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34 posts from October 2011

October 31, 2011

Commonwealth Summit ends with continuing struggle over reforming anti-gay laws

The Commonwealth Summit, a biennial meeting of heads of state of British Commonwealth nations, ended its weekend meeting in Perth Australia with no decision on a new mechanism for addressing human rights abuses in member nations. The human rights controversy has arisen around a cluster of issues including the continuing existence of criminal and other laws targeting gay people. According to press reports, the conclave was driven in part by resentment toward Global North members nations to reject the recommendation of a blue-ribbon group to establish a Commonwealth human rights commissioner. The meeting also officially deep-sixed the group's report, entitled "Time for Urgent Reform." One of the human rights concerns addressed in the report (p. 100) concerned anti-gay laws:

We have also received submissions concerning criminal laws in many Commonwealth countries that penalise adult consensual private sexual conduct including between people of the same sex. These laws are a particular historical feature of British colonial rule. They have remained unchanged in many developing countries of the Commonwealth despite evidence that other Commonwealth countries have been successful in reducing cases of HIV infection by including repeal of such laws in their measures to combat the disease. Repeal of such laws facilitates the outreach to individuals and groups at heightened risk of infection. The importance of addressing this matter has received global attention through the United Nations. It is one of concern to the Commonwealth not only because of the particular legal context but also because it can call into question the commitment of member states to the Commonwealth’s fundamental values and principles including fundamental human rights and non-discrimination. 

On this issue, British Prime Minister Cameron added a warning of curtailed UK aid to countries that continue to enforce such laws. From The Guardian:

Britain has threatened countries that ban homosexuality with losing aid payments unless they reform, David Cameron has said. But he conceded that "deep prejudices" in some countries meant the problem would persist for years.

The prime minister said he had raised the issue with leaders of some of the states involved when he attended the Commonwealth heads of government meeting in Australia. Britain was "putting the pressure on", he said. But it was not a problem that would be solved by the time Commonwealth leaders are next due to meet, in Sri Lanka in 2013...

Ending bans on homosexuality was one of the recommendations of a highly critical internal report on the future relevance of the Commonwealth, written by experts from across the member nations. "We are not just talking about it. We are also saying that British aid should have more strings attached," Cameron said on BBC1's Andrew Marr Show in an interview recorded at the summit in Perth.

"This is an issue where we are pushing for movement, we are prepared to put some money behind what we believe. But I'm afraid that you can't expect countries to change overnight. Britain is one of the premier aid givers in the world. We want to see countries that receive our aid adhering to proper human rights. We are saying that is one of the things that determines our aid policy, and there have been particularly bad examples where we have taken action."

October 30, 2011

The week ahead: October 31, 2011

Tuesday, November 1 - New York - The NYC LGBT Bar Association is sponsoring a CLE program on The Impact of Marriage Equality in New York. The event will be held from 6 to 8 pm at the LGBT Community Center. Discussion "will focus on many of the areas potentially impacted by marriage equality in New York, including estate planning, taxation, divorce/dissolution, pre-nups & post-nups, and adoption/second-parent adoption," plus a special session on "Lessons Learned from Massachusetts." 

Wednesday, November 2 - Newark, NJ -  Nathaniel Frank will speak at Seton Hall Law School on "The Aftermath of Don't Ask Don't Tell: A Discussion of the Ongoing Challenges Faced by LGBT Service Members." Frank is the author of Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America (2009).

Thursday, November 3 - Washington, DC - Lying in State tribute to Frank Kameny will be held at D.C.’s Carnegie Library at 9th and K Streets, N.W., between 3 and 8 p.m.

Also November 3 - Retired U.S. District Judge Vaughn R. Walker will deliver a lecture at Indiana University’s Maurer School of Law on the role of judges in dealing with politically controversial issues. 

October 28, 2011

District Court considers injunction against Missouri school district's filtering software

U.S. District Judge Nanette K. Laughrey heard arguments yesterday on whether to grant an injunction against a Missouri school district's use of filtering software that screens out lgbt-positive sites.
... Judge Laughrey made no immediate decision on whether to impose a preliminary injunction against the Camdenton School District at the request of attorneys for the American Civil Liberties Union. She also was considering the school district's assertion that an unnamed student and several organizations that operate websites had no legal standing to bring the lawsuit because they had not suffered any harm from the district's policy.

The Camdenton school system is the first to be sued under a recent national campaign by the ACLU and Yale Law School intended to improve access at schools to websites related to gay and lesbian issues. Of more than 100 school districts contacted as part of the project, only the Camdenton, Mo., and Gwinnet County Public School District in Georgia have not yet responded by changing their Internet filtering software, said Joshua Block, an attorney for the ACLU's Lesbian Gay Bisexual Transgender & AIDS Project.

Although they have not changed website filtering services, Camdenton school officials testified that they have allowed access to four specific websites cited by the ACLU that had previously been blocked by filters. During Thursday's hearing, school officials repeatedly stressed that they have no intent to discriminate against websites with gay and lesbian content.

In 2010, Camdenton schools began using an Internet filtering service provide by URL.BlackList.com that the ACLU contends infringes on First Amendment rights by grouping some non-sexual websites related to gay, lesbian, bisexual or transgender issues into a blacklisted category of websites dealing with sexuality. The Camdenton School District allows students or employees who get blocked from a website to submit an anonymous request for access to the site. School officials then view the website and decide whether to override the filtering service and allow access to it.

Over the past few years, the district has received about 2,000 requests to unblock certain websites and has granted about 80 percent of those, testified Randal Cowen, the district's network administrator.

The school district's attorney, Thomas Mickes, argued that the student — listed only as Jane Doe in the lawsuit — had no legal standing to sue because she had not requested and been denied access to any website. He said the nonprofit organizations that operate websites similarly had no legal standing to sue, because there is no constitutional right for Internet publishers to have access to public school students.

Mickes argued that the school had not censored any websites based on their viewpoints. He said sites dealing with gay and lesbian issues that get blocked by the filtering software are treated the same in the review process as any other website that gets flagged by the filters.

Block, representing the ACLU, argued that the school system has engaged in censorship by continuing to use a filtering service that it now knows is overly broad in blocking access to some gay and lesbian websites. The ACLU said few other school districts use the same filtering service as Camdenton.

Before its current campaign, the ACLU in 2009 sued the Knoxville and Nashville school districts in Tennessee over access to websites with lesbian and gay information. Those districts then agreed to stop using filtering software that blocked those sites.

University of Richmond seeking to fill chair in gender studies

The official announcement:

The University of Richmond invites applications and nominations for the Stephanie Bennett-Smith Chair in Women, Gender and Sexuality Studies.  This is a tenured position beginning August 2012.

Teaching responsibilities will support the Women, Gender and Sexuality Studies Program. The ideal candidate will be an outstanding teacher with at least 10 years of teaching experience and a distinguished record of scholarship in women’s studies, sexuality studies, or gender studies.  In addition, we seek a colleague who has experience leading an interdisciplinary program in women’s, gender or sexuality studies or who has other professional service in the field.  Candidates must be eligible for appointment at the rank of professor in a department related to her/his discipline, and the candidate’s tenure will reside in that department.  The successful candidate must meet all position requirements at the time of selection.  For more information on the program and resources, see (http://wgss.richmond.edu <http://wgss.richmond.edu/> ).

Applicants should apply online at https://www.urjobs.org <https://www.urjobs.org/>  using the Faculty (Instructional/Research) link. They will be asked to supply a curriculum vitae, a summary of current teaching and research interests, and a list of three references.  The search committee will begin to review applications and nominations on November 15, and will continue to consider candidates until the position is filled.  Nominations and inquiries may be directed to Dr. Crystal Hoyt, Director of the WGSS Program, at choyt@richmond.edu <mailto:choyt@richmond.edu>  or (804) 287-6825.

The University of Richmond is a highly selective, private, liberal arts institution with approximately 3,000 undergraduates located on a beautiful campus six miles west of the heart of Richmond and in close proximity to the ocean, mountains andWashington, D.C. The university is committed to developing a diverse workforce and student body and to supporting an inclusive campus community. We strongly encourage applicants to indicate their potential contributions to these goals. 

October 27, 2011

New rules in EU allow asylum seekers to cite persecution based on gender identity

Announced by the European Parliament's Intergroup on LGBT Rights:

Today the European Parliament formally adopted a new set of asylum rules for the European Union. The binding rules now include gender identity as a ground of persecution, which EU Member States must take into account. Governments have already agreed to the changes, which are final.

Until now, EU asylum law foresaw that “gender related aspects might be considered” by national asylum authorities when examining the potential persecution of specific social groups in their country of origin.

The resolution adopted today has replaced this text, and now specifies that “gender related aspects, including gender identity, shall be given due consideration”. The text now refers to gender identity specifically, and obliges Member States to consider gender-related aspects. Before, EU countries could still choose not to consider aspects linked to the applicant’s gender in asylum claims.

The text applies to all EU Member States except the United Kingdom, which opted out of EU asylum policies. The resolution was successfully drafted and negotiated by Jean Lambert, a British Member of the European Parliament in the Greens/EFA group.

This is the first time a binding EU Directive includes gender identity...

The binding rules will apply after they are transposed into EU Member States’ national law, except for the United Kingdom, Ireland and Denmark which opted out of the process. Due to access the EU in July 2013, Croatia is also expected to adapt its asylum laws.

Ace Supreme Court litigator defending DoMA, challenging health reform

Paul Clement, who has argued more Supreme Court cases in the last decade than any other lawyer, is likely to be visiting the Justices again later in this term to argue against health reform and perhaps next term to try to persuade them that DoMA is constitutional. Given his skill and relative youth (45), Clement is almost certain to be offered an appellate judgeship if a Republican is elected President. And one day he might even walk up those marble Supreme Court steps as a Justice - scary thought.  This profile is excerpted from today's NY Times:

As solicitor general for three years and deputy solicitor for four [under President George W. Bush], Mr. Clement appeared before the Supreme Court 49 times, defended the administration’s detention of terrorism suspects, fought off challenges to the McCain-Feingold campaign finance law and validated the prosecution of medical marijuana growers in a landmark commerce case...

At the moment, he is defending both Arizona’s tough new law against illegal immigration and Congress’s prohibition against federal recognition of same-sex marriages. And if, as expected, the Supreme Court soon announces that it will hear a challenge to last year’s health care law, it seems increasingly likely that it will be Mr. Clement who argues, in the thick of the 2012 campaign, that President Obama’s signature domestic achievement is unconstitutional...

...As a former clerk to Justice Antonin Scalia, Mr. Clement maintains a breezy but respectful rapport with the justices. It is assumed that his familiar name on a petition can improve the 1-in-100 chance that a case will be accepted for consideration... [He] has argued more Supreme Court cases since 2000 than any other lawyer...

Florida and the other plaintiff states [challenging the health reform law] have a contract with Mr. Clement, at discounted rates, that is capped at $250,000. In the same-sex marriage case, House Republicans recently tripled the cap on his fees to $1.5 million, paid from tax coffers. Without being precise, Mr. Clement confirmed speculation that he typically bills in the range of $1,000 an hour.

Other appellate specialists say Mr. Clement brings both exhaustive preparation and acute insight to his cases. The son of an accountant and a homemaker from Cedarburg, Wis., north of Milwaukee, he received his bachelor’s degree from Georgetown, a master’s in economics from Cambridge and a law degree from Harvard, where he helped edit the law review when Barack Obama was its president. Mr. Clement now lives in Alexandria, Va., with his wife and three sons...

Mr. Clement is admired by colleagues and adversaries for the straightforward clarity of his presentation. He famously argues without notes, leaving his hands free to jab and gesticulate, sometimes as if wringing an imaginary neck. “He just internalizes every single aspect of the case,” said Viet D. Dinh, Mr. Clement’s law partner. “He makes the argument not from memory but from total immersion.”...

Continue reading "Ace Supreme Court litigator defending DoMA, challenging health reform" »

October 26, 2011

Brazilian appeals court orders issuance of marriage license for lesbian couple

The law of relationship recognition continues to expand for same-sex couples in Brazil. In May, Brazil's Supreme Court ruled that a gay couple could be recognized as a "stable union" under Brazilian law. Stable union is roughly equivalent to common-law marriage; it has frequently been labeled in the English language press (as below) with the American terminology of "civil union."

In June, a state-level trial court ruled that gay couples who were in a recognized stable union could convert that status to marriage, as different-sex couples in a stable union can do. Since then, the rulings on the right to change the status have been inconsistent; the appellants in the case decided today had been denied that right by the trial court that heard their case.

The new decision is the first at an appellate level to uphold the right of same-sex couples in a stable union to convert that to marriage. If this case is appealed and the decision affirmed, the right to marry will be established throughout the country.

From Pink News:

Gay activists in Brazil are celebrating today after a senior appeals court upheld that a lesbian couple can legally marry. It is the highest court in Brazil to uphold a same-sex marriage – and comes less than six months after the South American country first granted civil unions...

The pair, like many others, previously had their applications blocked at two earlier stages in lower courts, but – in a 4-1 vote yesterday – the Supreme Appeals Court ruled that the Constitution "makes it possible for stable civil unions to become marriages". 

According to the Associated Foreign Press, the court also added that: "sexual orientation should not serve as a pretext for excluding families from the legal protection that marriage represents."

 

USAID Broadens Anti-Discrimination Language for Contractors

USAID has announced a new policy of including language in its contracts that "strongly encourages all its contractors (at all tiers) to develop and enforce comprehensive nondiscrimination policies for their workplaces" that include the same prohibitions that USAID applies to itself.  These prohibited bases include sexual orientation and "sex (including pregnancy and gender identity)."

The new policy acknowledges that the contract language cannot be mandatory. Contractors are barred by existing law and regulation from discriminating based on certain characteristics, but not explicitly sexual orientation or gender identity. Businesses could argue that additional requirements, if mandatory, would contradict current law. 

What is required in order for USAID (and the rest of the federal goverment) to do more is an Executive Order adopting new rules for all federal contractors. Mr. President...

October 25, 2011

Two powerful new reports on lgbt families and youth

Two major reports came out today that have the potential to significantly influence policy debates in their respective, related areas.

A trio of organizations published All Children Matter: How Legal and Social Inequalities Hurt LGBT Families, which spells out in more than 100 pages (with more than 450 footnotes) the ways in which anti-gay policies impede three key needs of every child: stable, loving homes; economic security; and health and well-being. In each area, the report documents the problems, demonstrates the effects of discriminatory laws and policies, and provides recommendations. The Child Welfare League of America wrote the foreword and endorsed the report, which was co-authored by the Movement Advancement Project, Family Equality Council and the Center for American Progress. 

The second publication is from the U.S. Commission on Civil Rights:  Peer to Peer Violence and Bullying: Examining the Federal Response. As a threshold matter, its very issuance signals that the Commission is alive again, after having been starved and sidelined by years of Republican administrations. This  report, also lengthy and well-documented, includes specific findings and recommendations:

The Commission, by majority vote, concluded  that  bullying and harassment, including bullying and harassment based on sex, race, national origin, disability, sexual orientation, or religion, are  harmful to American youth, and developed findings and recommendations to address the problem, including the following recommendations:

 The U.S. Departments of Education and Justice should track their complaints/inquiries regarding sexual harassment or gender-based harassment by creating a category that explicitly encompasses LGBT youth.

 The U.S. Departments of Education and Justice should track complaints that they receive regarding harassment based solely on sexual orientation that are closed for lack of jurisdiction.

 The U.S. Department of Education should track complaints that it receives regarding harassment based solely on religion that are closed for lack of jurisdiction.

 The U.S. Department of Education should consider issuing a new Dear Colleague Letter regarding the First Amendment implications of anti-bullying policies. The new Letter should provide concrete examples to clarify the guidance that the Department of Education previously provided [on] July 28, 2003.

Two really impressive contributions. 

Denmark (and its official church) set to legalize gay marriage

I have to confess that I didn't realize that Denmark has an official state religion - the Church of Denmark - administered by public employees, supported by taxes, and with policies subject to the decisions of the secular state. How does a society set up in that way navigate the issue of same-sex marriage?  See below, from the Copenhagen Post:

...The government plans to introduce a bill just after the New Year that will allow same-sex couples to hold weddings in the Church of Denmark and be ‘married’ under Danish law. Same-sex couples are currently allowed to have ‘registered partnerships’, a civil status, but are barred from marriage and church weddings.

“The first same-sex weddings will hopefully become reality in Spring 2012. I look forward to the moment the first homosexual couple steps out of the church. I’ll be standing out there throwing rice,” the new church minister, Manu Sareen, a Social Liberal, told Jyllands-Posten newspaper...

In 1989 Denmark became the first country in the world to legalise civil unions between same-sex partners. But the country stopped short of calling it “marriage” and same-sex couples still are not allowed to have marriage ceremonies in the Church of Denmark.

Polls taken over the years, and right up until last week, have consistently shown that around 69 percent of the population supports same-sex marriage in the church. The Danish clergy and politicians have lagged behind popular opinion, however.

A 2004 poll revealed that less than 40 percent of the clergy in the Church of Denmark supported same-sex marriage – a more than 30 percentage point difference from the general population. Moreover, bills to legalise same-sex marriage were voted down by parliament several times.

But the outlook may be different now that the centre-left has assumed power after ten years in opposition and has appointed a church minister whose beliefs and religious habits more closely resemble those of most Danes...

Less than five percent of Danes today attend church services on a weekly basis, yet 80 percent are – like Sareen – registered members who pay taxes to support it, but who only rarely attend services. This year alone, the Church of Denmark will receive an estimated 5.9 billion kroner in taxes from its registered members, plus additional tax-supported state subsidies equalling 130 kroner for every single citizen, regardless of religious affiliation, sexual preference, or other beliefs.

Helene Devantié, the chair of Kirketjenerforening, the association for church employees, was willing to allow for same-sex marriages in the Church of Denmark, but only as long as church employees could choose, on an individual basis, whether or not to serve same-sex couples.

“The churches should have the option of creating local agreements, so that the employees who have ethical or moral problems with homosexuals marrying can exempt themselves,” she said.

Devantié’s demand raised questions about whether church employees – public employees, whose salaries are paid by taxes – should have the right to refuse service to certain citizens, just because they disapprove of their lifestyles or personal attributes.

Minister Sareen said church employees who are set against marrying homosexuals would not be forced to conduct same-sex ceremonies. “But we must also make it possible for homosexuals to marry in the church,” he added.

October 24, 2011

Videotapes of Prop 8 trial to remain under seal pending Ninth Circuit ruling

The panel of Ninth Circuit judges hearing the Prop 8 appeal issued a one-sentence stay today of District Judge Ware's order that videotapes of the 2010 trial be released to the public. The judges also expedited consideration of the appeal on the merits of releasing the tapes, with oral argument to be held the week of December 5.

Openly gay men need not apply

The American Journal of Sociology has published a new study that provides direct evidence of patterns of employment discrimination against openly gay men. Most prior studies of job discrimination have utilized either wage studies or surveys in which lgbt persons self-report incidents of discrimination. For this study, the author, András Tilcsik, a graduate student at Harvard, sent matched fictitious resumes, with one containing a signal that the applicant was gay, in response to more than 1,700 posted job openings.

The study found that gay applicants were 40 percent less likely to be granted an interview than their heterosexual counterparts. The differential was comparable to that between white and black applicants in a similar study conducted in Boston and Chicago.

Tilcsik also found dramatic geographic differences: the gap was twice the overall average in Texas and Ohio, while there was no statistically significant difference in California, Nevada, New York and Pennsylvania. The study included a concrete example of the impact of the findings: an openly gay job applicant would have a 3.7% likelihood of a callback in Texas, but a 10.2% chance of getting an interview for the same kind of job in California.

In essence, then, this study suggests that at least this form of anti-gay discrimination, in these types of jobs, may be sharply regional, a U-shaped rather than a bell curve.

The research also found that employers seeking stereotypically heterosexual male traits were more likely to discriminate gay men. Gay applicants had lower callback rates when the employer described the ideal candidate for the job as "assertive," "aggressive," or "decisive.

For the study, Tilcsik sent two fictitious but realistic resumes to more than 1,700 entry-level, white collar job openings -- positions such as managers, business and financial analysts, sales representatives, customer service representatives, and administrative assistants. One resume for each opening stated that the applicant had been the treasurer of a gay organization in college, managing the organization's financial operations." The second resume Tilcsik sent listed experience in the "Progressive and Socialist Alliance" instead of the gay organization, in order to control for anti-progressive bias in general. 

This analysis is an enormous contribution to the literature on job discrimination, and I would bet that Tilcsik will be asked to testify in future legislative hearings and court cases.  

Court of Appeals will address Indiana's effort to defund Planned Parenthood

In oral arguments before the Seventh Circuit last Thursday, the Solicitor General of Indiana suggested that Planned Parenthood split itself into two entities to avoid the impact of a law cutting off Medicaid funds to the group because it provides abortions. Planned Parenthood accused the state of violating the federal Medicaid statute by singling it out based on the nature of services it offers with private funding. The Indiana law was enjoined last June, and the state appealed.

From Bloomberg:

Solicitor General Thomas Fisher said during oral arguments before the 7th Circuit Court of Appeals in Chicago that Indiana's new law is aimed at keeping taxpayer dollars "from indirectly subsidizing abortions." He told the appeals court that Planned Parenthood of Indiana could ensure that wouldn't happen by separating its operations into two entities. "Only by separating the two can we be sure that there's no cross-subsidy," Fisher said.

Planned Parenthood's attorney, Ken Falk of the American Civil Liberties Union, told the appeals court during the 45-minute hearing that Indiana's own Medicaid agency warned state lawmakers while they were weighing the legislation that it would violate Medicaid recipients' "freedom of choice" by targeting the abortion provider.

"The state Medicaid agency said, and I'm quoting, `Federal law permits states to define a qualified provider but requires that this definition is related to a provider's ability to perform a service -- and not what services are provided,'" Falk said...

The law, which was signed into law in May by Republican Gov. Mitch Daniels, made Indiana the first state to deny the organization Medicaid funds for general health services, including cancer screenings.

Planned Parenthood said the law would affect about 9,300 women who rely on Planned Parenthood for their health care. State officials have said that scores of health centers across the state would readily accept Medicaid patients and offer reproductive and sexual health services...

October 23, 2011

The week ahead: October 24, 2011

Tuesday October 25 - "All Children Matter," an event at which LGBT, allied, and child welfare-focused organizations will release the first comprehensive report documenting the experiences of the 2 million children with LGBT parents and how they are hurt and could be helped by the legal system. Live webcast 10 am to 12 noon.

Thursday October 27 - The final set of briefs from the plaintiffs is due in Gill v. OPM, pending in the First Circuit. 

Also October 27 - Hearing on the motion for preliminary injunction in PFLAG v. Camdenton School District, in which the ACLU is challenging the use of filtering software that blocks all LGBT-support sites, pending before U.S. District Court for the Western District of Missouri.

Friday October 28 - Deadline for submissions to the LGBTQ Policy Journal of the Harvard Kennedy School.

October 19, 2011

Lawsuit seeking full separation pay for DADT discharges marches forward

Judge Christine Odell Cook Miller of the Court of Federal Claims denied the government's motion to dismiss a case brought by the ACLU on behalf of service members who received only partial separation pay because they were discharged on the ground that they were gay. The bulk of the decision in Collins v. United States addresses technical statutory questions pertaining to whether the Claims Court properly had jurisdiction of the case. Judge Miller ordered the parties to submit a proposed schedule for discovery and briefing of the motion to certify a class.