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39 posts from June 2009

June 30, 2009

Judge in Perry case wants trial preparation to begin re: Prop 8

U.S. District Court Judge Vaughn Walker, who is hearing the Perry v. Schwarzenegger case, has issued an order changing what had been scheduled as a hearing on a preliminary injunction on Thursday into a status conference, so that the case can skip the preliminary injunction phase and move directly to discovery and other trial preparation. This is a smart move by Judge Walker, and doesn't really cost the plaintiffs much, since the chances were virtually nil that the judge would have enjoined the enforcement of Prop 8 at the outset of the case. The effect of this order will be to delay the case reaching the Ninth Circuit Court of Appeals, but when it does go up on appeal, there will be a full evidentiary record.

The order also grants the motion to intervene filed by Prop 8 proponents, who are now its lead defenders, since AG Jerry Brown has declined to defend its constitutionality. They have retained Cooper & Kirk, a virtual stable of ex-Reagan and Bush administration attorneys. Cooper & Kirk will get to play big litigator smackdown with Ted Olson and David Boies.

Most interesting, though, are the questions that Judge Walker identified for both further briefing and factual development.  He has directed the parties to produce evidence supporting their respective positions on a broad range of questions:

  • "The facts necessary to establish the appropriate level of scrutiny under the Equal Protection Clause," including whether sexual orientation affects the ability to contribute to society and "the relative political power of gays and lesbians"
  • Facts supporting the proffered state interests in preserving Prop 8, including "whether the exclusion of same-sex couples from marriage leads to increased stability in opposite-sex marriage" and " whether a married mother and father provide the optimal child-rearing environment and whether excluding same-sex couples from marriage promotes this environment"
  • On the sex discrimination claim, the judge identified the question of "whether requiring one man and one woman in marriage promotes stereotypical gender roles."
  • Relevant to the question of whether there was discriminatory intent behind Prop 8, the court may look into evidence of voters' motivations, including advertisements.
  • Lastly, the court indicated that there may need to be a record made on "the differences in actual practice of registered domestic partnerships, civil unions and marriage, including whether married couples are treated differently from domestic partners in governmental and non-governmental contexts."

This is going to be a hell of an evidentiary record!

HT: the new order was first reported by Law Dork.

Labor Secretary Solis "proud of pride;" condemns defacement of posters

Secretary of Labor Hilda Solis  reacted strongly to news that many DoL posters advertising Pride Month had been torn down or defaced. It's a small thing, but it never would have happened in a Republican administration.

From: Secretary Hilda Solis
Sent: Friday, June 26, 2009 1:40 PM
Subject: Proud of Pride

Dear Colleagues:

... As a founding member of the LGBT Caucus in the U.S. House of Representatives, I was particularly pleased to have the opportunity to be the first Secretary in the department’s history to publicly recognize Pride Month. I am very proud of that.

It appears, however, that some members of the Labor Department team have a different view, as it has come to my attention that most of the posters have been continually defaced or removed. On several occasions, even the poster frames have been torn completely off the elevator walls.

My reaction to this news has ranged from disappointment to outrage.

I do not believe these actions represent the majority of our employees, so I refuse to let this situation define us. But I do want to make myself absolutely clear: Respect for others is non-negotiable at the U.S. Department of Labor....

The posters will stay up until the end of the month, and will be replaced immediately if they are removed or destroyed. This is a small way to remind everyone here how I, and most of our colleagues, feel about this issue....

Hilda L. Solis

U.S. Secretary of Labor

Source: Think Progress; HT: Lisa Duggan

June 28, 2009

Senate confirms Koh

On Friday, the Senate finally confirmed Harold Koh as Legal Advisor (the equivalent of General Counsel) to Secretary of State Hillary Clinton. The 62-35 vote came after four months of stalling tactics and fearmongering about whether Harold would be too receptive to non-U.S. law. What an idiotic waste. And it is long past time for the Senate to confirm Dawn Johnsen as head of OLC, and end the smear tactics directed at her.

Important new book on gay marriage

Badgett copy Lee Badgett's new book When Gay People Get Married is out soon from NYU Press; you can order it now.  Here's the description:

In order to find out the impact of same-sex marriage, M. V. Lee Badgett traveled to a land where it has been legal for same-sex couples to marry since 2001: the Netherlands. Badgett interviews gay couples to find out how this step has affected their lives. We learn about the often surprising changes to their relationships, the reactions of their families, and work colleagues. Moreover, Badgett is interested in the ways that the institution itself has been altered for the larger society. How has the concept of marriage changed? When Gay People Get Married gives readers a primer on the current state of the same-sex marriage debate, and a new way of framing the issue that provides valuable new insights into the political, social, and personal stakes involved.

The experiences of other countries and these pioneering American states serve as a crystal ball as we grapple with this polarizing issue in the American context. The evidence shows both that marriage changes gay people more than gay people change marriage, and that it is the most liberal countries and states making the first move to recognize gay couples. In the end, Badgett compellingly shows that allowing gay couples to marry does not destroy the institution of marriage and that many gay couples do benefit, in expected as well as surprising ways, from the legal, social, and political rights that the institution offers.

Correcting the record on the crazy criticism that the DoJ brief compared s/s marriage to "pedophilia and incest"

Big HT to Chris Geidner at Law Dork, who takes on the irresponsible attacks, led by John Aravosis, that accuse the DoJ brief in Smelt of comparing same-sex marriage to pedophilia and incest. Following is the detailed response that has been lacking:

John continues to write about “pedophilia” ... despite the fact that 16-year-old whose marriage was invalidated in the case cited in the brief — Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) — would today have reached the age of consent, if not the age at which a marriage would be found to be valid, in 32 states <http://en.wikipedia.org/wiki/Ages_of_consent_in_North_America#State_laws>... .  Moreover, as pointed out by PG in comments to the earlier post, this case was cited by none other than Lambda Legal in one of its own briefs <http://data.lambdalegal.org/pdf/252.pdf>  — for the same purpose it was cited in the Smelt brief.  The LGBT equality legal group wrote:

Conventional choice of law and comity principles are routinely applied in every state to address non-uniformity in many aspects of domestic relations laws, including disparities among states in the requirements for marriages or their dissolution.  See, e.g., Wilkins v. Zelichowski, 26 N.J. 370, 377-78 (1958).  These familiar legal tools, not the deprivation of the constitutional rights of a minority, offer the answer to any purported concern about uniformity with other states.

That John continues to write about “incest” is, as I have stated since the brief was filed, overstating facts in order to enrage.  One of the cases cited, Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961), is a regularly cited case in Family Law casebooks and law review articles regarding out-of-state marriage recognition.  For John, a lawyer, to repeatedly state that a lawyer citing a regularly cited case for a general proposition that “certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum” equates to the lawyer comparing same-sex marriages to incest is dishonest.  John knows that the brief is analogizing a state’s policy against recognizing one type of marriage to a state’s policy against recognizing another type of marriages.  Though a slight distinction, John knows that, as a lawyer, such distinctions matter.

The final case cited, In re Mortenson’s Estate, 316 P.2d 1106 (Ariz. 1957), is one with which I was unfamiliar but have found that both it and Catalano were cited by a Columbuia Law Review piece criticizing DOMA for “deep flaws in both aspects of the Act.”  Scott Ruskay-Kidd, Note, “The Defense of Marriage Act and the Overextension of Congressional Authority,” 97 Colum. L. Rev. 1435 (1997).  If opponents of DOMA have cited both of these cases since the year after its passage, then — as John knows — it would be bad-faith for a lawyer charged with defending the law to fail to raise arguments in its defense that previously have been raised even by opponents of the law.  Was this third case cite necessary?  Probably not, as the point was illustrasted by Catalano.  But to demonize the author of the brief and everyone on up to the President as comparing same-sex relationships to incest for doing so, as John has done repeatedly, is exceptionally unfair and dramatically overstates the proposition advanced in the brief.

June 27, 2009

Forty years ago tonight

PhotoStonewall_riots

STONEWALL - the early morning hours of June 28, 1969

Lots of commemorations - An exhibit at the New York City Public Library. Online, OutHistory.org has posted several newly-released police documents. Much of the original press coverage is here. Photos from the last night of the uprising here.  Recollections by a participant and an observer. OutHistory has also posted this letter recounting the street action, which lasted several nights, written at the time by Edmund White:

Well, the big news here is Gay Power. It's Stonewall_Inn_1969 the most extraordinary thing. It all began two weeks ago on a Friday night. The cops raided the <SW>, that mighty Bastille which you know has remained impregnable for three years, so brazen and so conspicuous that one could only surmise that the Mafia was paying off the pigs handsomely. Apparently, however, a new public offcial, Sergeant Smith, has taken over the Village, and he's a peculiarly diligent lawman. In any event, a mammorth paddy wagon, as big as a school bus, pulled up to the Wall and about ten cops raided the joint. The kids were all shooed into the street; soon other gay kids and straight spectators swelled the ranks to, I'd say, about a thousand people. Christopher Street was completely blocked off and the crowds swarmed from the Voice office down to the Civil War hospital.

As the Mafia owners were dragged out one by one and shoved into the wagon, the crowd would let out Bronx cheers and jeers and clapping. Someone shouted "Gay Power," others took up the cry--and then it dissolved into giggles. A few more gay prisoners--bartenders, hatcheck boys--a few more cheers, someone starts singing "We Shall Overcome"--and then they started camping on it. A drag queen is shoved into the wagon; she hits the cop over the head with her purse. The cop clubs her. Angry stirring in the crow. The cops, used to the cringing and disorganization of the gay crowds, snort off. But the crowd doesn't disperse. Everyone is restless, angry and high-spirited. No one has a slogan, no one even has an attitude, but something's brewing.

Some adorable butch hustler boy pulls up a parking meter, mind you, out of the pavement, and uses it as a battering ram (a few cops are still inside the Wall, locked in). The boys begin to pound at the heavy wooden double doors and windows; glass shatters all over the street. Cries of "Liberate the Bar." Bottles (from hostile straights?) rain down from the apartment windows. Cries of "We're the Pink Panthers." A mad Negro queen whirls like a dervish with a twisted piece of metal in her hand and breaks the remaining windows. The door begins to give. The cop turns a hose on the crowd (they're still within the Wall). But they can't aim it properly, and the crowd sticks. Finally the door is broken down and the kids, as though working to a prior plan, systematically dump refuse from the waste cans into the Wall, squirting it with lighter fluid, and ignite it. Huge flashes of flame and billows of smoke.

Continue reading "Forty years ago tonight" »

June 26, 2009

New timeline in Gill v. OPM

Widely known as "the GLAD case," Gill v OPM is the Boston-based challenge to key portions of DoMA and is also probably the next case in which the Justice Department will have to file a brief on the constitutionality of that statute.  For various reasons, the plaintiffs plan to file an amended complaint, which will in turn push back the due date for DoJ's response. The expected new date for DoJ is September 18.  This is good news - it will give DoJ more time to think through its arguments and do the right thing....I hope.

June 25, 2009

Queering Utah

Smart analysis, as usual, by Lisa Duggan, in The Nation:

Forget everything you think you know about Utah. Yes, it's the reddest state in the union and the headquarters of The Church of Jesus Christ of Latter-day Saints (LDS). For the past twenty-five years, Republicans have had a virtual lock on statewide offices. Utah hasn't voted for a Democrat for president since 1964, and last year the state chose John McCain over Barack Obama by almost a 2-to-1 margin.

But here in Salt Lake City, it's a different story. The city and surrounding counties are a lovely blue. The current and previous mayors--Ralph Becker and Rocky Anderson--are well-known progressive Democrats with excellent records on the environment, gay and civil rights, disability access and other municipal issues, and Salt Lake County, home to four of the five most populous cities in the state, went for Obama in 2008.

Then there's Salt Lake City's queer community, whose smart, creative and coalition-building strategies could provide a model for gay activists across the country.

That last claim requires a bit of explanation. Last fall I lived in Salt Lake City. As a leftist and New York City dyke, I had expected to find a conservative city and a quietly assimilationist gay community. Instead, I was repeatedly blown away by the progressive politics and outright queerness of the capital city, which is about 40 percent Mormon.

I was in Salt Lake City in November when the passage of California's Proposition 8 generated national outrage against the Mormon Church for its role in sending money and volunteers to help antigay forces take away the right of California's same-sex couples to marry. A few national LGBT figures, most notably gay pundit Dan Savage, called for a boycott of Utah to punish its majority Mormon population. In Salt Lake City, I joined a furious crowd, including many gay Mormons and ex-Mormons, at a November 7 protest at the LDS Temple. The scene was a jumble of mixed messages, with signs ranging from Love Makes a Family, to Separate Church and State, to Brigham Young Had 55 Wives, I Want 1! But no one I saw advocated a boycott. Most seemed to agree with KRCL-FM public radio station personality Troy Williams, referred to by some Utahns as their homegrown Harvey Milk, who challenged Savage on his hourlong program, calling for an influx of queer migrants to the state rather than a boycott. Perhaps a New Queer Pioneer movement, modeled on the sanctified Mormon pioneers of the nineteenth century, would do more to shrink the impact of LDS antigay bigotry than any boycott ever could.

Not that Utah needs new queer residents to spark political, social or cultural creativity. The city is home to a floridly queer and unusually politically unified LGBT community. Salt Lake City hosts numerous gay bars and businesses, a busy assortment of queer artists and intellectuals, a thriving drag culture and an "extreme" BD/SM school. At this year's pride rally, after the annual dyke march on June 6, the city's residents flocked to the downtown Federal Building to hear local drag celebrity Sister Dottie S. Dixon (Mormon mother of a gay son, as embodied by actor Charles Frost) beseech "the almightly diva S&M Goddess of her Most High," among other deities, to "help our surgeons ta discover how to perfarm a complete brain transplant, so that Mitt Romney can live with hope fer a better future." And "while yer at it," Sister Dixon implored, "if you've got any more of them plagues of locus--please send them ta every household that voted fer Preperation 8!"

The rally was sponsored by the rapidly expanding Utah Pride Center, which under executive director Valerie Larabee has more than doubled its budget in the past five years. At the Pride Center, a broad range of local activist groups and LGBT individuals actually talk to each other--in stark contrast to the balkanized landscape of national LGBT organizations. Indeed, perhaps more than in any other city, Salt Lake City's queer scene resembles the storied days of ACT UP, when mainstream assimilationists collaborated with radical activists to develop talking points, coordinate strategy and change homophobic policy.

This conversation across boundaries is a product of savvy activists and, paradoxically, of the formidable political and cultural barriers created by the Mormon Church and the statewide strength of the Republican machine. In such a political arena, queer flamboyance and tough-minded seriousness have to coexist in order to get anything done. In that sense, as gay activists nationwide take stock of where the gay rights movement has come in the forty years since the Stonewall riots and plot a political future, they should look to Salt Lake City for pointers instead of Boston or New York.

Continue reading "Queering Utah" »

Introductions ... ENDA, meet EHDLA - you're perfect for each other

The important effort to enact the Employment Non-Discrimination Act got its official launch on Wednesday, with the introduction of HR 3017.  Lead sponsor Barney Frank was joined on the bill by 117 cosponsors. This year's version contains no surprises: it is trans-inclusive, but also grants religious groups a free pass to discriminate. Most people think the trans-inclusive version will pass the House, and that a version with a more proportional religious exemption would not.

The day before, Rep.Tammy Baldwin introduced a new and largely unexpected (beyond the Hill) bill, the Ending Health Disparities for LGBT Americans Act, HR 3001.  EHDLA is a comprehensive collection of reforms covering such topics as non-discrimination in federal health programs, cultural competence training for health professionals, Medicare benefits for same-sex partners, etc etc. The goal is not so much enactment of the package as creating a resource upon which progressives can draw for ideas as health reform (hopefully) progresses.

Personally, I think they make a lovely couple.

Fourth Circuit abortion case in pipeline to Supreme Court

From SCOTUSblog; also, more background here -

Two years after the Supreme Court last ruled on abortion restrictions, a new test case is likely on its way to the Court, perhaps reaching there by next Fall.  Responding to an order by the Justices to take a new look at a Virginia abortion ban, the Fourth Circuit Court on Wednesday upheld the law.  The en banc Court divided, 6-5, in sustaining the law against claims that it would criminalize the most common method of abortions performed in the second trimester.

The case of Richmond Medical Center, et al., v. Herring (Circuit docket 03-1821) is developing as a sequel to the Justices’ 5-4 ruling in 2007 in Gonzales v. Carhart, upholding a federal ban on a procedure its critics call a “partial-birth abortion.”   The Fourth Circuit’s opinion, concurrence and dissent can be downloaded here.

Twice, a divided Fourth Circuit panel struck down the state law known as the “partial-birth infanticide” law, enacted six years ago in Virginia.  The law differs in some significant respects from the federal ban on “partial-birth” abortions that the Court upheld in the Carhart decision, and that difference was the key factor in both Circuit panel rulings.

The first of those panel decisions was set aside by the Supreme Court (docket 05-730) on April 23, 2007, for reconsideration in the wake of Carhart.  After the panel once more nullified the law, the en banc Circuit Court set that aside and reconsidered the law’s validity, leading to Wednesday’s ruling.  It rejected both a “facial” challenge — to the law as written, no matter in what situation it might be applied — and a challenge to its application to a Richmond doctor and his clinic.

While noting that the Supreme Court had increasingly frowned on “facial” challenges to legislation, the Circuit Court did not rule them out entirely when aimed at an abortion law, just as the Supreme Court has not forbidden such challenges.  But the Circuit Court said that, no matter what standard is applied, the Virginia law satisfied it.

While the panel had said that there was a serious risk that the Virginia law, in practice, could criminalize a doctor’s procedure that violated the law simply by an accident, the en banc majority said “there is little or no evidence” of that in this case, although conceding that it might happen rarely.

The Virginia law, it said, is “somewhat different” from the federal ban, but still “provides sufficient clarity as to what conduct is prohibited to enable a doctor of reasonable intelligence to avoid criminal liability under it.”

The most significant difference between the Virginia ban and the federal ban is that, under the Virginia law, a doctor who intends to perform an abortion that does not violate the law, but the fetus accidentally is delivered intact to a significant degree, and if the mother’s life is not at stake, the doctor has committed a crime.

The Circuit Court’s dissenters argued that the majority ruling “marks an alarming departure from settled Supreme Court precedent: it sanctions an unconstiutional burden on a woman’s right to choose…[The law] violates the Constitution because it exposes all doctors” who perform a standard abortion to prosecution, conviction, and punishment, because it punishes violations of the law by mere accident.


June 23, 2009

European Court of Human Rights: failure to protect women from domestic violence can be human rights violation

In Opuz v Turkey, the European Court of Human Rights unanimously found that a state violated the human rights of the applicant and her mother in failing to protect them against domestic violence.  The applicant had alleged that the state bore responsibility under the European Convention on Human Rights for its failure to take action against her violent husband who repeatedly attacked her and killed her mother. For the first time in a domestic violence case, the Court found violations of:

  • the right to life (art. 2) "in respect of the death of the applicant's mother"

  • the prohibition of torture (art. 3) "in respect of the authorities' failure to protect the applicant against domestic violence perpetrated by her former husband"

  • and the right to non-discrimination on the basis of sex (art. 14). It explicitly recognized domestic violence as a form of gender discrimination that gives rise to state responsibility.

Regarding the sex discrimination claim, the Court found:

the existence of a prima facie indication that hte domestic violence affected mainly women and that the general and discriminatory judicial passivity in Turkey created a climate that was conducive to domestic violence ... the criminal-law system, as operated in the instant case, did not have an adequate deterrent effect capable of ensuring the effective prevention of [domestic violence] ...

Bearing in mind its finding above that the general and discriminatory judicial passivity in Turkey, albeit unintentional, mainly affected women, the Court considers that the violence suffered by the applicant and her mother may be regarded as gender-based violence which is a form of discrimination against women. Despite the reforms carried out by the Government in recent years, the overall unresponsiveness of the judicial system and impunity enjoyed by the aggressors, as found in the instant case, indicated that there was insufficient commitment to take appropriate action to address domestic violence.


HT: IntLawGrrls

The science behind the ick factor

There's good news in the following tongue-in-cheek column on reactions to french kissing and other public displays of affection -- people can in fact get over it insofar as they are more bothered by observing the same behavior by same-sex couples than by straight couples. HT: Dana Rudolph at Bilerico.

By Jesse Bering, from Scientific American:

While walking through a park in Budapest a few weeks ago, I spied a very strange sight. In that fleeting moment between sensation and perception, when images settle on the retina but aren’t yet processed in a form fully accessible to conscious awareness, what I saw was a multicolored, gyrating mass of vaguely human substance, squirming and twisting on a park bench in animalistic fervor. My brain, unfortunately, was soon able to peel apart what I was actually observing, which was a particularly corpulent young woman devouring a young man half her size in what can only be described as a feast of open-mouthed, public lovemaking. The expression, “get a room,” seemed wholly inadequate for this carnal scene. “Get a porn studio” was more like it.

My partner, Juan, and I witnessed many other public displays of “affection” like this one during our stay in Budapest, which was curious enough from a cross-cultural perspective and a bit counterintuitive for such a socially conservative country like Hungary. It put me in an ethnographic state of mind. Suddenly I became acutely aware of the many American and British tourists who—if not quite as passionate as these lustful Magyars—were similarly expressing their attachments to their partners in, say, an arm casually draped around the shoulder, a hand held or a possessive grip on the waist. And that’s when the sad truth struck me: with the exception perhaps of just a handful of places in the world (and even those are questionable), gay couples are not free to participate in this most basic, mindless and normal exhibition of romantic behavior. In both the UK and the US, for example, I’ve got to first scout out who’s in our immediate vicinity before daring to even brush my pinky finger against Juan’s hand as we’re walking side-by-side. Compared to the issue of gay marriage, gaining equality in the “right” to display such innocent feelings of affection for one’s same-sex partner is an even greater hurdle for gay rights advocates—and, in many ways, it’s an even more important one. This is because recent findings indicate that changing negative attitudes toward gays begins not with education, per se, but instead with exposing people more regularly to same-sex romantic behavior.

... [Even people who would say, if asked, that it’s okay for gay people to kiss in public] nevertheless hold implicit negative attitudes on the subject. At least, that’s what Harvard University psychologist Yoel Inbar and his colleagues reported in a recent study in the journal Emotion.

In one experiment, the researchers randomly assigned 44 undergraduate students from the University of California, Irvine, to one of two different conditions. Half of the participants were asked to read a brief story about the director of a risqué music video which turned out to have the side-effect of encouraging gay men to French–kiss in public. (Think Katy Perry’s homoerotic “I Kissed a Girl” but, for this study, a male-on-male “I Kissed a Boy” equivalent.) The remaining participants read the same story, yet in this other version the video was said to have caused straight couples to French–kiss in public rather than gay men. It was stressed to participants in both conditions that the director knew the video was likely to induce public French–kissing but this was not his primary goal in making the video.

The participants were then asked the following questions: (1) Did the director intentionally encourage homosexual men [or straight couples] to French–kiss in public? (2) Is there anything wrong with homosexual men [or straight couples] French–kissing in public? (3) Was it wrong of the director to make a video that he knew would encourage homosexual men [or straight couples] to French–kiss in public? ... And as predicted, these mostly college-aged participants agreed that there’s nothing wrong with either straight or gay couples displaying this type of affection in public, nor, for that matter, was it wrong for the director to encourage such behavior in either case. Intriguingly, however, in response to the first question, participants viewed the director’s actions as being more intentional when he encouraged gays to kiss in public than straights.

Continue reading "The science behind the ick factor" »

June 21, 2009

On transgender federal employees and legal history

I've gotten so many questions about legal issues related to federal employees in the past week of Obummer-ness that I thought it might be useful to provide a bit of historical context. In my post about the memorandum that the President signed on Wednesday night, I briefly described the history of the "unrelated to job performance" law that the new memorandum cites, and the potential it holds to protect federal employees against discrimination based on gender identity. The full story goes all the way back to the mid-sixties.

The "lavender scare" and the purges of government workers who were gay or thought be gay dominated the 1950s and 1960s.  In DC, where the greatest attention was focused on federal employees, police regularly entrapped gay men in Lafayette Park (across the street from the White House) and then shared the information about their arrests with government agencies that employed them. So an arrest, even on a minor charge, was not simply an arrest but also, effectively, a job termination. That started to change when some of the men began to fight back in court.

At that time, the Civil Service law provided that employees could be fired for "immoral conduct" that rendered them "unsuitable for government employment." In 1969, the U.S. Court of Appeals in D.C. ruled in Norton v. Macy, 417 F.2d 1161, that it was unconstitutional for the government to fire someone for "immoral conduct" unless "a specific connection," or nexus, could be shown between the conduct at issue and the employee's ability to do his job. This decision triggered a series of official responses: a Civil Service bulletin (1973), then a formal regulation (1975), and finally a statutory change (1978).  All of these provided protection for conduct that did not affect the workplace, a framing that grew out of the arrest cases.

Soon, issues arose that did not involve specific sexual conduct, but related to homosexuality more generally. By the 1970's, some brave folks were starting to come out on the job. In the final months of the Carter administration in 1980, OPM issued a memorandum stating that employees were protected against adverse actions based upon "non-job-related conduct, such as ... sexual orientation." The Reagan and Bush I administrations neither revoked nor reaffirmed the 1980 memorandum.  In 1994, the Clinton OPM Director explicitly reaffirmed it.  Then in 1998, President Clinton upped the protection to the maximum level short of a statute by adding sexual orientation to the Executive Order that specifies the protected characteristics for federal workers.

Paragragh 3 of the Obama memorandum authorizing OPM to provide guidance to agencies based on the "factors not related to job performance" standard (which OPM was fully empowered to do without this memorandum, btw) builds on this history. What will it do? I think we can expect the new OPM guidance to state that, without a demonstration of a nexus between gender identity and ability to perform the job in question, federal agencies are prohibited from discriminating on that basis. This is what is called a "sub-regulatory" rule because, unlike a formal regulation covered by the Administrative Procedures Act, it does not have to go through publication in the Federal Register and consideration of public comments before it is promulgated.  It is simply an internal management policy for federal workplaces.

What is its legal status? Its major power is probably educative and preventive. Also,  because it states the formal policy of the government, it would enormously strengthen any claim of discrimination brought by a transgender person. It is less formal and less binding on future administrations than an Executive Order, although the Carter-era memorandum stayed in place despite Republican presidents. In rough terms, Executive Orders trump memoranda. And as the memorandum itself states in Section 4 (c), it creates no "right or benefit." That includes a right to bring a court action, meaning that it does not by itself create the basis for a lawsuit if an agency violates it. It is certainly a way to keep gender identity issues backburnered and obscure while simultaneously improving the law, just as the earlier Civil Service and OPM documents did for sexual orientation issues.

So, bottom line? As I said in the earlier post, it's not as good as an Executive Order but it's better than nothing. It's certainly good news for Diane Schroer - there's no way that the government will be appealing the ruling for her from a federal district court (577 F.Supp.2d 293) last year. Best case scenario is that it will serve the same function as an executive order in the upcoming debates over ENDA, by which I mean that ENDA proponents can argue that the federal government has taken the lead and bound itself to a policy of non-discrimination based on gender identity, so it is not unreasonable (or at least not hypocritical) to require private sector employers to be bound by that same policy. With luck, the forthcoming "guidance" will sway enough members of Congress to allow ENDA to go through intact, which apparently now is far from certain.

June 19, 2009

Obama administration to change census policy on same-sex marriages

The Wall Street Journal reports this morning that the Obama administration is exploring substitutes for the Census Bureau's policy of altering "married" responses when the partner is of the same sex.  For years, the Bureau has asserted that DoMA's bar on any federal laws, regulations or policies recognizing same-sex marriages forces them into this approach. Their policy has been to move those responses into the "unmarried same-sex partner" category.  According to the WSJ, the administration has "abandoned" that interpretation of DoMA.

Since last summer, a group of advocates has been meeting with Census officials to find other ways that census data could be reported, without violating DoMA but also without losing important information on the demographics of lgbt Americans. (An example would be not to edit the responses but to report them as "self-identified" married couples, or something to that effect.)

Happily, this spade work seems to be paying off, as the administration scrambles for ways to mollify the community.  HUGE credit here goes to Gary Gates, senior policy fellow at the Williams Institute, who has been working these issues literally since the last census, and whose analysis of census and other data has helped make the Williams Institute the center of empirical research on lgbt issues.

Interestingly, two Census Bureau demographers presented a paper last month at an academic conference, using data that existed - but was not officially reported - on same-sex married couples.

WSJ article is after the jump.

Continue reading "Obama administration to change census policy on same-sex marriages" »

June 18, 2009

Premiere of film about "Gay Olympics" case

A new film is opening about the Supreme Court case that upheld the right of the U.S. Olympics Committee to stop use of the phrase "gay Olympics." Claiming the Title, which uses the Torch_bearer_title case as a window into examining the lgbt rights movement in the late 1980s, has its world premiere this Sunday the 21st at 3:30 pm at the Castro Theater in San Francisco. The story revolves around the litigation of San Francisco Arts & Athletics Ass'n v. U.S. Olmpics Committee, 483 U.S. 522 (1987).

I've seen it (confession: I'm in it), and I think that the two filmmakers - Jonathan Joiner and Robert Martin - have done a terrific job. In many ways, the film is an homage to Mary Dunlap, the brilliant out-spoken lawyer who was lead counsel for the plaintiffs.

If you're not in the Bay Area, you can see the trailer and watch for the film to show up at a festival near you.

The showing is actually a double-header. Claiming the Title will be followed by a screening of Training Rules, a new film by Dee Mosbacher and Fawn Yacker, about the struggles faced by lesbian athletes.

What a great way to spend a Sunday afternoon - I wish I could be there.