male transsexual is in a different situa- (Oct. 13, 2011). A.S.L. in the en banc panel argued that the court’s tion. Even successful surgery cannot cause ruling conflicted with a ruling by the 10th him to be a fully functional male.” Thus, as Federal Civil Litigation Notes Circuit and was inconsistent with Full a matter of fairness (or, in U.S. terms, equal Faith and Credit precedents. The possible protection), the court believed that the Supreme Court — Lambda Legal filed circuit split had made it appear likely that purpose of the statute would be best served an amicus brief on behalf of itself and a the Supreme Court would grant certiorari, by applying a degree of subjectivity, rather large group of HIV and LGBT civil rights but there was no explanation for its failure than adhering to anatomical standards. So groups in the pending case of Federal Avia- to do so. Lambda Legal, which has repre- long as an anatomical female “will be iden- tion Administration v. Cooper, No. 10-1024, sented the adoptive couple, had filed the tified” as male, she should be accorded that which is scheduled for oral argument on petition for certiorari, and pointed out that status under Western Australia’s law. November 30. The case was brought un- the Court’s refusal to intervene, in addition The decision is accessible at
Management, pending in the U.S. District can’t buy this defense on the cheap, and that court ruled in 2010 that Section 3 of Court for the Northern District of Califor- House Republican leaders agreed to triple DOMA is unconstitutional in violation of nia, arguing that claims of discrimination the authorization to $1.5 million. National equal protection in a case brought by Gay on the basis of sexual orientation should Law Journal, Oct. 4. There was no indica- & Lesbian Advocates & Defenders which not merit equal protection heightened scru- tion that they made any move to cut pork is now pending on appeal before the 1st tiny because gays are not politically power- barrel spending in their own districts by the Circuit. In that case, the Justice Depart- less and can influence legislators on their same amount, instead insisting that they ment has changed its position effective in behalf. The brief cites the recent successes will reduce the Justice Department appro- February 2011, when it announced that it of openly LGBT candidates for public of- priation by a commensurate amount since agreed with plaintiffs that Section 3 is un- fice, and the spread of state laws banning that department “defaulted” on its obliga- constitutional, and punted defense to Con- sexual orientation discrimination and al- tion to defend the law; that is, to defend a gress, where the House leadership retained lowing same-sex marriage, as well as recent provision that has now been declared un- former Solicitor General Paul Clement to federal legislation repealing the DADT constitutional by several tribunals as well as represent them as an Intervenor in selected military policy and imposing federal pen- the Justice Department and the President. cases in which Section 3 of DOMA is at is- alties for anti-gay hate crimes, as evidence And, of course, since no matter how the sue. Thus, the lead defendant in McLaugh- that gay people don’t require any special 1st Circuit (or perhaps down the line the lin v. Holder officially agrees with the plain- judicial protection from discrimination. Of 2nd or 9th Circuits in cases now pending at tiffs that the statutes in question violate course, they conveniently fail to note that if trial level) decides, certiorari petitions and their 5th Amendment equal protection this were the test for heightened scrutiny, possible Supreme Court briefing and argu- rights. Clement has moved to intervene there would be no heightened scrutiny of ment loom. Who thinks that Clement and in the 1st Circuit appeal of Gill v. Office of federal policies that discriminate on the his law partners, associates and paralegals Personnel Management, the 2010 ruling, as basis of sex or race, as women and people can handle the entire cycle of litigation on well as several cases pending in other dis- of color have managed to secure laws at this issue for a mere $1.5 million? The best trict courts around the country. Presumably, both the state and federal levels banning way to end this expense, of course, would be he will intervene in this one as well, and discrimination based on sex or race and can for Congress to enact the Respect for Mar- will have to explain to the court the justi- point to numerous minority and/or female riage Act, now pending in both chambers, fication for denying service members who elected and high appointed officials at all mooting the constitutional question. legally married their same-sex partners in levels. (How about three women and an Massachusetts — Servicemembers Le- one of the several jurisdictions that now African-American man now sitting on the gal Defense Network (SLDN) filed suit on authorize such marriages the same benefits U.S. Supreme Court, women and people of October 27 on behalf of a group of LGB that are routinely provided to their fellow color elected as senators and governors, and active duty and retired military members service members who marry different-sex an African-American man serving as Presi- who are denied equal benefits because of partners. Time for the House Bipartisan dent of the United States? There have been the refusal of the armed forces to recognize Legal Advisory Group to consider increas- no openly gay people in any of those posi- their legal same-sex spouses, thus opening ing its authorized spending on DOMA tions. There’s political power!) Heightened up a new front in the rapidly expanding defense, which began at $500,000 and was scrutiny is appropriate in cases of categori- litigation war against Section 3 of the De- recently tripled to $1.5 million. Speaker cal discrimination under circumstances fense of Marriage Act of 1996. McLaughlin John Boehner has insisted that any money where there is good reason to suspect that v. Holder is the name of the case, as Major the House spends defending DOMA will bias rather than objective, non-discrimina- Shannon McLaughlin of the Massachu- be subtracted from the budget of the Justice tory policy concerns motivated the legis- setts National Guard is the lead plaintiff, Department. lature in adoption a discriminatory policy. and the named defendants are Attorney Pennsylvania — Although the Obama This why such classifications have been General Eric Holder, Secretary of Defense Administration has been sending signals called “suspect classifications.” It would be Leon Panetta, and Secretary of Veterans that married same-sex binational couples hard for anybody reviewing the legislative Affairs Eric Shinseki. The case, filed in the should not be forcibly separated under history of DOMA, or more broadly the U.S. District Court for the District of Mas- U.S. immigration law, enforcement discre- history of treatment of gay people under sachusetts in Boston, challenges the consti- tion still rests with local Immigration and the law in the United States, to suggest tutionality of DOMA as well as other pro- Customs Enforcement Offices around the that there is no basis for such suspicion. * visions of the U.S. Code under which LGB country, and uniformity of approach seems * * When BLAG hired former Solicitor- servicemembers suffer unequal treatment to be lacking, judging by an Oct. 7 joint General Paul Clement to defend Section 3 in benefits due to the non-recognition of news release by the Gay & Lesbian Alli- of DOMA earlier this year, it authorized their spouses. According to a news release ance Against Defamation and Stop the an expenditure of up to $500,000 for that from SLDN, the plaintiffs in the case rep- Deportations, a group begun by attorney purpose. As the number of cases in which resent 159 years of military service, cover- Lavi Soloway to advocate against the con- Clement is intervening on behalf of BLAG ing the Army, Air Force, Navy and Nation- tinuing baleful effect of Section 3 of the to defend DOMA increased, with the con- al Guard. Andrew Blum at Chadbourne Defense of Marriage Act in immigration comitant demands of time for briefing and & Parke is providing representation in the cases. The release reported that the ICE of- discovery and a looming oral argument in case. The filing in federal district court in fice in Philadelphia had refused to stop the the 1st Circuit, it became clear that BLAG Boston is strategically savvy, as a judge of deportation that would separate an Indo- LESBIAN/GAY LAW NOTES November 2011 231 nesian citizen, Anton Tanumihardja, from Choi’s counsel had raised these issues at Amendment grounds — grounds that have his American husband, Brian Andersen. too late a stage in the proceedings, and been rejected by the U.S. Supreme Court The Field Officer in charge of the case said granted the prosecution’s motion for a and other federal courts in cases arising in he found nothing “extraordinary” about writ of mandamus directing the magistrate other states. the situation of a legally married same- not to consider any such claims or to dis- New York — Last month we reported on sex couple that would justify terminating miss the information against Choi on that In the Matter of Ranftle, 2008-4585, NYLJ a prior deportation order, despite the Aug. ground. Choi and other demonstrators had 1202515287643 (Surr., N.Y., decided Sep- 18 letter by DHS Secretary Janet Napoli- handcuffed themselves to the White House tember 14, 2011), in which Manhattan tano concerning the exercise of discretion fence during their demonstration, and re- Surrogate Kristin Booth Glen rejected a in such cases. fused to leave on the orders of U.S. Park challenge to the probate of the estate of a Pennsylvania — The State College Area Police. The arrest was Choi’s third in the gay man under New York Law, by a sur- School District’s Board of Education voted space of nine months, and he had declined viving brother who claimed the man was 9-0 to approve a settlement in Wiessmann the government’s offer to plead guilty to a domiciled in Florida, a state that would v. State College Area School District, No. 11- lesser charge, but didn’t indicate he would not recognize the spousal status and ap- cv-00940 ( JEJ) (M.D.Pa.), under which raise a selective prosecution defense until pointment as executor of the decedent’s the District will pay $42,500 to guidance the eve of trial. Lamberth found that such a husband. Surrogate Glen, based on a to- counselor Kerry Wiessmann and her same- claim should have been raised in a pre-trial tality of the circumstances analysis, found sex domestic partner to settle an equal motion, and that the magistrate erred in re- that at his death Mr. Ranftle was a New protection claim for health care benefits serving that issue for trial. The Legal Times York domiciliary. In a previous challenge coverage for the partner. The district’s in- Blog reported on October 26 that Choi is brought by a different brother of the- de surance provider will also pay $47,000 to appealing this ruling to the U.S. Court of cedent, Surrogate Glen had ruled that the cover attorney fees for Wiessman, who was Appeals for the D.C. Circuit. Canadian marriage of Ranftle and his hus- jointly represented by attorneys Andrew 9th Circuit — Ineffective assistance of band would be recognized under New York Shubin, Justine Andronici, and attorneys counsel earned Steven Craig James a writ law. We have learned from council for the from the ACLU Lesbian and Gay Rights of habeas corpus order a reconsideration of estate that Ronald Ranftle, who filed the Project and the Philadelphia law firm Pep- the death penalty assessed against him for domicile challenge, has served a notice of per Hamilton, according to an October 25 his participation in a kidnapping and brutal appeal. Oddly so, since the Appellate Divi- report by the Centre Daily Times, a State homophobic murder. James v. Schriro, 2011 sion has already unanimously rejected the College, PA, newspaper. The District’s vote WL 4820605 (Oct. 12, 2011). The court challenge to the prior appeal. Meanwhile, approved a consent decree concluded by rejected James’ challenge to the guilty ver- the probate of the estate has been delayed the parties and approved by District Judge dict in his case, but concluded that his trial for several years. A.S.L. John E. Jones III. As a result of this law- counsel had failed to find and present sig- suit, the District decided to adopt a do- nificant evidence of his troubled past and State Criminal Litigation Notes mestic partner benefits policy inclusive of mental problems, the kind of evidence that California — In In re V.O.; Los Angeles same-sex partners, and the District adopted in the cast the 9th Circuit has found to have County Department of Children and Family a non-discrimination policy, although that a bearing on mental culpability in such Service v. M.S., 2011 WL 5086252 (Oct. vote was not unanimous, two members of cases. The court sets forth in gory detail the 27, 2011)(not officially reported), the Cali- the Board evidently feeling that the Dis- facts of record on the crime and James’ role fornia 2nd District Court of Appeal upheld trict should retain the right to discriminate in it. A.S.L. a ruling by the L.A. County Superior Court based on sexual orientation, for reasons not that a father accused of having sex with his reported in the newspaper story. A media- State Civil Litigation Notes teenage son on several occasions (although tion session held on October 13 determined not prosecuted because the district attorney the amount of damages that was submitted Minnesota — The Associated Press reported decided there was insufficient evidence to to the Board for its vote. A.S.L. that the Minnesota Campaign Finance and prosecute) could be deprived of visitation Public Disclosure Board issued new guide- with his daughter, despite the father’s pro- Federal Criminal Litigation Notes lines on October 4 intended to close loop- testation that he was gay and presented no holes under which anti-gay forces would risk to his daughter. All parties are iden- District of Columbia — On October 11, be able to wage their campaign for passing tified in the opinion by Justice Mosk by U.S. District Judge Royce C. Lamberth of a pending anti-marriage constitutional their initials, and the combinations of ini- ruled in United States v. Choi, 2011 WL amendment without disclosing the iden- tials and relationships make it difficult to 4793158 (D.D.C.), that Magistrate Judge tity of their donors. The misnamed - Na sort out the story, but the father’s version John Facciola had improperly allowed Dan tional Organization for Marriage (which seems to be that the son ‘came out’ to him Choi, a gay activist arrested by law en- should by rights call itself the National and his boyfriend (who happens to be the forcement agents during a protest against Organization Against Marriage Equality) boy’s uncle), but that his ex-wife and her the DADT military policy in front of the has argued that its donors would be sub- family disapprove of his lifestyle. Father White House, to raise a selective or vin- ject to retribution from gay rights advocates argued that the decision of the prosecutor dictive prosecution defense in his misde- were their names to be revealed, and is ex- not to pursue the case based on the son’s meanor trial. Judge Lamberth found that pected to challenge the guidelines on First allegations of four instances of anal and/or 232 November 2011 LESBIAN/GAY LAW NOTES oral sex with father required setting aside from the George Washington Bridge after the proposed Respect for Marriage Act, the juvenile court’s ruling that father had learning that Ravi and another classmate which would repeal the Defense of Mar- sexually abused the boy. The appeals court had used a webcam to watch Clementi riage and mandate federal recognition for pointed out that the standard of proof in and another man, so far identified as M.B., all marriages lawfully contracted under the two proceedings was different. The engage in an amorous encounter in their state law. All of the committee’s Demo- prosecutor may have declined to proceed dorm room. On October 20, Ravi appeared cratic members are supporters of the bill, because proof beyond reasonable doubt was in court and rejected a plea bargain under so it is expected to be reported out favor- not possible, but the juvenile court follows which his exposure to prison time would ably, although Republican senators are ex- a preponderance of the evidence standard. be limited to five years and he might have pected to use any parliamentary device at As to father’s argument that as a “homo- been sentenced to probation and avoided their disposal to delay consideration by the sexual” he presented no risk to his daughter, jail entirely. Instead, unless a new deal is committee. the court pointed out that DNA testing agreed upon, he will be risking up to ten California — Governor Jerry Brown had shown that he had fathered the girl, years in prison under the state’s hate crimes has signed “Seth’s Law,” A.B.9, named in suggesting that merely alleging he was gay law if convicted. In another development memory of a gay teen who committed sui- was not sufficient evidence on which to in the case, the court has granted the de- cide after enduring bullying for being gay, reach such a conclusion fense’s motion for disclosure of the identity which is intended to deal with the problem Florida — Florida Circuit Judge Joseph of M.B., although strictly limiting access to of bullying in public schools by requiring Marx sentenced Juan Carlos Antenco Ca- that information, having received a submis- them to have clear policies and enforce- macho to 15 years in prison on a plea of sion from M.B. that he is terrified about the ment mechanisms for dealing with this guilty to a charge of manslaughter with possibility of his identity becoming public, problem. On the same date, Brown also a deadly weapon in the murder of Naum since he is not openly gay. Thus, ironi- signed into law a companion measure, Rafael Mendez, described by his brother, cally, the only people who will be allowed A.B. 620, affecting state colleges and uni- according to a report by the Palm Beach to learn M.B.’s identity are Ravi (the de- versities, requesting them to adopt appro- Post (Oct. 19), as a homosexual transvestite. fendant) and his lawyers. Christian Science priate anti-bullying policies, and amend- Camacho, 25, who worked as a janitor, was Monitor, Oct. 20; Pittsburgh Post-Gazette, ing higher education law to make explicit married but was also carrying on an affair Oct. 21; New Jersey Record, Oct. 16. equality of education rights regardless of with a 16 year old girl. Camacho had told New York — TheNew York Times report- gender identity or expression. Brown also police in 2008 that he had met Mendez but ed Oct. 19 about a controversy that erupted signed into law AB 433, the Vital Records never had a sexual relationship with him, in Westchester County when county law Modernization Act, under which vital re- but two years later he admitted when con- enforcement decided to target gay cruis- cords can be changed in gender identity fronted with incriminating evidence that ing activity in Saxon Woods, a county park cases without the need for surgical sex reas- he had a sexual relationship with Mendez in the city of White Plains. In addition to signment. Under the law, an application for and had killed him during an argument making arrests, the county police released gender redesignation on a birth certificate when Mendez told him that Mendez had to local news media the names and pho- will need to provide documentation from fallen in love with him and wanted him to tos of 16 men who it claimed were appre- a doctor that they have received “clinically leave his wife. Camacho also led authori- hended engaging in unlawful sexual activ- appropriate treatment for the purpose of ties to the scene where he claimed to have ity in the park. The strategy was to “shame” gender transition.” Brown also signed A.B. dumped Mendez’s body, but it has not yet people and thus deter others from engaging 887, a measure intended to make more vis- been recovered. in the conduct, but it backfired badly when ible existing prohibitions on gender identi- Louisiana — Judge Ramona Emanuel it turned out that 11 of the cases had been ty discrimination. California had provided of Caddo District Court sentenced Wil- adjudicated with pleas to lesser charges of such protection through an expansive defi- liam David Payne II to 23 years in prison disorderly conduct, a mere “violation,” and nition of sex discrimination, but the new for beating John Skaggs, a gay man, with a the court had sealed the records. Thus, the law will make protection clearer by adding pool cue in a Shreveport night club. Payne police were violating the law by publicizing gender identity and expression explicitly in claims he was both drunk and high on the identity of the individuals arrested, and places where California statutes list pro- drugs at the time of the assault in January there is a possibility of lawsuits being filed hibited grounds of discrimination. In all, 2011. The victim suffered severe injuries against the county for violating the court’s Equality California announced, the legisla- and is still recovering. Payne was origi- order sealing the case files! County officials ture passed a dozen LGBT equality-related nally charged with attempted murder, but claimed that the crackdown was initiated measures sponsored by EQCA during the ultimately convicted of aggravated battery because the activity was taking place during 2011 session, and the governor signed ten and a hate crime, receiving 18 years for the the day, mainly around the lunch hour, just of them into law. former and five for the later. Advocate.com, when the park was full of children. A.S.L. Minnesota — The city council of Inver Oct. 26. Grove Heights rejected a proposal to es- New Jersey — A trial date of February Legislative Notes tablish a domestic partnership registry by a 21, 2012, has been set in the hate crime vote of 4-1 on October 25. Mayor George prosecution of Dharun Ravi, the former Tourville was quick to assert that the city Rutgers University dormitory roommate of Federal — The Senate Judiciary Com- welcomes all “lifestyles,” but that the coun- Tyler Clementi, who jumped to his death mittee will hold hearing in November on cil majority felt that legal recognition of LESBIAN/GAY LAW NOTES November 2011 233 relationships was a state law issue and the cil. The ordinance was drafted to match a the Task Force. Justice Department News city should not get involved. About a doz- similar ordinance passed in August 2010 in Release, Oct. 13. en Minnesota municipalities have created Doylestown. The rationale stated for pass- U.S. Department of Housing and Urban partner registries in the absence of any le- ing a local ordinance was that a proposal to Development — The White House blog gal recognition for same-sex partners under amend Pennsylvania’s anti-discrimination noted on October 14 steps being taking state law. The legislature has placed a mea- ordinance to include sexual orientation by the Department of Housing and Urban sure on the ballot in 2012 under which the and gender identity has been pending for a Development to deal with the documented state constitution would provide that only decade in the state legislature without any problem of housing discrimination against the marriage of a man and a woman would real movement. Bucks County Courier Times, transgender and and gender-non-conform- be recognized by the state, presumably out October 16. A.S.L. ing individuals. Building on case law under of fear that the ultra-left wing Minnesota various anti-discrimination statutes hold- Supreme Court (not!) may rule that same- Law & Society Notes ing that people who encounter discrimina- sex couples are entitled to marry. St. Paul tion due to transgender identity and express Pioneer Press, October 26. may be victims of “sex discrimination” (the New Hampshire — The House Judiciary The White House — On October 20, Presi- forbidden ground listed in the statutes), Committee voted 11-6 to approve a mea- dent Barack Obama presented a 2011 Pres- HUD has been requiring entities that re- sure that would repeal the state’s law autho- idential Citizens Medal to Janice Langbein, ceive federal funding for their housing proj- rizing same-sex marriage and replace it with whose activism as a result of discriminatory ects to incorporate this anti-discrimination a Civil Union Act that is different from the treatment had led the Obama Adminis- protection into their policies. The blog also measure that had been enacted prior to the tration to adopt new regulations under noted that HUD had launched a webpage passage of marriage law. Under the propos- the Medicare and Medicaid programs re- with resources for LGBT people who en- al approved by the Republican-controlled quiring hospitals that receive money un- counter housing discrimination. Although committee, same-sex couples who were der those programs to extend appropriate federal law does not directly address sex- married under the existing law will remain treatment to the same-sex partners of pa- ual orientation discrimination in housing, married and recognized as such. From the tients. Langbein was denied such treatment many state and local laws do, and the HUD date of passage of the new law, both same- when her same-sex partner was admitted website advises on the availability of state sex and different-sex couples could become for emergency treatment in a Florida hos- and local protection. HUD has proposed civil union partners, but there would be pital while the couple and their children regulatory changes to make explicit protec- broad exemptions from recognizing their were on a vacation cruise. Lambda Legal tion against discrimination in housing for unions for just about anybody who might represented Langbein in her unsuccessful LGBT individuals, and has designed and refuse to do so on personal or religious lawsuit against Jackson Memorial Hospital, implemented a media campaign to raise grounds. Republicans control both houses but the temporary defeat of the lawsuit was awareness about housing discrimination. of the legislature but the governor, a Dem- turned to victory when Langbein’s activism HUD welcomes comments and recom- ocrat, was pledged to veto any attempt to in combination with Lambda brought the mendations, addressed to LGBTfairhous- repeal the marriage law. The Republicans issue to national attention and prompted [email protected]. have veto-proof majorities, so survival of the Administration to action. U.S. Agency for International Develop- same-sex marriage in New Hampshire is U.S. Department of Justice — The Jus- ment — USAID, which administers federal genuinely in danger. Ironically, the public, tice Department announced on October financial assistance for development proj- according to polls, supports same-sex mar- 13 the formation of the Attorney General’s ects overseas, issued an executive message riage and opposes repeal by a comfortable National Task Force on Children Exposed on October 11 strongly encouraging com- majority. Nashua Telegraph, Oct. 26; Associ- to Violence. According to a statement by panies with which it contracts to extend ated Press, Oct. 25. Associate Attorney General Tom Perrelli, their non-discrimination polices to include Pennsylvania — The Newtown Bor- “The Task Force will develop knowledge sexual orientation. In the absence of legis- ough Council voted 5-1 to adopt an or- and spread awareness about the pervasive lation USAID cannot compel such action. dinance prohibiting discrimination on the problem of children’s exposure to violence.” Interestingly, undoubtedly picking up on basis of “actual or perceived race, color, This is part of Attorney General Holder’s growing federal case law construing Title sex religion, ancestry, genetic information, Defending Childhood Initiative, launched VII’s ban on sex discrimination to apply national origin, sexual orientation, gender in September 2010. That Task Force will in particular case of discrimination against identity or expression, familial status, mari- hold hearings in several locations, begin- transsexuals, in describing its own non-dis- tal status, age, mental or physical disabil- ning on November 29 and 30 at the Uni- crimination policy, the agency lists gender ity, use of guide or support animals and/or versity of Maryland Law School. Among identity as a subcategory of sex and sepa- mechanical aids.” The ordinance extends the members appointed by Attorney Gen- rately lists sexual orientation. According to to employment, housing, the use of pub- eral Holder is Kevin Jennings, founder of the October 11 message, USAID will add lic accommodations, and post-secondary the Gay, Lesbian and Straight Education a provision to all its contracts and grants educational institutions. The town’s newly Network (GLSEN). School bullying, an supplementing the required non-discrim- authorized Human Relations Commission issue receiving increasing attention in the ination policies with the recommendation will deal with complaints, members of the wake of numerous suicides by gay teens, that contractors also include sexual orien- Commission to be appointed by the coun- will be among the issues to be explored by tation, pregnancy and gender identity “and 234 November 2011 LESBIAN/GAY LAW NOTES any other conduct that does not adversely by the mid-October deadline to place their same-sex couple parents, up from 8,310 affect performance.” repeal initiative on the ballot for November in 2000. The states with the highest num- Repeal of DADT — News reports 2012. Debate then ensued among LGBT ber of same-sex couples adopting children emerging in mid-October reported that the politicos in California over whether Equal- are Massachusetts, California, New York implementation of final repeal of the “Don’t ity California’s decision would be reversed, and Texas. There remain some states with ask, don’t tell” military policy was, as pre- as that organization appeared to be in statutory prohibitions on adoptions by dicted by many, a “non-event.” That is, the meltdown condition with the resignation unmarried couples, whether same-sex or date was not marked by mass “coming out” of its Executive Director and several of its different-sex, but by contrast in some states within the military — despite estimates that board members in the wake of controversy such adoptions are encouraged by admin- tens of thousands of gay people are prob- over its decision not to seek repeal of Prop istrators, and New York has banned sexual ably serving, given the size of the armed 8 in 2012. The main complicating factors orientation discrimination in adoptions forces at present, and that gay people who to a repeal campaign are the expense of for decades. It seems likely that the recent had quietly come out to their unit members mounting a successful petition drive, which end of the statutory ban on gays adopt- and superiors had general enjoyed support- usually requires employing paid signature- ing children in Florida, as a result of the iveness and no controversy. (In many cases, gatherers who can be trained to collect state government’s decision not to appeal of course, a “coming out” would be met by a valid signatures, and the overwhelming ex- an appellate ruling holding the ban uncon- “we always knew but didn’t say anything to pense that would undoubtedly accompany stitutional, will contribute to a continued avoid trouble.”) The lingering problem, of an attempt to win the vote, given the likeli- increase in adoptions by same-sex couples. course, is that the DADT Repeal Act did hood that the same forces that supported Los Angeles Times, Oct. 21. not include any anti-discrimination policy, Proposition 8 with an extraordinary level of Idaho — Lambda Legal and the Idaho and the continued existence of the Defense funding (including the Catholic and Mor- Safe Schools Coalition collaborated in of Marriage Act stands in the way of equal mon Churches as well as conservative po- helping students who wanted to form a treatment of military members who marry litical groups) would likely throw massive Gay Straight Alliance at Mountain View their same-sex partners. resources into defeating the repeal. Opin- High School to persuade the school board California — Equality California, the ion polling in California shows growing not to adopt a policy that would require pa- state’s leading LGBT political group, an- support for same-sex marriage since 2008, rental consent for students to join school nounced early in October that it had aban- but it is difficult to predict how an intensive clubs. The proposal pending before the doned any attempt to put a question on the campaign like the one waged by both sides board, which was introduced in reaction to general election ballot to repeal Proposi- in 2008 would affect the final outcome of the potential formation of a GSA, would tion 8 in November 2012. [Proposition 8 voting. Things were unsettled as October have (1) required parental permission was an initiative approved by the voters in ended. * * * The initiative proposal being to form a club, (2) banned any club that November 2008 to amend the California proposed by “Love Honor Cherish” would would “advocate or approve sexual activ- constitution to provide that only a mar- be a two-section amendment to the Cali- ity outside of marriage”, and (3) exempt riage between a man and a woman would fornia constitution. Section 1 would protect certain favored clubs from these rules. In be recognized or valid in California. Prop 8 the right of religious officials and religious other words, some student clubs would be was ruled unconstitutional by a federal trial institutions to refuse to perform any mar- able to advocate adultery, but not the GSA? court in 2010, and an appeal is pending be- riages that were contrary to their religious We are straining to understand the logic of fore the 9th Circuit.] The announcement views and protect them from any challenge this proposal. At any rate, after receiving a came in the wake of Governor Jerry Brown to their tax exempt status stemming from strongly worded letter from Lambda Legal signing into law SB 202, which moves such refusals. Section 2 would replace the and the Idaho Safe Schools Coalition and ballot measures to November elections in Prop 8 amendment (Art. I, Sec. 7.5 of the hearing testimony from students at a public even-numbered years. This means that if state constitution) with the following lan- hearing, the opponents of SB 48, a recently enacted guage: “Marriage is between only two per- Illinois — In the aftermath of the Civil measure mandating that LGBT history be sons and shall not be restricted on the basis Union Act that took effect June 1 allowing included in public school curricula, obtained of race, color, national origin, sex, gender, both same-sex and different-sex partners sufficient signatures to put their repeal ini- sexual orientation, or religion.” to enter civil unions, some different-sex tiative on the ballot, it would be placed California — The Williams Institute at partners are discovering reluctance by em- on the November 2012 ballot. Avoiding UCLA Law School has been undertak- ployers to extend to them the same recog- having to campaign on two simultaneous ing a detailed analysis of federal census nition and benefits entitlements that many high-profile LGBT ballot measures, espe- figures and various population surveys to employers had been extending to same-sex cially where the campaign would be “vote document trends in the LGBT community. couples under their domestic partnership no” on one of them and “vote yes” on the Among their most startling findings are a benefits plans. The Chicago Tribune (Oct. other, probably seemed worth avoiding. A rapid increase in the number of same-sex 14) reported that one such couple was dis- group called “Love Honor Cherish” vowed couples that are adopting children. Ac- appointed when Northwestern University to step into Equality California’s shoes to cording to their latest study, 21,740 U.S. took the position that it would recognize propose, petition for, and seek to enact a same-sex couples adopted children in 2009, different-sex partners only for purposes of repeal initiative. But the opponents of SB up from 6,477 in 2000, and in 2009 about its HMO plan, which it purchases from an 48 did not obtain sufficient valid signatures 32,571 adopted children were living with insurance company subject to state law, but LESBIAN/GAY LAW NOTES November 2011 235 not for its self-insured PPO plan (the more burden imposed under the Internal Reve- sex couple and a woman who agreed to be generous of its plans) which is not subject nue Code because the federal government their gestational surrogate. In the Ex Parte to state law due to federal ERISA preemp- will not treat same-sex partners (even mar- Matter Between WH, UVS, LG, BJS, Case tion. The university made the decision that ried same-sex partners) as having the same No. 29936/11. The case provided an oppor- if different-sex partners want to participate status as legal spouses for this purpose. The tunity to apply the terms of Section 295 of in the PPO plan, they had to marry! Is this policy goes into effect January 1, 2012. the Children’s Act 38 of 2006, enacted to a set-up for “reverse discrimination”? Other major financial institutions that have provide a legal and regulatory framework New Hampshire — When members of recently announced similar policies include for surrogacy agreements in South Africa. the National Guard return to the United Morgan Stanley, Bank of America, Bar- The decision was signed by Judges R.G. States after overseas assignment, they par- clays, Goldman Sachs, Credit Suisse, and Tolmay and N. Kollapen. The attorney for ticipate with members of their family in BNP Paribas, according to a “Bucks” blog the applicant is Anthony Wilton, and the a Yellow Ribbon program, a reorientation item published on October 17. court received amicus briefs in support of to civilian life. Charlie Morgan, a lesbian Rhode Island — Rhode Island passed the application. Chief Warrant Officer in the New Hamp- a Civil Union Act over the protest of gay Prior to the passage of this statute sur- shire Guard who became open about her rights advocates in the state, who insisted rogacy agreements had no legal status as sexual orientation while on assignment they wanted marriage or nothing. Under enforceable contracts, although the court in Kuwait this summer, was anticipating the Civil Union Act, those who enter civil reports that informal surrogacy was prac- that her same-sex partner, Karen Morgan, unions are supposed to receive the same ticed. Passage of the Act was prompted by could participate in the ceremony. But New rights under state law that are afforded recognition that people were going beyond Hampshire Guard officials said no, relying married couples. But that promise was the informal practices of the past where on the Defense of Marriage Act to exclude quickly broken, as state tax officials took acquaintances would help each other out, anybody not recognized by the federal gov- the position that civil union partners in to a modern system where on-line advertis- ernment as a legal spouse. Morgan con- the state will not be considered married for ing and agencies have developed to assist tacted Senator Jeanne Shaheen (D-N.H.), tax purposes. David Sullivan, the state tax people who need the services of a surrogate who contacted the Secretary of Defense, administrator, told the Providence Journal to find one, and money is changing hands and the Pentagon overruled the local offi- (Oct. 10), “The starting point for personal in the process. cials. A Defense Department spokesperson income tax is Federal Adjusted Gross In- The legislature has made a policy deci- announced that the department had issued come. . . The calculation of these items are sion against authorizing compensated sur- an order that uniformed personnel can des- based on federal tax laws.” Gay rights advo- rogacy, for the court is directed to inquire ignate whomever they choose to attend the cates protested that this violated the new- into the financial arrangements and it is Yellow Ribbon program, thus nicely finess- ly-enacted statute, which provides that any clear that any compensation to the sur- ing the DOMA problem. The spokesper- term of Rhode Island law invoking mar- rogate is limited to covering expenses of son also indicated that DoD is “exploring riage also invokes civil unions on an equal providing the service, and not a fee for her the possibility of extending other benefits, basis. The Rhode Island approach contrasts time and effort. The court is required to in- legally permitted, to same-sex partners.” with the position being taken by New York quire into the qualifications of the intended A spokesperson for the New Hampshire tax officials under the recently-passed Mar- parents to raise a child, and surrogacy for Guard said that the organization saw this riage Equality Act in that state. Although the purpose of relieving a healthy fer- as “good news.” Now that openly LGB N.Y. tax law specifies that taxpayers use tile heterosexual couple of the burdens of individuals can serve in the military with their federal tax status, the contention now pregnancy and childbirth is not recognized the September 20 demise of the “don’t is that this is implicitly modified by pas- under this Act. Its purpose is to recognize ask, don’t tell” policy, DoD confronts the sage of the Marriage Equality Act, and that surrogacy contracts where the intended problem of evenhanded treatment and fair- married same-sex partners who are New parents are incapable of conceiving a child ness in treatment of service members with York taxpayers must file their state taxes as on their own. same-sex partners. This policy change is a married (while continuing, of course, to file This case provided the court with the first step in confronting that challenge.Bos - their federal taxes as single). We’ll be in- first opportunity to approve such a contract ton Globe, Oct. 20. terested to see whether New York modifies involving an application from a same-sex New York — The practice of compensat- its tax forms to accommodate this odd situ- couple, and the court took care to note ing gay employees for the extra taxes they ation. Evidently, Rhode Island tax officials that a psychologist’s report indicated that have to pay if they elect domestic partner- decided not to make the effort. A.S.L. the two men involved were well-qualified ship coverage for their partners is spreading to raise a child. In describing the role of in the financial services sector, according South African Court Approves the court in approving such a contract, the to several reports in the New York Times’ Surrogacy Contract for Gay Male tribunal stated: “What is often at stake is “Bucks” blog. On October 19, “Bucks” Couple not only the physical well-being of the sur- reported that American Express had an- rogate mother and the child to be born but nounced that it would equalize the cost of The North Gauteng High Court in Preto- also the psychological consequences that health insurance for employees with same- ria, Republic of South Africa, issued a judg- may follow upon the birth of the child and sex partners by making extra payments in ment on September 27, 2011, approved a the process of the handing over by the sur- each pay period to make up for the extra tax surrogacy contract involving a male same- rogate mother to the commissioning par- 236 November 2011 LESBIAN/GAY LAW NOTES ents of the child born out of the arrange- ing all laws imposing criminal penalties consensual gay sex and prostitution, be- ment. That being so, a Court has a vital role for homosexual conduct.” The Australian cause they are counterproductive to at- to play in the confirmation of the agree- government is encouraging all Common- tempts to control the spread of HIV. He ment. While on the one hand it is enjoined wealth nations to respond affirmatively pointed out that it was difficult to promote to advance the spirit and the objectives of to a recommendation for sodomy law re- safer sex against the background of these the Act without creating or placing addi- form made by a prominent advisory group, laws. A government spokesperson told the tional obstacles in the path of litigants who which includes as Australia’s representative BBC that the government would engage in seek relief, on the other as the upper guard- retired High Court Judge Michael Kirby, wide-ranging consultations to see whether ian of all minor children it cannot simply an openly-gay man who recently published there was a need to change the law. Mr. be a rubber stamp validating the private an autobiography that has received con- Mogae insisted that criminal law should arrangements between contracting parties.” siderable press attention in Australia. Re- not stand in the way of public health. He Thus, the court’s role is to ensure that sponding to lobbying by Peter Tatchell, the pointed out that gay people are citizens, the “formal and substantive requirements UK’s most prominent gay rights lobbyist, and that it was essential to reach out to of the Act are complied with.” Since an ac- the British Foreign Office announced that prostitutes to protect their clients. BBC tion to confirm the agreement is brought it would “raise LGBT issues at the Com- News-Africa, Oct. 19. jointly by the parties and is thus, in a sense, monwealth heads of government meeting Brazil — On October 25, the Supreme “ex parte,” it falls to the court to take extra in Perth and push for their inclusion in the Court ruled by a 4-1 vote that the nation’s care to ensure that the requirements of the final communiqué. The situation of LGBT constitution “makes it possible for stable Act are met, and “the Court is invariably people within the Commonwealth remains civil unions to become marriages,” and that dependent upon the information placed a serious concern.” There are 54 countries in “sexual orientation should not serve as a before it by the Applicants and thus the the Commonwealth, out of which 41 still pretext for excluding families from the legal utmost good faith would be expected and make homosexual activity illegal, having protection that marriage represents.” There required of the Applicants.” In this case, carried forward into their penal codes the is no statutory authorization for same-sex the court found that the commissioning sodomy laws installed by Britain during its marriages in Brazil. In May, the Supreme parents “have made out a proper case for colonial rule. In half a dozen of those coun- Court had ruled that courts could recog- the relief they seek,” and that the intended tries, the maximum penalty for homosexual nize civil unions between same-sex part- parents as well as the surrogate mother are conduct is life imprisonment. The urgent ners, but had stopped short of calling them “suitable persons as contemplated in the public health need to combat the spread marriages. Now, after several couples have Act.” Thus, the court confirmed the surro- of HIV was cited by Australian Foreign petitioned to have their civil unions recog- gacy agreement, and the case, which will be Secretary Rudd as an important reason for nized as marriage, a case involving a lesbian published officially, will stand as precedent decriminalizing gay sex, in order to be able couple came to the court on appeal from a that same-sex couples (in this case two to enlist governments in encouraging safer- lower court that had refused to recognize men who are not natives of South Africa sex practices among gay men. www.starob- them as married. Sun-Times; News24.com but who have both established domicile server.com.au, Oct. 19; Guardian, Oct. 22. (Oct. 26). and married there) can qualify to enter into Australia — The Australian press was Canada — In an ongoing controversy such contracts. predicting that Queensland would be estab- involving a gay male couple and a lesbian This distinguishes South Africa from lishing civil unions for same-sex partners, couple who agreed to have children togeth- some other countries where only surrogacy pursuant to a legislative proposal by Dep- er through donor insemination, a Calgary agreements involving married heterosexual uty Premier Andrew Fraser. The Premier, court has ruled that the non-biological par- couples may be approved, and donor in- Anna Bligh, indicated that Labor MPs will ent of a child will have custody of a child af- semination services are not always made have a conscience vote (i.e., no exercise of ter the fathers’ relationship had soured. The available for lesbian couples. A.S.L. party discipline), making passage possible complications of this case are too extensive in light of enthusiastic support within the to detail here. All of the parties are identi- International Notes Labor caucus, but solid opposition from the fied by single initials in theCalgary Herald’s opposition party and a lack of enthusiasm report of Oct. 25. Court of Queen’s Justice from some independents suggested that the Suzanne Bensler ruled that the parental British Commonwealth — Australia’s For- vote might be close, as Fraser would need rights of both men will remain the same as eign Minister, Kevin Rudd, and the Unit- near-unanimity from Labor members in the biological father pursues parental rights ed Kingdom’s Foreign Minister, William order to carry his private member bill. Fra- under the Amended Act of the Family Law Hague, called for an end to sodomy laws ser refrained from introducing a marriage Act. Bensler pointed out that the legisla- in British Commonwealth nations in ad- bill on the understanding that the state ture left a gap in the law, as “The provisions dresses to a conference of Commonwealth cannot go further in this direction than the of FLA (Family Law Act) establishing foreign ministers held in Perth late in Oc- federal government. Australian; Advertiser parentage by intent is not available to gay tober. A spokesperson for Rudd stated, (Oct. 26); Courier-Mail (Oct. 27). male couples under Section 13. While this “Australia is a global advocate of non-dis- Botswana — Former President Fes- section has been repealed, the amended act crimination on the basis of sexual orienta- tus Mogae, who heads the nation’s AIDS does not operate to retroactively establish tion. Australia encourages all countries to Council, told the BBC in an interview that parentage of a child who is now over eight decriminalize homosexuality by remov- his country should repeal its laws against years old.” Both men had served as de facto LESBIAN/GAY LAW NOTES November 2011 237 parents to the child, but the deterioration from the websites of the two organizations: who were still being held as of that date. of their relationship had resulted in one of www.IGLHRC.org and www.IRQO.org. According to Selun’s press release, northern the fathers being cut off from contact, and Ireland — Dr. Ann Louise Gilligan and Cyprus is the last territory in Europe where it was this father who was designated as Senator Katherine Zappone married in homosexual conduct is illegal, in violation custodian in the court’s ruling. Canada in 2003 and sought government of the European Convention on Human Denmark — The government announced recognition of their marriage in their home Rights, to which Cyprus is a signatory. The plans to introduce legislation early in 2012 country, Ireland, but were denied recog- maximum penalty under local law is five to allow same-sex couples to marry in the nition by the government. The Supreme years in prison under Art. 171, Ch. 154 of Church of Denmark, thus opening up mar- Court recently denied their effort to chal- the Criminal Code enforced by Turkey in riage to same-sex partners for the first time. lenge the constitutionality of Section 2.2 northern Cyprus. One of the arrested men, Denmark was actually the first country in of the Civil Registration Act, rejecting an Dr. Michael Sarris, is a former Finance the world to create registered partnerships appeal of a decision by a lower court, but Minister of Cyprus. for same-sex couples, carrying almost all they vowed to continue their lawsuit, pre- Uganda — The on-again, off-again anti- the rights of marriage, in 1989. But the sumably by bringing their claim to the Eu- homosexuality bill is on-again, according to country has an established church in which ropean Court of Human Rights. Mirror, an October 25 report by Bloomberg News. marriages are performed, which proved a Oct. 24. Uganda’s parliament voted to reopen de- stumbling block in extending equal mar- Poland — National elections resulted in bate on a bill that provides draconian crim- riage rights. According to an on-line report the election of the first openly gay and first inal penalties for homosexual conduct and by the Copenhagen Post (Oct. 21), the new openly transgender members of the Polish that has drawn protests from world leaders Church Minister, Manu Sareen, a Social Parliament. In Poland, election depends when it was last up for consideration and Liberal party member, expressed the hope upon the number of seats allocated to each then tabled. Indeed, for certain homosexual that the first same-sex weddings will be cel- political party, with parties designating a offenses the death penalty would be- pre ebrated in the spring of 2012. Sareen’s ap- list of candidates, who stand for election scribed. pointment as Church Minister by the new in geographical districts. A new progres- United Kingdom — British Prime Min- government has proven controversial, as he sive party, known as Palikot Movement ister David Cameron (the Conservative is a professed “doubter” when it comes to after its founder, included on its list Anna head of the current coalition government), religious faith, and yet he is set up to ad- Grodzka, an openly transgender woman, addressing the Conservative Party Confer- minister the established church on behalf and Robert Biedron, the openly-gay co- ence, confirmed that his government is ini- of the government. Public opinion polls founder of the nation’s Campaign Against tiating the process to amend existing mar- have shown majority support for same-sex Homophobia, and received enough votes to riage legislation to open that institution to marriage for many years, so government of- elect several candidates from their list, in- same-sex partners. Under the prior Labor ficials are just catching up to public opin- cluding Grodzka and Biedron. The Palikot government, the U.K. legislated to afford ion with the election of a new, more liberal Movement will support introduction of a civil partnerships to same-sex couples, car- government. civil partnership bill for same-sex couples, rying all the legal rights of marriage under Iran — The International Gay and but the leading parties are considered likely British law while denying the name of mar- Lesbian Human Rights Commission and to oppose the measure. One complication riage. In the pertinent part of his speech, the Iranian Queer Organization have col- for Biedron is that he is being prosecuted Cameron said: “Leadership on families also laborated to produce a detailed written re- in connection with his behavior during a means speaking out on marriage. Marriage port titled “Human Rights Violations on political demonstration, and if convicted is not just a piece of paper. It pulls couples the Basis of Sexual Orientation, Gender might face a prison sentence. together through the ebb and flow of life. It Identity, and Homosexuality in the Islamic Switzerland — The National Council gives children stability. And it says powerful Republic of Iran,” which was submitted to rejected a demand by progressive social things about what we should value. So yes, the 103rd Session of the United Nations groups for an end to the nation’s ban on we will recognize marriage in the tax sys- Human Rights Commission, being held adoption by same-sex couples and second- tem. But we’re also doing something else. from October 17 to November 4, 2011. The parent adoption. The vote was 83 yes, 97 no, I once stood before a Conservative confer- report documents in detail the persecu- and 8 abstentions, according to an online ence and said it shouldn’t matter whether tion suffered by sexual minorities in Iran, report submitted by Swiss Rainbowfamilies commitment was between a man and a and explains the applicability of existing to the website of the International Lesbian woman, a woman and a woman, or a man Human Rights Convention provisions to and Gay Association on October 14. and another man. You applauded me for the situation. Certain Iran criminal stat- Turkey/Cyprus — The arrest of three that. Five years on, we’re consulting on le- utes clearly contravene the Convention. men in a private home for “acts against na- galizing gay marriage. And to anyone who The report concludes with two pages of ture” in the Turkish-occupied northern part has reservations, I say: Yes, it’s about equal- recommendations for public policy in Iran of Cyprus has caused an outcry in Europe- ity, but it’s also about something else: com- that would be necessary for that country to an Union countries and from the European mitment. Conservatives believe in the ties come into compliance with international Parliament, whose Secretary, Bruno Selun, that bind us; that society is stronger when human rights standards. Copies of the issued a press release (Oct. 19) quoting we make vows to each other and support complete document can be downloaded members of the European Parliament call- each other. So I don’t support gay marriage ing for the immediate release of the men, despite being a Conservative. I support gay 238 November 2011 LESBIAN/GAY LAW NOTES marriage because I’m a Conservative.” * * * after leaving Lambda Legal held important who earned her undergraduate and law de- Cameron has also announced that his gov- positions at a variety of organizations, per- grees at Cornell University, had clerked for ernment may cut financial aid to African haps most notably as Executive Director of 9th Circuit Judge Betty Fletcher and U.S. countries with poor records on gay rights. the International Lesbian and Gay Human Supreme Justice John Paul Stevens, was The government has already cut aid to Ma- Rights Commission. Her other affiliations an associate at Wilmer Cutler, did some lawi upon reports that two gay men were included working in various positions with law teaching at Fordham and N.Y.U., and sentenced to 14 years at hard labor and the Empire State Pride Agenda, the Na- served as Associate White House Counsel that the Malawi government was consid- tional Gay & Lesbian Task Force, the Na- earlier in the Obama Administration. All ering enacting new laws to crack down on tional Center for Lesbian Rights, and the the Republicans present in the Senate on lesbians. Existing levels of aid to Uganda Stonewall Community Foundation. She October 13 voted against her confirmation. and Ghana may also be cut, depending how also taught about LGBT law and policy The objections raised on the floor focused those countries deal with pending propos- as an adjunct professor at several schools, on two things: a chapter she had written als to increase penalties for homosexual most recently New York University Law for a book about human rights, and the fact conduct drastically. Daily Mail, Oct. 10. School. She leaves behind a partner, a for- that she did not have significant trial prac- United Kingdom — Mr. Justice Hedley mer partner, and two loving children whom tice experience. During her confirmation of the High Court confronted a dispute she raised with her former partner. The hearing, she responded to questions about between a gay male couple and lesbian New York Times noted her passing with an her view of the role of foreign law in con- couple concerning visitation rights in- on-line obituary published on October 8. stitutional decision-making by affirming volving children conceived by the lesbian We also note the passing at age 86 of that foreign law would have “no relevance couple with sperm donated by the gay male Dr. Franklin Kameny, whose activism for to my interpretation of the U.S. Constitu- couple. The court preserved the anonymity gay rights dates back to 1957 when he was tion,” and that as a district judge she would of all parties to the case. The family struc- dismissed from a federal government posi- follow Supreme Court precedents. The ture involved the two girls living with the tion after his arrest in a park sting brought ABA Committee that evaluates judicial lesbian couple as their “principal” parents his homosexuality to the attention of his nominations had found her qualified, with and spending significant time with the gay employer. At the time, executive branch some dissent from those who insist that male couple, their “secondary” parents. This agencies’ personnel policies were governed federal trial judges should have extensive worked “harmoniously” for seven years, ac- by an executive order by President Eisen- trial practice experience. cording to a report in the Daily Telegraph hower forbidding the employment of ho- Vermont Governor Peter Shumlin has (UK) published Oct. 11, but in 2008 the mosexuals. Kameny’s subsequent federal appointed to the Vermont Supreme Court relationships “soured” and the lesbian lawsuit was unsuccessful, but his experi- Beth Robinson, the openly-lesbian co- couple attempted to limit the gay male ence spurred him to activism, including co- counsel in Baker v. State of Vermont, the couple’s access to the children, resulting in founding the D.C. chapter of the Matta- case that led to the enactment of the state’s a lawsuit in which the men sought to win chine Society, leading a gay rights march in Civil Union Act and laid the ground work legal recognition of their parenting status. front of the White House, and continuing for the ultimate legislative adoption of a Filing a lawsuit escalated the rancor, and, to participate as new gay rights organiza- marriage equality law authorizing same- wrote Justice Hedley, “This case provides a tions emerged in the wake of the Stonewall sex marriage in Vermont. If confirmed by vivid illustration of just how wrong these Riots in 1969. Kameny remained an activ- the Vermont Senate, Robinson will fill the arrangements can go.” Taking into account ist to the end, and lived long enough to seat being vacating by retiring Justice De- the wishes of the children expressed to the win official vindication, when the Obama nise Johnson. According to Shumlin, “She court, Justice Hedley ordered the lesbian Administration tendered a formal apol- is one of the most dedicated, hardworking, couple to allow the younger child to spend ogy for his discharge and he was honored bright people in this great state and I can’t weekends with the gay male couple. If the in a White House ceremony. Ironically, he tell you how privileged I am to nominate two couples could reach an alternative ar- died on October 11, “National Coming her for the Supreme Court.” Shortly after rangement, they were free to do so. Wrote Out Day.” Notices of his passing appeared his election as governor in 2010, Shumlin Hedley, “Anything is better than these chil- throughout the national and international selected Robinson to be chief legal counsel dren being sucked into a vortex of undis- media, giving this year’s NCO Day obser- of his Agency of Administration. “There is guised hostility and rancor.” A.S.L. vance extra notice. no one I know in Vermont who is more able And then there were three: On October to carry out justice for Vermonters, to be Professional Notes 13, the U.S. Senate voted 48-44 to con- fair, and promote the greatness of this state firm President Barack Obama’s nomina- than Beth Robinson,” the governor said tion of Alison Nathan to the U.S. District in announcing the appointment on Oc- We are saddened to note the death of Court for the Southern District of New tober 18. A local newspaper in Vermont, Paula Ettelbrick, 56, ending all too soon York, where she will join the only other the Montpelier-Barre Times Argus, report- a quarter century career of determined and openly-gay federal district judges, Debo- ing about the nomination on October 19, effective advocacy for LGBTQ rights as a rah Batts (appointed by President Bill pointed out that Robinson had no prior ju- lawyer and movement leader. Paula Ettel- Clinton) and Paul Oetken (who just re- dicial experience, but was expected to take a brick joined Lambda Legal as a staff at- cently took his seat upon appointment by similar orientation to the judge she was re- torney, then became Legal Director, and President Barack Obama). Judge Nathan, placing, so the balance on the court would LESBIAN/GAY LAW NOTES November 2011 239 not change. However, being recognized as a HIV/AIDS Legal and admissible as to the necessity for the constitutional law expert, she was expected Notes disclosure.” to exert an influence towards more expan- However, in line with New York’s stat- sive use of the state constitution to protect New York Court Orders Limited ute governing HIV-confidentiality, Jus- individual rights. HIV Information Disclosure in tice Kramer took various steps to protect The National LGBT Bar Association Personal Injury Suit plaintiff from any more disclosure than was announced that Brad Smith, General necessary for the conduct of the litigation, Counsel and Executive Vice President of A Brooklyn trial judge, Justice Herbert including turning this into a “John Doe” Legal and Corporate Affairs at Microsoft, Kramer, ruled in Doe v. Sutlinger Realty case, strictly limiting who could have access accepted NLGLA’s Out & Proud Corpo- Corp., 25324/09, NYLJ 1202518700343 to the HIV-related medical information, rate Counsel Award on behalf of Micro- (Kings Co., Sept. 22, 2011), reported in the moving some aspects of the case out of the soft’s Legal and Corporate Affairs Depart- New York Law Journal on October 21, that courtroom and into the judge’s chambers, ment at an October 27 reception in Seattle an HIV+ plaintiff in a “slip and fall” person- sealing the record, and so forth. “It is the at the Columbia Tower Club. al injury suit against a property owner had intention of this Court,” he wrote, “to care- On October 27, Lambda Legal honored put his health status “in issue” by suing for fully balance the rights of the parties to this retired California Supreme Court Justice damages for the injuries he sustained, and litigation. On the one side the plaintiff has Carlos R. Morales and former Lambda thus could not refuse to answer questions asserted the position that his HIV status Legal Managing Attorney Jennifer C. Piz- about his HIV-related health issues during and attendant medical treatment are per- er with Liberty Awards during Lambda’s a deposition or to authorize disclosure to sonal in nature and objects to its disclosure. 19th Annual West Coast Liberty Awards defense counsel of his HIV-related medical The legislature has determined that plain- Dinner. Morales was part of the majority in records. tiff ’s concerns are valid and has created a In re Marriage Cases, the 2008 decision in The John Doe plaintiff had refused to framework for disclosure. It is further the which the California Supreme Court held answer HIV-related questions that defen- intention of this Court not to allow the that the state had unconstitutionally de- dant’s counsel posed at the deposition, af- plaintiff ’s HIV status to become a diversion prived same-sex couples of a fundamental ter surmising from those medical records during the remainder of this litigation.” right on the basis of a suspect classification already received that plaintiff was HIV+. On another point, the judge rejected (sexual orientation); Justice Morales was Plaintiff ’s counsel arguing that HIV-relat- a defense motion that the case should be subsequently a dissenter in the Court’s rul- ed information was not relevant to the in- dismissed because the plaintiff could not ing upholding the enactment of Proposi- juries for which he was claiming damages, produce a diary that he had kept during tion 8, which overruled the remedy ordered but Judge Kramer found that the factors his medical treatment subsequent to the by the Court in In re Marriage Cases. Pizer considered by fact-finders on the issue of fall that led to this law suit. The defendant spent fifteen years at Lambda, participating damages include those that might be affect- invoked the doctrine of spoliation, under and leading in a variety of important cases, ed by HIV. Explained the judge, “Plaintiff ’s which a case will be dismissed if a plaintiff and achieving a major victory in the Cali- argument that because he has not made “negligently loses or intentionally destroys fornia Supreme Court decision in Benitez any claims that the accident exacerbated evidence” and as a result deprives the other v. North Coast Woman’s Care, vindicating his HIV fails to consider a myriad of other party of the “ability to prove its claim.” In equal treatment rights in health care for factors which HIV may effect [sic]. The this case, Justice Kramer accepted the ar- LGBT people. Since leaving Lambda, Piz- plaintiff has put his past, present and future gument that the plaintiff ’s medical records er has become Legal Director and Arnold medical condition at issue when bringing — those already disclosed and those that D. Kassoy Senior Scholar of Law at the this action. Ignoring the information that would be disclosed in response to this or- Williams Institute at UCLA Law School. plaintiff is HIV positive and the possible der — would contain the necessary infor- Gay & Lesbian Advocates & Defenders effect that has had on his overall past and mation. Doe had submitted an affirmation presented its 12th annual Spirit of Justice future health is not only inappropriate but that “there were many people who came Award to Massachusetts Governor Deval would violate the defendant’s right to a fair into his apartment on a daily basis to assist Patrick, Diane Patrick (the governor’s trial, especially when a jury may be charged and care for him, some volunteers who he wife), and their daughters Sarah and Kath- with judging plaintiff ’s medical condition was not acquainted with and at a certain erine, for their collective contributions to and if appropriate placing an award based point [the diary] disappeared.” In light of advancing equality for LGBT people and on life expectancy and loss of enjoyment of these assertions and the lack of any real the example they set of a loving, supportive, life.” prejudice to the defendants, the judge de- gay-positive family. The award was present- Justice Kramer also noted that plain- nied the motion. A.S.L. ed at a dinner event at the Boston Marriott tiff ’s counsel had submitted in support of Copley Hotel on October 21. GLAD Press the motion to compel discovery “an affir- Pennsylvania Appeals Court Release, Oct. 14. A.S.L. mation from an orthopedist which states Affirms HIV Discrimination Ruling that an individual with HIV may be at a Against Personal Care Home greater risk from surgery with this condi- tion and possible greater susceptibility to A three-judge panel of the Commonwealth fracture. The expert affirmation is probative Court of Pennsylvania has affirmed a rul- ing by the state’s Human Relations Com- 240 November 2011 LESBIAN/GAY LAW NOTES mission that a personal care residential then filed the discrimination charge with Agency, has never suffered medical condi- facility violated the state’s ban on housing the Commission. tions associated with AIDS, has controlled discrimination by expelling a recently ad- The Commission found direct evidence his HIV through medication, and is in ex- mitted patient as soon as her HIV+ status of discriminatory intent, heard testimony cellent health. As part of the settlement, became known to the proprietor of the about the psychological impact this inci- TSA agreed to “review its medical guide- home. Canal Side Care Manor v. Pennsyl- dent had on G.D., and assessed damages as lines for applicants with compromised im- vania Human Relations Commission, 2011 described above. On appeal, Canal Side ar- mune systems, including people with HIV.” WL 4986670 (Oct. 20, 2011). Indeed, the gued that the Commission erred by failing The other terms of the settlement were not court found the appeal so lacking in merit to credit the “non-discriminatory reason” it disclosed in the ACLU’s announcement. that it assessed attorney fees and costs had advanced for expelling G.D., namely, A.S.L. against the Canal Side Care Manor, in ad- fear of contagion. Rejecting this argument, dition to affirming the Commission’s award the court found that G.D. presented direct HIV+ Man Convicted for Infecting of $50,000 in compensatory damages and a evidence of discriminatory intent, and that Informed, Consenting Partner $5,000 civil penalty. the record did not support a finding that According to the opinion by Judge Mc- Canal Side could not safely provide care According to an article posted on October Cullough, Canal Side, a 62-bed facility for for G.D. The court refused to second-guess 14 to Huffington Post by Phillip M. Miner men and women, specializes in residential the Commission’s damage award, pointing of the Center for Homicide Research, a care for low income individuals suffer- out that Canal Side’s arguments “ignore the trial court in Minneapolis convicted Daniel ing from mental illness. The complaining Commission’s findings and the factors the James Rick of first-degree assault on Oc- party in this case, G.D., is 36, bi-polar and Commission considered in concluding that tober 7, 2011, based on a 2009 incident of schizophrenic, was diagnosed as HIV+ in $50,000 is ‘appropriate to compensate G.D. consensual, unprotected sex. Rick asserted 1998, and also suffers from shingles and for the humiliation and embarrassment she that he had disclosed his HIV+ status to incontinence. In 2007, she was living in a suffered which was neither transient nor his partner, who then agreed to engage in group home run by a social services agency, trivial.” Indeed, Canal Side’s failure on ap- unprotected anal sex with him. When the but her physical and medical problems, es- peal to address the details of the Commis- partner (unnamed in court papers) later pecially her incontinence, dictated a higher sion finding and to attempt, in effect, to re- tested HIV+, he charged Rick with assault. level of care, so the staff there contacted litigate the case de novo before the appeals A jury convicted Rick of felony assault, Canal Side to arrange for G.D.’s admission. court, led to the decision to assess fees and under Minnesota Section 609.2241. That They did not disclose that G.D. was HIV+ costs against the appellant. A.S.L. statute provides for liability for transmis- because their policy prohibited revealing sion of a communicable disease in three the HIV status of their clients, and they ACLU Announces Settlement circumstances: (1) sexual penetration of didn’t mention her incontinence, either. of HIV Discrimination Claim another person without disclosing that the After G.D. was admitted to Canal Side, Against Transportation Security penetrator has a communicable disease; (2) the medication clerk there was checking Administration transfer of blood, sperm, organs or tissue, G.D.’s medications and noted a medica- except as necessary for medical research tion that is distinctively used for shingles. The American Civil Liberties Union of or if disclosed in donor screening forms; She questioned G.D., who said she took Florida announced on October 21 that it or (3) sharing nonsterile syringes or nee- that medication because she had shingles had reached a settlement with the Trans- dles for injecting drugs. According to this and that she had shingles because she had portation Security Administration of an news report, the jury found Rick’s asser- HIV. The clerk communicated the infor- administrative complaint challenging tion that he had disclosed his status prior mation up the chain of command to the TSA’s refusal to employ people living with to sex credible, but convicted him on the proprietor, who personally told G.D. that HIV. The case arose from TSA’s rejecting second ground. In other words, to the jury, she had 24 hours to leave the facility. By of an application for a job as a transporta- the statute imposes strict liability for trans- then, the fact of G.D.’s incontinence had tion security officer (TSO) by Michael La- mission, and no doctrine of assumption of also come to light. Although Canal Side’s marre, an Air Force veteran who disclosed risk applies. The article’s author argues that medical consultant assured the proprietor his HIV status as part of a physical exami- this result is troubling for a variety of policy that so long as they followed the universal nation required for the position. Lamarre reasons, not least that it might discourage body fluid precautions that they routinely had already passed a “lengthy” interview people from getting tested and then reveal- used with all patients, there was no risk of and screening process. TSA claimed that ing their HIV status to potential partners, HIV transmission to the staff or other pa- because of Lamarre’s low t-cell count and and represents selective prosecution, since tients, and that urine-soaked sheets were the medication he was taking, he was likely there is no observed phenomenon of pros- not a vector for HIV transmission, none- to be susceptible to colds and viruses, and ecutors pursuing individuals who transmit theless members of the staff had articulated denying him the position was for his own diseases other than HIV in such circum- their fears and the proprietor determined protection, in light of the large number of stances. HIV exceptionalism in this regard that G.D. could not stay there. G.D.’s for- people a TSO comes into close contact with is argued to be unjustified in light of treat- mer facility was contacted and a member of on a daily basis. According to the ACLU’s ment advances over the past two decades. her family took her home the next day, and release about the case, Lamarre had pre- A.S.L. viously worked for the National Security LESBIAN/GAY LAW NOTES November 2011 241
PUBLICATIONS PUBLICATIONS eration, as well as same-sex marriage and NOTED & NOTED transsexuality as tools of straight hege- ANNOUNCEMENTS mony. Ultimately, Gilreath rejects both the LGBT & RELATED ISSUES liberal demand for Gay erasure in exchange for meager legal progress and the gay estab- ANNOUNCEMENTS Agan, Amanda Y., Sex Offender Registries: lishment agenda. In so doing, he provides Fear Without Function?, 54 J. L. & Econ. both the vocabulary and analysis neces- 207 (Feb. 2011). sary to understand and to resist straight TheNational LGBT Law Association has Allan, Sonia, Recognition of Same-Sex supremacy in all its forms. In The End of announced that Lavender Law 2012 and Parenting in Australia: South Australia, the Straight Supremacy, Gilreath calls Gays and Job Fair will be held in Washington, D.C., Final Frontier?, 35 Alternative L.J. No. 4 their allies to the difficult task of rethinking on August 23-25, 2012. For more informa- (2010) (available on SRRN). what liberation and equality really mean.”) tion, visit NLGLA’s website (lgbtbar.org). Aspin, Larry, The 2010 Judicial Reten- Hennette-Vauchez, Stephanie, A Human Chapman University School of Law tion Elections in Perspective: Continuity and Dignitas? Remnants of the Ancient Legal in Orange, California, has announced a Change From 1964 to 2010, 94 Judicature Concept in Contemporary Dignity Jurispru- 2011-12 Speakers Series titled “The Global 218 (March-April 2011). dence, 9 Int’l J. Const. L. 32 ( January 2011). Project for LGBTQ Rights and Feminism. Capers, Bennett, Real Rape Too, 99 Cal. Khosla, Madhav, Inclusive Constitutional The first speaker in the series, on October L. Rev. 1259 (October 2011)(problem of Comparison: Reflections on India’s Sodomy 10, was attorney Steven Cohen, former male rape victimization). Decision, 59 Am .J. Comp. L. 909 (Fall Chief of Staff to NY State Governor An- Carmella, Angela C., Symbolic Reli- 2011). drew Cuomo, who played a central role on gious Expression on Public Property: Im- Kubasek, Nancy, Christy Glass, and behalf of the Cuomo Administration in plications for the Integrity of Religious Kate Cook, Amending the Defense of Mar- securing passage of the Marriage Equal- Associations, 38 Fla. St. Univ. L. Rev. 481 riage Act: A Necessary Step Toward Gaining ity Act of 2011. Eight other speakers have (Spring 2011). Full Legal Rights for Same-Sex Couples, 19 been announced for the program on a wide Currah, Paisley, and Tara Mulqueen, Amer. Univ. J. Gender, Social Pol’y & L. range of topics. For more information, see Securitizing Gender: Identity, Biometrics, 959 (2011). the school’s website: www.chapman.edu/ and Transgender Bodies at the Airport, 78 Lee, Man Yee Karen, Equality, Dignity, law. All of the events in this series will be Social Research 556 (Summer 2011). and Same-Sex Marriage: A Rights Disagree- webcast live on the school’s websitGay & Curry-Sumner, Ian, E.B. v. France: A ment in Democratic Societies (Martinus Ni- Lesbian Advocates & Defenders, New Missed Opportunity?, 21 Child & Fam. L. jhoff Publishers: 2010). England’s Boston-based LGBT and HIV Q. 356 (2009) (re European Court of Hu- Maazel, Ilann M., Bullying, Schools and public interest legal organization, is accept- man Rights decision in French gay adop- the Constitution, New York Law Journal, ing applications for a full-time staff attor- tion case). Oct. 27, 2011, p. 3 (discusses possible due ney position. The position is particularly Dorf, Michael C., Same-Sex Marriage, process and equal protection claims by focused on LGBT youth issues, including Second-Class Citizenship, and Law’s Social public school students who are subjected to litigation, community, coalition, policy, ed- Meanings, 97 Va. L. Rev. 1267 (October bullying). ucation and legislative work. Bar admission 2011). Miner, Matthew S., The Adam Walsh Act’s in a New England state is preferred, litiga- Gilbride, Joan M., and Brian M. Sher, Sex Offender Registration and Notification tion experience and familiarity with LGBT E-Mail, Text, Facebook… Lawsuit? Legal Requirements and the Commerce Clause: A and HIV issues is preferred. Salary de- Minefield of Cyberbullying, New York Law Defense of Congress’s Power to Check the In- pends on experience, full benefits. GLAD Journal, October 24, 2011, p. 4. terstate Movement of Unregistered Sex Of- is committed to building and maintaining Gilreath, Shannon, The End of Straight fenders, 56 Villanova L. Rev. 51 (2011). a diverse staff, and welcomes applications Supremacy: Realizing Gay Liberation (Cam- Nelson, Marisa, The IRS Moves Toward from people of diverse racial and ethnic bridge University Press, 2011). (Publisher’s Income Tax Equality for Same-Sex Couples backgrounds, language abilities, transgen- Description: “Rooted in the politics and Despite DOMA, 45 U.S.F. L. Rev. 1145 der individuals, and people with disabilities. theories of early Gay liberation and Radi- (Spring 2011). Send confidential resume, cover letter and cal feminism, Shannon Gilreath’s The End Northrup, Nancy, Estranged Bedfellows: writing sample to Gary Buseck, GLAD, of Straight Supremacy presents a cohesive Sexual Rights and Reproductive Rights in 30 Winter Street, Suite 800, Boston MA theory of Gay life under straight domina- U.S. Constitutional Law, 38-SPG Hum. 02108, or via email to [email protected]. tion. Beginning with a critique of formal Rts. 2 (Spring 2011). November 11 deadline for submissions. equality law centered on the “like-straight” Prescott, J.J., and Jonah E. Rockoff, Do demands of liberal equality theory as high- Sex Offender Registration and Notification lighted in Lawrence v. Texas, Gilreath goes Laws Affect Criminal Behavior?, 54 J. L. & on to criticize the “gay rights” movement Econ. 161 (Feb. 2011). itself, challenging the assimilation politics Robinson, Russell K., Masculinity as behind the movement’s blithe acceptance Prison: Sexual Identity, Race, and Incarcera- of discrimination in the guise of free speech tion, 99 Cal. L. Rev. 1309 (October 2011). and pornography in the name of sexual lib- 242 November 2011 LESBIAN/GAY LAW NOTES
Rosky, Clifford J., Perry v. Schwarzeneg- Specially Noted: to recognize a same-sex marriage contract- ger and the Future of Same-Sex Marriage ed in Massachusetts. The judge found him- Law, 53 Ariz. L. Rev. 913 (Fall 2011). The Movement Advancement Project, self bound by Adams v. Howerton, 673 F.2d Short, Donn, Conversations in Equity Family Equality Council, and Center for 1036 (9th Cir. 1982), to apply circuit prec- and Social Justice: Constructing Safe Schools American Progress have jointly published edent and deny recognition of the marriage. for Queer Youth, 8 J. for Critical Education a study and policy paper titled All Children We mistakenly attributed the 9th Circuit’s Pol’y Studies No. 2 (September 22, 2011). Matter: How Legal and Social Inequalities opinion in Adams to Justice Anthony Ken- Available at SSRN: http://ssrn.com/ab- Hurt LGBT Families. The study details the nedy, who was formerly a member of the stract=1932529. ways in which the failure to provide legal 9th Circuit. We were mixing up Adams Stein, Edward, Sexual Orientations, recognition and equal treatment for LGBT with the other case involving the same Rights, and the Body: Immutability, Essen- families harm children. The Child Welfare couple, Sullivan v. Immigration and Natu- tialism, and Nativism, 78 Social Research: League of America provided a forward for ralization Service, 772 F.2d 609 (9th Cir. An Int’l Q. 633 (Summer 2011). the paper. 1985), in which Kennedy, writing for the Stevens, Bethany, Structural Barriers to The U.S. Commission on Civil Rights circuit court, upheld the refusal by immi- Sexual Autonomy for Disabled People, 38- has issued a paper titled Peer to Peer Vio- gration authorities to recognize a same-sex SPG Hum. Rts. 14 (Spring 2011). lence and Bullying: Examining the Federal marriage contracted in Colorado. Adams Strader, J. Kelly, Lawrence’s Criminal Response, detailing the nature of the prob- and Sullivan were partners who obtained a Law, 16 Berkeley J. Crim. L. 41 (Spring lem and recommending various actions for marriage license from a Colorado clerk and 2011) (comprehensive account of how federal agencies to take under existing law then sought to use it as a vehicle to keep the lower courts have failed to apply the hold- to help combat the problem. binational couple together in the U.S. ing and rationale of Lawrence v. Texas in A good source of maps and charts show- criminal law cases). ing how the states line up on various legal EDITOR’S NOTE: Tilcsik, Andras, Pride and Prejudice: Em- and policy issues concerning lgbt rights is ployment Discrimination Against Openly Gay lgbtmap.org. This site appears to be regu- Men in the United States, 117 Am. J. Soci- larly updated to incorporate new develop- All points of view expressed in Lesbian/ ology 586 (September 2011) (reporting re- ments. Gay Law Notes are those of identified sults of experiment sending paired resumes writers, and are not official positions of the to on-line job postings which demonstrat- HIV/AIDS and Lesbian & Gay Law Association of Great- ed statistically significant bias against ap- er New York or the LeGaL Foundation, parently gay male applicants in terms of the Related Issues Inc. All comments in Publications Noted percentage of “callbacks” received). are attributable to the Editor. Correspon- Uelmen, Gerald F., Review of Initiatives Delavande, Adeline, Dana Goldman, and dence pertinent to issues covered in Les- by the California Supreme Court, 2000-2010, Neeraj Sood, Criminal Prosecution and Hu- bian/Gay Law Notes is welcome and will 44 Loyola of L.A. L. Rev. 659 (Winter man Immunodeficiency Virus-Related Risky be published subject to editing. Please ad- 2011). Behavior, 53 J. L. & Econ. 741 (Nov. 2010). dress correspondence to the Editor or send Washington, Tanya, Suffer Not the -Lit Pieterse, Marius, Disentangling Illness, via e-mail. tle Children: Prioritizing Children’s Rights Crime and Morality: Towards a Rights- in Constitutional Challenges to “Same-Sex Based Approach to HIV Prevention in Af- Adoption Bans”, 39 Cap. U. L. Rev. 231 rica, 11 African Hum. Rts. L.J. 57 (2011). (Spring 2011). Pivnick, A., A. Jacobson, A.E. Blank and Wolman, Chloe, Putting Reason Before M. Villegas, Accessing Primary Care: HIV+ Retribution: Embracing Utilitarian Prin- Caribbean Immigrants in the Bronx, 12 J. ciples to Reform Contemporary Sex-Offender Immigrant & Minority Health 496 (Aug. Registry Laws, 20 S. Cal. Rev. of L. & So- 2010). cial Justice 125 (Winter 2011). Uwah, Chijioke, and Patrick Ebewo, Yablon, Charles M., Madison’s Full Faith Culture and HIV/AIDS: Analysis of the Per- and Credit Clause: A Historical Analysis, 33 ception of Culture and HIV/AIDS Prevalence Cardozo L. Rev. 125 (2011) (a histori- in Southern Africa, 41 J. Arts Mgt., L. & cal approach to full faith and credit in the Society 198 ( July-September 2011). wake of the same-sex marriage recognition debate and DOMA). CORRECTION: Yasinow, Melissa A., When Romer Met Feeney: Why the Second Sentence of the Ohio Marriage Amendment Violates Equal Pro- In the October 2011 issue of Law Notes, tection, 61 Case West. Res. L. Rev. 1315 we reported on a decision by U.S. District (Summer 2011). Judge Stephen V. Wilson (C.D.Cal.) in Lui v. Holder, an immigration case involving the refusal of U.S. immigration authorities