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22 posts from December 2010

December 31, 2010

2010: From trans liberation (?) to geezers on the left and into 2011...

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As a way to close out 2010, here's the official pronouncement from the NY Times that this was a technicolor transversal year:

It's certainly a statement on our times that, in the same month, James Franco graces the covers of GQ and Candy. In GQ, he appears in a moody head shot. In Candy, a style magazine dedicated to what it calls the “transversal” — that is, transsexuality, transvestism, cross-dressing, androgyny and any combination thereof — Mr. Franco, shot by Terry Richardson, vamps in trowel-applied makeup, heavy jewelry and a woman’s dominatrix-style power suit.

Candy, it turns out, is but one of the more visible bits of evidence that 2010 will be remembered as the year of the transsexual. Yes, Mr. Franco is just dressing up and doesn’t feel he was born the wrong sex. But it is a grand gesture of solidarity with gender nonconformists and certainly hasn’t affected attendance at “127 Hours.”

Other celebrities have flirted with “the other side,” cross-dressing for fashion publications. On the cover of the current Industrie, Marc Jacobs is decked out in one of his signature women’s designs (albeit with a beard). Japanese Vogue Hommes revealed its new male model, Jo Calderone, who was, in actuality, Lady Gaga.

Not since the glam era of the 1970s has gender-bending so saturated the news media. ...The only thing that would have raised more awareness of trans people would have been a link with the president — even better, a link that rhymed. That’s when the “tranny nanny,” Barack Obama’s transvestite nanny from his boyhood in Jakarta, Indonesia, was discovered and made headlines...

[The third photo is of model Lea T, in feathers, who told the Times,] “I hope we have a big revolution, and people change their minds about us — that it is just the beginning.” 

If only.

And then there's this photo of a group that looks (especially by comparison to the first photo) like the new leadership team for Geezers Anonymous, or maybe for a group representing everyone ever voted off the island.

From left: Nancy Pelosi, Steny Hoyer, Pete Stark, Henry Waxman, Charles Rangel and John Dingell are pictured
Not so funny, though, when you consider that no political entity in the country produced more significant legal change this year (or this decade) than the House of Representatives 2010, which led every successful progressive initiative - from health reform to new regulation of the financial markets to literally hundreds of bills that were blocked in the Senate to, at the end, kickstarting the final push to repeal DADT. No, none of those is perfect, but compared to anything we've seen come out of either chamber of Congress in 30 years, it's a pretty darn impressive list of accomplishments.

So, unlikely as hell, this crew really can claim to be fierce advocates. Yes, Virginia, liberals can be fierce. Too bad they're about to return to the political equivalent of the North Pole.

December 22, 2010

NC Supreme Court voids second-parent adoptions, allows custody

By Guest Blogger Nancy Polikoff

The North Carolina Supreme Court ruled yesterday that second-parent adoption is not available in the state. Any such adoption previously granted is now void. The case was widely watched in North Carolina because, among other reasons, the nonbio mom, Julia Boseman, is the first openly gay member of the North Carolina General Assembly. (She did not seek reelection this year and leaves office at the end of this month).

The opinion voided her adoption of the son born to her partner, Melissa Jarrell. The court ruled that North Carolina's adoption statute does not allow an adoption in which the legal parent retains parental rights unless that parent is married to the person petitioning to adopt the child. In other words, Boseman could become the child's mother only if Jarrell entirely gave up her parental rights.

This statutory construction issue has faced most appeals courts looking at the availability of second-parent adoption. While most states considering the issue have ruled that second-parent adoptions are allowed, some have ruled as this court did. After similar rulings in Connecticut and Colorado, the legislatures of those states amended their adoption laws to allow second-parent adoption. Republicans are about to take control of the North Carolina legislature and are considering a constitutional amendment banning gay marriage. Thus it seems unlikely they would change the adoption law to favor children raised by same-sex couples.

The opinion noted the practice of obtaining second-parent adoption decrees in Durham County but not in other parts of the state. It is common for lawyers to file adoption petitions in a county, and before judges, who have already construed the state's adoption code to allow second-parent adoption. The adoption decrees stand because no one appeals them.

This case reached the North Carolina Supreme Court because Boseman filed for custody after the couple split up, and Jarrell defended by arguing that Boseman was not a parent because the adoption decree should not have been granted. In a case I commented upon last week, a Minnesota appeals court ducked the question of whether that state allows second-parent adoption because it ruled that the bio mom waited too long to challenge the validity of the adoption. No such luck for Boseman and her son.

The NC court ruled that the judge granting the adoption had no subject matter jurisdiction to do so, and therefore the decree was void from the outset. This means that all second-parent adoptions granted in North Carolina are void, a devastating result for the state's children, who now lose the economic and emotional security of having two legally recognizaed parents.The opinion had two dissenting judges, who did not think Jarrell should have been allowed to challenge the adoption.

The case has a silver lining, as the court found that Boseman does have a right to seek custody of the child under a "best interests of the child" standard because Jarrell acted "inconsistently with her paramount parental status." Here is the court's reasoning:

The record...indicates that defendant [Jarrell] intentionally and voluntarily created a family unit in which plaintiff [Boseman]was intended to act--and acted--as a parent. The parties jointly decided to bring a child into their relationship, worked together to conceive a child, chose the child’s first name together, and gave the child a [hyphenated] last name. The parties also publicly held themselves out as the child’s parents at a baptismal ceremony and to their respective families. The record also contains ample evidence that defendant allowed plaintiff and the minor child to develop a parental relationship [and] created no expectation that this family unit was only temporary. Most notably, defendant consented to the proceeding before the adoption court relating to her child. As defendant envisioned, the adoption would have resulted in her child having “two legal parents, myself and [plaintiff].”

This means that all those gay and lesbian parents whose parental status ended as a result of this court ruling are at least not in danger of entirely losing a relationship with their child. Boseman herself retains joint custody of her son as awarded by the trial judge who heard her case.

But the right to custody and visitation is only one aspect of legal parentage. The child has lost the right to survivors benefits (e.g., social security, workers compensation) should Boseman die and to inherit from Boseman and her relatives in the absence of a will. For other children in similar circumstances, a nonbio mom might be able to walk away without any obligation to provide financial support.

These are cruel results. I want Jarrell to face serious chastisement from her community. She wanted to get rid of Boseman -- a task she did not accomplish -- and to do so she made an argument with enormous cost to North Carolina's children of same-sex couples. She accepted help in the form of friend of the court briefs from the usual right-wing organizations that oppose any recognition of gay and lesbian families. What she did was abhorrent and unforgiveable. The law couldn't stop her, but her peers may have been able to. She has caused substantial damage, and I want someone to remind her of that constantly. Do I sound angry? I am.

There are numerous states with no appeals court ruling on the validity of the hundreds or thousands of second-parent adoptions granted by trial judges. The next time a bio parent thinks to argue as Jarrell did, someone needs to try to stop it. It's bad for the individual child and for gay and lesbian families in general.

Crossposted from Beyond Straight and Gay Marriage

December 20, 2010

Merry Christmas!

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Yes, it's time for Christmas trees, Christmas music, Christmas lights by the millions lighting up houses - or, as this little girl might say --- OMFG!  

I'm taking the next two weeks off from blogging, and  hope that you and yours will have a wonderful holiday season, whatever version you celebrate (or don't). 

See you in 2011 -

December 19, 2010

Implementing the repeal

The armed forces will face an array of questions large and small as the repeal process moves forward.  From the NY Times, here is the first of what will doubtless be many reports:

You are a commander of a ship, and one of your top-performing officers, who is known to be a lesbian, is at war with her roommate to the point that it is disrupting the entire unit. The officer asks you for new berthing. What do you do?

You are the senior officer at a busy military recruiting station, and your best recruiter has just told you that his religious beliefs prevent him from processing an outstanding applicant who volunteers that he is gay. What do you do?

These scenarios and their solutions — the commander may reassign roommates, and the recruiter could face disciplinary action — are outlined in a detailed and at times explicit 87-page Defense Department plan for carrying out the repeal of the “don’t ask, don’t tell” law.

In the wake of the Senate vote to end the 17-year-old policy, which forced gay men and women in the military to keep their sexual orientation secret or face discharge, military officials said they did not yet have a timetable for putting the change into effect. President Obama is expected to sign the bill early this week.

“There will certainly be pressure to get it done in 2011,” one military official said, indicating that repeal will be a relatively slow but not years-long process, as Defense Secretary Robert M. Gates has suggested in recent statements.

Phasing in the repeal by service branch, with some parts of the military affected before others, was “highly unlikely,” said the official, who asked for anonymity to talk more freely about internal deliberations at the Pentagon.

Under the terms of the legislation that passed the Senate on Saturday and the House earlier last week, the Defense Department will not carry out the repeal until Mr. Gates, Mr. Obama and Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, “certify” that the military is ready to make the change. After that, the legislation requires a 60-day period before the change takes place.

Gay rights advocates said Sunday that repeal should be carried out as quickly as possible, preferably in the first quarter of next year.

Mr. Gates has acknowledged that the president will be watching closely “to ensure that we don’t dawdle or try to slow-roll this” and that Mr. Obama expects the military to prepare “as quickly as we properly and comprehensively could.”

To that end, the military’s plan for the repeal — little noticed when it was released at the same time last month as an exhaustive nine-month Pentagon study on the effects of ending “don’t ask, don’t tell” — demands education and training for commanders as well as combat units, but notes that training “should be efficient and should not burden the force.”

The plan also calls for new Defense Department guidelines to prohibit separate bathrooms and housing assignments on the basis of sexual orientation, although it recommends that commanders be allowed the discretion to make changes. In the case of bathrooms and bathing facilities, the plan says that “commanders have the authority to accommodate privacy requests on an individualized, case-by-case basis, in the interest of maintaining morale, good order and discipline, consistent with performance of mission.”

The plan, written by Jeh C. Johnson, the Defense Department’s general counsel, and Gen. Carter F. Ham, commander of the United States Army in Europe, does not specify how privacy requests might be carried out.

In a frank, lengthy section at the end of the plan, various hypothetical problems and solutions are posed, including what a commander should do about two junior male service members in civilian clothes seen kissing and hugging at a shopping mall, or how to handle reports that another service member has been seen “hanging around” a gay bar.

In the case at the shopping mall, the plan says that if the kissing and hugging “crosses acceptable boundaries” of standards of conduct for the commander’s unit, “an appropriate correction should be made.” The plan notes that “public displays of affection are orientation-neutral” and that the standards should apply equally to gay and straight service members.

In the case of the gay bar, the report says commanders at a military base may place establishments off limits “for certain reasons,” like known or suspected criminal activity or drug use. But, it says, “an establishment would not be placed off-limits just for catering to a gay clientele.”

In the case of the recruiter whose religious beliefs prevent him from processing an openly gay applicant, the plan says that although he could face disciplinary action, if his performance and professionalism “are otherwise high,” he might be reassigned to another job.

The plan offers few specifics on the substance of the training to be provided, although it recommends that commanders “keep it simple” and work it into existing programs whenever possible. The report also warns that for service members deployed overseas, training and education “must not in any way impede the operations of forces directly engaged with the enemy.”

The plan also warns that until repeal takes effect, openly gay service members still face expulsion from the military, even though the Defense Department has a de-facto moratorium in place, which gay rights advocates called on Mr. Gates to make official.

“I fail to see how we can be preparing for open service and conducting education and training for open service and during the same time period have ‘don’t ask, don’t tell’ investigations and discharges,” said Aubrey Sarvis, an Army veteran and the executive director for the Servicemembers Legal Defense Network.

Mr. Gates and Admiral Mullen repeatedly urged Congress in recent weeks to move forward on repeal, but some military service chiefs said now was not the right time because the United States was at war. The commandant of the Marine Corps and the service chief most opposed to repeal, Gen. James F. Amos, suggested last week that repeal could cost Marine lives because it would be a “distraction” on the battlefield.

On Sunday, General Amos said in a statement that “the Marine Corps will step out smartly to faithfully implement this new policy.”

The DoD report referred to in the article is the Support Plan for Implementation

Dreams deferred

Even at its best, it seems, American politics mixes the bitter with the sweet.

Yesterday's vote setting up the final glide path for repeal of DADT was certainly sweet. It vindicated the blood, sweat and tears of thousands of gay Americans who have served the nation honorably only to be disserved, dishonorably by the nation. It will lead to the end of a policy that was never justified or justifiable, the monstrous product of a rookie President who botched his own efforts to do the right thing, a vicious conservative opposition, blindly intransigent military leadership, and a horribly wrong man in a key position, Senator Sam Nunn. 

It took 17 years of hard work by an almost countless number of people to right the wrong of DADT. And of course the ban on military service by openly gay Americans long pre-dates DADT, as do the efforts to end the ban. The list of men and women who had the courage to insist on the dignity of honest service goes way back: Leonard Matlovich, Vernon Berg, Perry Watkins, Miriam Ben-Shalom. The litigation challenge brought by the ACLU on behalf of Matlovich was filed in 1975.

It is impossible to count how many lives were ruined by the various iterations of this policy. For so many of the young men and women who enlist, the military seems to offer a ticket out - of poverty or near poverty, of a future with nothing but dead end jobs, or just of a numbing daily existence. Military service looks like a fresh start, maybe ultimately the chance to go to college. The old policies closed that door for gay kids or forced them to live in terror that they would be found out and forced out. It is sweet to see that era end.

But it is also deeply ironic that the vote to end it came in tandem with the failure to enact the DREAM Act. For thousands of young people, the DREAM Act would have offered a fresh start and the chance to get a better education or to serve in the military without fear. Although the anti-immigrant phobia that led to this defeat is not specifically about gay people, it is profoundly a gay issue in all but name. For starters, it's the same dream. It is also anyone's guess how many gay and lesbian immigrant youth will continue to be hurt by current immigration policy - maybe as many as the number of gay Americans who enlist? More centrally, the DREAM Act is about ending a fundamental injustice that stratifies human beings based on an irrelevant characteristic.

Let's hope it doesn't take 17 years to rectify yesterday's bitterness.

December 17, 2010

Off we go into the wild blue Senate: key DADT repeal vote tomorrow

This could be it - Harry Reid has scheduled a cloture vote on the stand alone bill to repeal DADT for tomorrow, and if that is successful, the final vote could come later in the weekend or early next week.

 HR 2965 repeats the language regarding the process of transition agreed to last summer, and will take effect 60 days after the President and the Pentagon effectively declare that they are ready to pull the plug on this noxious policy. For the record, here's the operative language:

(b) Effective Date- The amendments made by subsection (f) shall take effect 60 days after the date on which the last of the following occurs:

(1) The Secretary of Defense has received the report [that was issued November 30].

 (2) The President transmits to the congressional defense committees a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating each of the following:

(A) That the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff have considered the recommendations contained in the report and the report's proposed plan of action.

(B) That the Department of Defense has prepared the necessary policies and regulations to exercise the discretion provided by the amendments made by subsection (f).

(C) That the implementation of necessary policies and regulations pursuant to the discretion provided by the amendments made by subsection (f) is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.

(c) No Immediate Effect on Current Policy- Section 654 of title 10, United States Code, shall remain in effect until such time that all of the requirements and certifications required by subsection (b) are met. If these requirements and certifications are not met, section 654 of title 10, United States Code, shall remain in effect.

(d) Benefits- Nothing in this section, or the amendments made by this section, shall be construed to require the furnishing of benefits in violation of section 7 of title 1, United States Code (relating to the definitions of `marriage' and `spouse' and referred to as the `Defense of Marriage Act').

(e) No Private Cause of Action- Nothing in this section, or the amendments made by this section, shall be construed to create a private cause of action.

(f) Treatment of 1993 Policy-

(1) TITLE 10- Upon the effective date established by subsection (b), chapter 37 of title 10, United States Code, is amended--

(A) by striking section 654...

Suppression of queer speech: The more things change...

Twenty years ago, my friend and colleague David Cole and I represented the NEA 4, gay and feminist artists who were awarded grants through the peer review process at the National Endowment for the Arts, only to lose them when the NEA Director caved in to pressure by rightwingers who attacked their art as obscene and blasphemous. Sound familiar?

Following is an essay by David in the NY Review of Books commenting on how arts censorship ca. 1990 looks from the vantage point of 2010:

On November 29, a conservative website posted an 11-second clip of ants crawling over a crucifix from a 4-minute video made by David Wojnarowicz, an artist who died of AIDS in 1992. The video, Fire in My Belly, was part of a show at the National Portrait Gallery called “Hide/Seek,” said to be the country’s first national exhibition devoted to gay and lesbian themes. Wojnarowicz made the video in 1986 and 1987, as his lover Peter Hujar was dying of AIDS, and as David himself learned that he was HIV-positive; it is an eerie meditation on life, death, violence, and nature, featuring imagery from the Day of the Dead. David later explained that he saw Jesus as a symbol of someone who willingly took on the suffering of the world. A self-appointed conservative guardian of public morality, William Donohue of the Catholic League, saw it differently, and attacked the video clip as blasphemous and demanded that the piece be taken down. The Smithsonian—which runs the National Portrait Gallery and which is funded by the US Government—promptly removed the video from the exhibition, effectively granting Donohue a “heckler’s veto.”

About twenty years ago, a gaunt, respectful, but angry David Wojnarowicz [photo left by Peter Hujar] walked into 04-Hujar_DavidWojnarowicz_jpg_240x699_q85 my office at the Center for Constitutional Rights in New York to ask what could be done about a flier that Donald Wildmon of the American Family Association had just sent out to every member of Congress, all major newspapers and TV networks, and thousands of religious ministers throughout the country. The flier featured images of gay male pornography, and claimed that they were David Wojnarowicz’s art, funded by the National Endowment for the Arts. The claim was blatantly false. David had incorporated small “found” images from gay male pornography in a series of life-sized collages devoted to the challenges of living as a gay man in the 1980s, in a community ravaged by AIDS and beset by condemnation, prejudice, and hatred. But Wildmon had reproduced only the pornographic images, stripping them from their context in the collages, and blatantly twisting the facts to further his homophobic propaganda.

We sued Wildmon, and in 1990, a federal district court ruled that he had violated David’s rights under the New York Artists Authorship Rights Act, which forbids the misrepresentation of an artist’s work. The court ordered Wildmon to cease sending out any further fliers, and to deliver a correction to everyone who received the original flier. Because David’s work had independently obtained wide recognition and was increasing in value—art critic Dan Cameron has called him “one of the most potent voices of his generation”—we were unable to demonstrate that the controversy had caused him financial damages. As a result, the court ordered Wildmon to pay David one dollar in nominal damages. David promptly incorporated the dollar in an artwork inspired by the controversy. Two years later, David died.

Around the same time, the Corcoran closed a show of Robert Mapplethorpe’s photographs because of pressure from social conservatives, and the NEA revoked funding to four performance artists—Karen Finley, John Fleck, Holly Hughes, and Tim Miller—after conservative columnist Robert Novak blasted the endowment for using public money to fund gay and sexually-explicit artwork. We sued the NEA over its denial of funding, and after a court rejected its motion to dismiss the case, the NEA agreed to pay the artists the amount of their grants.

In one sense, David Wojnarowicz and the NEA Four won. The fact that the National Portrait Gallery has now dedicated a major exhibition focused on sexual difference and marginalization in American portraiture is also surely a victory. We live in more tolerant times...

But the battle is far from over...And from the standpoint of publicly funded art, the censors have won. Congress’s response to the “culture wars” was to require the NEA to “take into consideration general standards of decency and respect for the diverse beliefs and values of the American public” in making arts funding decisions. The Supreme Court upheld that requirement. Public arts institutions learned that political controversy could jeopardize their financial support, and publicly funded arts have never been the same. When the National Portrait Gallery put on “Hide/Seek,” it made sure to finance it only with private donations, undoubtedly recognizing that it might stir protest. The show’s private funding was insufficient, however, to steel the Smithsonian when it faced criticism. (And now one of the largest private funders, the Andy Warhol Foundation, has threatened to cut off its financial support because the museum caved to pressure).

But while the recent censorship of Wojnarowicz’s work recalls what happened in the early 1990s, the differences are also instructive. When the Corcoran closed the Mapplethorpe show and the NEA revoked Karen Finley’s funding, widespread public outcry followed. The Smithsonian’s decision to remove Wojnarowicz’s video, by contrast, has attracted comparatively little attention. We have come to expect timidity in public arts institutions. In some sense, the surprise is not that the Smithsonian removed the video, but that it put on “Hide/Seek” in the first place.

The muted public response to the current controversy points in two different directions. On the one hand, homosexual self-expression is substantially more accepted today than it was twenty years ago. David would, I think, be surprised and gratified by the changes wrought in American culture... On the other hand, the fundamentalist censorial strain remains a profound force in American society, reflected today in the populist and often intolerant undertones of the religious right and the Tea Party. And one thing has remained a disappointing constant—public institutions’ willingness to cave on issues of public controversy. Like so many other wars, the culture wars of the 1980s have left their traces on America’s character. 

ENDA, R.I.P.

Kudos to Chris Geidner, who has published an in-depth examination of the political moves that led to ENDA's legislative death this year. It's Rashomon-style history, which we've seen before - dispiriting, no matter whose story you believe. The piece is long, so I have excerpted it:

...As the members of Congress put in place the final priorities for the lame-duck session of the 111th Congress, nary a word has been heard about [ENDA] – the longest-standing piece of legislation, in one form or another, sought by LGBT advocates.

''It's dead for now,'' the bill's blunt House sponsor, Rep. Barney Frank (D-Mass.), said on Dec. 14. And things had started so well.

The bill had a hearing in the House Education and Labor Committee, with supportive testimony from the Obama administration. Then, Chairman George Miller (D-Calif.) slated ENDA for a mark-up in the House Education and Labor Committee in November 2009.

But Miller canceled the mark-up and that was, more or less, the last that was heard of the bill, which would prohibit employment discrimination on the basis of sexual orientation and gender identity for most employers with 15 or more employees.

Soon enough, ''Don't Ask, Don't Tell'' moved to the fore – both in Congress and in the public's consciousness. By January of this year, it already appeared that the employment measure ... had taken a back seat to ending the 1993 law banning openly gay or lesbian military service.

Even the spokesman for House Speaker Nancy Pelosi (D-Calif.) acknowledged this week, ''The long-agreed-upon order was hate crimes; ENDA; 'Don't Ask, Don't Tell.''' But, speaking with Metro Weekly, Pelosi spokesman Drew Hammill said, ''We then went into health care, and obviously that took much longer than anticipated.'' As Frank acknowledged, ''One of the things that delayed [ENDA] was the health bill – because it was in the same committee.''

Then, Hammill said, ''There were issues with the motion to recommit...Everyone thought we had the votes on the underlying measure, but it depended on what language the GOP [brought up] on the motion to recommit. 'Many felt it would be a troublesome sign to take it to the floor and not to be able to overcome the motion to recommit.''

Frank [clarified], ''What they were worried about was a motion to recommit, like saying that an elementary school teacher can't transition in the middle of the year.''

But, as Rep. Tammy Baldwin (D-Wisc.) explained, ''[O]ur vote counts – for two sessions in a row – we didn't reach the same conclusion [as the House Democratic leadership] about the confidence in, not so much passage, but being able to defeat a motion to recommit.''

A House Democratic leadership aide, who asked not to be named to present an open assessment of the whip process, criticized the count of members or the advocacy organizations, saying, ''You'd have the whip check it or the speaker check it, and it wasn't there. At the end of the day, there were serious problems with the motion to recommit. People who they had on the list, people who signed on as co-sponsors because they never thought it would come to the floor…. The 'yes' was not there.''

Baldwin said, however, [that] "there's a reason why there wasn't a complete match-up. The conversation that individual has with the leadership whip team may not end up with his revealing how he's going to vote. He may simply say, 'I'm asking you, as leaders, don't bring this up. Don't make me take this vote. You're the ones who decide.''' But, when she or other members press them for how they would vote, she said, they get an answer, and she had a good deal of confidence in the ability to defeat a motion to recommit related to the gender-identity protections.

Frank was not as sure, saying, ''I'm not confident how it would have turned out. I think people in the community underestimate the opposition.'' He added that, without the gender-identity provisions, ''We clearly have the votes for that.''

Baldwin concluded, though, ''I certainly articulated, both sessions, that I felt we should move forward. I know others shared that.'' Frank, despite his reservations, agreed. ''I wanted to go to the floor,'' he said. ''I agreed with Tammy.''

[According to Hammill,] ''Everyone wanted to go forward. I don't think I disagree with that at all.'' But, he added, ''As you well know, and [Speaker Pelosi has] said this a number of times, moving on two priorities at the same time would be problematic and could endanger the outcome of both.''

...Hammill said, ''There was a decision made with some of the groups – some of them wanted to move forward with 'Don't Ask, Don't Tell.''' National Center for Transgender Equality Executive Director Mara Keisling said that, if such a decision was made, that was unacceptable. ''The problem,'' she said, ''is that they were signaled that it was okay to pick one over the other.''...

[Spokespersons for both HRC and the Task Force denied pushing DADT repeal in front of ENDA.]

As to the specter of a lame-duck vote on ENDA, which had been floated as a possibility throughout the summer and fall, Baldwin said, ''If I were to give you my best opinion on this, [chances of a lame-duck ENDA vote] disappeared when it became clear that if we had any chance of repealing 'Don't Ask, Don't Tell,' that that would happen in the lame duck.''...

''[The delay] had to do with there being staff members in leadership who were afraid of the trans part,'' [Keisling] said. ''And leadership stalled on it. They stalled and they stalled.''

Other LGBT advocates concurred, with different advocates pointing to varying members of the Democratic leadership team as the individuals most responsible for holding back the bill from a vote. All, though, acknowledged that the motion to recommit was the main concern and that, because of that, Pelosi was unwilling to bring the bill to a vote.

Hammill, however, also noted another major concern for the speaker's office, saying, ''Possibly we could get it out of the House, but I don't think anyone sees a path in the Senate.''...

Despite Obama's ''continue[d] support'' of the legislation, White House spokesman Shin Inouye did not sound hopeful about passage of the bill in the near future, telling Metro Weekly of the president's view, ''As the public continues to learn about the need for this legislation, he hopes that Congress will take on this issue to help bring fairness and equality to our nation's laws.''

As to that education, Frank had a message for LGBT advocates, saying, ''In the interim what the community needs to do is educate on the transgender issue.'' The point was echoed by the Democratic leadership aide, who said ''there has not been the work done by the community in the Senate'' to ensure the passage of an inclusive ENDA.

As Frank said, ''I would point out to you that they still have not been able to get transgender protections in liberal places. If you can't do it in Massachusetts, New York and Maryland, it doesn't get easier when you add in South Dakota, Oklahoma and Utah.''

December 16, 2010

Split decision on Irish abortion law: Court finds human rights violation only if woman's life is endangered

The European Court of Human Rights issued its decision this morning in A, B, and C v. Ireland (background here), finding that the third plaintiff C's rights under the European Convention on Human Rights were violated because she was forced to travel to the UK to secure an abortion even though the pregnancy, combined with her ongoing cancer, endangered her life. However, the Court denied the plaintiffs B's and C's arguments that a risk to their health - as distinct from a risk to life - required allowance of an abortion.

Ireland prohibits abortion under an 1861 law that carries life imprisonment as the maximum penalty. A 1983 referendum amended the national constitution to recognize the unborn child as an Irish citizen with full rights. A 1992 Irish Supreme Court decision held that abortion is legal if there is a real and substantial risk to the woman's health from the pregnancy. The national Parliament, however, has never enacted laws to effectuate that decision, and the Grand Chamber Human Rights Court decision noted that for procedural reasons, Irish courts do not offer a venue in which women can seek orders granting a legal abortion. About 5,500 Irish women travel to England and Wales every year to obtain an abortion.

The rulings of the European Court of Human Rights are binding on nations. According to The Guardian, "It is understood that the judgment is being considered by the [Irish] Republic's department of health and the Irish attorney general."

In today's decision, the court said that it "considered that the establishment of a risk to [C's] life clearly concerned fundamental values and essential aspects of her right to respect for her private life," a right protected by Article 8 of the European Convention on Human Rights. The court found that it had been violated by the Irish government's failure to implement the decision of its supreme court.

Congratulations to lead counsel (and my former student) Julie Kay -

In France, different-sex couples increasingly choose PACs

My biggest frustration with seeking to broaden the options for relationship recognition has been the failure of straight couples (read straight feminists) to get serious about a movement to secure more options for themselves, not just for their gay friends. There will never be any meaningful non-marriage option (rather than a shadow form that mimics marriage in all but name) until both marriage and other forms are open to all couples.

We are starting to see the signs of that trend: Nevada, DC, and soon Illinois will offer a civil union/partnership status open to both same-sex and different-sex couples on the same terms. But most states still classify based on sexual orientation: straight couples can only choose marriage, and gay couples can choose only Plan B, whatever it is called in that state. (And most states don't offer even a Plan B to gay couples.) DC is the only jurisdiction in the U.S. that offers both kinds of couples a choice of both options.

Equality will never happen until straight couples demand access to a genuine alternative to marriage, as is happening now in Britain's "equal love" campaign. In France, apparently that part of the move to equality has taken hold, according to today's NY Times. France's highest court will soon consider whether to require that marriage be available to gay couples. In the meantime, though, straight couples are doing it for themselves:

Whatever their reasons, and they vary widely, French couples are increasingly shunning traditional marriages and opting instead for civil unions, to the point that there are now two civil unions for every three marriages. When France created its system of civil unions in 1999, it was heralded as a revolution in gay rights, a relationship almost like marriage, but not quite. No one, though, anticipated how many couples would make use of the new law. Nor was it predicted that by 2009, the overwhelming majority of civil unions would be between straight couples.

It remains unclear whether the idea of a civil union, called a pacte civil de solidarité, or PACS, has responded to a shift in social attitudes or caused one. But it has proved remarkably well suited to France and its particularities about marriage, divorce, religion and taxes — and it can be dissolved with just a registered letter.

“We’re the generation of divorced parents,” explained Maud Hugot, 32, an aide at the Health Ministry who signed a PACS with her girlfriend, Nathalie Mondot, 33, this year. Expressing a view that researchers say is becoming commonplace among same-sex couples and heterosexuals alike, she added, “The notion of eternal marriage has grown obsolete.”

France recognizes only “citizens,” and the country’s legal principles hold that special rights should not be accorded to particular groups or ethnicities. So civil unions, which confer most of the tax benefits and legal protections of marriage, were made available to everyone. (Marriage, on the other hand, remains restricted to heterosexuals.) But the attractiveness of civil unions to heterosexual couples was evident from the start. In 2000, just one year after the passage of the law, more than 75 percent of civil unions were signed between heterosexual couples. That trend has only strengthened since then: of the 173,045 civil unions signed in 2009, 95 percent were between heterosexual couples...

As with traditional marriages, civil unions allow couples to file joint tax returns, exempt spouses from inheritance taxes, permit partners to share insurance policies, ease access to residency permits for foreigners and make partners responsible for each other’s debts. Concluding a civil union requires little more than a single appearance before a judicial official, and ending one is even easier.

It long ago became common here to speak of “getting PACSed” (se pacser, in French). More recently, wedding fairs have been renamed to include the PACS, department stores now offer PACS gift registries and travel agencies offer PACS honeymoon packages.

Even the Roman Catholic Church, which initially condemned the partnerships as a threat to the institution of marriage, has relented; the National Confederation of Catholic Family Associations now says civil unions do not pose “a real threat.”

While the partnerships have exploded in popularity, marriage numbers have continued a long decline in France, as across Europe. Just 250,000 French couples married in 2009, with fewer than four marriages per 1,000 residents; in 1970, almost 400,000 French couples wed.

Germany, too, has seen a similar plunge in marriage rates. In 2009, there were just over four marriages per 1,000 residents compared with more than seven per 1,000 in 1970. In the United States, the current rate is 6.8 per 1,000 residents, according to the Centers for Disease Control and Prevention.

France is not the only European nation to allow civil unions between straight couples, but in the few countries that do — Luxembourg, Andorra, the Netherlands — they are not as popular. In the Netherlands in 2009, for example, there was just one civil union for every eight marriages. If current trends continue in France, new civil unions could soon outnumber marriages, as they already do in Paris’s youthful 11th Arrondissement...

Though French marriages are officially concluded in civil ceremonies held in town halls, not in churches, marriage is still viewed here as a “heavy and invasive” institution with deep ties to Christianity, said Wilfried Rault, a sociologist at the National Institute for Demographic Studies.

“Marriage bears the traces of a religious imprint,” he said, often anathema in a country where secularism has long been treated as a sacred principle. “It’s really an ideological slant, saying, ‘No one is going to tell me what I have to do.’ ”...

Brazil announces pension benefits for same-sex couples

Based on various postings on the web, including a short report by AP, and with the caveat that I don't speak/read Portugese, here is what I think is going on in Brazil:

The Brazilian Social Security Ministry announced last week that gay couples in a "stable relationship" are entitled to the same social security pension benefits enjoyed by heterosexual couples. The policy covers workers registered in the Social Security system, who pay monthly social security fees.

Last February, a decision of  the Superior Court of Justice of Brazil held that the government had to recognize the right of the surviving partner to receive pension benefits. The decision was pegged to the criteria for a stable affective union for different-sex couples (probably if unmarried). The essential elements pertain to "public, continuous and permanent relationships, established with the goal of starting a family."

In June the Attorney General endorsed the ruling. Now, the Social Security Ministry has apparently promulgated a formal policy of treating gay couples equally.

December 15, 2010

Challenge to USAID anti-prostitution pledge in 2d Circuit

Excerpts from a report by Katherine Franke on the oral argument in Alliance for Open Society International v. USAID:

...[which is] a case brought by the Brennan Center challenging the 2003 Bush era regulations that required any entity receiving USAID under the Global AIDS Act to sign a pledge that “no funds made available to carry out this Act … may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.”  22 U.S.C. Sec. 7621(f).  It also prohibits recipients from saying or doing anything that the Government deems “inconsistent with [an] opposition to prostitution,” 75 Fed. Reg. 18,760 (Apr. 13, 2010).

The lawsuit claims that the “anti-prostitution pledge” requires Plaintiffs to espouse the government’s viewpoint on prostitution, conditions Plaintiffs’ eligibility for public funds on holding favored beliefs, and prohibits Plaintiffs from saying or doing anything contrary to the government’s viewpoint with their private funds...

The government itself has trouble explaining exactly what recipients of Global AIDS Act money must do to comply with the pledge, assuming they’re willing to sign it.  The government has said that beyond a prohibition on advocating for a ban on legalization of sex work, the pledge may, MAY, also include a ban on advocating for a reduction in penalties for sex work, or even helping sex workers unionize.  So too, any work helping sex workers to prevent police abuse might also violate the act if were merely a fig leaf for legalization.  Worse yet, even using the term “sex work” or “sex worker” might violate the Act since the underlying politics of these terms might indicate support or legalization.

Read the complaint and other documents in the lawsuit describing the real and anticipated problems that health advocates working with sex workers, oops, prostitutes will have in both accomplishing their harm reduction mission and complying with the pledge.  They’re all available here.

In 2006 the plaintiffs won in the trial court – opinion here – and it’s been up and back to the Second Circuit, and the argument today was on whether the Obama Administration’s April 2010 interpretation of the pledge requirement cured the pledge of any constitutional problems.

Hearing the case were Judges Chester J. Straub, Rosemary Pooler, and Barrington Parker Jr.  Arguing for the Brennan Center was Rebekah Diller and for the government was Ben Torrance (Columbia Law School ‘00).

Shortly after Torrance got started he was interrupted by Judge Parker who asked him: “Could the government require organizations to write into their charter that marriage is between a man and wife, on the grounds that a major spread of AIDS is homosexual conduct?”

Torrance hemmed and hawed, and returned the discussion to the government’s judgment that there is a strong causal relationship between prostitution and HIV transmission.

Shortly thereafter Parker lept in again: “What does it mean to oppose prostitution?  If OSI works in the back streets of Mumbai, can it work with street workers and organize them not to work with customers who don’t use condoms?...Must an OSI intern on the streets of Mumbai cable Washington to get ok before proceeding in her work?”

Continue reading "Challenge to USAID anti-prostitution pledge in 2d Circuit" »

European Court of Human Rights abortion decision to be announced tomorrow

According to the European Court of Human Rights press office, a long-awaited abortion decision will be issued Thursday at 5 am EST:

The European Court of Human Rights will be delivering a Grand Chamber judgment in the case of A. B. and C. v. Ireland (application no. 25579/05) at a public hearing on Thursday 16 December 2010 at 11 a.m. – local time – in the Human Rights Building, Strasbourg.

The case concerns the restrictions on obtaining an abortion in Ireland. Press releases and texts of the judgments will be available after the hearing on the Court’s Internet site

The applicants are three women who live in Ireland: two are Irish nationals and one is a Lithuanian national. All three applicants travelled to the UK to have an abortion after becoming pregnant unintentionally.

The first applicant, a former alcoholic whose four children had been placed in foster care, decided to have an abortion to avoid jeopardising her chances of reuniting her family. She paid for the abortion in a private clinic in the UK by borrowing money from a money lender.

The second applicant was not prepared to become a single parent. While initially she feared an ectopic pregnancy, she was aware that it was not [the case] prior to travelling to the UK for an abortion.

The third applicant, in remission from cancer and unaware that she was pregnant, underwent a series of check ups contraindicated during pregnancy. She also understood that there was a risk that her pregnancy would cause a relapse of the cancer. She was unclear and concerned about the risks to her health and life and to the foetus if she continued to term and claimed she could not obtain clear advice. She therefore decided to have an abortion in the UK... 

...They rely on Articles 2 (right to life) and 3 (prohibition of inhuman and or degrading treatment) of the European Convention on Human Rights. They all also complain, under Article 8 (right to respect for family and private life) of the Convention, that the national law on abortion was not sufficiently clear and precise, since the Constitutional term "unborn" was vague and the criminal prohibition on abortion was open to different interpretations... Furthermore, the restriction placed an excessive burden on the applicants as women, in breach of Article 14 (prohibition of discrimination), and particularly on the first applicant, whose financial means were extremely limited.

The application was lodged with the European Court of Human Rights on 15 July 2005... Numerous third parties have submitted written observations: the Lithuanian Governement (one of the applicants being Lithuanian); the European Centre for Law and Justice in association with Kathy Sinnott (Member of the European Parliament); the Family Research Council (Washington D.C.) and the Society for the Protection of Unborn Children (London); the Pro-Life Campaign; Doctors for Choice (Ireland) and the British Pregnancy Advisory Service; and, the Center for Reproductive Rights and the International Reproductive and Sexual Health Law Programme.

December 14, 2010

Switzerland considers joining 8 other countries in de-criminalizing incest between adults

The Swiss Justice Department has announced a proposed reform of the Swiss criminal code, including repeal of Article 271, the provision that criminalizes sexual relations between parent and child or between siblings. The Department is scheduled to issue a report making the argument for the proposal this spring, but in the meantime, this one item has set off a huge controversy.

From Salon:

... A Justice Department spokesperson explains, "Incest continues to be a taboo in our society, but it's not up to criminal law to stop every morally reprehensible aspect of behavior. Rather, the law should be for punishing behavior that's particularly socially damaging."

Marriage between second-degree relatives (aunt/uncle, niece/nephew) is already legal in Switzerland, but the new measure would overturn the ban on consensual sexual relationships between siblings, and between parents and their adult children. (Sexual relationships with underage children would, of course, remain illegal.) The text of the bill has yet to be released, but skeeved-out opponents have heard more than enough. Barbara Schmid Federer, a member of The Christian People's Party of Switzerland, told the Telegraph that the proposal was "completely repugnant" and that she "could not countenance painting out such a law from the statute books."

... [S]ome U.S. courts prosecute incestuous adult relationships on the grounds that the government has a legitimate interest in preventing inbreeding. Other courts view children as forever-and-always minors when it comes to sexual relationships with their parents...

The Switzerland measure rejects that thinking and allows for the possibility that an adult can meaningfully consent to sex with their parent or sibling. The Swiss would hardly be the first to allow for this: According to a 2007 report by the Max Planck Institute (via World Radio Switzerland), China, France, Israel, the Ivory Coast, the Netherlands, Russia, Spain and Turkey do not have any prohibitions on consensual incest between adults. 

Meanwhile, a Columbia University Professor recently charged with third-degree incest under New York law awaits further legal proceedings. Political science Professor David Epstein, 46, was arrested for allegedly having an apparently consensual sexual relationship with his 24-year-old daughter. Professor Epstein was placed on administrative leave after the arrest; a trial date has not been set.

New partner benefits plan for Michigan state employees in limbo

[Based on reporting in The Michigan Messenger and the Lansing State Journal:]

The Michigan Civil Service Commission has tabled its consideration of a proposal to extend health insurance benefits to unmarried, live-in partners of all state employees regardless of sexual orientation or relationship. The plan is supported by outgoing Governor Jennifer Granholm, but is unlikely to gain the backing of Republican Governor-elect Rick Snyder, who takes office Jan. 1.

Under the proposed policy, negotiated by the Office of the State Employer (OSE) and unions representing state employees, health insurance coverage would be available to all non-related people over 18 who have shared a residence with a state employee for at least 12 months, covering both same-sex and opposite-sex partnerships. The children and dependents of those newly eligible would also be extended coverage under the same conditions as any other person eligible for coverage.

Republican members of the state legislature say the plan will cost too much at a time of budget austerity. The governor’s office says the annual cost for the program could be as much as $5.7 million, but the CSC was told this morning the cost could be as low $2.2 million.

Neither figure considers the tax revenue which results from the plan. The IRS has determined that benefits provided under domestic partner like programs are considered taxable income. As a result, the Human Rights Campaign reports that in 2007, people with partner benefits pay an additional $1,069 in federal taxes. The Michigan Department of Treasury was unaware of what amount of income tax in the state is generated by current domestic partner programs — such as those offered by state universities and private employers.

The issue stems from a 2006 contract agreement between state unions and the Granholm administration. Those approved contracts included the option to extend partner benefits for state employees.  A lawsuit challenging domestic partner benefits was based on the broad text of the state constitutional amendment adopted in 2004, which barred recognition not only of same-sex marriage but also of "any other similar union." The Michigan Supreme Court ruled in National Pride at Work v. Michigan, 481 Mich. 56, 748 N.W.2d 524 (2008), that the language prohibited partner benefits for gay couples.

Since then, state officials and employee unions have redrafted the agreement to eliminate specific references to same-sex domestic partners. Universities and other public employers developed Other Eligible Individual (OEI) programs that allow employees to designate an OEI, if that person satisfies criteria such as sharing a residence.