Sexual Orientation: Developments in the Law and Issues for the Courts Prepared at Seattle University School of Law for the Washington State Gender and Justice Commission From Gay Marriage to Domestic Violence to Hate Crimes: What You Need to Know About the Cases Coming to Your Court Tuesday, October 4, 2011 53rd Washington Judicial Conference Primary Authors: Cynthia B. Jones, Seattle University School of Law Niloufar A. Park, Seattle University School of Law Tammy M. Sittnick, University of Washington School of Law Quita St. John, Seattle University School of Law With the Assistance of: The Honorable Mary I. Yu, King County Superior Court Professor David M. Skover, Seattle University School of Law Professor Julie Shapiro, Seattle University School of Law Professor Anne M. Enquist, Seattle University School of Law Stephanie Wilson, Reference Librarian, Seattle University School of Law Tracey A. Thompson, Staff Attorney, Teamsters Local Union No. 117 Jeffrey L. Nesiba, Seattle University School of Law Aaron Pritchard, Seattle University School of Law Additional Credits: The authors would like to thank Nancy Bradburn-Johnson, Bonnie Canada- Thurston, Corey Edmonds, Rudolph Hasl, Gloria Hemmen, Kimberley Prochnau, Doris Russell, Suzanne J. Thomas, and Kellye Testy for their support of and assistance with this project. Second Edition Edited by: E. Ross Farr Table of Contents I. Preface Preface to Second Edition............................................................................I-1 Introduction ..................................................................................................I-2 Terminology .................................................................................................I-2 Court Rules and Professional Responsibility................................................I-3 Demographics ..............................................................................................I-4 II. Family Law Introduction ..................................................................................................II-1 Meretricious Relationships & the Non-Marital Couple ..................................II-1 Marriage .......................................................................................................II-5 Registered Domestic Partnership.................................................................II-7 Adoption .......................................................................................................II-9 Parentage and Custody of Children .............................................................II-11 Domestic Violence........................................................................................II-12 III. Employment Law Introduction ..................................................................................................III-1 Employment Discrimination Under Washington Law....................................III-1 Employment Discrimination Under Federal Law ..........................................III-5 Employee Benefits .......................................................................................III-10 IV. Criminal Law Introduction ..................................................................................................IV-1 Malicious Harassment—“Hate Crimes” ........................................................IV-1 Rape.............................................................................................................IV-5 V. Youth Introduction ..................................................................................................V-1 Gay, Lesbian, Bisexual, Transgender Youth, and Schools .........................V-1 Gay, Lesbian, Bisexual, Transgender Youth, and Foster Care ....................V-2 VI. Transgender/Transsexual Issues Introduction ..................................................................................................VI-1 Medical and Other Studies ...........................................................................VI-1 Terminology .................................................................................................VI-1 Discrimination...............................................................................................VI-2 Changing Sex on a Birth Certificate .............................................................VI-2 Changing Sex on a Driver’s License ............................................................VI-3 Name Change ..............................................................................................VI-3 Marriage .......................................................................................................VI-4 Custody of Children......................................................................................VI-4 Incarceration ................................................................................................VI-4 Appendix A. Style Book Supplement A-1 B. Percentage of Same-Sex Couples by County B-1 C. Private Sector Codes and Ordinances C-1 D. Public Sector Employee Codes and Ordinances D-1 E. Employment Policies E-1 F. Additional Resources F-1 G. Final Bill Report SSB 5336; Chapter 156; Laws of 2007 G-1 I. Preface A. Preface to Second Edition Since the publication of the first edition of this benchguide in 2004, Washington State has seen significant changes in the law as it affects gay, lesbian, bisexual and transgendered (“GLBT”) persons. The state legislature has added sexual orientation as a protected against discrimination in employment and housing. Although our Supreme Court has held that same-sex couples do not have a right to marry under state constitution, the legislature has created a state-wide domestic partnership registry, which provides same-sex couples with some, but not all, of the rights afforded to married couples. The Supreme Court affirmed the doctrine of de facto parentage articulated by the Court of Appeals, and suggested that it is finally time to set aside the pejorative term “meretricious relationship” when dividing property between unmarried couples, suggesting that we call those relationships what they are – “committed intimate relationships.” This second edition leaves in tact the hard work of the original authors and contributors, while attempting to reflect the changes mentioned above. As the law is a work in progress, so is this benchguide, and it will undoubtedly require further updates as the law changes. It is my hope that the second edition continues to provide Washington’s judges with a point of reference for the particular ways that the law touches the lives of GLBT persons in their courtrooms. October 2007 E. Ross Farr Editor, Second Edition I - 1 B. Introduction As our society becomes increasingly aware of the existence and needs of gay, lesbian, bisexual, and transgendered (“GLBT”) persons, there inevitably will be more “openly” GLBT people and issues within our courts. See, e.g., Jill Schaachner Chanen, The Changing Face of Gay Legal Issues, AMERICAN BAR ASSOCIATION JOURNAL, July 2004, at 47. These developments serve to challenge each judicial officer to become familiar with the current state of the law and to maintain a forum that is free of bias. A 2001 California study by the Judicial Council’s Access and Fairness Advisory Committee found that 56% of gay and lesbian court users observed or experienced a negative comment or action, particularly when sexual orientation was at issue. See Judicial Council of California, Sexual Orientation Fairness in the California Courts, Jan. 2001, at 3-4. One in five California court employees of all sexual orientations heard “derogatory terms, ridicule, snickering or jokes about gay men and lesbians in open court, with the comments being made most frequently by judges, lawyers, or court employees.” Id. at 4. This percentage increased in situations other than open court. Id. at 6. As we all know, reaching the lawful decision in a case is not enough to offset any perception of bias. Rather, litigants and parties want to experience our courts as a place where they are heard and are treated with respect and dignity. We also know that racial minorities and women still experience bias in the justice system even though it is not always obvious. In the spirit of promoting fair and equal justice this Handbook is offered as a tool to familiarize judges with the current state of the law affecting GLBT individuals. C. Terminology Language in the courtroom is of utmost importance in assuring a fair and impartial tribunal for all citizens. Pejorative terms can immediately indicate ignorance, disrespect, or even bias on the part of a judge, lawyer, or litigant. In the area of sexual orientation, many people may have questions about the appropriate terms to use to describe persons or issues. Accordingly, this section is designed to develop an awareness of various terms so that oral rulings and written decisions do not communicate an unintended message. 1. National Lesbian and Gay Journalists Association Stylebook Supplement as Guide for Terminology and Usage. a) We offer a terminology stylebook (Appendix A) as a guideline for modern usage of language relating to gay, lesbian, bisexual, and transgender/transsexual people. The terminology is compiled by and used with permission from the National Lesbian and Gay Journalists Association. The style sheet is also used by the American Medical Association. I - 2 b) The language associated with GLBT people is constantly evolving. Indeed, within GLBT communities, there has been reclamation of various words