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32 posts from November 2011

November 30, 2011

Show me the money: Wrongful disclosure of HIV status draws little sympathy from Supreme Court

The Supreme Court heard oral argument on Wednesday in Federal Aviation Administration v. Cooper, a case involving the holder of a private pilot's license who sued for mental and emotional distress after the Social Security Administration revealed to the Federal Aviation Administration that he was HIV positive, a disclosure that violated the federal Privacy Act. (Justice Kagan recused herself and did not participate.)

From Huff Post:

...The Privacy Act provides relief for those who suffer "actual damages" from violations of the statute. At the trial court level, U.S. District Judge Vaughn Walker -- better known for striking down California's anti-gay marriage Proposition 8 as unconstitutional -- found that the FAA had violated the Privacy Act. But Walker determined that the term "actual damages" did not include purely psychological injuries that result in no economic loss. In other words, there would be no relief for Cooper.

The U.S. Court of Appeals for the 9th Circuit disagreed with the trial judge and allowed Cooper's claim to go forward. At Wednesday's oral argument, however, only Justices Ruth Bader Ginsburg and Sonia Sotomayor unequivocally championed Cooper's cause as the rest of the Court seemed poised to side with Walker's original decision.

Assistant Solicitor General Eric Feigin, arguing on behalf of the federal agencies, said that the Court's doctrines obligated the justices to narrowly interpret an ambiguous term like "actual damages." Since the Privacy Act itself broadened the privacy rights of individual citizens, Feigin said, it was enough to provide relief for economic damages.

"Then Congress maybe shouldn't have passed this statute," Justice Ginsburg interrupted. The primary injuries caused by invasions of privacy, she said, are not economic. "So you could say that Congress was much more generous than the common law was, but the impact on the person who is suing is not going to be out-of-pocket business loss, pecuniary loss," Ginsburg continued. "It's going to be the embarrassment, the humiliation."

Justice Samuel Alito, on the other hand, was skeptical about Cooper's embarrassment and humiliation, which resulted from his concededly illegal withholding of his HIV status from the FAA. "Are you claiming all of the emotional damages that resulted from his criminal conviction?" Alito asked Cooper's lawyer, Raymond Cardozo.

Justice Antonin Scalia, moreover, found little in the government's unauthorized agency-to-agency disclosure to warrant the distress that Cooper claims to have suffered. The government "just failed, intentionally failed, to follow the very detailed and, as I say, picky, picky prescriptions contained in the Privacy Act," Scalia said. "To say that you get emotional distress for that, as opposed to genuine -- what I would call genuine -- privacy incursions" that make private information public, "is a different question."

Ultimately, the Court's decision will turn less on the source or scope of Cooper's emotional distress and more on how the justices parse the word "actual." Sotomayor, the only justice who once served as a trial judge, questioned Feigin's purely economic definition. "I'm not sleeping, I have a nervous stomach, I'm not eating," Sotomayor said, noting "the typical things that juries look at to determine whether you have proven emotional distress." She asked, "Why is that not actual injury?"

Because, Feigin answered, Congress assigned a commission "to make a recommendation about whether the act should later be expanded to include general damages," a term traditionally understood as non-economic injuries. And the law was not expanded.

In his conclusion, Cardozo responded that Feigin's argument relied on legalistic parsing that "renders this act virtually irrelevant." He urged the Court to "give actual damages its most common and ordinary meaning: proven, not presumed." But by the end of the hour, it was clear that most of the justices had not been convinced by the simplicity of that argument, leaving Cooper and others similarly injured with no remedy under this particular federal law.

Keeton counseling case argued in 11th Circuit

From the Atlanta Journal Constitution:

An attorney for a graduate school counseling student told federal judges in Atlanta on Tuesday that the student's First Amendment rights were violated when professors at a Georgia university sought to punish her for her biblical views on gay rights.

Augusta State University put Jennifer Keeton on academic probation for saying it would be hard for her to work with gay clients, and threatened to expel her unless she attended events like Augusta's gay pride parade, Keeton's attorney Jeff Shafer told the 11th U.S. Circuit Court of Appeals. "She was told, 'You don't have to believe it. You just have to say you do,'" Shafer said.

Augusta State University countered that the counseling program would risk its accreditation if it didn't hold Keeton to a code of ethics. The school has a duty to require students to counsel all segments of the community, including those who are gay or transgender, it said in court papers.

Keeton told other students that she was interested in practicing conversion therapy — where a therapist tries to "cure" a person from being homosexual — after graduation, said Cristina Correia with the state Attorney General's office. Correia said Keeton also told her professors she would tell any clients who said they were gay that homosexuality is morally wrong.

University faculty were concerned that Keeton was scheduled to practice counseling in middle and high schools as part of her degree program and could possibly harm young students with her views, Correia said. "The university has a responsibility when putting students in a practicum and graduating them," Correia said. "When you have that kind of evidence, the faculty could not, under their ethical standards, put that student in a clinical setting without further remediation."

Keeton, who said she's a devout Christian "committed to the truth of the Bible," enrolled in the school's counselor education program in fall 2009 and soon began discussing her views that sexual behavior is a personal choice and that gender identity isn't subject to change.

Faculty members were alarmed after she wrote in a term paper that it would be hard with her to work with gay clients. The school told her that her language was unethical according to guidelines from the American Counseling Association, and she was put on probation and warned she could be expelled.

She was asked in May 2010 to agree to a remediation plan that would require her to attend sensitivity training, read counseling journals and mix with gays at events like the city's gay pride parade. Keeton refused to comply with the plan, which she said in court papers would require her to "tell clients wanting to hear it that homosexual sex is moral."

She filed a federal lawsuit claiming the school wanted to expel her because she "holds Christian ethical convictions" on human sexuality and gender identity. Attorneys for both sides declined comment after the hearing because the case is under a gag order by the court.

 

November 29, 2011

Congratulations Justice Robinson

Beth Robinson, whose argument to the Beth%20speakingVermont Supreme Court in Baker v. State produced the ruling that exclusion of same-sex couples from marriage was unconstitutional under that state's constitution, was sworn in yesterday as a Justice of the same court. Since handling Baker, which ultimately resulted in the state legislature enacting a civil union law, Robinson had continued to practice law and advocate for lgbt rights. Most recently, she served as counsel to Governor Peter Shumlin, who appointed her to the court.

There are now six openly lgbt justices of state supreme courts: Rives Kistler and Virginia Linder in Oregon, Barbara Lenk in Massachusetts, Sabrina McKenna in Hawaii and Monica Marquez in Colorado, in addition to Robinson. Half of the six - Lenk, McKenna, and Robinson - were appointed during 2011.

Canadian law against polygamy upheld, but with no application to relationships outside of marriage

The British Columbia Supreme Court has ruled that the Canadian anti-polygamy law is constitutional, on the ground that its violation of religious freedom is justified by the need to prevent harm "to women, to children, to society and to the institution of monogamous marriage." In Reference re Section 293 of the Criminal Code of Canada, the court excluded minors in polygamous marriages from prosecution and also ruled that there had to be an official marriage into which multiple partners were introduced in order for a prosecution to go forward.  The case was brought by the British Columbia prosecutor after a failed effort to prosecute members of a Mormom sect.

From CBC

[Chief Justice Robert] Bauman spent several months hearing testimony and legal arguments about whether the 121-year-old ban on multiple marriages is constitutional. The landmark hearings, which wrapped up in April, focused on the polygamous community of Bountiful, but the ruling is expected to have implications for polygamists in the Muslim community.

The constitutional test case was prompted by the failed prosecution of two men from Bountiful who were charged in 2009 with practising polygamy....

The court heard evidence that teenage girls in Bountiful were taken across the Canada-U.S. border to be married, prompting RCMP in January to announce a renewed criminal investigation into the community of about 1,000 people in southeastern B.C.

Anti-immigrant attitudes fueled the decision as well:

The statistical evidence shows that as levels of polygamy increase in a society, there is a corresponding decrease in political and civil liberties. It is reasonable to assume that the decriminalization of polygamy would make Canada an attractive destination for polygamists from other countries, and there is no evidence that Canada would be immune from the impacts of such an influx.

There has been no decision on whether there will be an appeal to the Supreme Court of Canada.

 

November 28, 2011

LGBT cases before 11th Circuit draw majority liberal panel of judges

Judges Rosemary Barkett, Phyllis Kravitch, and William Pryor will decide two lgbt-related cases to be argued this week before the 11th Circuit Court of Appeals. Barkett and Kravitch (who is on senior status) are two of the liberal members of what is usually a conservative circuit; they were appointed by Presidents Clinton and Carter, respectively. Pryor, considered to be a strong conservative, was appointed by President George W. Bush.

On Thursday, they will hear arguments by the Georgia legislature that its firing of a transgender employee did not constitute sex discrimination. This will follow tomorrow's appeal by a self-proclaimed Christian who was ordered by Augusta State University either to provide non-judgmental counseling to gay clients or participate in a remediation plan. Lambda Legal attorney Greg Nevins (photo) will seek affirmance Imgresof the lower court decision in Glenn v. Brumby, the trans case, which granted judgment for the plaintiff. In the other case, the former ASU graduate student is being represented by the Alliance Defense Fund, which makes regular appearances on the opposite side of lgbt rights advocates.

The panel before whom they will argue presents a study in contrasts.

Judge Barkett is well known for her spirited arguments in dissent in both the panel decision and the denial of an en banc rehearing in Lofton v. Department of Children's Services, a challenge to the Florida law that prohibited adoption by lesbians and gay men. Barkett argued that the anti-gay adoption rule was unconstitutional if one followed the Supreme Court's decisions in Lawrence v. Texas and Romer v. Evans. (Florida has since abandoned its defense of the law.)

Judge Kravitch was a trailblazer for women in the judiciary. Only the third woman ever appointed to a U.S. Court of Appeals, she received the ABA's Margaret Brent Woman Lawyer of Achievement Award and an award for service to the profession from her alma mater, the University of Pennsylvania Law School. She began her career by joining her father's practice in Savannah, when no major firms would hire a woman. She later litigated important local civil rights cases.

Judge Pryor became Attorney General of Alabama in 1997 and served until he joined the 11th Circuit. Although nominated in 2003, Senate Democrats filibustered his appointment until President George W. Bush gave him a recess appointment in 2004. The Senate confirmed him the following year as part of a compromise on judicial appointments reached by the "Gang of 14." During his confirmation hearing, he reaffirmed his belief that Roe v. Wade was "the worst abomination of constitutional law in our history." 

Although these three judges will announce the first decision in the two cases, it might not be the last. A decision from the panel in any U.S. Court of Appeals case may be rescinded if the full Circuit grants a rehearing en banc.  The case is then re-argued before all the judges who are members of that Circuit.

Sexual violence and provocateurs infect protests in Cairo

From NPR's Weekend Edition:

..."There's far more pain here [during the most recent round of demonstrations," says Mohammed el-Batagy, a professor at Cairo University... "The square has witnessed orders of magnitude more violence than it had during the 18 days [of anti-Mubarak protests last winter]. There is fear, and then there is also infiltrators. They come in to just ruin the whole sit-in."

He says there is an atmosphere of suspicion toward outsiders this time around, with reason: There are agitators inside the square that el-Batagy claims were sent by the ruling junta...

Women, in particular, are bearing the brunt of the changing dynamics. CBS correspondent Lara Logan was the victim of a gang sexual assault on the day that former Egyptian leader Hosni Mubarak fell. Most women who stayed in the square during the 18 days say that sexual violence was rare during that period. Not any more.

"Many of my female friends have been groped or touched or experienced sexual violence in various ways and have hit people, says Mona el-Tahawy, a well known Egyptian journalist and activist. She was sexually harassed repeatedly by fellow male protestors in the square over the past week, but says her worst sexual assault came at the hands of the Egyptian security services..."I was basically left in this abandoned workshop cornered by four or five riot police," she says. "They just started beating me with their sticks and that's how I broke my left arm and broke my right hand. And then they dragged me into the no man's land. And that's where they sexually assaulted me."...

El-Tahawy says being sexually harassed by both protestors and police around the square underscores how much needs to change in Egypt. "We are also fighting what I call the 'fourth enemy' now," el-Tahawy says. "It's not just counter-revolution; it's not just tear gas; it's not just police brutality – it's sexual violence."

"My obsession now with the revolution is we are experiencing a political revolution in Egypt, but we need a cultural and social revolution," she says. And Tahrir Square is at the center of it. "Tahrir now has become this cauldron of all the problems in Egypt that we must start fixing now," el-Tahawy says. "That's why Tahrir is so important. Tahrir is not a square anymore. Tahrir is not a physical space anymore. Tahrir is a state of mind. Tahrir is a symbol — and not just for Egypt, for the entire world."

November 27, 2011

The week ahead: November 28, 2011

[ADDED] Tuesday, November 29 - Oral argument in the 11th Circuit in Keeton v. Anderson-Wiley, in which Jennifer Keeton, a graduate student in counseling at Augusta (GA) State University, is challenging the ruling of a District Court that ASU was justified in requiring her to complete a remediation plan after she refused to counsel gay clients.

Thursday, December 1 - Oral argument in the 11th Circuit in Glenn v. Brumby, in which the Georgia state legislature has appealed a ruling that it discriminated against Vandy Beth Glenn on the basis of sex. Glenn, an MTF transperson, was fired from her job as an editor and proofreader. 

Also December 1 - The final set of briefs is due from the defendants in Gill v. OPM, one of the challenges to the constitutionality of Section 3 of DoMA. This closes the briefing; the parties await scheduling of oral argument. 

Friday, December 2 - Briefs in Perry v. Brown are due to the Ninth Circuit on the issue of how the court should respond to the advisory decision from the California Supreme Court that the Prop 8 proponents should have standing to defend it in the litigation.

November 25, 2011

Anti-gay lobbyist tries to hide moralism with "pro-business" arguments

Earlier this year, the Tennessee state legislature Bildepassed a bill prohibiting local governments from requiring businesses which had contracts with them to agree not to discriminate based on sexual orientation or gender identity. Its purpose was to torpedo a Nashville city ordinance adopted in April, which it did. The Tennessean has now published the fascinating back story behind the conservatives' campaign to kill anti-discrimination protections. The article is based on documents obtained in discovery in a lawsuit filed by proponents of the anti-discrimination law, represented by Abby Rubenfeld (photo).

It is surely a sign of the times that the successful lobbyist for the Tennessee Family Action Council used a strategy of not highlighting religious or moral objections to homosexuality when doing outreach to members of the state legislature. Instead, he painted the blockage of equal employment rights as pro-business, a gambit that paid off even though a number of businesses supported the Nashville ordinance and opposed the state law invalidating it.

Increasingly, an open and supportive environment for lgbt people is seen as going hand in glove with economic development. Not exactly a noble path to equal treatment under law, but it drives a wedge into conservative states when cities like Nashville, the Research Triangle in North Carolina, and Birmingham, Alabama start attracting knowledge industries in significant numbers.

From The Tennessean: 

The chief lobbyist for a state law that invalidated Metro protections for gay and transgendered individuals feared his moral thoughts on the measure would become public and distract from the economic argument he used to sell the bill, documents reveal.

Emails written by David Fowler, president of the Family Action Council of Tennessee and a former state senator, are included in thousands of pages of correspondence lawmakers submitted as part of a court battle over the constitutionality of the state law. The pending lawsuit alleges the law was motivated by prejudice rather than the economic concerns that were publicly argued.

The law dubbed the Equal Access to Intrastate Commerce Act nullified an ordinance the Metro Council passed in April requiring city contractors to pledge not to discriminate based on sexual orientation or gender identity. The ordinance extended protections already given to employees based on age, race, sex, color, national origin and disability, and it required contractors to follow a nondiscrimination policy Metro adopted for its own employees in 2009...

“Metro Council here in Nashville is considering requiring private businesses that do business with the city and those who lease property from the city have an employment policy to protect homosexual conduct and cross-dressing, etc.,” Fowler wrote in a Jan. 26 email to individuals including state Sen. Jack Johnson, R-Franklin. Fowler described how he hoped to persuade the Nashville Area Chamber of Commerce to oppose Metro’s planned ordinance. “Metro passed its homosexual ordinance for Metro employees by 24 to 15 in 2009 so the Council is clearly liberal.

“Please do NOT pass this on to anyone who you think might in the slightest pass it to anyone else,” Fowler continued later in the email. “We’ve learned that some folks we thought were friends cannot be trusted and we don’t need the Chamber backing off because it starts to appear to be too much of a Christian, right wing, homosexual issue rather than a business/economic issue.”

Continue reading "Anti-gay lobbyist tries to hide moralism with "pro-business" arguments" »

November 23, 2011

Reminder - Nominations still open for Dukeminier awards

The Williams Institute invites nominations for the eleventh annual Dukeminier Awards, which will recognize the best law review articles of 2011 on sexual orientation and gender identity. For more information about the Dukeminier Awards, including lists of past winners and details about the selection process, please visit http://williamsinstitute.law.ucla.edu/dukeminier-awards-journal/.

Nominations should be sent to boucai@law.ucla.edu no later than January 2, 2012.

November 22, 2011

Gay marriage ad campaign begins in Maine

A new ad campaign with nation-wide ramifications begins today in Maine, described in the San Francisco Chronicle:

...[Today] in Maine, where voters in 2009 repealed a state law that would have legalized same-sex marriage, supporters of gay nuptials will launch a new TV ad that shows what they have learned - much of it culled from research in California and led by an Oakland pollster.

Maine is being targeted because the issue probably will be on the ballot there next year. Instead of being preachy, the ads aim to empathize with the "journey" voters are taking as they try to sort out their conflicted feelings about same-sex marriage.

National gay leaders and funders will closely gauge the reaction from the target audience: the one-third of Maine voters who are comfortable with civil unions but conflicted about supporting marriage. Reaction to the new messages will have implications for how activists approach other state ballot fights.

"You bet that people are watching this nationally," said Rick Jacobs, chairman of the 750,000-member Courage Campaign in Los Angeles, whose online members contributed $250,000 in 2009 toward research into the marriage question.

Nationally, the movement is nearing a tipping point. Although polls show that most Americans support same-sex nuptials and the military has ended its "don't ask, don't tell" policy for gay and lesbian service members, the movement has failed to win a ballot initiative in nearly three dozen tries.

Winning at the ballot box in Maine could have national reverberations, analysts said, reviving fatigued donors in the gay community to support other state ballot fights, including possibly in California. But winning won't be easy. Past ad campaigns in support of same-sex marriage have been criticized as too preachy. The language used didn't connect with independent voters. In 2009, 53 percent of Maine voters supported overturning their legislature's decision to legalize same-sex marriage.

Pastor Bob Emrich, who helped lead the repeal campaign in Maine, said the new ads aren't going to persuade Mainers. There is "lingering resentment" among opponents of same-sex marriage, he said. "People here don't want to talk about it," said Emrich, who leads a 150-person congregation at Emmanuel Baptist Church in Plymouth. "They don't want to make it so personal. People here ... don't want to change what the institution of marriage means."

Still, supporters of same-sex marriage see Maine, a geographically small state with 1 million voters and a mostly white electorate, as a state they can swing. It is small enough to make direct contact with voters, which is key to changing minds on such an emotional issue...

Timed to run around Thanksgiving, when families gather around the table and in front of the television, the first 30-second ad features a close shot of an elderly Catholic couple from rural Maine who have been married 42 years, describing the journey they took to accept that one of their daughters is a lesbian. At first, Jeanette Rediker says, "there were a lot of emotions." But after they asked their priest for advice, Rediker says, "I will never forget the answer he told me: 'She is the same person you loved yesterday.' " The closing frame features the words "Love. Commitment. Marriage" over two gold wedding bands.

Continue reading "Gay marriage ad campaign begins in Maine" »

New global database on employment law

The International Labor Organization web page has launched an Employment Protection Legislation Database (EPLex). It's searchable on a variety of terms and contains the relevant text of each law catalogued. For example, the new resource makes it easy to identify the 31 countries with national laws prohibiting discrimination based on sexual orientation.

November 21, 2011

IRS signals recognition of DPs as spouses, accepts deduction for sex reassignment surgery

Professor Pat Cain's Same Sex Tax Law Blog reports three recent IRS pronouncements that have gotten little attention and should get more.

Most interesting, a letter from the office of Chief Counsel informs an Illinois taxpayer that different-sex partners in a civil union will be treated as husband and wife for purposes of filing a joint return, because the state law provides that civil union partners should be treated the same under the law as spouses. One logical conclusion is that in a post-DoMA world, same-sex partners in a civil union will also be treated as spouses. This will carry huge benefits for same-sex couples who want to marry but live in states that allow civil unions but not same-sex marriage, or who don't want to marry but who could benefit from that federal tax status. 

Earlier this month, IRS issued an Action on Decision acquiescing in a 2010 Tax Court decision (O'Donnabhain v. Commissioner) ruling that sex reassignment surgery is deductible as a medical expense. Previously, SRS was treated as cosmetic surgery, which is not deductible.

Lastly, in late October, IRS published guidance clarifying that for same-sex spouses or civil union partners, a partner's child is considered a stepchild for federal tax purposes.

Must have been an interesting few months at the IRS... 

November 20, 2011

Arizona federal judge considers preliminary injunction against law targeting abortion service providers

The parties in Arizona Coalition Against Domestic Violence v. Greene are waiting to see if U.S. District Court Roslyn Silver will enjoin a statute scheduled to take effect January 1 that would block charitable donations to organizations that provide or refer for abortions. Judge Silver heard arguments last week. (from the Arizona Republic:)

House Bill 2384 excludes from the state's Working Poor Tax Credit Program any organizations that "provide, pay for, promote, provide coverage of or provide referrals for abortions" or that financially support any organizations that do those things.

The Working Poor Tax Credit Program offers Arizona taxpayers a dollar-for-dollar tax credit to donate to organizations that serve low-income residents. Individuals can claim up to $200, and a couple filing jointly can claim up to $400. Arizona is the first state to address abortion through tax code in this way...

The Arizona Coalition Against Domestic Violence, with the help of the American Civil Liberties Union of Arizona, filed a lawsuit alleging that the law violates freedom of speech and could be dangerous to abused women. ACLU attorney Alexa Kolbi-Molinas argued [that] "This law excludes members from participating in the tax-credit program based solely on the opinion they express. Viewpoint discrimination should not be permitted."

She said if the law goes into effect, domestic-violence victims will be impacted..."Women in abusive relationships often experience a range of sexually violent behaviors that can lead to unintended pregnancy," Kolbi-Molinas said. "Maybe they don't want to be forced to bear an abuser's child ... maybe they don't want a child to be subject to child abuse ... there are many reasons."

Arizona Solicitor General Dave Cole defended the law. "The choice the Legislature made here is both reasonable and within the spirit of its authority," Cole said. He said the law does not restrict speech, but only a group's activities -- such as promoting or referring.

While Silver did not issue a ruling from the bench, she did indicate that the law may be a restriction of viewpoint speech.

November 19, 2011

Remembering Paula Ettelbrick

ImgresFamily and friends of the late Paula Ettelbrick held a moving memorial service for her this week in New York. A number of speakers, including Urvashi Vaid and me, spoke of the importance of her life. I've gotten a couple of requests to publish what I said on this blog, so here goes:

My name is Nan Hunter, and, like many of you, I treasured Paula Ettelbrick’s friendship for 25 years.

When I first began to practice law, an older feminist lawyer advised me that if I really wanted to have an impact on people’s lives, I would practice family law. That area had – and still has – by far the greatest consequences for the daily lives of the largest number of persons of any field of law. It is also, however, notoriously tiring and often disheartening, a field in which setting significant precedents often falls victim to the particularities of each family situation. 

I have not, for the most part, risen to that challenge. But Paula did, and how.

In the Mary Oliver poem “When Death Comes,” Oliver writes,

When it’s over, I don’t want to wonder
if I have made of my life something particular, and real.
I don’t want to find myself sighing and frightened
or full of argument.
I don’t want to end up simply having visited this world.

Rest assured, Paula Ettelbrick did not simply visit this world. In a span of 25 years, she had more impact on family law and on people’s lives than most of us can imagine.  Throughout her professional career, family law was the central touchstone, more than any other, which defined her life’s work.

And it is genuinely difficult to think of any modality for legal change that she left untouched: litigation, legislative drafting and advocacy, policy development, organizing, teaching, writing, public education, organizing, transnational institution building --- really, what else is there?

There are many reasons for her extraordinary legacy. She brought to her work those wonderful Paula qualities: dedication, intelligence, humor, common sense. And she fully integrated those qualities into her passion for justice. The same grace and kindness that suffused her life with those she loved were manifest in her work life as professionalism and magnanimity.  Paula did not see justice as a cliché or a government agency. “The fight for justice,” she said is about “the realignment of power imbalances among individuals and classes of people [throughout] society.” I can’t think of a better definition.

The same courage that carried her through literally to the end made Paula a true visionary in her work.  She became profoundly engaged, intellectually and politically, with both the law and the social norms that regulate family life. And she had the courage to speak her mind.

What was guiding her? She told a journalist that “It was feminism, it was progressive politics, it was about going after the central problems.” Or, as she famously wrote, “I do not want to be known as Mrs. Attached to Somebody Else.”

Paula was ferocious in her belief that law should not be used merely to improvise temporary fixes, but that it had the potential, even if rarely realized, to liberate. “Liberate” is a word seldom used now, but it is a powerful one, and thus it is not surprising that Paula deployed it in her most famous single work, the widely lionized, sharply criticized and – perhaps most dramatically – extravagantly anthologized essay, “Since When is Marriage a Path to Liberation?” If you google that title, how many hits do you think there are?  I can tell you: 3.7 million. As I said, Paula did not simply visit this world.

What fewer people know about that famous essay, paired with one making the opposite argument by Tom Stoddard, whose own life was also tragically cut short, his by AIDS, was that it coincided with a road show. Paula and Tom visited cities across the country making their arguments and inviting reaction – of which they got a lot. I remember admiring them tremendously for this, thinking that they had demonstrated a model for how issues should be aired within a movement.  And I remember Paula telling me how hungry those audiences were for the chance to have a meaningful debate among friends and allies.  Today, of course, that open debate would never be permitted because it would be off message. Paula was not a message minding kind of gal.

To close, let me return to the same poem I quoted earlier. In it, Oliver writes of

Each life as a flower, as common
as a field daisy, and as singular

If each of us is indeed a flower in that sense, none of us has reached higher, grown taller, traveled farther, loved and been loved more, or seen further down the road than Paula. 

November 18, 2011

Massachusetts adds gender identity protection to state civil rights law

The Massachusetts state legislature has amended its state anti-discrimination code to prohibit discrimination based on gender identity in employment, housing, credit and education. The legislation also expands the state hate crimes law to cover gender identity. Protection from discrimination in public accommodations was dropped from the bill to ensure its passage. The amendment, which will take effect July 1, 2012, defines gender identity as 

a person's gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth. Gender-related identity may be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, as part of a person's core identity; provided however, gender-related identity shall not be asserted for any improper purpose. 

At the municipal level, but in a quite conservative locality, Oklahoma City has amended its employment policy for city employees to ban discrimination based on sexual orientation. This article in The Oklahoman gives a flavor of the debate that preceded the vote of the City Council, which adopted the new policy by a 7 to 2 majority.