LESBIAN/GAY

L AW JanuaryN 2012 O T E S

03 11th Circuit 10 Maine Supreme 17 New Jersey Transgender Ruling Judicial Court Superior Court Equal Protection Workplace Gestational Discrimination Surrogacy 05 Obama Administration 11 Florida Court 20 California Court Global LGBT Rights of Appeals of Appeal Parental Rights Non-Adoptive 06 11th Circuit First Same-Sex Co-Parents Amendment Ruling 14 California Anti-Gay Appellate Court 21 Texas U.S. Distict Counseling Non-Consensual Court Ruling Oral Copulation High School 09 6th Circuit “Outing” Case Lawrence- 16 Connecticut Based Challenge Appellate Ruling Incest Conviction Loss of Consortium

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22 Federal Civil Litigation Notes L AW N O T E S

25 Federal Criminal Litigation Editor-in-Chief Notes Prof. Arthur S. Leonard New York Law School 25 State Criminal Litigation 185 W. Broadway Notes New York, NY 10013 (212) 431-2156 | [email protected] 26 State Civil Litigation Notes Contributors 28 Legislative Notes Bryan Johnson, Esq. Brad Snyder, Esq. 30 Law & Society Notes Stephen E. Woods, Esq. Eric Wursthorn, Esq. 33 International Notes New York, NY

36 HIV/AIDS Legal & Policy Kelly Garner Notes NYLS ‘12

37 Publications Noted Art Director Bacilio Mendez II, MLIS Law Notes welcomes contributions. To ex- NYLS ‘14 plore the possibility of being a contributor please contact [email protected]. Circulation Rate Inquiries LeGaL Foundation 799 Broadway Suite 340 New York, NY 10003 This monthly publication is edited and (212) 353-9118 | [email protected] chiefly written by Professor Arthur Leonard of New York Law School, Law Notes Archive with a staff of volunteer writers http://www.nyls.edu/jac consisting of lawyers, law school graduates, and current law students. Law Notes Podcast Professor Leonard, LeGaL’s founder, To listen to/download the has written numerous articles on Lesbian/Gay Law Notes Podcast launch iTunes, employment law, AIDS law, and or point your browser to lesbian and gay law. Art is a frequent http://legal.podbean.com. national spokesperson on sexual orientation law, and an expert on © 2012 the rapidly emerging area of gay The LeGaL Foundation family law. He is also a contributing of the LGBT Bar Association writer for Gay City News, New York’s of Greater New York bi-weekly lesbian and gay newspaper. http://www.le-gal.org To learn more about LeGaL, please visit http://www.le-gal.org. ISSN 8755-9021 2 | Lesbian/Gay Law Notes | January 2012 11th Circuit Rules that Termination of Trans- gender Employee for Gender Non-Conformity Violates the Equal Protection Clause n Glenn v. Brumby, 2011 WL Glenn alleged two claims of dis- pensated for being a woman.” The 6029978, the U.S. Court of Ap- crimination under the Equal Protec- Supreme Court agreed that such Ipeals for the 11th Circuit ruled tion Clause. First, Glenn alleged that comments were indicative of dis- on December 6 that a government Brumby discriminated against her criminatory intent based on gender, agent vio-lates the Equal Protection on the basis of her sex and her failure and held that Title VII barred not Clause’s prohibition of sex-based to conform to gender stereotypes. just discrimination because of bio- discrimination when firing a trans- Second, Glenn alleged discrimina- logical sex, but also gender stereo- gender or transsexual employee be- tion on the basis of her medical con- typing – that is, failing to act and cause of his or her gender non-con- dition, specifically Gender Identity appear according to expectations formity. In reaching its decision, the Disorder, with which she had been defined by gender. court, for lack of an appropriate le- diagnosed in 2005. The district Judge Barkett explained why gal term, emphatically demonstrated court granted Glenn summary judg- discrimination based on one’s that it “gets it” when it comes to ap- ment on the first claim but granted transgender status constitutes dis- plying constitutional protections to summary judgment to Brumby on crimination based on gender ste- the transgender community. the second. Brumby appealed the reotypes: “A person is defined as The plaintiff, Vandiver Eliza- court’s sex-discrimination ruling transgender precisely because of beth Glenn, who was born a bio- and Glenn cross-appealed on her the perception that his or her be- logical male, intended to transi- medical condition claim. havior transgresses gender ste- tion from male to female during On appeal, Circuit Judge Rose- reotypes…. Accord-ingly, dis- her tenure as an editor at Geor- mary Barkett noted at the outset crimination against a transgender gia Assembly’s Office of Legis- that heightened scrutiny applies individual because of her gender lative Counsel (OLC). The head to legislative classifications based non-conformity is sex discrimina- of the OLC, Sewell Brumby, ter- on gender or sex. The court then tion, whether it’s described as be- minated Glenn soon after learn- summed up the relevant question ing on the basis of sex or gender.” ing that Glenn was ready to begin as whether discriminating against The court buttressed its conclu- her transition because, according someone on the basis of his or her sion with citations to several other to Brumby, the “intended gender gen-der non-conformity constitutes circuit and district court decisions transition was inappropri-ate, that sex-based discrimination under the that likewise determined that dis- it would be disruptive, that some Equal Protection Clause. crimination and harassment lev- people would view it as a moral is- The court first considered the eled against transgender individu- sue, and that it would make Glenn’s case of Price Waterhouse v. Hop- als was actionable as sex-based coworkers uncomfort-able.” The kins, 490 U.S. 228 (1989), in which discrimination. And in a passage termination was the culmination the U.S. Supreme Court held that that rings like a clarion call for of prior disapproval by Glenn’s dis-criminating against a person equality, the court continued: “All employer of her gender nonconfor- because of their failure to conform persons, whether transgender or mity and her plans to tran-sition. to gender stereotypes can be a form not, are protected from discrimi- For example, Brumby had been of sex discrimination in violation of nation on the basis of gender ste- asked to leave the office when she Title VII of the Civil Rights Act of reotype…. An individual cannot presented as a woman on Hallow- 1964. There, the court considered be punished because of his or her een, with Brumby stating that it allegations that a senior manager at perceived gender non-conformity. was “unsettling” and “unnatural” Price Waterhouse was denied part- Because these protec-tions are af- for someone with male sex organs nership in the firm because she was forded to everyone, they cannot be to be dressed in women’s clothing. considered “macho” and “overcom- denied to a transgender individual.

January 2012 | Lesbian/Gay Law Notes | 3 The nature of the discrimination is Brumby’s intent overwhelmed that less an “important” government the same; it may differ in degree mere speculation. And, moreover, purpose, therefore affirmed the but not in kind, and discrimination the record indicated that only sin- district’s court’s finding on Glenn’s on this basis is a form of sex-based gle-occupancy restrooms existed sex discrimination claim. discrimination that is subject to at the employment location, which Because its granting of sum- heightened scrutiny under the is a relatively devastating retort to mary judgment on the sex dis- Equal Protection Clause.” even fictional concerns about rest- crimination claim provided Glenn The court then turned to the fac- room use and related lawsuits. all the relief that she sought, the tual record to determine whether All told, the court pointed out court did not address Glenn’s Glenn was, in fact, fired on the that Brumby’s entire defense rested cross-appeal concerning her med- basis of gender stereotyping. The on the notion that Glenn was not a ical condition claim. court needed to look no further member of a protected class and Glenn was represented by than Brumby’s deposition testi- that only a rational basis need be Lambda Legal attorneys Cole mony in which he testified to fir- advanced for the discrimination. Thaler, Gregory R. Nevins and M. Dru ing Glenn because he considered it The court, clearly unimpressed Levasseur. —Brad Snyder “inap-propriate” for her to appear with Brumby’s efforts to demon- at work dressed as a woman and strate anything that could qualify Mr. Snyder is the Executive Director that he found it “unsettling” and as a governmental purpose much of the LeGaL Foundation. “unnatural” that Glenn would ap- pear wear-ing women’s clothing while admitting that Glenn’s tran- sition was the reason for her firing. A person is defined as trans- Thus, the court concluded that the testimony provided “ample direct evidence” to support the district gender precisely because court’s conclusion that Brumby acted on the basis of Glenn’s gen- of the perception that his der non-conformity. Unlike a Title VII case, where or her behavior transgresses the demonstration of discrimina- tory intent would end the analysis, the court noted that in an Equal gender stereotypes. ... Pro-tection Clause case in which heightened scrutiny applies it was Accordingly, discrimination bound to consider whether Brumby had a “sufficiently important gov- against a transgender ern-mental interest” for the dis- criminatory conduct. On appeal, Brumby offered individual because of her only one (sadly familiar) justifica- tion: his alleged concern that oth- gender non-conformity is er women might object to Glenn’s rest-room use. However, the sex discrimination, whether court noted that there was insuffi- cient evidence to demonstrate this concern, which rested only on a it’s described as being on statement in Brumby’s deposition speculating about lawsuits aris- the basis of sex or gender. ing from Glenn’s use of the wom- en’s restroom. Other evidence of

4 | Lesbian/Gay Law Notes | January 2012 visible minority. They are arrested, Obama Administration Launches beaten, terrorized, even executed. Many are treated with contempt Diplomatic Strategy for Global and violence by their fellow citi- zens while authorities empowered LGBT Rights to protect them look the other way or, too often, even join in the abuse. n December 6, the Obama Directing formation of a standing They are denied opportunities to Administration launched group led by the State Department work and learn, driven from their Oan effort to advance the hu- “with appropriate interagency rep- homes and countries, and forced man rights lesbian, gay, bisexual and resentation to help ensure the Fed- to suppress or deny who they are transgender persons with simulta- eral Government’s swift and mean- to protect themselves from harm. neous actions in Washington, D.C., ingful response to serious incidents I am talking about gay, lesbian, and Geneva, Switzerland. In Wash- that threaten the human rights of bisexual, and transgender people, ington, the White House released a LGBT persons abroad.” (5) Work- human being born free and given Memorandum by President Barack ing to enlist international organiza- bestowed equality and dignity, who Obama to the heads of Executive tions in which the U.S. participates have a right to claim that, which is Departments and Agencies direct- in the effort to protect LGBT rights. now one of the remaining human ing them to take various actions in (6) Requiring all agencies “engaged rights challenges of our time.” their dealings with other countries abroad” to prepare a report within Secretary Clinton conceded that concerning LGBT rights. In Gene- 180 days and annually thereafter on the United States does not have a va, Secretary of State Hillary Rod- progress towards advancing these perfect record on LGBT rights, not- ham Clinton devoted her Human initiatives. The State Department ing that until 2003 “it was still a Rights Day speech at the Palais des is to compile a report based on the crime in parts of our country,” and Nations under the auspices of the submissions from the various agen- that “we, like all nations, have more United Nations almost entirely to cies to submit to the President. The work to do to protect human rights LGBT human rights issues. This is memorandum also provides a list of at home.” She acknowledged that the first such coor-dinated effort by the agencies engaged abroad that raising LGBT rights as an interna- the White House and the State De- are covered by its directives. The tional human rights issue “is sensi- partment on an LGBT issue. President directed that the State tive for many people and that the ob- The President’s Memorandum Department have the Memorandum stacles in the way of protecting the directed six specific actions: (1) published in the Federal Register, human rights of LGBT people rest All agencies “engage abroad are so it will be permanently available on deeply held personal, political, directed to strengthen existing ef- as an official document. cultural, and religious beliefs.” But, fort to effectively combat the crimi- Secretary Clinton’s speech, she insisted, gay rights and human nalization by foreign governments which is available both in text and rights are “one and the same,” even of LGBT status or conduct and to video recording on the State De- though the governments that drafted expand efforts to combat discrimi- partment’s website, after an intro- and ratified the Universal Declara- nation, homophobia, and intoler- duction focused on the Universal tion 60 years ago “were not thinking ance on the basis of LGBT status or Declaration of Human Rights, about how it applied to the LGBT conduct.” (2) Directing the State which is commemorated on In- community.” She rejected the no- Department and the Department of ternational Human Rights Day, tion that homosexuality “arises from Homeland Security to enhance ef- launched into a stirring invoca- a particular part of the world” or is forts to assist LGBT refugees and tion of the basic human rights of a distinctly “Western phenomenon.” asylum seekers. (3) Directing agen- LGBT peoples. “Today, I want to “Being gay is not a Western inven- cies involved with foreign aid and talk about the work we have left to tion,” she asserted: “It is a human other forms of assistance to foreign do to protect one group of people reality.” She continued in this vein governments and private sector en- whose human rights are still denied for a lengthy address. tities to “build respect for the hu- in too many parts of the world to- This was not without controversy. man rights of LGBT persons.” (4) day. In many ways, they are an in- Some Republican officials and con-

January 2012 | Lesbian/Gay Law Notes | 5 servative media commentators were combat HIV/AIDS internationally for themselves, and the LGBT me- openly scornful, and some repre- without committing substantial ad- dia and political activists will be sentatives of nations that continue ditional funds. (In addition, as one expecting quicker, more forceful to condemn homosexuality strongly could have predicted, some academ- reactions to the anti-gay activities (especially from parts of Africa and ics who actively propound the “so- of many governments, including the Middle East) were openly resent- cial construction” theory of human some of our strategic allies who ful. There was also some question, sexuality were critical of Clinton’s have largely been given a “pass” even among gay rights supporters, assertion that “homosexuality” is by U.S. officials. [Clinton Speech about whether the Administration not a Western phenomenon.) on the State Department web- was ready to back up the rhetoric of The question now will be: where site: http://www.state.gov/secre- the memo and the speech with con- is the follow-up? Having placed the tary/rm/2011/12/178368.htm. The crete action, similar to the doubts Administration on record as being Memorandum can be found on the expressed about the President’s actively committed to advanc-ing White House website under “Brief- declaration a week earlier that the LGBT human rights around the ing Room – Presidential Actions – federal government was recommit- world, the President and the Sec- Presidential Memoranda – Decem- ting itself to an enhanced effort to retary of State have raised the bar ber 6, 2011”.] ■

‘state of being.” She had also ex- 11th Circuit Rules Against pressed the view that sexual ori- Anti-Gay Counseling Student entation can be changed, and that if she were counseling a stu-dent unanimous panel of the seling. The Counselor Education who was concerned about his/her U.S. Court of Appeals for Program at Augusta State Uni- sexuality, she would recommend A the 11th Circuit has up- versity complies with the ethical conversion therapy to affirm held a district court’s refusal of standards of the American Coun- their heterosexuality. Profes- preliminary injunctive relief to seling Association (ACA), which sional psychological and counsel- a counseling student who was require non-discrimination based ing associations have condemned expelled from the Counselor on gender identity or sexual ori- conversion therapy as harmful to Education Program at Augusta entation, among other character- clients. (Georgia) State University when istics, and require that profession- Faculty members became con- she refused to participate in a re- al counselors not impose their cerned that Keeton was unable mediation program on LGBTQ individual beliefs on individuals or unwilling to conform her pro- issues as a prerequisite to partici- seeking counseling from them. fessional behavior to the ethical pating in the Program’s clinical In her written classwork, com- require-ments of the profession, practicum involving ac-tual one- ments in class, and comments she which require counselors to avoid on-one counseling with students. made to fellow students that were imposing their personal beliefs The Program faculty had con- reported to faculty members, and in such matters on clients, and cluded from statements made by in her brief supporting her mo- they required her to participate the student in class and to other tion for a preliminary injunction, in a remediation program before students that she was likely to Keeton stated that she believes they would allow her to partici- impose her religiously-motivated sex-ual behavior to be a result of pate in the practicum. This pro- anti-gay views on counseling cli- “personal choice for which indi- gram would require her to attend ents, in violation of the profes- viduals are accountable, not in- workshops providing diversity sion’s ethical standards, and thus evitable deterministic forces; that sensitivity training toward work- required “remediation.” Keeton gender is fixed and binary (i.e., ing with the GLBTQ population, v. Anderson-Wiley, 2011 Westlaw male or female), not a social con- to read peer-reviewed articles in 6275932 (Dec. 16, 2011). struct or personal choice subject counseling or psychological jour- Jennifer Keeton was seeking a to individual change; and that ho- nals pertaining to “improving master’s degree in school coun- mosexuality is a ‘life-style,’ not a counseling effectiveness with the

6 | Lesbian/Gay Law Notes | January 2012 GLBTQ population,” to increase of religion. When she filed suit, tion by ACA, a prerequisite to its graduates receiving professional licensure and being able to prac- Since Keeton had indicated tice as professional counselors in a public school setting. by her comments that she An individual counselor can believe whatever he or she wants would impose her personal to believe. That’s not the point, as the court’s decision shows. The issue is what the counselor religious views on clients, a says to clients in the context of a professional relationship. “We conflict with the ACA Code conclude,” wrote Judge Barkett, “that the evidence in this record of Ethics, it was reasonable for does not support Keeton’s claim that ASU’s officials imposed the remediation plan because of her the school to seek remediation. views on homosexuality. Rather, as the district court found, the evidence shows that the remedia- her expo-sure and interaction with she was seeking relief against tion plan was imposed because that population by, for example, required remediation. After she she expressed an intent to im- attending the local Gay Pride Pa- filed suit and was expelled from pose her personal religious views rade, to familiarize herself with the Program, she also claimed on her clients, in violation of the the Association for Lesbian, Gay, unconstitutional retaliation and ACA Code of Ethics, and that the Bisexual and Transgender Issues sought an order reinstating her objective of the remediation plan in Counseling Competencies for to the Program. The trial court was to teach her how to effec- Counseling Gay and Transgender found that she had not met the tively counsel GLBTQ clients in Clients, and to sub-mit a “two- burden of establishing a likeli- accordance with the ACA Code page reflection” to her faculty hood of success on the merits of Ethics.” advisor every month summariz- of her claim sufficient to justify While conceding that this ing what she was learning from preliminary injunctive relief. places a “burden” on Keeton, the the remediation process. At first Writing for the panel, Circuit court was unwilling to find that she agreed to undergo this pro- Judge Rosemary Barkett provided such a burden was unreasonable gram, but then she changed her an extensive analysis of Keeton’s in the con-text of a professional mind and filed the lawsuit, seek- First Amendment claims. On the training program governed by an ing an order from the court that free speech claims, she pointed ethical code. The court drew an she was entitled to participate in out that the record before the analogy to the Supreme Court’s the practicum and earn her de- court did not support Keeton’s ruling in Hazelwood School Dis- gree without undergoing the re- contention that the school was trict v. Kuhlmeier, 484 U.S. 260 mediation. trying to force her to change her (1988), rejecting a First Amend- Keeton grounded her lawsuit views of homosexuality, was dis- ment challenge to censorship of in the First Amendment of the criminating against her anti-gay a high school student newspaper U.S. Constitution, claiming that viewpoint, or was compelling by school administrators. The requiring her to undergo reme- her to express beliefs with which 11th Circuit panel found Hazel- diation and, in effect, to com- she disagrees. Instead, Barkett wood applicable on two grounds. ply with the ethical standards of found, the School was trying to First, the clinical practicum is the profession, would violate her get her to comply with its cur- a “school-sponsored expres- first amendment rights of free- riculum, which is intended to sive activity,” which means the dom of speech and free exercise maintain the school’s accredita- school gets to control what is

January 2012 | Lesbian/Gay Law Notes | 7 said within that activity. Also, as compel her to express views with ally applicable” and thus could in Hazelwood, where the Court which she disagrees. Enrollment be upheld if the school had a ra- found that the school newspaper in the Program is a voluntary ac- tional basis for requiring it. “It was part of the curriculum, here tivity. “Keeton may choose not easily satisfies this test,” wrote the practicum is part of the Pro- to attend ASU, and indeed may Barkett, “as it is rationally re- gram’s curriculum, and enjoining choose a different career.” Thus, lated to ASU’s legitimate interest ASU from requiring Keeton to this was not like the famous Su- in offering an accredited coun- undergo remediation before par- preme Court flag salute case, seling program. Thus, Keeton is ticipating in the practicum would Barnett, where public school unlikely to prevail on the merits “interfere with ASU’s control students were unconstitutionally of her claim that ASU violated over its curriculum,” something disci-plined for refusing to en- her free exercise rights by requir- the Supreme Court has cautioned gage in the salute to the flag and ing her to comply with the ACA federal courts against doing. the pledge of allegiance. Those Code of Ethics.” Concluding on this point, students were governed by man- Since likelihood of success on Judge Barkett wrote that “we find datory public school attendance the merits is “the first require- that ASU has a legitimate peda- laws, making that “compelled ment for a preliminary injunc- gogical concern in teaching its speech” precedent, upon which tion,” the court ruled that the students to comply with the ACA Keeton heavily relied, distin- district court “did not abuse its Code of Ethics. ASU must adopt guishable and inapplicable to her discretion in denying her motion and follow the ACA Code of Eth- situation. for a preliminary injunction.” ics in order to offer an accredited The court pointed out once While this is not an ultimate rul- program, and the entire mission again that ASU was not mandat- ing on the merits, the decision of its counseling program is to ing that Keeton abandon her be- sends a strong message to the produce ethical and effective liefs, but merely that she learn district judge that is unlikely to counselors in accordance with to separate her personal beliefs be misinterpreted. the professional requirements of from her work if she wanted to Circuit Judge William H. Pry- the ACA.” Since Keeton had in- function as a professionally li- or, Jr., filed a concurring opin- dicated by her comments that she censed counselor. “Every profes- ion, focusing on the context of would impose her personal reli- sion has its own ethical codes and the appeal, and emphasizing the gious views on clients, a conflict dictates,” observed Judge Bar- restraint that federal courts are with the ACA Code of Ethics, it kett. “When someone voluntarily supposed to show when it comes was reasonable for the school to chooses to enter a profession, he to issues of curriculum design seek remediation. “Keeton does or she must comply with its rules by professional educators. Se- not have a constitutional right and ethical requirements.” She nior Judge Phyllis Kravitch was to disregard the limits ASU has analogized with a law school, the third member of the panel. established for its clinical practi- which said would “no doubt... The list of amicus curiae briefs cum and set her own standards be permitted to require a student filed in the case indicates its sig- for counseling clients in the clin- who expressed an intent to indis- nificance in the “culture wars” ical practicum.” criminately disclose her client’s over the treatment of sexual- Based on this reasoning, the secrets or violate another of the ity issues in public education. court also rejected Keeton’s re- state’s bar rules to take extra eth- Supporting the ASU authorities taliation claim, asserting that the ics classes be-fore letting the stu- were PFLAG, the Georgia Safe school was not acting against her dent participate in a school-run Schools Coalition, the ACLU, based on her religious views, but clinic in which the student would and the American School Coun- rather based on her professed un- be representing actual clients.” selor Association and related or- willingness to comply with the As to the free exercise of reli- ganizations. Amici for the plain- ACA Code of Ethics. Further- gion claim, the court found that tiff included the Foundation for more, the court found no sup- the requirement that students Individual Rights in Education port for Keeton’s claim that ASU comply with the ACA Code of and the National Association of was trying to unconstitutionally Ethics was “neutral and gener- Scholars. ■

8 | Lesbian/Gay Law Notes | January 2012 might take advantage of them. 6th Circuit Rejects Lawrence-Based The court looks to cases like Challenge to Incest Conviction Muth v. Frank, 412 F.3d 808 (7th Cir. ), cert. denied, 546 U.S. 988 n a decision filed December 8, strict scrutiny. Therefore, Lowe (2005), in which the defendant 2011, Lowe v. Swanson, 2011 maintained, the Ohio Su-preme unsuc-cessfully argued that Wis- I WL 6091318, the U.S. Court Court unreasonably applied the consin’s incest statute was un- of Appeals for the 6th Circuit U.S. Supreme Court’s ruling in constitutional insofar as it sought affirmed denial of a petition for Lawrence, by applying a rational to criminalize sexual behavior habeas corpus filed by a man basis review and finding that the between consenting adults. In convicted of having had con- law was reasonably related to the that case, also ruling on a habeas sensual sex with his 22 year-old government’s interest in protect- petition, the Seventh Circuit did stepdaughter in violation of Ohio ing families from this type of not overturn the ruling because Rev. Code s 2907.03(A)(5), which potentially dangerous sexual re- the lower court’s ruling was not criminalizes engaging “in sexu- lationship. Lowe instead argues contrary to any established Fed- al conduct with another, not the that the question should have eral law. Lawrence, it held, did spouse of the offender, when…[t] been framed as whether he had a not clearly establish a funda- he offender is the other person’s right to engage in consensual sex mental right to engage in incest natural or adoptive parent, or a with another adult. without governmental intrusion, stepparent, or guardian, custo- The 6th Circuit panel ob- and rather focused its ruling nar- dian, or person in loco parentis serves that there are cases, such rowly on homosexual sodomy be- of the other person.” The Ohio as Cook v Gates, 528 F.3d 42 tween consenting adults. In fact, courts had ruled that Lowe did (1st Cir.2008) (discussing the as Muth pointed out, Lawrence not have a fundamental right to Don’t Ask, Don’t Tell policy), specifically distinguished stat- engage in consensual sex with which agree with Lowe’s stance utes like the one barring homo- his adult step-daughter, despite on whether Lawrence established sexual sodomy from laws such as the Supreme Court’s ruling in a right for adults to engage in the incest statute involved in that Lawrence v. Texas, 539 U.S. 558 consensual sex. Indeed, the con- case, and the one under which (2003). Circuit Judge Griffin clusion of Reliable Consultants, Lowe was convicted, which serve wrote for the panel. Inc. v Earle, 517 F.3d 730 (5th a legitimate state interest in pro- Judge Griffin begins by noting Cir. 2008), was that “the right the tecting the family, and shielding that it will not disturb a district Court recognized [in Lawrence] individuals from being coerced court’s habeas decision unless was not simply a right to engage into sexual relationships due to the decision involved an un- in the sexual act itself, but in- the inherent influence of a fam- reasonable application of clear stead a right to be free from gov- ily member, parent or stepparent. Federal law or was contrary to ernmental intrusion regarding Lowe also argued that Law- established Federal law as deter- the most private human contact, rence requires a strict scrutiny mined by the Supreme Court of sexual behavior.” review of his conviction, which the U.S. , pursuant to the Antiter- However, the court finds that would require the government rorism and Effective Death Pen- even though Lawrence has been to show a compelling interest in alty Act of 1996, which sharply found to establish a right to be order to uphold the lower court’s restricts the availability of ha- free from governmental intrusion findings. The court notes that a beas corpus. Lowe argued that into private sexual lives, it is un- number of decisions, such as Witt the Supreme Court in Lawrence clear as to whether this is a fun- v. Dep’t of the Air Force, 527 F.3d found a fundamental right to be damental right, and regardless, 806 (9th Cir. 2008), have found free from governmental intru- the ruling in Lawrence does not that Lawrence must have used a sion regarding consensual sex prohibit the regulation of legiti- form of scrutiny higher than ra- between adults, and that the lev- mate government interests such tional basis, since it looked to el of review required should a as protecting minors or easily co- whether the government had a law seek to restrict that right is erced individuals from those who legitimate interest, rather than January 2012 | Lesbian/Gay Law Notes | 9 just any interest, in its hold- the court determined, it would be by Lawrence, a higher court es- ing. However, cases like Lofton improper to overturn the lower sentially must defer to the lower v. Sec’y of Dep’t of Children & court’s ruling, as it did not run court’s ruling, since it can only Family Services, 358 F.3d 804 afoul of any “established” Federal overturn decisions contrary to (11th Cir.2004) and Seegmiller law, and rather interprets a widely “established” law. Until a case v. LaVerkin City, 528 F.3d 762 divergent body of cases in a rea- makes it clear exactly what Law- (10th Cir.2008), have found the sonable way. Furthermore, con- rence established, it seems the exact opposite. Each of those sidering the split in cases, it would circuit courts’ hands are largely cases finds that Lawrence ap- be difficult to argue that the law is tied. While the decision in this plied nothing more than a ratio- “established” at all. particular case may be widely nal basis review. This is a troubling thought viewed as the correct one, in the Because of this ongoing dis- – that in review of habeas peti- future we may not be so lucky. agreement among the circuit court, tions involving the law set out —Stephen Woods

tions; 3) that he was otherwise Maine Supreme Judicial Court qualified for the position; and Affirms $500,000 Work Discrimination 4) that his sexual orientation was a motivating factor for Ex- Verdict for Gay Airline Employee pressJet’s adverse action. The jury awarded $47,000 in lost he Maine Supreme Judi- ing told by supervisors that he income, $500,000 in compensa- cial Court has affirmed a did a “fantastic job” and despite tory damages, and $500,000 in T Superior Court jury ver- having acted as general manager punitive damages; however, the dict against ExpressJet Airlines on several occasions while the court applied a $500,000 statu- awarding $500,000 in compen- company sought to fill the po- tory cap. ExpressJet appealed sa-tory damages to former em- sition, Russell was discouraged the verdict. ployee Edward Russell, who from applying for the position. On appeal, the ExpressJet claimed he was discriminated In 2007 Russell overheard a argued that Russell couldn’t against due to his sexual ori- conversation between the then- bring his claim since he never entation when he was refused manager with another coworker formally applied; however, the a general management posi- in which he stated the office court explained that under U.S. tion. Russell v. ExpressJet Air- needed to “clean house” and that Supreme Court precedent on lines Inc., 2011 ME 123 (Dec. homosexuals are “an abomina- the same question under Title 6, 2011). tion in God’s eyes.” One month VII of the federal Civil Rights Russell, an openly gay man, later, Russell resigned without Act, “when a person’s desire for joined ExpressJet as a supervi- ever having formally applied for a job is not translated into a for- sor when it opened its Portland a manager position and filed an mal application solely because Station in 2002. At the time, employment discrimination claim of his unwillingness to engage the general manager of the sta- against ExpressJet pursuant to the in a futile gesture he is as much tion was a gay man. Russell Maine Human Rights Act. a victim of dis-crimination as learned in 2003 that three wom- After a jury trial, ExpressJet is he who goes through the mo- en had filed a complaint against moved for a judgment as a mat- tions of submitting an applica- the company alleging that Ex- ter of law. The trial court judge tion.” The court held that al- pressJet only hired gay men for denied the motion and instruct- though there was “conflicting management positions. He in- ed the jury that Russell could evi-dence regarding the futil- dicated his desire for a manage- prevail if he proved: 1) that Ex- ity issue,” the record contained ment position on numerous oc- pressJet prevented him from ap- sufficient evidence to support casions but was told it was “not plying for the position of general the jury’s finding that it would going to happen” and he should manager; 2) that he would have have been futile for Russell to not waste his time. Despite be- applied but for ExpressJet’s ac- apply for a manager position.

10 | Lesbian/Gay Law Notes | January 2012 The court further held that distinguish between the number ages award was excessive was the correct statutory cap was ap- of employees in Maine and the without merit, stating that Rus- plied in this case to ExpressJet number of employees nation- sell’s testimony at trial that he as an employer with more than wide; rather, the clear intent of was forced to take a leave of 500 employ-ees even though the graduated caps is to protect absence and seek treatment for it had fewer than 101 employ- smaller employers from large stress, anxiety, and depression ees in Maine, stating: “a plain damage judgments that could “provided the Jury with suffi- language reading of the statue potentially devastate them.” cient evidence to support its leads to the conclusion that the Finally, the court held that compensatory damages award.” Legislature did not intend to ExpressJet’s claim that the dam- —Bryan Johnson

tion.” T.M.H. finally located D.M.T. Florida Court of Appeal Holds Child and her daughter in Australia and Has Two Mothers brought a claim requesting that she been named as one of the child’s n a case of first impression in real property as joint tenants and parents. In her claim, T.M.H. also Florida, the Court of Appeal for opened a joint bank account. Sev- ar-gued that Section 742.14 violates Ithe Fifth District found that both eral years into their relationship, her privacy and equal protection the biological mother and the birth the women decided to have a child rights. The statute at issue states mother of a child born to the couple together. Evidence presented at that “the donor of any egg, sperm, through reproductive medical assis- trial, including the fact that the or preembryo . . . shall relinquish tance have parental rights to their couple attended parenting coun- all maternal or paternal rights and daughter. T.M.H. v. D.M.T., 2011 seling together, indicated that they obligations with respect to the do- WL 6437247 (Dec. 23, 2011). The intended to raise the child as joint nation or the resulting children.” Court of Appeal, in a 2-1 decision parents and form a family unit. The only two exceptions to the rule with Judge C. Alan Lawson dis- Upon seeking reproductive medi- are situations where genetic mate- senting, reversed the trial court’s cal assistance, the couple discov- rial is donated within a commis- finding that T.M.H., the biologi- ered that D.M.T., whom the couple sioning couple or by “a father who cal mother, had no parental rights had decided would be the birth has executed a preplanned adop- to the child under Section 742.14, mother, was infertile. Deciding to tion agreement.” Here, T.M.H. and Florida Statute (“Section 742.12”), go forward with having a child, the D.M.T. do not fall within the com- which eliminates the parental rights couple had a physician extract an missioning couple exception as it is of an egg donor, and remanded the egg from T.M.H. and, following the de-fined in the statute as a couple case to the lower court to determine egg’s fertilization, had the embryo consisting of a man and a woman. issues of child custody and visita- implanted in D.M.T. The procedure In reaction to T.M.H.’s claims, tion. In the majority opinion, writ- was successful and in 2004 D.M.T. D.M.T. filed a verified motion for ten by Judge Thomas D. Sawaya, gave birth to the couple’s daughter. summary judgment, asserting that the court held that Section 742.14 The couple raised the child together under Section 742.14, T.M.H. does does not apply to T.M.H., and the until their separation in 2006. not have any parental rights to the trial court’s interpretation of the At first, the couple remained child. The trial court agreed and statute would violate her equal pro- on amicable terms and continued granted the motion. However, the tection and privacy rights under to share in the responsibilities of trial court’s opinion indicates that both the federal and state constitu- raising their child, including shar- the court “felt constrained by the tions. In its opinion, the Court of ing, for a time, joint physical cus- state of the law.” In his decision, Appeal also certified to the Florida tody. However, in December 2007, Judge Charles Crawford states that Supreme Court the question of Sec- following the deterioration of the as a commissioning party is defined tion 742.14’s consti-tutionality. women’s relationship, D.M.T. end- in Section 742.14 as being a woman In 1995, T.M.H. and D.M.T. en- ed all communication between the and a man and Florida law current- tered into a committed relation- couple’s daughter and T.M.H. by ly prohibits adoption by gay par- ship in which the couple owned moving “to an undisclosed loca- ents, “there really is no pro-tection

January 2012 | Lesbian/Gay Law Notes | 11 for [T.M.H.] under Florida law.” ner implanted into the other partner indicated that the women intended While Judge Crawford admitted so that when the couple separated, to raise the child with both of them that he did “not agree with the cur- there were two mothers, a biologi- serving as parents. rent state of the law,” he felt that he cal mother and birth mother, vy- Applying this concept of a do- “must uphold it.” ing for parental rights. The court nor as someone who “intend[s] to On appeal, T.M.H. asserted that held that the biological mother did give her ova away” to this case, the Section 742.14 does not apply to not donate her egg to her partner, Court of Appeal held that T.M.H. her, and that the statute cannot be but rather “provided” her egg to is not a donor within the meaning read in a way to include her be- her partner with the intention that of the statute. Rather, the evidence cause it “does not contemplate the both women would serve as the presented at trial indicates that both situation of a dispute between a bio- child’s parents and would raise the women intended to raise the child logical mother and a birth mother.” child together. The word “donor,” as co-parents, and in fact did raise She further asserted that Section as interpreted by the California Su- their daughter together for the first 742.14, as interpreted by the trial preme Court in K.M., is vested with few years of her life. The majority court, is unconstitutional on equal the connotation that a person donat- rejects the meaning of “donor” that protection and privacy grounds. In ing an egg has no intent to serve as the trial court adopted, and which defense of the trial court’s decision, a parent to the child and is actively the dissent would have the court D.M.T. argued that under Section waiving her pa-rental rights. In uphold. In his dissenting opinion, 742.14, T.M.H., as an egg donor, contrast to that scenario, the court Judge Lawson states that the term is denied any parental rights to the found that, although the birth moth- “donor” simply refers to anyone child, and even if T.M.H. is not a er contended that her partner donat- who transfers an egg or sperm, to donor within the terms of the stat- ed her egg to her without any intent another person. Judge Lawson as- ute, she waived all parental rights to serve as the child’s parent, evi- serts that the word “do-nor” does when she signed a consent form at dence of the couple building a life not contain any intent element, ar- the physician’s office prior to hav- together, including sharing a home, guing that if the meaning of the ing her eggs extracted. Addition- ally, D.M.T. contended that T.M.H. could not have legally adopted the child under Florida state law. Fur- ... although the birth mother thermore, since the couple has sep- arated, D.M.T. is the sole parent as she is the birth mother. contended that her partner The majority of Judge Sawaya’s opinion focuses on the question of donated her egg to her whether Section 742.14 applies to T.M.H., the primary issue being without any intent to serve who exactly qualifies as a “donor” within the meaning the statute. As the statute never actually defines as the child’s parent, evidence the word, the Court of Appeal looks to how it has been defined by of the couple building a life previous courts. One case which Judge Sawaya relies heavily on in together, including sharing a interpreting what the legislative meant by “donor,” is K.M. v. E.G., 117 P.3d 673 (Cal., Oct. 19, 2005). home, indicated that both In K.M., the California Supreme Court faced similar facts to those intended to raise the child. presented here. In that case, a les- bian couple had the ova of one part-

12 | Lesbian/Gay Law Notes | January 2012 word includes an intent element, logical mother who formed a paren- ship she has formed with the child. then the two exceptions to the tal relationship with her child and T.M.H.’s actions following the birth statute which allow commission- that these rights are constitutionally of the child do not indicate that she ing couples and adoptive fathers to protected. in any way relin-quished her rights maintain parental rights would be In his opinion, Judge Sawaya to the child, as prior to their separa- rendered meaningless as these two focuses more on establishing that tion, D.M.T. and T.M.H. served as situations concern the intent of the T.M.H. does have parental rights co-parents, with T.M.H. helping to parties to become parents. to her child than on explicitly ap- care for her daughter and forming Not only does the majority reject plying strict scrutiny to determine the same parental bond with her this interpretation of the statute, but if there is a compelling government that any other parent raising their it goes on to state that by adopting interest behind the statute. Specifi- child would form. Judge Sawaya this interpretation, the trial court vi- cally, he addresses the argu-ments also questions if a common law rule olated T.M.H.’s constitutional rights the dissent presents against finding that was “established during a time to equal protection and privacy. As that any of T.M.H.’s fundamental so far removed in history when the the statute’s commissioning party rights are threatened by the trial science of in vitro fertilization was exception applies only to different- court’s interpretation of Sec-tion a remote thought in the minds of sex couples and the adoption ex- 742.14. First, the dissent states that scientists of the times[,] has much ception only applies to a father, re- Section 742.14 waives a donor’s pa- currency today.” moving the intent element from the rental rights from the moment of D.M.T. argues that, even if the tri- word “donor” leaves lesbian cou- donation, therefore T.M.H. never al court’s interpretation and appli- ples with no way to ensure that the had parental rights to be denied. cation of Section 742.14 to T.M.H. child’s biological mother can main- Without ever having parental rights is in error, T.M.H. still waived her tain parental rights. Effectively the in the first place, her fundamental parental rights when she signed the trial court’s interpretation and ap- right to parent her child could never informed consent form in the phy- plication of Section 742.14 limits be implicated. The majority rejects sician’s office releasing her egg to a lesbian couple’s choices for pro- this argument, pointing out that a D.M.T. The consent form states creation and eliminates a biologi- person must have rights in order to that the person signing the docu- cal mother’s paren-tal rights to her waive them. ment “relinquish[es] any claim to children. As both the right to pro- Additionally, the majority refus- . . . the offspring that might result creation and a parent’s right to their es to accept Judge Lawson’s conten- from [the] donation.” Al-though children are fundamental rights tion that the right to procreate does T.M.H. did voluntarily sign the under both the state and federal not extend to the right to use assist- consent form, the Court of Appeal constitutions, the statute is subject ed reproductive technology to have held that the waiver was not intend- to strict scrutiny. In order to sur- a child. Judge Sawaya does not ed to apply to the situation in this vive strict scrutiny, the “proponent address this argument in great de- case. Applying the same mean- of the statute” must establish that it tail, but does state that as the right ing of “donor” and “donation” that “furthers a compelling government to procreate has already been held the court used to interpret Section interest through the least intrusive to extend to the use of contracep- 742.14, that it implies intent to give means.” Here, the Court of Appeal tives and abortion technology, it is one’s egg away to another person found that Sec-tion 742.14, as inter- reasonable that the right in-cludes without retaining any rights, the preted and applied by the trial court other forms of medical technology, court found that T.M.H. was not a to T.M.H., fails strict scrutiny. In such as in vitro fertilization. “donor” for purposes of the consent reaching this conclusion, the major- The dissent further asserts that form. In support of its conclusion ity relies largely on D.M.T.’s failure, as the birth mother, D.M.T. has sole that the form simply was not meant as the proponent of this interpreta- parental rights to the child under to apply to T.M.H., the court also tion of the statute, to establish that common law. Judge Sa-waya finds relies on the affidavit submitted the statute withstands strict scru- that this interpretation of parental to the trial court by the physician tiny. Also, Judge Sawaya reiterates rights ignores not only T.M.H.’s who treated both women at the re- throughout his opinion the impor- biological connection to her daugh- productive center where the couple tance of the parental rights of a bio- ter, but also the parental relation- sought reproductive assistance. In

January 2012 | Lesbian/Gay Law Notes | 13 his affidavit, the doctor stated “that equal protection as provided for in In his dissenting opinion, Judge the waiver provisions were simply the state constitution (45 So.3d 79 Lawson, in addition to the argu- part of a standard form he has all (Sept. 22, 2010)). ments discussed above, asserts that patients sign and that those provi- As to the contention that a per- the Court of Appeal erred in even sions were inapplicable to [T.M.H.] son’s parental rights do not extend hearing T.M.H.’s claims, stating that and [D.M.T.].” past the ending of a relationship, she did not adequately raise either The majority only briefly ad- the court states that by making this her constitutional claims or theories dresses D.M.T.’s arguments that argument, D.M.T. essentially asked of how the word ‘donor’ should be T.M.H. could never adopt the child the court to pick which woman interpreted, to the trial court or on due to Florida’s then-current adop- should be the child’s parent. The appeal, and therefore the Court of tion laws and that T.M.H.’s parental court refuses to make such a choice, Appeals had no jurisdiction to ad- rights only lasted the duration of finding that “parental rights. . . tran- dress either issue. The majority the relationship. First, Judge Sawa- scend the relationship between two briefly addresses this assertion, and ya states that the legislature did not consenting adults.” The court again just as quickly dismisses it. Adequa- intend for the prohibition on adop- makes a point to state that T.M.H.’s cy, Judge Sawaya states, is subjec- tions by lesbian couples to apply to claims to parental rights are not tive, and while T.H.M.’s claims may situations in which a lesbian parent based solely on a de facto parental not have been as detailed as would is biologically related to the child. relationship with the child, but also be preferred, her claims were, for He also makes note of the Florida on the fact that she is the biological purposes of appeal, adequately pled. 3rd District Court of Appeal’s de- mother. Both women, through birth The court of appeal remanded cision in Florida Department of or biology, have a parental right to the case for the trial court to apply Children & Families v. X.X.G., the child, and these rights are not the traditional “best interest of the which held that the portion of the exclusive of each other. The court child” test to determine is-sues of adoption statute prohibiting adop- found no legal reason why the child custody, visitation and support. tions by “homosexuals” violates cannot have two mothers. — Kelly Garner

a “wet mouth” around his penis, California Appellate Court Denies which he assumed was his girl- Appeal of Man Convicted of Orally friend’s as she had also attended the party. When Doe reached down he Copulating His Sleeping Neighbor felt a beard and pushed the man’s face away; defendant then began n People v. Wiidanen, 2011 WL final theory of the case offered dur- using his hand until Doe grabbed 6020163 (Cal.App. 3 Dist., De- ing the trial’s closing argument that his arm and threw it away. Icember 5, 2011), the California the acts were consensual. After a confrontation with Doe 3rd District Court of Appeal de- The defendant, Ladd Douglas and a denial by defendant, the po- nied the appeal of a defendant who Wiidanen, and the victim, referred lice were called. Defendant of- was found guilty of orally copu- to as John Doe, were friends and fered conflicting versions of what lating an unconscious person. In neighbors who both attended a he could and could not remember, reaching the decision, Justice Ron- New Years’ Eve party in Decem- but adamantly denied that he had ald Robie turned aside a kitchen ber 2007. After a night of extended performed the act. Defendant, who sink defense and appellate strategy drinking—defendant estimated he was married to a woman at the time that meandered from outright de- consumed approximately 24 beers of the incident, provided police a nials to the notion that the parties from noon on New Year’s Eve until DNA sample from the inside of his were too blitzed to know what was 2:00 A.M. the next day—Doe tes- cheek while Doe provided swab happening to theories about how tified that, as was his practice, he samples from his penis shaft and the defendant’s DNA could have went to sleep naked after believing tip. The results indicated a high wound up on the victim’s penis in that everyone had left the party or level of the enzyme in defendant’s the ab-sence of any sexual act and a gone to bed. Doe awoke feeling saliva on the penis shaft swab, and

14 | Lesbian/Gay Law Notes | January 2012 a moderate level on the penis tip and, in the process, picks up de-fen- he did not orally copulate anybody), swab. (News reports indicate that dant’s DNA from the stick. Doe, while showing a “hazy memory” these tests were completed long frustrated from missing his shot about facts that would not be help- after the incident due to a backlog and having to urinate again because ful to his cause (i.e., whether he was at the crime lab and defendant was of all the beers he’s been drink- at the house at the time the events not ar-rested until nearly two years ing, goes to the bathroom, and, as unfolded). later). speculated by defendant, transfers Likewise, the court found harm- Defendant was charged with defendant’s DNA from his “hand to less error with the trial court’s in- orally copulating an unconscious his penis during urination.” structing on the concurrence of act person. The elements of the crime The court, however, found that and general intent rather than on are: (1) the defendant committed an the assertions were unsupported the concurrence of act and specific act of oral copulation with another by the record. Indeed, during clos- intent. Given the nature of the al- person; (2) the other person was ing argument, defense counsel ad- leged crime, the instruction should unable to resist because he was un- mitted that it was “obvious” why have been focused on the specific conscious of the nature of the act; defendant had initially denied the intent/mental state of the defendant. and (3) the defendant knew that the act – he was a heterosexual mar- The court ruled that other instruc- other person was unable to resist ried man. This admission largely tions provided by the court covered because he was unconscious of the ne-gated the persuasiveness of the this point adequately so as not to nature of the act. Defendant was pool-stick defense. prejudice the defendant. found guilty at trial and placed on With respect to the jury instruc- The court also upheld the trial three years’ probation. tions, defendant argued that the court’s ruling with respect to evi- On appeal, defendant offered a trial court erred by pairing an in- dence of defendant’s intoxication. hodgepodge of objections, arguing struction that his intoxication could The in limine ruling at issue, ac- that: the court erred in its jury in- only be considered for the purposes cord-ing to the court, had been structions; an in limine ruling im- of his knowledge of whether the correctly decided to allow for in- properly excluded evidence of de- victim was unconscious (as op- troducing evidence of intoxication fendant’s intoxication as a defense; posed to it serving as a defense to on the issue of defendant’s ability the court erred when it failed to give the crime) with an instruction that a to perceive but not as a defense to instructions on the lesser in-cluded false or misleading statement made the crime itself. Put another way, offense of assault and battery; the by defendant could show awareness the trial court correctly allowed prosecutor committed misconduct of his guilt of the crime. The court defendant the chance to show he that should have been objected to agreed that it was error to pair these was drunk to the extent it showed by arguing facts outside the record; instructions, because it prohibited he could not perceive that his vic- and appellant’s right to an impartial the jury from considering the pos- tim was unconscious, but not so he jury was violated by the presence sibility that his intoxication could could argue, “Hey, I was so drunk, of an alternate juror whose son was mean that he lacked knowledge that I could not have possibly intended the current boyfriend of Doe’s for- he was, in fact, making a false or to perform oral sex on my neigh- mer girlfriend, who had testified at misleading statement to police. bor.” The defense, however, never trial. However, the court found that even called the witness who would Defendant also speculated on the instructions did not violate due have been permitted to testify on appeal that his DNA could have process and were harmless under this issue. ended up on Doe’s penis because state law, because other facts be- Finally, the court upheld the low- they were playing darts and pool to- fore the jury supported the conclu- er court’s refusal to provide instruc- gether. Though this theory was not sion that defendant was aware of his tions on the allegedly lesser-includ- spelled out in the decision, it could guilt at the time he made the false ed offense of assault and battery, go something like this: defendant statements to police. In short, the because the court is only bound uses the billiard bridge stick for record showed that defendant had to do so where it finds substantial knocking a stripe in the right corner the uncanny ability to “selectively support in the evidence for such of- pocket; two turns later, Doe uses remember” portions of the events fense. Here, the record overwhelm- that same stick for reaching a solid that would exculpate him (i.e., that ingly indicated that defendant was January 2012 | Lesbian/Gay Law Notes | 15 aware (and not too drunk to realize) went outside the record and that such data and, in any event, it was that Doe was unconscious, waited defendant’s counsel was ineffec- irrelevant given that the defense for such a moment to commit the tive for failing to object with re- was premised on the act being crime, and was able to perceive spect to the prosecutor’s alleged consensual rather than on defen- well enough to lie about the events use of data from the National dant having an alibi. Other argu- soon after Doe’s awakening. Weather Service concerning the ments about the alternative juror’s The court also easily disposed timing of sunrise on the day of in- presence and cumulative error of arguments that the prosecutor cident. The prosecutor never used were turned aside. —BS

of consortium cause of action to a Connecticut Appellate Court cohabitant who was engaged to be Rejects Loss-of-Consortium Claim married to the tort victim, stating that “the formal marriage relation by Long-Time Domestic Partner forms the necessary touchstone to determine the strength of commit- pholding the Superior Court’s Wertheim, who was alleged in the ment between the two individuals grant of a motion to strike complaint to have committed mal- which gives rise to the existence Ua loss of consortium claim practice in failing to properly di- of consortium between them in the brought by a surviving civil union agnose and treat Mueller’s cancer. first instance. A cause of action for partner in Mueller v. Tepler, 2011 WL (Mueller was a patient of Wertheim loss of consortium does not exist 6347880 (Dec. 27, 2011), the Appel- from 2001 through 2004.) Mueller where the injury occurred prior to late Court of Connecticut faulted the filed the malpractice action before the marriage of the parties.” The plaintiff for failing to include in her she died, and her estate was sub- Connecticut Civil Union Act, which complaint an allegation that she and stituted as plaintiff. The defendant has since been superseded by the the decedent would have formed their moved to strike Stacey’s claim for opening of marriage to same-sex civil union prior to the alleged acts of loss of consortium, arguing that as couples pursuant to the Connecti- medical malpractice were it possible the women had no legally recog- cut Supreme Court’s ruling in Ker- to do so under Connecticut law. The nized relationship at the time that rigan v. Commissioner of Public court held that the complaint did not Mueller was under the defendant’s Health, 957 A.2d 407 (Conn. 2008), put into issue whether the civil union care, the defendant could not be ex-tended to civil union partners all should be applied retro-actively to liable to Stacey for loss of consor- the state law rights and duties of create the necessary legal relation- tium as a matter of law. The trial married couples effective October ship upon which to ground a loss of court granted the motion to strike 1, 2005, including the right to sue consortium claim under Connecticut on August 20, 2008. Mueller died for loss of consortium. law, since the trial court’s factual ba- on January 10, 2009. The case sub- Stacey argued in her appeal that sis for ruling on a motion to strike a sequently went to trial, and on July she and Mueller would have formed claim is limited to the allegations of 2, 2010, the jury returned a verdict a civil union much earlier had it been the complaint. in favor of the estate of Mueller possible to do so under Con-nect- According to the opinion for the against Dr. Wertheim on the mal- icut law, stressing that the women court by Judge Barry R. Schaller, practice claim. A few weeks later, had lived together as partners since plaintiff Charlotte Stacey alleged Stacey appealed the trial court’s 1985 and had formed a civil union that she and Margaret A. Muel- ruling striking her claim. shortly after the law went into ef- ler had been domestic partners Connecticut courts first recog- fect. However, she had not made since June 1985. Within weeks of nized a loss of consortium claim in such an allegation in her complaint, civil unions becoming available by Hopson v. St. Mary’s Hospital, 408 and the court was responsive to statute in Connecticut, the wom- A.2d 260 (Conn. 1979), the claim the defendant’s argument that the en had a civil union ceremony on being allowed for the legal spouse pre-trial motion to strike should November 12, 2005. But that was of a tort victim. In Gurliacci v. be based on the allegations of the more than a year after Mueller left Mayer, 590 A.2d 914 (Conn. 1991), complaint. The allegations of the the care of the defendant, Dr. Iris the court refused to extend the loss complaint were based on the argu- 16 | Lesbian/Gay Law Notes | January 2012 ment that the court should allow a dicial Court in Charron v. Ama- and for what purpose, and undercut loss of consortium suit to domestic ral, 451 Mass. 767, 889 N.E.2d 946 the legislature’s role in defining the partners who “have supported each (2008). In that case, the court con- qualifications and characteristics of other both financially and emotion- cluded that its recognition of same civil marriage.” Although Schaller ally” for many years prior to the sex marriage in Goodridge v. Dept. said nothing to indicate whether alleged malpractice was commit- of Public Health, 440 Mass. 309, Connecticut courts would follow ted by the defendant, without di- 798 N.E.2d 941 (2003), was not to this ruling as a persuasive prece- rectly placing before the court the be applied retroactively and, ac- dent, his citation to and discus-sion issue of whether the civil union cordingly, affirmed the trial court’s of the case in a lengthy footnote im- should be applied retroactively for award of summary judgment to the plies that likelihood. this purpose. The court found that defendants on the plaintiff’s loss The court also noted that its rul- the absence of an allegation in the of consortium claim.” The Massa- ing upholding the motion to strike complaint that the women would chusetts court ruled, in effect, that foreclosed the plaintiff’s argument have formed a civil union prior to anything other than a bright-line that denying her standing to assert the acts of malpractice had it been test of a legal relationship would be a loss of consortium claim violat- legally possible left this case in the unworkable and might lead to “pro- ed her equal protection rights un- same posture as Gurliacci, supra, moting litigation,” so as to “permit der the Connecticut constitution. with the same result. judges to select from among mari- Since her factual allegations did In a footnote, Judge Schaller tal benefits to which quasi mari- not distinguish her case from Gur- commented, “Although not reached tal couples might or might not be liacci, she couldn’t complain she in the present case, we note that the entitled, create uncertainty in the was being treated differently due merits of this issue were ad-dressed private as well as the public sphere to her sexual orientation, Schaller by the Massachusetts Supreme Ju- about who is (or was) quasi married asserted. ■

a gestational surrogate rather than a NJ Court Awards Custody in traditional surrogate. Gestational Surrogacy Dispute In December 2005, Angelia signed a document titled “Informational acing legal questions of first im- will be used here. (If the opinion gets Summary and Consent Form - Ges- pression for the state, New Jer- published, it will be titled A.G.R. v. tational Surrogacy,” signifying her Fsey Superior Court Judge Fran- D.R.H. & S.H.) Lowenstein Sandler understanding of the process and cis B. Schultz ruled on December 13 PC (Karim J. Kaspar, Natalie J. Kra- agreement to participate. All three that the father of twin girls conceived ner, and Jennifer L. Fiorica) represent parties signed a document titled through gestational surrogacy should the fathers, and Harold J. Cassidy “Contract Between a Genetic Father, be awarded sole custody of the now- represents the mother. an Intended Father, and a Gestational 5-year-old girls, despite the court Donald Robinson and Sean Hol- Carrier” on February 28, 2006. Un- having earlier ruled that the surroga- lingsworth, then New Jersey regis- der this agreement, the parties sig- cy contract signed by the parties was tered domestic partners, entered into nalled their intent that children con- void as a matter of New Jersey law a surrogacy agreement with Donald’s ceived through the process would be and that the gestational surro-gate, sister, Angelia Robinson, for Angelia the legal children of Sean and Don- although not genetically related to to bear children for the two men. Al- ald, and that Angelia did not intend the twins, is their legal mother. The though the parties originally intended to be a parent to the children. The court’s decision in Robinson v. Hol- that Angelia’s own ova would be in- fertilized embryos were implanted by lingsworth, Docket # FD-09-001838- seminated with sperm from Sean, so a doctor on March 1, 2006. Angelia 07 (N.J. Superior Court, Hudson that the children would be genetically gave birth to twin girls on October County), was transmitted to the par- related to both men, it turned out that 4, 2006, and on October 15, 2006, ties in a letter ruling using initials to An-gelia’s ova were not suitable for she signed a “Consent to Judgment identify the parties, but it has been the purpose, so ova donated anony- of Adoption,” under which she au- reported in the Newark Star-Ledger mously were fertilized in vitro and thorized termination of any parental using the names of the parties, which implanted in Angelia, making her rights she had and gave consent to the

January 2012 | Lesbian/Gay Law Notes | 17 girls’ adoption by her brother, Don- that Baby M was not precedential for for trial what had now become a ald, so that both men would be legal this case because it involved a tradi- controversy between two legal par- fathers of the twins. tional surrogate who was the genetic ents, Angelia and Sean, who are not However, as sometimes happens as well as the gestational parent, but married to each other. Each of them in surrogacy situations, Angelia Judge Schultz rejected the distinction. theoretically has an equal claim to changed her mind and decided that He observed that in Baby M, the New custody, and in some circum-stances she wanted to be a mother to the chil- Jersey Supreme Court had placed no courts will grant joint legal custody, dren, not just, as the parties had con- significance on genetic relationships, but that is really not a viable option templated, their aunt. Disputes about instead focusing on more general pol- when the parties are hostile to each visitation arose, the adoption did not icy concerns about surrogacy. other, and in this case there was con- go forward, and An-gelia filed suit Judge Schultz found that “the pub- siderable hostility, arising from a va- early in 2007, seeking custody. This lic policy considerations” cited by the riety of circumstances. all played out against various life New Jersey Supreme Court in Baby The background is a complex story changes, most significantly for An- M “are far reaching and unrelated to told in great detail in the December gelia, who had at one time had her a strict genetic connection. The lack 13 decision, drawing in the parents own same-sex partner, but later, in of plaintiff’s genetic link to the twins of Angelia and Donald, who now live the course of this litigation, reverted is, under the circumstances, a distinc- with Angelia and are religiously op- to the conservative Baptist faith in tion without a difference significant posed to surrogacy and homosexual- which she (and her brother) had been enough to take the instant matter out ity. An additional complication is that raised in Texas, renounced homo- of Baby M.” Judge Schultz acknowl- Sean’s mother is Caucasian and his fa- sexuality, and became morally op- edged that courts in some other states ther is African-American, so the twins posed to the surrogacy arrangement had treated the matter differently, are part African-American. Courts in which she had participated. distinguishing sharply between tra- normally treat mixed-race children as The initial response by Donald and ditional and gestational surrogates, being “special needs” children in the Sean to the lawsuit was to contest An- but he found himself bound to follow sense that they may have particular gelia’s standing to seek custody. Ar- New Jersey precedent on this. Cali- identity issues growing up in a society guing that as a gestational surrogate fornia courts, for example, have em- that thinks in racial terms, and need she had no genetic relationship to the braced a concept of “intended parent- parental support in establishing their children and should not be deemed hood” under which a surrogate who own identity. Another complicating their legal mother, they filed a pre- agrees to participate in the process on factor: when same-sex marriage was trial motion for summary judgment. the understanding that she will not be available during 2008 in Califor- Judge Schultz rejected their motion a legal parent to the child is bound by nia, Sean and Donald went there to in an opinion issued on December 23, that agreement, and the spouse of the get married, and Donald took Sean’s 2009, finding that under controlling genetic father will be the legal parent surname, so the couple are now Sean New Jersey law, the surrogacy agree- of the child. Hollingsworth and Donald Robinson ment and the consent to adoption that Having rejected the summary Hollingsworth. Another complicating Angelia had signed were both unen- judgment motion, Judge Schultz set factor, which helps to explain why it forceable, and that Angelia was the legal mother of the twins. Judge Schultz relied on the famous decision in In re Baby M, 109 N.J. The court found that the 396 (1988), in which the New Jersey Supreme Court, dealing with a tradi- surrogacy agreement and tional surrogate situation, ruled that a surrogate is the legal mother of the child born to her, and that any contrac- consent to adoption ... tual agreement made prior to the birth concerning parental status or custody were both unenforceable. is unenforceable as a matter of public policy. Sean and Donald had argued

18 | Lesbian/Gay Law Notes | January 2012 took so long for a case filed in 2007 ability to agree, communicate and has no legal parental status towards to be decided, was that despite fre- cooperate in matters relating to the the twins, even though they consider quent requests by the court, counsel children is nonexistent here,” and that him to be one of their fathers. for Angelia never submitted proposed is a prerequisite to a successful joint Due to the strange patchwork findings of fact after the trial that was custody arrangement. of recognition of same-sex mar- held in several non-consecutive hear- “The needs of the children are the riages in the U.S., this marriage is ing dates between June 2010 and July most important factor in this case,” not recognized as such in New Jer- 2011, and there seems to have been wrote Schultz, who found that when sey, but is treated by the state gov- protracted pre-trial wrangling be- all the relevant factors were consid- ernment as a “civil union” as that tween the parties. ered, it was in the best interest of the term is defined in New Jersey law, Each side in the litigation present- girls to live with Sean and Donald, and, due to the federal Defense of ed expert testimony, and there was provided that Angelia had sufficient Mar-riage Act, their marriage is also a neutral expert who had been regular visitation rights to preserve not recognized by the federal gov- appointed by a different judge who her parental relationship with the ernment. Due to the hostility be- had been handling the initial stages children. He found that Sean and tween Angelia and the two men, a of the case before it was assigned to Donald were in a better position to be second-parent adoption by Donald Judge Schultz. The December 13 supportive of the girls’ identity issues seems out of the question, since opinion provides detailed discus- relating to having been conceived Angelia is unlikely having litigat- sion of the experts’ testimony, and through in vitro fertilization and ges- ed this issue for almost five years gives most weight to the “neutral” tational surrogacy, having a gay fa- to suddenly agree to a termination expert appointed by the court, who ther living in a same-sex relationship, of her parental rights, and New “strongly recommended sole cus- and being of mixed race. He also Jersey law does not recognize that tody with the defendants and that found that “the stability of the home a child can have three legal parents it be done as quickly as possible.” environment offered and the quality -- at least, not yet. Theoretically, if According to Judge Schultz, this and continuity of the children’s edu- Sean become incapacitated or died expert, Dr. Alex Weintrob, “was cation” were also important factors while the twins were still minors, passionate about this.” that weighed in favor of Sean as cus- Donald might have no standing for Dr. Weintrob strongly contended todian. The children are enrolled in a maintaining legal custody of them that it would be harmful to the girls Montessori school in Jersey City, and if Angelia insisted on asserting her for Angelia to be awarded custody, Angelia was planning to place them parental rights, leaving their fam- in light of her attitudes to-wards in a religious school if she obtained ily relationship in a tenuous situ- homosexuality and her dismissal of custody. The court weighed many ation. the particular issues the girls would factors, and found that virtually all The story of this case presents face as mixed-race children. He the relevant factors weighed in favor a cautionary tale for gay male found that Sean would be a supe- of a custody award to Sean. couples who are interested in hav- rior parent in terms of affirming the The court set out a detailed sched- ing children through a surrogacy girls’ identity. In addition, Donald ule for visitation rights for Ange- ar-rangement. Doing this kind of is the breadwinner in the family lia, under which the children would a thing in a state such as New Jer- and Sean the stay-at-home parent spend alternate weekends with her, sey that has no statutory or judicial (who only works part-time), where- from after school on Fridays until recognition and enforcement of as Angelia works full-time, so the Sunday evenings, with some excep- surro-gacy agreements is a risky children if in her custody would tions carved out for various holidays business, as the written agreements end up spending considerable time and some full weeks during summer may have no weight in a legal dis- with the mother of Donald and An- vacations from school. pute. Things are even worse in gelia, whose religious objections to The result of this ruling is that the New York, where a criminal statute her son’s homosexuality and rela- children have two legal parents, Sean condemns surrogacy agreements, tionship to Sean, the child’s legal and Angelia, and an uncle, Donald, both traditional and gestational. father, would be difficult to mask. who also happens to be their father’s By contrast, surrogacy is legally Ruling out joint custody, Judge New Jersey registered domestic part- recognized and such agreements Schultz observed that “the parents’ ner and California husband, but who are enforced in Connecticut. ■

January 2012 | Lesbian/Gay Law Notes | 19 was a parent to the children. The court California Court of Appeal Affirms found that Judge Gweon had not abused Parental Rights for Non-Adoptive her discretion in ruling based on the trial record that these requirements had been Same-Sex Co-Parent met and that there was no basis in the re- cord to rebut the presumption of paren- he California 3rd District Court to maintain her contact with G.B. and vis- tal status. The court concluded that the of Appeal has affirmed a ruling ited regularly except when S.B. prevented separate residences maintained by the Tby Sacramento Superior Court it. During the break-up, S.B. decided to two women did not defeat the require- Judge Helena Gweon that a woman who adopt another child, and adopted M.B. ment that S.Y. “received the children had not attempted to adopt her former in 2004. S.Y. continued to visit the home into her home,” since she spent so much same-sex partner’s adoptive children, frequently and also co-parented M.B. time at S.B.’s house with the children due to the woman’s fear of jeopardizing to the extent possible. After the parties that it qualified as her “home” for this her military career under the “Don’t Ask reconciled, S.Y. resumed the co-parental purpose. Also, given the fears about her Don’t Tell” policy, was the second parent role. (She testified that her relationship military career, the court found that her of those children even though the wom- to the children was the main reason she conduct sufficient met the “openly held en did not share the same resi-dence. resumed her relationship with S.B.) How- out” requirement in light of the number S.Y. v. S.B., 2011 WL 6129594 (Dec. 9, ever, in July 2009, S.Y. decided to end the of people who were aware of the situa- 2011). Writing for the court, Justice Cole relationship with S.B., who advised S.Y. tion and testified to S.Y.’s parental rela- Blease found that Judge Gweon had cor- that she could no longer have contact with tionship with the children. In common rectly concluded based on the evidence the children. S.Y. immediately consulted with prior cases, wrote Justice Blease, in the record that S.Y. was a parent of the counsel and filed suit shortly thereafter. “here, S.Y. encouraged S.B. to adopt a children under California’s construction According to Justice Blease’s opinion, child with the understanding she would of the Uniform Par-entage Act. “S.Y. believed her position in the military co-parent the child; S.Y. voluntarily ac- S.Y. and S.B. met in 1993 and were in precluded her from adopting the children cepted the rights and obligations of par- a committed relationship that ultimately or formaliz-ing her relationship with S.B. enthood since the children were born; ended in 2009. They maintained separate She also believed that under the military’s there are no competing claims to her residences, but S.B. spent several nights a “Don’t Ask, Don’t Tell” policy (10 U.S.C. being the children’s second parent; and week and most weekend’s at S.Y.’s home. sec. 654), doing any of those things would public policy favors children having two S.Y. worked as a senior planner in the have jeopardized her 30 year career in parents. The trial court acted well with- Community Development Department the military and could have resulted in in its discretion in concluding S.B. failed for the City of Sacramento and served as her being court marshaled and going to to rebut the parentage presumption.” a Colonel in the U.S. Air Force Reserves, prison. In addition, S.Y. testified that S.B. The court also rejected S.B.’s due pro- having been a member of the second would never have allowed her to adopt the cess argument based on Troxel v. Gran- class of women to graduate from the Air children, and until recently, she believed ville, 530 U.S. 57 (2000), observing that Force Academy having served in the Air the law pre-cluded her from adopting the California courts have rejected the con- Force for almost 30 years. S.B. worked children and would not otherwise recog- tention that Troxel applies to a situation as a kindergarten teacher. S.B. initiated nizer her parental rights.” Evidently, it in which a court determines that a person the idea of having children. While this was not until she consulted counsel that is a parent under the UPA. (Troxel was a had not been a goal of S.Y., she said she she learned that California courts have case where the Supreme Court reversed would support S.B. in this and would be recognized parental rights of same-sex a state court ruling requiring a fit parent a co-parent. At first S.B. wanted to have co-parents in the absence of formal adop- to allowed her deceased spouse’s parents children through donor insemination or tion or same-sex registered domestic part- continue contact with the children over in vitro, but ultimately decided to adopt. ners or marriages. her objections.) A person determined to She adopted G.B. in 1999, shortly after The issue for the court, under Cali- be a parent pursuant to the UPA is not a his birth, and S.Y. participated actively in a fornia precedents, was whether S.Y. had “third party” for this purpose. parental role from the time G.B. was born. “received the children into her home” Finally, the court rejected S.B.’s argu- The parties broke up in June 2003, but got and “openly held G.B. and M.B. out as ment that “a woman’s right to assert visi- together again two and a half years later. her natural children,” thus raising the tation rights—much less parental rights— During the interim period S.Y. attempted presumption under the UPA that she to her former partner’s children, is not 20 | Lesbian/Gay Law Notes | January 2012 widely protected by society even today.” such rights for former same-sex partners of the two children, the court awarded The court reproduced a string-cite from who were co-parenting children. costs on appeal to S.Y. S.Y. is represent- S.Y.’s brief from 19 different jurisdictions In addition to affirming Judge ed by Wald & Thorndal and the Nation- in which appellate courts recognized Gweon’s declaration that S.Y. is a parent al Center for Lesbian Rights. ■

and complied with KISD’s policy of U.S. Magistrate Denies Summary disclosing to parents potentially illegal Judgment in H.S. “Outing” Case relationships involving students. The plaintiffs allege that the coach- n November 30, 2011, US S.W.’s mother went through proper es violated S.W.’s right to privacy, that Magistrate Judge John D. channels to file a grievance with the KISD promulgates policies facilitating OLove issued a decision denying school and with the school district. Ulti- the unauthorized disclosure of informa- summary judgment to the Kilgore Inde- mately, administrators found no problem tion concerning students’ sexual orien- pendent School District (KISD) and its with the way the coaches handled, and tation, and that KISD failed to train its softball team’s coaching staff. The de- Wyatt’s administrative remedies were employees how to handle the confiden- fendants were sued by Barbara Wyatt, exhausted (as the court ruled). tiality of its students’ sexual orienta- S.W.’s mother, on S.W.’s behalf, who was According to the defendants, though, tion. Defendants move for summary sixteen at the time when allegedly “out- they claim that S.W. was openly gay for judgment, primarily, on two separate ed” by the KISD coaching staff, namely a number of years prior to the incident grounds: qualified immunity and mu- Rhonda Fletcher and Cassandra Newell. and never attempted to keep secret her nicipal liability. Wyatt v. Kilgore Independent School sexuality. They also claim that S.W. was Defendants argue that the coaches District, 2011 WL 6016467 (E.D.Tex.). never a serious athlete and regularly dis- acted in an objectively reasonable man- The plaintiffs’ alledged: According regarded team rules, which made her ner and did not knowingly violate S.W.’s to S.W., coaches Newell and Fletcher difficult to coach. right to privacy. The defendants also called an unscheduled softball team Defendants claim S.W. spread a ru- argue that KISD properly trained its meeting on March 3, 2009, on cam- mor that she was dating Nutt, who she employees and did not have a policy of pus. After the coaches dismissed the claimed was Newell’s ex-girlfriend. disclosing a student’s sexual orientation. team, they led S.W. into an empty locker When the coaches heard the rumor, they The court rejected the defendants’ ar- room and locked the door. They then confronted S.W. because: “[1] they be- guments concerning the coaches’ quali- questioned S.W. about her relation- lieved that Ms. Nutt was a bad in-fluence fied immunity defense, pretty much out- ship with an 18-year-old girl named on S.W. because Ms. Nutt had previ- of-hand, due to the overwhelming issues Hillary Nutt. Fletcher accused S.W. ously talked about drinking and smok- of fact in this case. of spreading a rumor that Nutt was ing marijuana; [2] they believed the fact Otherwise, the court clearly held that: “Coach Newell’s ex-girlfriend.” S.W. that Ms. Nutt was eighteen-years-old [1] there is a constitutional right to pre- initially denied the accusations, which and S.W. was sixteen ‘made any physical vent the unauthorized disclosure of one’s “angered” the coaches. The coaches relationship between them a potential sexual orienta-tion; and [2] that S.W. then intimidated S.W., threatening to crime’; and [3] the rumors were causing has a reasonable expectation of privacy sue her for slander and calling her a dissension on the softball team.” in her sexual orientation. Insofar as the liar. Eventually, S.W. admitted to dating During the March 3, 2009, confronta- court looked at the record before it and Nutt though, “at the time of the confron- tion defendants claim they did not stand found that there are material issues of tation, S.W. and Nutt had arranged a date over S.W. and did not try to intimidate fact as to whether or not KISD had a but were not ‘dating.’” or threaten her. The reason coaches con- policy requiring disclosure of students’ The coaches revealed this informa- tacted S.W.’s mother was to inform her sexual orientation, summary judgment tion to S.W.’s mother. Newell even of- of S.W.’s inappropriate and potentially relief was unavailable for the defen- fered her Nutt’s contact information. illegal relationship with Nutt. They also dants. The court also held that the plain- S.W.’s mother claims that she did not claimed they did not use the terms gay tiffs had established sufficient evidence know that her daughter was homosexual or lesbian with S.W.’s mother, and that that KISD failed to train its employees prior to this outing, but she had previ- she already knew that S.W. was homo- relating to the confidentiality of its ously asked S.W. if she was gay, which sexual. Defendants maintain they did students to survive the summary judgment S.W. had consistently denied. not disclose confidential information motion. —Eric J. Wursthorn

January 2012 | Lesbian/Gay Law Notes | 21 Federal Civil Litigation Notes

8th Circuit — The U.S. Court of Westboro Baptist Church, founded challenge in Phelps-Roper v. Strick- of Appeals for the 8th Circuit an- by pater-familias Fred Phelps) at the land, 539 F.3d 356 (6th Cir. 2008). * nounced on December 7 that it will funeral of his son, a combat veteran * * Anyone seeking to become bet- reconsider en banc the panel deci- of the Iraq war, but indicated in dicta ter-acquainted with the agenda and sion in Phelps-Roper v. City of Man- that protesters’ “choice of where and activities of the Westboro Baptist chester, 658 F.3d 813 (8th Cir., Oct. when to conduct [their] picketing is Church should consult their website, 5, 2011). The 3-judge panel upheld not beyond the Government’s regula- http://www.godhatesfags.com. a ruling by Chief Judge Catherine D. tory reach – it is ‘subject to reason- Perry of the U.S. District Court for able time, place, or manner restric- Department of Home- the Eastern District of Missouri, who tions’…” One of the judges on the land Security — Deporta- found unconstitutional a local ordi- three-judge panel in the Manchester tion Cases – Immigration Equality nance in Manchester, Mis-souri, lim- case, concurring in the result, high- reported two cases in which pending iting picketing or protest activities lighted the Supreme Court’s com- deportation proceedings against un- within 300 feet of any “residence, ment on regulation of picketing, and documented aliens who are spous- cemetery, funeral home, church, one suspects that the Circuit’s deci- es of American citizens have been synagogue or other estab-lishment” sion to grant en banc review at the dropped by the Immigration and while a funeral or burial service is request of Man-chester is prompted Customs En-forcement (ICE) agen- going on, for a period up to an hour by the need to reconsider Circuit cy under a policy announced in No- before and an hour after such funeral precedent on funeral picketing laws vember focused on reorientation im- or burial service. Judge Perry found in light of Snyder v. Phelps. The migration enforcement to focus on the ordinance to be a content-based nature of the picketing/protest in- lawbreak-ers and other undesirables regulation of speech that failed to volved in these cases brings it within and to consider such circumstances meet strict scrutiny. The three-judge the sphere of interest of Law Notes; as close family ties. Although the panel found that it was not a content- Westboro Baptist Church promotes policy does not expressly address based speech regulation, since it was the view that the deity is punishing LGBT partnerships and marriag- non-specific as to what the subject the United States for being too per- es, the Department had explained matter of the picketing or protest missive regarding homosexuality that such relationships were might be. Nonetheless, the panel (the foregoing puts their theology in among those to be considered in its also found it unconstitutional, find- more respectful language than they implementa-tion. On November ing Judge Perry’s conclusion that the customarily use on their signs and 30, an immigration judge in New local government had no “significant in their chants) by causing the death York agreed, at the behest of gov- governmental interest” in shielding of U.S. soldiers. One suspects their ernment attorneys, to close the de- those attending funerals or burial protest activity will escalate now that portation case of Monica Alcota, services from “unwanted commu- lesbians, gay men and bisexuals are an Argentinian national married nications” to be consistent with ex- allowed to serve openly in the U.S. to Cristina Ojeda, a U.S. citizen. isting 8th Circuit precedent, as ex- armed forces. * * * It is possible Alcota is represented by LeGaL pressed in Phelps-Roper v. Nixon, that this issue is headed back to the member Lavi Soloway. In mid- 545 F.3d 685 (8th Cir. 2008). Phelps- Supreme Court, as the Phelps family December, government attorneys Roper v. Nixon predates the Supreme has brought preemptive challenges in Hartford, Connecticut, moved Court’s ruling last term in Snyder v. against local laws barring such pick- to drop deportation proceed- Phelps, 131 S.Ct. 1207 (2011), where eting in several different parts of the ings against Michael Thomoas, the Court barred tort damages for country, resulting in a variety of rul- a citizen of Trinidad & Tobago emotional distress to a father whose ings. The Manchester panel noted who married John Brandoli, a claim was based on picketing/protest that the 6th Circuit upheld a similar U.S. citizen, last year in Massa- by the Phelps family (under the name ordinance against a 1st Amendment chusetts. Advocate.com, Dec. 15. 22 | Lesbian/Gay Law Notes | January 2012 Federal Civil Litigation Notes

District of Columbia — applications were wrongly processed, sented by attorney John D’Amato, Cleaning up one of the loose ends or that records had been created con- and did not seek representation or as- dangling from the improper hiring cerning their applications that would sistance from any of the LGBT legal practices of the U.S. Department of violate any federal law. One of the organizations. Hawaii passed a civil Justice during the Bush Adminis- plaintiffs’ problems is that the Jus- union law last year that went into ef- tration, U.S. District Judge John D. tice Department had destroyed the fect on January 1, 2012, but Jackson Bates granted DOJ’s motion for sum- records that might have provided and Kleid point out that civil unions mary judgment in Gerlich v. U.S. De- such evidence, in the normal course are not equal to marriages, and argue partment of Justice, CA No. 08-1134, of disposing of applications material they are entitled to the same right to on December 15. The lawsuit was for the Honors Program. “The Court marry as any different-sex Hawaii filed in 2008 by several individuals agrees with plaintiffs that miscon- couple enjoys. Gov. Abercrombie, a who had applied through the Depart- duct from senior government offi- Democrat, reportedly responded to ment’s Honors Program, under which cials should not be condoned,” wrote the filing of the lawsuit with the fol- new law school graduates are hired Bates. “Nonetheless, as much as the lowing statement: “If they want to for beginning staff positions in DOJ. Court might disapprove of certain pursue that through the legal chan- The individual plaintiffs remaining conduct, the evidence before it must nels that’s fine, but I work through in the case were not interviewed and be objectively analyzed under the the legislative channels. I think that did not receive offers. The lawsuit law. As explained below, the Court everyone is very very happy with our was filed in response to news reports finds that destruction of the relevant civil unions law. I’m going to put it and tes-timony before Congress re- files did not constitute spoliation. into effect. I signed it. We’re moving vealing that the “screening commit- Without a spoliation inference, plain- forward as quickly as we can and this tee” within the Justice Department tiffs have failed to offer evidence January we’ll be putting it into effect. in 2006 had disqualified candidates on which a finder of fact could rea- If there are changes to be made we’ll who had been recommended for sonably hold the Department liable take it up in the course of the legis- interviews by various components under the Privacy Act. Hence, the lative sessions to come.” HawaiiN- within the Department, based on a Court will deny plaintiffs’ motions ewsNow.com, Dec. 8. * * * However, political litmus test that “de-selected” for spoliation sanctions and sum- it appears that Gov. Abercrombie is people who might be seen as civil mary judgment and grant the Justice perhaps too optimistic when he says libertarians, environmentalists, or Department’s motion for summary that “everyone is very very happy otherwise “liberal.” Testimony re- judgment.” One of the plaintiffs, Matt with our civil unions law,” as it was vealed that members of the screen- Faiella, went on to be a staff attorney reported on Dec. 30 that two Chris- ing committee did Internet research working on LGBT issues for the New tian churches have filed an action in to uncover “liberal” associations of York Civil Liberties Union, and now the U.S. District Court in Hawaii, candidates, and annotated their ap- works in the Office for Civil Rights seeking judicial protection from dis- plications accordingly. The scope of of the U.S. Department of Education. crimination charges that have alleg- the case and the number of plaintiffs edly been filed by individuals who had been whittled down substantially Hawaii — On December 7, Nata- are planning same-sex civil union through motion practice prior to the sha Jackson and Janin Kleid filed suit ceremonies under a state law that cross-motions for sum-mary judg- in U.S. District Court against Gover- goes into effect on January 1. The ment upon which Judge Bates ruled nor Neil Abercrombie, alleging that discrimination charges, filed with on December 15. In this ruling, Bates the refusal of the state’s Department the Hawaii Civil Rights Commis- found that none of the three remain- of Health to issue them a marriage sion, allege that the churches refused ing plaintiffs (James Saul, Matthew license violated their federal con- to rent their facilities for same-sex Faiella and Daniel Herber) could stitutional rights to due process and civil union ceremonies, in violation present evidence that their individual equal protection. They are repre- of the public accom-modations law,

January 2012 | Lesbian/Gay Law Notes | 23 Federal Civil Litigation Notes

which prohibits sexual orientation the Equal Protection Clause? Well, for promotions more than 25 times discrimination. The case, filed Dec. one takes victories where one can…. over her eight years with the agency, 28, is titled Emmanuel Temple, The ACLU LGBT Rights Project staff at- but all were denied despite her qual- House of Praise v. Abercrombie. torneys Joshua Block and Christine ifications and less qualified non- Sun worked on the case, together gay persons were promoted. The Mississippi — The ACLU with Bear Atwood, legal director of county had sought to have the case LGBT Rights Project and the ACLU the ACLU of Mississippi, and Kram- dismissed, arguing absurdly that be- of Mississippi announced a settle- er Levin Naftalis & Frankel LLP at- cause sexual orientation discrimina- ment agreement in Sturgis v. Copiah torneys Norman C. Simon, Joshua tion claims are not actionable under County School District (D. Miss.), Glick, Jason Moff and Lee Strock. Title VII of the Civil Rights Act, a lawsuit sparked by the exclusion they are similarly not actionable of Ceara Sturgis’s photo from the New York — On December under the Equal Protection Clause, senior portrait section of the an- 6, Immigration Judge Terry Bain but U.S. District Judge James Gwin nual high school yearbook because granted a Joint Motion to Admin- correctly rejected this argument she posed in a tuxedo instead of the istratively Close Removal Proceed- in a ruling on April 28, 2011, 2011 “drape” prescribed by the school for ing in the case of Monica Alcota, WL 1563874, criticizing the defen- female members of the class. Ac- an Argentinean-born lesbian who dant for its totally unsupported legal cording to the ACLU’s Dec. 7 press is married to U.S. citizen Cristina proposition, and point-ing out that release about the settlement, Sturgis Ojeda. The couple lives in Queens, the sole case they relied upon was is an honor student who had always N.Y., and was represented in the “misrepresented” in the defendants’ preferred to dress in clothing tradi- proceeding by Lavi Soloway, who argument. The judge also rejected tionally associated with boys rather claimed this was the first case most of a summary judgment mo- than girls, and had never previously since a Nov. 17 announcement that tion by the county in a September encountered any discrimination on the De-partment of Homeland Se- 26 ruling, 2011 WL 4452394, 113 this account from fellow students or curity would undertake a nation- Fair Empl. Prac. Cas. (BNA) 884, classroom teachers. Under the settle- wide review of pending removal concluding that dis-putes over ma- ment, all students will be pictured in cases in which the government terial facts required a trial by jury academic gowns in future editions of has asked an immigration court to as to several of Hutchinson’s spe- the yearbook, and Sturgis’s photo (in close removal proceedings involv- cific refusal-of-promotion claims tuxedo) will be included in a school ing a married same-sex couple. as well as her allegation that there library display of senior class photos. was an official practice of discrimi- The press release also states: “The Ohio — A settlement has been nation based on sexual orientation School will also amend its anti-dis- reached in Hutchinson v. Cuyahoga by the county. Thus informed, the crimination policy to add language County Board of County Commis- county finally woke up to the real- affirming its commitment to fol- sioners, Case No. 1:08-CV-2966 ity that county officials would have lowing the equal protection clause (U.S.Dist.Ct., N.D. Ohio), a sexual to testify under oath in court, and of the U.S. Constitution.” Is this a orientation discrimination case, proceeded to negotiate a settlement, euphemistic way of saying that they according to a report in the Cleve- under which Hutchinson will re- refused to agree to an explicit policy land Plain Dealer (Dec. 8). Shari ceive $100,000. The money should banning gender identity or sexual Hutchinson, a lesbian, sued the come in handing, reports the Plain orienta-tion discrimination, so they county in 2008 on a claim that she Dealer, because she is currently un- compromised on acknowledging had been denied promotions by the employed, and as part of the settle- what is no more than a fact – that county’s child support enforcement ment she is barred from working for all public schools, as governmental agency because of her sexual orien- any county department “except for entities, are bound to comply with tation. She said that she had applied judicial offices.” ■

24 | Lesbian/Gay Law Notes | January 2012 Federal / State Criminal Litigation Notes Army Court of Criminal Alabama — In Whatley v. State second-degree murder and manslaugh- Appeals — When a military of Alabama, 2011 WL 6278296 ter for shooting his gay class-mate defendant is going to enter a provi- (Dec. 16, 2011), the Court of Crimi- Lawrence King in a computer class at dent plea to a charge of violating nal Appeals of Alabama affirmed E.O. Green Middle School in Oxnard. Article 125 of the Uniform Code the conviction of Donald Dwayne He was prosecuted in Ventura County of Military Justice (the sodomy Whatley on a capital murder charge Superior Court as an adult on murder provision), there must be a “col- in the death of “Pete” Patel, a gay charges, which split the jury and led loquy between the military judge man who Whatley had picked up at Judge Charles Campbell to declare a and the accuse estab-lishing an a bar with the intention of robbery, mistrial. After the prosecution indi- acknowledgment by the accused according to his voluntary confes- cated that it would retry McInerney, ‘of the critical distinction be- sion. Years later, Whatley, claiming he agreed to plead guilty, and was sen- tween permissible and prohibited to have “found Christ” and want- tenced to 21 years in jail. He was 14 behavior,’” according to a per cu- ing to get this crime off his chest, when he shot King. If he serves his entire riam ruling by the Army Court of went to the police and dictated the term, he will be 38 when he is released Criminal Appeals in U.S. v. McIn- story of what had happened. At the from prison, having been incarcer- nish, 2011 WL 6088635 (Nov. 30, end of December 2003, he went to a ated since the February 2008 murder. 2011), because certain conduct is gay bar seeking a possible robbery sheltered from prosecution under victim. He encountered Patel out- Minnesota — In State of Min- Lawrence v. Texas. In this case, side the bar and they left in Patel’s nesota v. Muchow, 2011 WL 6757423 found the court, “the discussion car, parked at a bridge, and got out (Dec. 27, 2011) (unpublished opinion), between the military judge and to smoke cigarettes while sitting the Court of Appeals of Minnesota af- the appellant did not establish an on the hood of the car. When Pa- firmed the felony conviction of Jeneice understanding by the appellant as tel put his hand on Whatley’s knee, Alisha Muchow for domestic assault of to the relationship between these Whatley claims that this “freaked” her “live-in girlfriend,” referred to in facts and the criminal nature of him out, so he punched Patel and the opin-ion as T.S. Although the court his con-duct in light of Lawrence. then beat him until he thought Patel of appeals found that the trial court Accordingly, appellant’s pleas of was dead. But Patel started moan- had made several errors, it concluded guilty to Charge III and its speci- ing so Whatley jumped into the car that they were not prejudicial, except fications are not provident and the and ran over Patel’s head several for entering two convictions – for fel- findings of guilt are set aside.” times, stole several hundred dol- ony domestic assault and misdemeanor Unfortunately, the opinion – des- lars from his wallet, then drove off domestic assault – arising from the ignated as unpublished – does not in the car, eventually set-ting it on same acts. Among the issues Jeneice directly reveal the facts of the case, fire far from the scene. Whatley Muchow raised on appeal were refer- although from comments as to oth- had been identified with the crime ences by the prosecutor to her sexual er aspects of the appeal, it appears scene by police due to his DNA on orientation and life-style, references to that the male defendant engaged in a cigarette butt found at the scene, her past criminal convictions, and ref- adulterous sex with a woman that but was not charged with the mur- erences to her also being charged with probably in-cluded oral sex, and der at that time due to the lack of similar conduct subsequent to her arrest thus the sodomy count. It also ap- any other evidence. The appeals in this case. The court con-cluded that pears that the defendant is of higher court rejected all of What-ley’s part of the prosecutor’s error focusing military rank than the other party, objections to the trial, upholding on sexual orientation and Muchow’s which would bring the conduct out- the death sentence in this case. “lifestyle” (i.e., excessive alcohol use) side the protection of Lawrence as was “plain error,” but that in light that precedent has been construed California — Brandon McIner- of all the evidence in the record and in military appeals courts. ■ ney has pleaded guilty to charges of that the references were a “small por- January 2012 | Lesbian/Gay Law Notes | 25 State Criminal / Civil Litigation Notes tion” of the prosecutor’s argument, “the sentenced on Nov. 29 by Ross County of the same child. Here, one of the prosecutor’s error in drawing the jury’s Juvenile Court Judge Richard Ward to women is the biological mother, while attention to improper considerations serve 90 days in juvenile detention after the other claims legal motherhood un- did not impair Muchow’s substan- pleading guilty to a delinquency account der presumptions set forth in the Colo- tial rights.” The reference to pending of assault. Sever attained international rado Uniform Parentage Act… Unlike charges for subsequent conduct that notoriety after a cellphone video of his Solomon, we are not free to devise our was very similar to the conduct at issue, attack on gay classmate Zach Huston own solution. We are bound by the as well as reference to prior criminal in a classroom in Unioto High School UPA, as interpreted by the Colorado convictions, was deemed by the court went viral on youtube. He was ordered Supreme Court in N.A.H. v. S.L.S., 9 to be relevant to Muchow’s credibil- to undergo mental health counseling P.3d 354, 357 (Colo.2000).” According ity, since the trial focused on her testi- and to continue his education during to the court, B.V. has standing to see to mony and T.S.’s testimony. The court his detention. Huston and his mother prove maternity, reading the UPA, as did not indicate in its opinion whether have complained that school authorities an increas-ing number of courts have the reversal of the misdemeanor con- did not respond appropriately to their done, to be gender neutral, such that the viction and remand would result in complaints that Huston was a target of paternity provisions also govern mater- resentencing. The sentence passed bullying due to his sexual orientation, nity claims. As a result, B.V. has stand- by the trial court was 32 months im- and the ACLU of Ohio threatened to ing to assert maternity. “Under section prisonment on the felony conviction. sue the school district if it did not enact 19-4-105,” says the court, “a woman some sort of policy to deal with the bul- may gain the status of a child’s natural New York — New York Supreme lying problem faced by gay students. ■ mother even if she has no biological tie Court Justice Neil J. Firetog sentenced to the child. A woman’s proof of mar- John Katehis to the maximum sentence Colorado — This is one of the riage to the child’s father, or her proof of 25 years to life in prison for the mur- most complicated case names we’ve of receiving the child into her home der of gay journalist George Weber at seen: In the Interest of S.N.V., a Child and holding the child out as her own, a sentencing hearing on December 13. and Concerning C.A.T.C., Peti-tioner- also may establish the mother-child re- Katehis had been convicted of second- Appellee, and N.M.V., Respondent-Ap- lationship. It follows that the magistrate degree murder by a Brooklyn jury on pellee, and B.V., Intervenor-Appelant, erred in concluding that birth mother’s November 15. Weber had responded 2011 WL 6425562 (Colo.App., Dec. claim automatically prevails over that to Katehis’s posting on Craigslist of- 22, 2011). According to Judge Russel, of wife. We therefore direct the court fering oral sex for money. According writing for Division V of the Colorado to determine the mother-child rela- to trial testimony, Katehis and Weber Court of Appeals, S.N.V. was born in tionship according to the standards set had agreed in email correspondence 2007 to an unmarried woman, but was forth in N.A.H.” Her is yet another in that Katehis would tie up Weber and claimed as the son of N.M.V. and taken a growing body of precedent constru- smother him. They met in Weber’s into the home of N.M.V. and his wife, ing the U.P.A. to de-emphasize genetic apartment. Katehis stabbed Weber who assert that birth mother was a sur- ties and to stress the realities of family 50 times, later posting a picture on his rogate and the child was con-ceived to life in modern society, a trend that is MySpace page posing with his knife. be raised by them. Contrarily, birth helpful to same-sex couples in the myr- Blood tests performed shortly after mother argues that S.N.V. was the result iad ways they come to have children. the event belied Katehis’ claim that he of her “intimate personal relationship” was high on cocaine and alcohol given with N.M.V., and that she is the child’s New Jersey — The Emerson to him by Weber when he committed mother. B.V. seeks a declaration that Board of Education has agreed to pay the murder. Gay City News, Dec. 16. she is the mother. Writes Russel: “This $130,000 to a former student to settle case is a modern version of the difficult charges that the school dis-trict failed Ohio — The Columbus Dispatch problem presented to King Solomon: to address verbal, physical and cy- reported Nov. 30 that Levi Sever was two women claim to be the mother ber harassment of the former student

26 | Lesbian/Gay Law Notes | January 2012 state Civil Litigation Notes

on the basis of his sexual orientation. male as a matter of law, and therefore reporting on the lawsuit, said that Von He is referred to in a news report in the marriage could be le-gally ter- Himmel moved to Charlottesville in the New Jersey Record (Dec. 24) as minated only under the divorce law. May from Denver, and is unemployed. “J.C.” The settlement agreement also Robertson reacted by withdrawing her Payne is a full-0time information tech- calls for the school district to establish petition, leaving only the divorce ac- nology student at National College. The “clear protocols for the reporting and tion pending before the court, but she men had been dating for about three investigation of harassment, intimida- then filed an amended petition once and a half months, and apparently are tion and bullying complaints.” The against seeking to have the marriage rep-resenting themselves in the lawsuit, N.J. Division on Civil Rights had found declared void. Robertson then moved which asserts a 14th Amendment claim. in 2010 that there was probable cause for summary judgment on her peti- Von Himmel told the newspaper that he that the Board of Education violated tion, but Judge Lori Chrisman Hock- expects to lost in the Virginia courts, but the NJ Law Against Discrimination ett denied the motion on November to appeal the case to the U.S. Supreme by failing to take appropriate action 21, 2011, and set the case for trial as a Court. The article reports that the men in the case. The attorney general’s of- divorce action. Looming over the case are bringing their case pro se. We will fice represented the Division in its ac- is the Texas case of Littleton v. Prange, refrain from expressing any opinions tion against the Board of Education. 9 S.W.3d 223 (Tex.App. – San Anto- here about the wisdom of this venture. nio 1999, petition for review denied), Texas — A Dallas judge has ruled in which an intermediate appellate Wisconsin — The Milwaukee that a pending case concerning the court ruled that one’s sex at birth is Journal Sentinel reported (Dec. 21) marriage of James Allan Scott, a permanent for purposes of Texas law, that Waukesha County Circuit Judge transgender man, and Rebecca Rob- thus find-ing that a transgender widow J. Mac Davis ruled in favor of the ertson, a woman, will proceed as a di- was not the legal heir to her husband Episcopal Diocese of Milwaukee vorce case. Scott, who was identified as their marriage was void at its incep- in a church property dispute with as female at birth but went through tion. The Littleton ruling from San a congregation in Elm Grove, St. gender transition and has a corrected Antonio is not binding on a Dallas tri- Edmund’s Parish, that had broken birth certificate and legal name change al court. In the Matter of the Marriage from the Diocese due to theologi- identifying him as male, was married of Rebecca Louise Robertson and cal differences with the church over to Robertson in 1998. Scott’s transi- James Allan Scott, NO. DF-10-16083 homosexuality. The decision of the tion did not include phalloplasty; that (255th Judicial Dist., Dallas County, church to ordain openly gay clergy is, he does not have constructed male Texas). Scott is represented by Eric has caused dissension in the ranks genitals. Scott and Robertson ceased Gormly of The Gormly Law Firm and the secession of some local con- living together in 2010, and Rob-ert- PLLC, Dallas. Robertson is represent- gregations, some of whom assert a son filed an action seeking to have ed by Thomas A. Nicol, also of Dallas. claim on the property of their local their marriage declared void, arguing church. But the way things are usu- that under Texas law it was an invalid Virginia — Wilhelm von Himmel ally set up, the church property nor- same-sex marriage. She asserted that and Robert Payne filed a lawsuit in mally belongs to the Episcopal Dio- Scott’s gender transition was never Charlottesville Circuit Court on De- cese that has jurisdic-tion over the “completed” due to his lack of male cember 12, seeking an order that they local congregation, and there have genitals, and thus should be declared be granted a marriage license. The two been several lawsuits around the void. Scott counter-sued for divorce, men attempted to apply for a marriage country concerning whether break- arguing that this was not a same-sex license in Charlottesville on December away congregations have a con- marriage, as he had obtained official 6, but were turned down by the clerk, tinued right to the property. Judge legal recognition of his gender transi- who would not give them an applica- Davis’s ruling means that the break- tion with a legal name change and tion to fill out. An article in the Daily away group must vacate the property new birth certificate, thus making him Progress (Charlottesville) (Dec. 13), at 15625 Water-town Plank Road. ■

January 2012 | Lesbian/Gay Law Notes | 27 Legislative Notes

Defense Authorization that was, on its face, contrary to Su- list of forbidden grounds. Evans- Bill — As members of Congress preme Court precedent (Lawrence ville Courier Press, November 29. negotiated over the contents of the v. Texas). As the conference com- annual National Defense Authori- mittee worked through Decem- Maryland — Howard County zation Bill, various provisions of ber trying to reconcile House and amended its anti-discrimination interest to LGBT military mem- Senate versions of the measure, a ordinance to include protection bers were discussed. Republicans threatened presidential veto loomed against discrimination based on had proposed including provisions due to provisions requiring that gender identity. The move came requiring the Defense Depart- sus-pected terrorists be dealt with in response to a widely-reported ment to comply with Section 3 of through the military justice system incident in which a transgender DOMA (denying any recognition – even U.S. citizens apprehended in woman was assaulted at a McDon- or benefits to same-sex spouses of within the territorial U.S. So it was ald’s restau-rant in Rosedale. The military mem-bers), in reaction to uncertain which version of the au- County’s policy already covered announcements by the Department thorization bill would eventually be sexual orientation. Baltimore Sun, that with the demise of “don’t ask enacted. Ultimately, the president Dec. 12. * * * Baltimore County don’t tell” it was adjusting various signed the final version of the bill, announced on December 15 that it policies to account for same-sex releasing a statement about por- will extend spousal benefits to all partners of openly LGBT Service- tions he deemed unconstitutional. county employees who are married members. There is now a law- to a same-sex spouse, effective Jan- suit pending against the Pentagon Florida — Orlando’s City uary 1, 2012. This action comes in seeking equal bene-fits for part- Council approved a domestic part- response to an arbitrator’s ruling in ners as an Equal Protection mat- nership registry by unanimous a case brought by Lambda Legal on ter. There was also a proposal to vote, to go into effect on January behalf of Baltimore County police shield military chaplains from hav- 12, 2012. There is no residency officers who had been denied bene- ing to perform same-sex marriage requirement, and registration car- fits for their same-sex spouses. Now ceremonies against their will. The ries a handful of rights of recogni- that marriage is available for same- Pentagon had asked for an amend- tion for a relationship in the con- sex couples in Washington, D.C., ment to the Uniform Code of Mili- text of visitation in hospitals and resi-dents of neighboring Maryland tary Justice to repeal Arti-cle 125, jails, and being able to make health have been taking advantage of the the military sodomy law, which care decisions or funeral arrange- lack of a residency requirement Democrats were inclined to agree ments. Orlando Sentinel, Dec. 13. for D.C. marriages to get married, to but conservative groups, such and the state’s attorney general has as the Family Research Council, a Illinois — The Evansville City opined that such marriages should staunchly anti-gay outfit, raised a Council amended the municipal be recognized in Maryland. The hue and cry, as did People for the code to add sexual orientation and next step to recognition, of course, Ethical Treatment of Animals, who gender identity to the list of for- is benefits eligibility. Lambda noted that Article 125 also makes bidden grounds of discrimination Legal News Release, Dec. 15. bestiality a crime. The amendment in education, employment, access was then dropped, even though the to public conveniences and accom- Michigan — On December 22, Pentagon insisted that other provi- modations, and purchase or rental Governor Rick Snyder, a Republi- sions of the UCMJ could be used of real property. The amendment can, signed into law a measure that to deal with bestiality or other in- also replaced the word “handicap” will bar domestic partner benefits appropriate sexual conduct by ser- with “disability,” modernizing the for many public employees in the vice personnel and that it would be code to use more acceptable termi- state of Michigan. Originally, the appropriate to remove a provision nology, and also added age to the legislature intended to complete 28 | Lesbian/Gay Law Notes | January 2012 Legislative Notes

ban, but doubts were expressed tion grounds. * * * Earlier in the St. Louis, Clayton, University City, about the state constitutionality of month, Gov. Snyder signed into law and Olivette, as well as Columbia. such a broad ban in light of consti- a measure to deal with bullying tutional provisions giving the civil in the schools. The measure had Pennsylvania — Equality service commission the responsi- stirred national contro-versy, after Pennsylvania reported on Decem- bility for setting terms of employ- the Senate included in its version ber 9 that Susquehanna Town- ment for classified civil service of the bill a provision exempting ship (in Dauphin County) has employees and another provision religiously-motivated bullying from become the 26th jurisdiction in giving state institutions of higher the ban. In effect, the Senate ver- the state to add sexual orienta- education autonomy with respect to sion said that if bullying took place tion and gender identity to a local their employment policies. In his out of religious conviction, it would ordinance prohibiting discrimi- letter to the legislature announc- not violate the law. But the Senate nation in employment, housing ing his signing of the bill, Sny- backed down and approved a House and public accommodations. der worte, “I am gratified that the version of the bill without the reli- Legislature removed the definition gious exemption. The bill is a rath- West Virginia — The West of public employer from the bill, er weak form of an anti-bullying Virginia Board of Education di- which included institutions of high- bill, in that it does not describe the rected that “sexual orientation” and er education, in favor of a definition specific behavior that is outlawed “gender identity or expression” be of public employees that makes no and does not list forbidden grounds added to the state’s anti-bullying specific reference to university em- or motivations, but merely requires policies for public schools on Dec. ployees,” citing Art. VIII, sections that every school district adopt and 14. The move came in response 5 and 6 of the state constitution and enforce a policy against bullying. to a U.S. Department of Educa- a Michigan Supreme Court ruling Whether such a weak measure will tion report, Analysis of State Bul- construing it. He also cited Art. XI, have any discernible effect on the lying Laws and Policies, which section 5, which gives the Civil Ser- problem is a matter of great specu- observed that 41 states have anti- vice Com-mission the sole respon- lation. Detroit Free Press, Dec. 6. bullying policies, among which 29 sibility for regulating conditions of states enu-merate protected groups employment in the classified ser- Missouri — The city of Clay- while the remainder have a gen- vice. This means that the ban will ton has added sexual orientation eral policy statement that is non- apply only to non-classified public and gender identity to its anti-dis- specific. Many of the 29 states employees. Snyder’s letter charac- crimination ordinance, and Mayor include sexual orientation and gen- terized the bill as preventing public Linda Goldstein stated that she der identity among the enumerated employers from providing “medical expected the Board of Aldermen groups. Poliglot: A Queer Spin on or other fringe benefits to certain to take up the issue of a domestic Politics (Chris Geidner), Dec. 14. unrelated individuals who reside partnership registry soon. St. Louis We have not heard of any study with public employees,” thus de- Post-Dispatch, Dec. 4. On Dec. 6, showing whether the incidence of nying the reality of modern fam- the Associated Press reported that bullying in a particular jurisdic- ily life in which many people have the City Council of Columbia had tion declines after the adoption committed cohabiting relationships voted to add gender identity to its of such policies. We see fertile with same-sex or different-sex local law against discrimination, ground for social science research... partners. The Michigan chapter which has included sexual orienta- of the ACLU promptly announced tion since 1992. According to the Virginia — Bowing to political that it would file a lawsuit chal- AP report, the Missouri jurisdic- pressure from the governor, attorney lenging the measure, presumably tions banning such discrimination general, and other elected officials, on federal and state equal protec- now include Kansas City (MO), the Virginia Board of Social Ser-

January 2012 | Lesbian/Gay Law Notes | 29 legislative / Law & Society Notes

vices voted on Dec. 14 to approve discrimination policy, following the ended. The DADT Repeal Act of final regulations on adoption that recent lead of Major League Base- 2010 removes the statutory require- will leave it open to state-licensed ball. In reporting on this develop- ment that the Defense Department private agencies to refuse to assist ment in a story posted on December exclude openly gay people from ser- same-sex couples in adopting chil- 13, The Advocate referenced similar vice, but leaves to the discretion of the dren. At an earlier point in the pro- policies now in place at the National Department how to deal with LGBT cess, the Board had been consider- Hockey League, the National Foot- recruits and members. This means ing banning discrimination against ball League, and Major League Soc- that a new Administration could theo- same-sex couples in the adoption cer. Now that all these official policies retically reinstate DADT administra- process, which proved very con- are in place, perhaps some brave souls tively by having the Defense Depart- troversial in a state whose legisla- will inch their toes out of the closet? ment rethink its position, and it helps ture has adopted a ban on any sort to explain why the 9th Circuit Court of legal recognition for same-sex Anniversary Celebration of Ap-peals erred in September when couples – a ban so broad that when of DADT Repeal Sealed it vacated the decision in Log Cabin it was under consideration, oppo- with a Kiss — On the one-year Republicans v U.S., 716 F.Supp.2d nents contended that it might even anniversary of enactment of the DADT 884 (C.D. Cal. 2010) as moot. See 658 render unenforceable contracts be- Repeal Act, the White House posted a F.3d 1162 (9th Cir., Sept. 29, 2011). In tween same-sex partners under the commemorative statement on its web- fact, the question whether DADT was state’s public policy. Governor Bob site, and newspapers reported the gen- unconstitutional, as declared by the McDonnell stated that he supported eral view of military command-ers trial court in that case, remains impor- allowing single gay people to adopt that the actual lifting of the anti-gay tant and potentially relevant to the pol- children, but he was opposed to ex- military service ban known informal- icy of any future Administration that panding the adoptive-parent pool to ly as “don’t ask, don’t tell” in Septem- disagrees with the Defense Depart- unmarried couples, whether same- ber 2010 had ultimately been “no big ment’s decision to rescind the policy. sex or different sex. An important deal.” But the media coverage that It is noteworthy in this connection that source of opposition to any kind of most clearly showed the human im- the DADT Repeal Act did not include state ban on discriminating against pact of the new rules was a photograph a ban on sexual orientation discrimi- same-sex couples in the adoption showing a passionate homecoming nation in the military, and did not process was religiously-affiliated kiss as Naval Petty Officer 2nd Class mandate that gay people be allowed adoption agencies, which state a Marissa Gaeta came off the ship and to serve, either openly or in the closet. desire to be able to comply with embraced her partner, Citlalic Snell their religious beliefs by refusing (also a sailor, but in off-duty civilian New Hampshire Vote to serve same-sex couples. Rich- dress on this occasion). According to on Marriage Repeal Ex- mond Times-Dispatch, Dec. 15. ■ a report published on HamptonRoads. pected — Legislative leaders in com, local media for the homecoming New Hampshire announced that the Anti-Discrimination in location, Gaeta won the right to be the legislature would take up a proposal Professional Sports — first sailor off the ship in a raffle, and to repeal the state’s same-sex mar- Although gay athletes in professional thus she became the one most likely riage law later in January, after the team sports are still reluctant to “come to be pho-tographed for the news. * Republican Presidential Primary has out,” collective bargaining protection * * Of course, the statements by all taken place on January 10. The same- against anti-gay discrimination has the leading Republican candidates sex marriage law was enacted by the been spreading. The recently con- for their party’s presidential nomi- previous legislature, which was con- cluded National Basketball Associa- nation in 2012 that they would favor trolled by the Democrats. The most tion contract will include a provision reinstating DADT gives some ground recent election resulted in substantial adding sexual orientation to the non- for concern, due to the way the policy Republican majorities in both houses,

30 | Lesbian/Gay Law Notes | January 2012 Law & Society notes

sufficient to override a veto by the Clementi’s father, Joe Clementi, an- at an adult store in Toronto, Priape, state’s Democratic governor if the Re- nounced the new foundation as a me- described on its website as “Canada’s publicans stick together, and the lead- morial to his son, stating” “One statis- premiere gay lifestyle store and sex ers in both houses have pledge to re- tic I just can’t get my head around is shop.” Mayor Davis has not disclosed peal the marriage law. The proposal is that LGBT teens are seven times more what he purchased for $67 during his to replace it with a less comprehensive likely” to have thoughts about sui- visit to Priape while on a business trip version of the Civil Union law that it cide than non-gay teens. Asbury Park to Canada, saying he doesn’t remem- replaced. Same-sex couples who mar- Press, Dec. 12. For more in-formation ber what he bought. Davis, a conser- ried while the marriage equality law about the Foundation, go to http:// vative Republican, gave an interview was in effect would still be deemed to www.thetylerclementi foundation.org. to the Commercial Appeal (Memphis, be married, but henceforth new civil Tennessee) (Dec. 16), in which he said union couples would have a lesser sta- Illinois Catholic Chari- that he had tried to “maintain separa- tus. According to the University of ties Spinning Off Some tion between my personal and public New Hampshire Survey Center, 62 Adoption Services — Hav- life” but “It is obvious that this can no percent of state voters oppose repeal- ing given up on litigation seeking an longer remain the case.” Southaven is ing the marriage act. If New Hamp- exemption from the requirements of Mississippi’s third most populous city. shire repeals the marriage act, it would Illinois law that their adoption ser- be the third state in which same-sex vices not discriminate against same- Anchorage to Vote on marriage was approved and then with- sex couples, some dioceses have Gay Rights — An initiative that drawn (Maine and California being decided to terminate their adoption would add sexual orientation and gen- the others), but only the second state services, while others are spinning der identity to the Anchorage, Alaska, in which actual marriages will have off their services to newly-organized city anti-discrimination ordinance will taken place and will remain valid af- non-profits that will not be affili- be on the ballot on April 3, as the city ter repeal (California is the other). The ated with the church. The New York clerk’s office verified that sufficient Telegraph (Nashua, NH), Dec. 30. Times (Dec. 29) reported the story as valid signatures had been submitted. a clash between the First Amendment The question for the ballot is: “Shall Tyler Clementi Founda- rights of the church-affiliated organi- the current Municipal Code sections tion Announced — The fam- zation and the non-discrimination providing legal protections against ily of Tyler Clementi, the Rutgers rights of couples seeking adoption discrimination on the basis of race, University freshman who committed services, and pointed out that Catho- color, sex, religion, national origin, suicide by jumping off the George lic Charities in Illinois had be-come marital status, age, physical disability, Washington Bridge, has announced heavily dependent on state funding, and mental disability be amended to the launch of the Tyler Clementi Foun- raising the issue whether state funds include pro-tections on the basis of dation, which aims to promote accep- should be provided to an organiza- sexual orientation or transgender iden- tance of LGBT teens, reduce suicide tion that practices dis-crimination tity?” The initiate seeks to accom- among young people and discourage based on its religious convictions. plish what Mayor Dan Sullivan pre- cyberbullying. Criminal charges are vented by vetoing a measure enacted pending against Dahrun Ravi, a Rut- Mississippi Mayor “Outed“ by the Anchorage Assembly in 2009. gers classmate who was Clementi’s by Receipt Investigation Anchorage Daily News, Dec. 15. dorm roommate, who is alleged to — An investigation into the finan- have used a webcam to spy on Clem- cial accounts of Southaven, Missis- Straight Civil Unions in Il- enti’s intimate meet-ing with another sippi, Mayor Greg Davis has led to linois — The Illinois Civil Union man. Ravi recently rejected a plea Davis announcing that he is gay on Law, which went into effect on June 1, bargain and insists on standing trial, December 15. Among the receipts 2011, differs from such laws in other asserting that he committed no crime. that surfaced was one for purchases states by permitting both different-sex

January 2012 | Lesbian/Gay Law Notes | 31 Law & Society notes

and same-sex partners to register for University of Rochester is giving cou- all remaining U.S. federal and state civil unions, which essentially provide ples a full year from the date the law criminal sodomy laws to private con- the state law rights associated with went into effect to marry if they want sensual gay sex. Mr. Lawrence, who marriage. The Chicago Sun-Times to retain benefits. Some employers, had been ill with a heart condition reported on December 21 that from going in the other direction, decided for a long time, passed away on No- June 1 to November 30, the Cook to expand their domestic partnership vember 20 in Houston at age 68, but County (Chi-cago) Clerk’s Office had benefits plans to cover both different- it took a month for the word to spread issued 1,856 civil union licenses, of sex and same-sex cohabiting couples, beyond the immediate family. A Na- which 138 went to different-sex cou- on the theory that the employer should val veteran, Lawrence found himself ples. The County Clerk’s office was not be forcing people to make a choice arrested in his own apartment for a curi-ous to know why different sex whether to marry and failing to expand “crime” that he likely didn’t commit, couples who were eligible to marry the program would be discriminatory. according to the forthcoming book would apply for civil unions, and sent about the case by Professor Dale out a survey earlier in the fall to the Dueling Initiatives May Be Carpenter of the University of Min- 87 different-sex couples who had re- on California Ballot — nesota School of Law, Flagrant Con- ceived licenses up to that time. For- The general election ballot in Califor- duct (W.W.Norton & Co., 2012), and ty-six responded to the survey. The nia in 2012 may turn out to be heavy he overcame initial reluctance to fight most frequently identified reason was with gay-related initiatives. Signa- the case (as he was not really “out” “fairness” and “solidarity with the gay tures are being solicited to place sev- to ex-tended family) upon being per- community.” The second most identi- eral measures on the ballot seeking suaded by local activists in Houston fied reason was “obtaining benefits.” to amend or eliminate the recently- that history was calling and his case enacted law, just going into effect in could be the one to invalidate anti- New York Domestic Part- January, requiring public schools to gay sodomy laws. His name is now ners Losing Benefits — For incorporate into their curricula LGBT- a major part of LGBT legal history, some New York state public and private related historical materials, and there memorializing his courage as a “test sector employees with same-sex part- is a new attempt under way to put a case” client. (Most people arrested ners, December 31, 2011, was the dead- measure on the ballot to amend the under such a law would plead “no con- line to document that they had married state constitution so as to overrule test” and let it go, given the minor fine so that they could retain employee Proposition 8, which amended the involved and the natural reluctance of benefits. Some em-ployers that adopt- state constitution in 2008 to provide most people to draw public attention ed partner benefits plans for same-sex that same-sex marriages would be nei- to their sexual activities, so the will- partners of employees premised the ther valid nor recognized in California. ingness of Lawrence and the other program on the inability of same-sex man arrested with him, Tyron Garner, partners to marry, and have advised Lawrence (of Lawrence who passed away in 2006, to go public employees receiving such benefits that v. Texas) Dies — John Ged- with an appeal was extraordinary, and they would have to get married to re- des Lawrence, Jr., co-petitioner with essential to getting an appellate ruling tain them, now that New York has en- the late Tyron Garner in Lawrence v. on the merits. Prior at-tempts to chal- acted a Marriage Equality Law (which Texas, 539 U.S. 558 (2003), the case lenge the Texas law directly through went into effect on July 24, 2011). The in which the United States Supreme test case litigation had failed when the Rochester Democrat & Chronicle Court ruled that a law making it a Texas Supreme Court ruled that only (Dec. 30) reported this development crime for consenting adult same-sex a person actually prosecuted under at the Rochester City School District, couples to have sex violated their right the law could contest its constitution- where 24 of the 33 domestic partners to Due Process of Law under the 14th ally in the context of a criminal court receiving benefits have documented Amendment of the U.S. Constitution, appeal.) Lawrence is survived by his their mar-riages for the District. The thus invali-dating the application of partner, Jose Garcia. ■

32 | Lesbian/Gay Law Notes | January 2012 International notes

United Nations — On June ment has introduced a bill to al- tion that was not actionable un- 17, 2011, the U.N. Human Rights low same-sex couples to enter into der the nation’s legislative ban on Council adopted a resolution on a civil union at a ceremony con- sexual orientation discrimination “Human Rights, Sexual Orienta- ducted by a celebrant, according to in employment. OGH 25.10.2011, tion and Gender Identity,” which a Dec. 7 report by ABC Premium 9 ObA 113/11z. * * * Responding among other things called upon News. The measure is similar to to lobbying to include homosexuals the UN High Commissioner for 2006 legislation that was over- among the groups protected from Human Rights to commission a turned by the Howard Administra- incitement to hatred, the Parlia- study docu-menting discriminatory tion. Since 2008, same-sex couples ment amended the existing law, but laws and practices and acts of vio- in the ACT jurisdiction have been at the same time watered-down the lence against individuals based on able to register as civil partners, but protection provided to all groups their sexual orientation and gender are not entitled to have any sort of by stating that the law applies only identity. The report thus compiled official ceremony. Since the earlier to promoting hatred of the entire was submitted to the U.N.’s Human measure was vetoed, the Territory group, not directed at any particu- Rights Council on November 17, Self-Government Act was revised lar member, and also the incite- and was released publicly on De- so that ACT laws can only be ve- ment must be to the broad public, cember 15. It is available on the toed by an act of Parliament, not by as for example through mass media Human Rights Council’s website. individual government ministers, and the like, according to a sum- The 25-page report provides the as was the case previously. ACT mary posted to the internet by Dr. first officially documented sum- Attorney General Simon Corbell Helmut Graupner of the Austrian mary and over-view of the mis- stated that now that the Labor Party Gay Rights movement. Thus, while treatment of LGBT people around has affirmed support for same-sex including gays “in” to protection, the world by the world’s largest mar-riage, it was time to take steps the protection for all groups has international body, and should to remove discrimination against been drastically watered down. prove a useful resource for, among gay couples. There are press pre- other things, documenting asylum dictions that Australia’s federal Belgium — Elio di Rupo, an claims and summoning political Parliament may legislate in favor openly gay politician, was named and diplomatic pressure to im- of same-sex marriage during 2012. Prime Minister of Belgium on prove conditions for LGBT people. December 5, thus becoming the Austria — The Supreme Court, first openly gay head of a nation- Argentina — It was reported affirming judgments by the Region- al government in the European that Argentina’s House of Depu- al Court for Civil Affairs of Graz Union. Having been requested by ties overwhelmingly approved a and the Upper Regional Court of King Albert II to attempt to form national Gender Identity Bill late Graz, upheld a dismissal of a dis- a govern-ment coalition that would in November, and that the bill crimination and retaliation claim by command a majority in the Parlia- would be considered by the Senate a lesbian who claims she was forced ment after an 18-month gap follow- in the spring of 2012. Prior to the to resign her job after complain-ing ing indecisive national elections, vote, Argentina’s Security Minis- about anti-gay discrimination by a Di Rupo was seen as a national ter an-nounced that “transsexual colleague. The court seized upon savior of a country that threatened members of the federal police and the facts that the woman had been to splinter along ethnic lines be- security forces will be recognized exploring a possible job change tween the Dutch-speaking Flemish under the gender they adopted.” before the incident arose, and that majority and the French-speaking she received a month’s severance Walloons. Di Rupo “came out” in Australia — The Australia pay, and concluded that this was a 1996, and the fact that he was gay Capitol Territory (ACT) govern- “consensual” employment termina- did not arouse any particular com- January 2012 | Lesbian/Gay Law Notes | 33 International notes

ment in the Belgian media. In re- after local television broadcast the the past for such judicial gender porting on Di Rupo’s appointment, story about the initial approval by recognition in order to obtain ap- Gay City News (Dec. 21) spoke a local court. Burr’s adoption case, propriate identity papers. But the with a leading French journalist, together with an adoption case in- court found Avrillon’s marriage an Jean Quatremer, who said, “Bel- volving a lesbian couple from Me- insuperable barrier, writing, “Mar- gium is a Catholic country, but dellin, are widely expected to be af- riage is the union between a man even the more conservative Flem- firmed by the Constitutional Court. and a woman. The court cannot, ish are fairly tolerant about people’s in judicially modifying the sex of a private lives, and Di Rupo’s been Croatia — On December 1 married person, create a legal situ- out of the closet for so long every- the European Parliament adopted ation forbidden by law. To modify body knows he’s gay. Di Rupo will a resolution concerning the acces- the sex mentioned on a birth cer- show up at sporting events or con- sion of Croatia to the European Un- tificate of a married person would certs or the like with his boyfriend, ion, which is to be finalized in July result not in taking note of but in but nobody even bothers to notice 2013. The resolution noted vio- creating a situation of marriage if it’s the same one or a new one – lence against an LGBT pride march between persons of the same sex.” there’s been absolutely nothing in on June 11, 2011, and called on Avrillon’s lawyer indicated that an the Belgian press about his com- Croatian authorities to “investigate appeal will follow, seeking a con- panion.” The executive director the and prosecute the crimes commit- stitutional ruling. “Of course,” federation of LGBT organizations ted and to developed strategies for said Emmanuel Ludot, “a change in the French-speaking part of the preventing similar incidents in the of identity would be allowed him country, Zirlaene Berger, told Gay future.” The resolution also “calls if he had just got divorced. What City News, “There was absolutely on the Croatian authorities quickly kind of blackmail is this, where no negative comment in the press to adopt and implement an action we’re putting pressure on a man here or attacks by his opponents,” plan against homophobia.” Press that has become a woman, telling and his homosexuality “went al- release from European Parlia- him: ‘If you don’t divorce you’ll most completely unmentioned.” To ment Intergroup on LGBT Rights. just have to stay a woman.” The the extent there is controversy, it is Avrillons have been married for that Di Rupo, who comes from the France — A court in Brest has 15 years. Had they not been mar- French-speaking (minority) part of denied a petition by a transsexual ried, they could have entered into the country does not speak Dutch woman to be recognized in her a civil solidarity pact as a same- very well, leading to some adverse preferred gender because she re- sex couple, enjoying many of the comments about his public speak- mains married to the woman with same legal and tax protections of ing by the Flemish majority. But whom she had three sons prior to married couples under French law. evidently his political skills did the her gender transition. Accord- trick in forming a coalition suffi- ing to a report by Agence France- Ireland — Minister of Justice cient to install a new government. Presse published Dec. 16 in the Alan Shatter announced that reg- Ottawa Citizen, Chloe Avrillon istered relationship of same-sex Colombia — On-line journal- sought judicial recognition as a couples from 32 other jurisdictions ist Rex Wockner reported on De- woman in order to obtain new would be treated as equivalent to cember 14, that gay author/scholar state identity pa-pers reissued in civil partnerships under Ireland’s Chandler Burr has become the first her current gender. Her identity new Civil Partnership and Certain openly gay man to be allowed to papers still show her birth name Rights and Obligations of Cohabi- adopt children from Colombia. In of Wilfred and male gender. Un- tants Act 2010. Under a new order, an email to Wockner, Burr related married French trans-sexuals have effective December 25, such recog- the warm reception he had received successfully petitioned courts in nition would also apply to same-sex

34 | Lesbian/Gay Law Notes | January 2012 International notes

marriages, domestic partner-ships, theft and indecent assault against Uganda — In an act of ex- civil unions, and civil partnerships – Peter Chinenye and Elijah Michael. traordinary bravery, Frank Mu- whatever a jurisdiction chose to call The world press had reported that gisha, the Executive Director of it, if it was deemed fairly equivalent the two men were charged with Sexual Minorities Uganda, an to Irish civil partner-ships, it would committing “homosexual acts” on organization within Uganda ad- be recognized in Ireland. Thus, Fayankunnu Bosun, the complain- vocating for the civil and human such couples traveling in Ireland can ant. But Mr. Bosun has failed to rights of gay people, published be confident that their relationships come forward as a prosecuting wit- an op-ed article in The New York (suitably docu-mented) will be rec- ness, leading the court to grant the Times on December 23 describing ognized by the Irish government, motion to dismiss the charges. Ac- the oppressive situation for gay and the nation’s tourist industry can cord-ing to their attorney, Mrs. Ada- people in his country and calling make a strong pitch for gay tour- ora Ochubili, Bosun had met Chine- upon the political leaders of the ism to Ireland. Irish Times, Dec. 20. nye through Facebook and made world to stand in solidarity with a date to meet him in Chinenye’s LGBT people in Uganda. One Mexico — Expecting an influx home. During that date, Ochubili suspects that the recent public of tourist dollars, various Mexican says, Bosun initiated sexual con- statements by the Obama Ad- Caribbean resorts, including Can- tact with Chinenye, then brought ministration in support of LGBT cun, are said to be preparing for the charges against him in revenge human rights may have prompted performance of same-sex marriages. for Chinenye calling his friend this and similar acts; one hopes It seems that the Civil Code in these Elijah into the room and taunting that the Obama Administration localities is sufficiently ambiguous Bosun as a penalty. Daily Cham- is ready to back up its stirring that local authorities are prepared pion (Lagos, Nigeria), Dec. 16. words with actual support for to sanction same-sex marriages – those fighting for LGBT human without any residency requirement, South Korea — Late in rights amidst hostility and re- and without seeking any legislative December, the Seoul Metropoli- pression from governmental and clarification, according to a Dec. tan Council voted 54-28 in favor social forces in their countries. 29 report on Foxnews.com. Tour of a Student Rights Ordinance groups have been promoting pack- that, inter alia, includes protec- United Kingdom — The age deals for international tourists, tion against discrimination for year-end British New Year Hon- with at least eight couples having LGBT students. The vote came ors List this year includes Jeffrey been “confirmed” to marry in Janu- after protests staged by LGBT Dudgeon, a gay rights activist, who ary 2012. Mexico City specifically students after it appeared that was awarded an MBE for services legislated in favor of same-sex mar- sexual orientation and gender to the lesbian, gay, bisexual and riage several years ago, and the coun- identity, included in the original transgender community in North- try’s highest court ruled that same- draft of the bill, might be de- ern Ireland. Mr. Dudgeon’s law- sex marriages lawfully contracted leted in the Education Commit- suit before the European Court of in Mexico City must be recognized tee of the Council, whose chair Human Rights in 1982, which was throughout the country, as Mexico was opposed to including these cited by the U.S. Supreme Court in does not have any statute analo- categories. However, the origi- Lawrence v. Texas, led to decrimi- gous to the U.S. Defense of Mar- nal version went through by a nalization of gay sex in Northern riage Act, and none has been passed Committee vote of 8-6 with one Ireland. It also includes Ms. Jess in response to the court’s rul-ing. abstention, according to a letter Wood, for service to LGBT youth from Korean LGBT activists cir- in Brighton and Hove, and Ms. Al- Nigeria — Yaba Magistrate’s culated on December 20 by LGBT ice Purnell for service to transgen- Court has dismissed charges of on-line journalist Rex Wock-ner. der people. ■ January 2012 | Lesbian/Gay Law Notes | 35 HIV/AIDS Legal & Policy Notes

Legislation — Amidst the end- proposing a significant total increase EEOC in October 28, alleging that he of-year passage of appropriations bills, in funding for HIV-related projects. was terminated due to a physical dis- Congress reversed course and rein- ability. It seems that he was going to stated the ban on use of federal money 2nd Circuit Court of Ap- the bathroom too frequently, identified for needle-exchange programs. Such peals — On December 13, 2011, in the EEOC’s court com-plaint of Nov. a ban had been instituted during the a panel of the U.S. Court of Appeals 16, 2010, as a result of glomerulonephri- Bush Administration, but was reversed for the 2nd Circuit issued a summary tis. There had been an unsuccessful at- in the first round of appropriations bills order upholding a decision by District tempt at conciliation in the case prior to passed in the Obama Administration Judge Scullin (N.D.N.Y.) to reject the 8th the filing of the complaint, as required when both houses of Congress and Amendment claim of an HIV+ NY State by the ADA. After The Gap filed its re- the White House returned to Demo- prison inmate, who had alleged deliber- sponse to the complaint, EEOC moved cratic control. However, defunding ate indifference by the prison physician to amend, reporting that after consult- needle exchange has been a part of and prison superintendent concerning ing its retained nephrology expert and the Republican platform, and appro- his medical treatment. The court found conducting a document review, it had priations bills originate in the House, that the superintendent had no direct concluded that the charging party’s fre- where Republicans were restored to role in the inmate’s medical treatment, quent need to visit the bathroom was control by the 2010 mid-term elec- and that the doctor had monitored the actually due to side-effects of his HIV- tions. There was insufficient support inmate’s CD4 count and had begun anti- related medication. Magistrate Whelan for needle exchange in the Senate to retroviral therapy when the count fell be- found that allowing an amended com- keep this amendment out of the appro- low 350 cells/mm3. Thus, the court con- plaint focused on HIV rather than the priations bills, as the Republicans hold curred with the district court judge, who originally-identified condition would sufficient seats to block legislation in had adopted the magistrate’s report and be prejudicial to The Gap because of that house. The science is clear that recommendation that the 8th Amend- the The Gap’s marketing to the LGBT needle exchange programs save lives ment claim be denied. A difference community. Implicit in his ruling is and save money (that would otherwise of opinion between the inmate and the the belief that had The Gap faced an be expended on treatment of HIV in- prison doctor about when to start thera- HIV-discrimination charge from the fection), without leading to increased py does not justify a claim of deliberate outset, conciliation might have been addiction, but the Republican majority indifference, under settled 8th Amend- successful, as the retailer would be in the House is not concerned with sci- ment precedents. Concepcion v. Pick- wary of alienating an important retail ence, after all, and their alleged con- les, 2011 WL 6157010 (Dec. 13, 2011). constituency should a lawsuit be filed cern about federal spending and bud- against it for HIV-related discrimina- get deficits easily yields to ideology. U.S. District Court, East- tion. Thus, concluded Whelan, the ern District of Michigan EEOC must continue litigating based Obama Administration — In — U.S. Magistrate Judge R. Steven on its origi-nal theory. While the rul- a World AIDS Day statement issued at Whelan has denied a motion by the ing is very sensitive about the politics the beginning of December, President Equal Em-ployment Opportunity of the case, it seems odd that a judge Obama announced a goal of securing Commission to amend its complaint is denying a motion to amend on the HIV-related treatment for six million in EEOC v. The Gap, Inc., Case No. ground that the truth would be too un- people by the end of 2013 and urged 10-14559 (Dec. 27, 2011), finding that comfortable for the defendant to deal other countries to increase their com- the EEOC knew from early in the case with in the course of litigation – as the mitment to funding HIV treatment. that the plaintiff’s disability was HIV- ruling implicitly holds. In any event, The President announced the goal of related but failed to assert that from the now that Magistrate Whelan’s ruling an “AIDS-free generation.” But cynics outset, thus prejudic-ing the defendant. has become a news story, that genie is noted that his proposal mainly involved The charging party, a former GAP out of the bottle. Time for The Gap to ■ re-allocating existing funding rather than store manager, filed a charge with the make the next move… 36 | Lesbian/Gay Law Notes | January 2012 PUBLICATIONS NOTED LGBT & Related Issues (28)

1. Bamforth, Nicholas, New 11. Green, Jamal, The Antican- Natural Law, Religion, and Editor’s Notes on, 125 Harv. L. Rev. 379 Same-Sex Marriage: Cur- (Dec. 2011) (How does a case rent Constitutional Issues, 1 • All points of view come to be part of the “anti- Wake Forest J.L. & Pol’y 207 expressed in canon” – the catalogue of (May 2011). Lesbian/Gay Law cases frequently cited as hav- 2. Bayer, Peter Brandon, Sacri- Notes are those ing been egregiously wrong, fice and Sacred Honor: Why of identified writers, such as Dred Scott or Plessy the Constitution Is a Suicide and are not official v. Ferguson – and should Pact, 20 Wm. & Mary Bill positions of the Bowers v. Hardwick be part Rts. J. 287 (Dec. 2011). Lesbian & Gay of it?). 3. Bender, Erin, Until Death (or Law Association 12. Hafemeister, Thomas L., If Sex Change) Do Us Part: Ad- of Greater New All You Have is a Hammer: vocating for Adoption of the York or the LeGaL Society’s Ineffective Re- European Legal Approach Foundation, Inc. sponse to Intimate Partner to Validating Marriages • All comments in Violence, 60 Cath. U. L. Rev. Involving Post-Operative Publications Noted 919 (Fall 2011). Transsexuals, 18 Cardozo are attributable 13. Halley, Janet, What is Family J.L. & Gender 35 (Fall 2011). to the Editor. Law?: A Genealogy Part II, 4. Benecke, Michelle, Turning • Correspondence 23 Yale J. L. & the Humani- Points: Challenges and Suc- pertinent to issues ties 189 (Summer 2011). cesses in Ending Don’t Ask, covered in Lesbian/ 14. Hanna, Cheryl, State Con- Don’t Tell, 18 Wm. & Mary J. Gay Law Notes stitutional Decision-Making Women & L. 35 (Fall 2011). is welcome and and Principles of Equality: 5. Bernstein, Anita, Toward will be published Revisiting Baker v. State and More Parsimony and Trans- subject to editing. the Question of Gender in parency in the Essentials of Please address the Marriage Equality De- Marriage, 2011 Mich. St. L. correspondence bate, 74 Alb. L. Rev. 1683 Rev. 83. to the Editor or (2010-11). 6. Carbone, June, Marriage as send via e-mail. 15. Ittelson, Alesdair H., Trapped a State of Mind: Federalism, in the Wrong Phraseology: Contract, and the Expressive O’Donnabhain v. Commis- Interest in Family Law, 2011 381 (Sept. 2011). sioner – Consequences for Mich. St. L. Rev. 49. 9. Frohnen, Bruce P., and Federal Tax Policy and the 7. Carbone, June, Out of the George W. Carey, Constitu- Transgender Community, 26 Channel and Into the Swamp: tional Morality and the Rule Berkeley J. Gender L. & Jus. How Family Law Fails in a of Law, XXVI J. L. & Poli- 356 (Summer 2011). New Era of Class, 39 Hofstra tics 497 (Summer 2011). 16. Johnson, Paul, Homosexu- L. Rev. 859 (Summer 2011). 10. Gilreath, Shannon, Why ality, Freedom of Assembly 8. Dempsey, Brian, Gender Gays Should Not Serve in the and the Margin of Apprecia- Neutral Laws and Hetero- United States Armed Forces: tion Doctrine of the Europe- centric Policies: “Domes- A Gay Liberationist State- an Court of Human Rights: tic Abuse as Gender-Based ment of Principle, 18 Wm. & Alekseyev v. Russia, 11 Hum. Abuse” and Same-Sex Cou- Mary J. Women & L. 7 (Fall Rts. L. Rev. 578 (2011). ples, 15 Edinburgh L. Rev. 2011). 17. Kahn, Liza, Transgender

January 2012 | Lesbian/Gay Law Notes | 37 PUBLICATIONS NOTED LGBT & Related Issues — HIV/AIDS & Related Issues (1)

Health at the Crossroads: L. Rev. 61 (2011) (Counter- Legal Norms, Insurance Specially Noted factual speculation: What Markets, and the Threat of if the Privileges and Im- Healthcare Reform, XI Yale • New York University munities Clause of the 14th J. Health Pol’y, L. & Ethics Press has published Amendment had received a 375 (Summer 2011). Intersexuality and liberal interpretation by the 18. Mazzochi, Sarah, The Great the Law: Why Sex Supreme Court in the 19th Debate: Lessons To Be Matters, by Prof. century? Would our current Learned From an Interna- Julie A. Greenberg Due Process and Equal Pro- tional Comparative Analysis of Thomas Jefferson tection jurisprudence be any on Same-Sex Marriage, 16 School of Law. Prof. different?) Roger Wil-liams U. L. Rev. Greenberg is a lead- 24. Rosenberg, Lee, Matrimo- 577 (Fall 2011). ing authority on the nial Representation and 19. Oppenheimer, Elisabeth, No law related to sex Same-Gender Newlyweds- Exit: The Problem of Same- and sexuality, and to-Be, New York Law Jour- Sex Divorce, 90 N.C. L. Rev. has written pio- nal, Dec. 5, 2011, p. 4. 73 (Dec. 2011). neering law review 25. Spann, Girardeau A., Con- 20. Panel Discussion, Don’t Ask articles about inter- stitutional Hypocrisy, 27 Don’t Tell: Beyond the Log sexuality. This is Const. Comment. 557 (Win- Cabin Republicans Injunc- apparently the first ter 2011) (Symposium: The tion and the Defense Autho- book-length publica- United States Constitution rization Act, 1 Am. U. Lab. & tion to deal with the (Rev. Ed.): How Would you Emp. L.F. 127 (Winter 2011) topic of intersexual- Rewrite the United States (Edited Transcript of Panel ity and law. It will Constitution?). Discussion). be available both in 26. Strauss, Marcy, Reevaluating 21. Ramakrishnan, Kavita B., In- hard cover and as an Suspect Classifications, 35 consistent Legal Treatment ebook. Seattle U. L. Rev. 135 (Fall of Unwanted Sexual Advanc- • West has published 2011). es: A Study of the Homosex- the second edition of 27. Strozdas, Jay, Trendlines: ual Advance Defense, Street Sexual Identity Law Court Decisions, Proposed Harass-ment, and Sexual in Context: Cases Legislation, and Their Likely Harassment in the Work- and Materials, by Impact on Binational Same- place, 26 Berkeley J. Gender Shannon Gilreath Sex Families, 44 Loy. L.A. L. L. & Jus. 291 (Summer 2011). (Wake Forest Univer- Rev. 1339 (Summer 2011). 22. Recent Case, Constitutional sity) and Lydia E. 28. Waltman, Max, Prohibiting Law – Eighth Amendment Lavelle (North Caro- Sex Purchasing and End- – Seventh Circuit Invali- lina Central Universi- ing Trafficking: The Swedish dates Wisconsin Inmate Sex ty) (2012). The book Prostitution Law, 33 Mich. J. Change Prevention Act – is organized to pro- Int’l L. 133 (2011). Fields v. Smith, 653 F.3d 550 vide interdisciplinary (7th Cir. 2011), 125 Harv. L. materials to sup-port 1. Grant, Isabel, The Prosecu- Rev. 650 (Dec. 2011). a 2 or 3 credit-hour tion of Non-Disclosure of 23. Roosevelt, Kermit, III, What discussion seminar. HIV in Canada: Time to Re- if Slaughter-House Had Been think Cuerrier, 5 McGill J. L. Decided Differently?, 45 Ind. & Health 7 (2011).

January 2012 | Lesbian/Gay Law Notes | 38