In June 2020, the U.S. Supreme Court issued its decision in Bostock v. Clayton County, Georgia. www.scotusblog.com/wp-content/uploads/2020/06/17-1618_hfci.pdf

In a 6-3 decision, the court held that the Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity. LGBTQ+ people cannot be discriminated against in employment. 

This is a HUGE victory and one that was not (if we are being honest and given the make-up of the Court) expected. Justice Neil Gorsuch wrote the majority opinion and Chief Justice John Roberts joined it along with the liberal justices, Ginsburg, Sotomayor, Breyer, and Kagan.

In the majority opinion, Justice Gorsuch wrote, "It is impossible to discriminate against a person for being homosexual or transgender without discriminating...based on sex." Gorsuch admitted the framers of Title VII most likely never considered sexual orientation and gender identity when they drafted the law but, he wrote, "the limits of the drafters' imagination supply no reason to ignore the law's demands."

This decision resolved questions raised by three separate federal lawsuits that were consolidated. Those cases were, Altitude Express, et al. v. Zarda, R.G. & G. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al., and Bostock v. Clayton County, Georgia. 

Two of the plaintiffs, Aimee Stephens and Donald Zarda, however, died before the decision came down.

This decision is an excellent start, but we are not out of the woods yet. There are forces arrayed against the LGBTQ+ community that will continue their assault on our civil rights. And, our community will continue to oppose their efforts to minimize our rights and our existence. 
 

​It has been several years since I last posted anything. Life has a way of imposing its own will on us. For me, it was assuming primary caregiver responsibilities for my elderly parents. In 2016, my mom’s dementia progressed to the point where she was no longer safe living independently. In consultation with her doctors, her Hospice of the Western Reserve team, my siblings, and her, we decided she needed to be in a more structured environment.
 
Mom was not happy with the change but, as the dementia became more pronounced, she only remembered the places she lived in when she was a kid. Mom died 28 December 2018. Mom and Dad are at the National Cemetery in Rittman, Ohio. 
 
It took me awhile to adjust to not being on call 24/7 and that took most of 2019 - it’s an odd experience trying to figure out what one’s new normal is after the caregiving experience. 
 
2020 started out on a positive note. My LGBT Legal Issues at Case Western Reserve University School of Law started well. I was fortunate to have an excellent cross-section of students. And, with several cases pending in the U.S. Supreme Court, there was no limit to the issues open for discussion. Spring break, in March, saw Betsy and me headed to Halifax, England. We wanted to visit Shibden Hall and meet Helena Whitbread for tea. Helena is the author of The Secret Diaries of Anne Lister, Volumes 1 and 2. And, she is a remarkable woman.
 
I started participating in the West Yorkshire Archives Anne Lister Transcription Project in 2019 and that led us to Halifax. Having first learned of Anne Lister in the early 1970s I was eager to visit Shibden as it was Anne Lister’s ancestral home. She is considered the first “modern lesbian” and is the subject of Sally Wainwright’s brilliant show, Gentleman Jack. Lister left behind 26 volumes of her journal detailing her life and loves - in plain hand and her own coded crypt hand. On March 30, 1834, she and Ann Walker took the sacrament together in church in York in what is considered the first same-sex marriage in England. They remained together until Lister’s death in 1840.
 
That trip was followed by the last 5 months of a home-stay because of the pandemic. 
 
However, there remains much to do for the LGBTQ+ community and keeping abreast of recent developments is at the forefront. 

Apologies for the dearth of posts. Being the primary caregiver for a 92 year old parent tends to take more time than anticipated. Priorities change.

Anyway, I received a question on an earlier post about birth certificates. The question asked about Ohio birth certificates and how parents can be listed. In Ohio, the parents can be listed as "mother-father;" "mother-mother;" "father-father" or "parent-parent." It is nice to have choices.

This is how Ohio is handling the situation. The laws or protocols concerning birth certificates will be different in every state. You need to check with your state's version of the Bureau of Vital Statistics for more information.

It is important to remember that birth certificates are administrative documents. These documents establish that a person is born and the pertinent details that accompany that fact. Birth certificates are not a definitive record of parental rights. A child's biological parents can establish parental rights.

​The same is not true of those without a biological or genetic relationship to a child. Additional steps, such as adoption or parentage determinations, will be needed.

Family issues, including how to establish parental rights, is a complicated matter. The 2015 Obergefell decision did not resolve every issue that faces same-sex couples. It will take time for the courts and state legislatures to address all of the issues.

​I will be writing about the current state of affairs in future posts. Check back soon.

​

Today marks the first anniversary of the U.S. Supreme Court's landmark decision in Obergefell v. Hodges. That decision recognized marriage equality throughout the United States. One year ago today my marriage to my spouse, Betsy, became legal. No longer did we need to worry about whether we were "legal." Most people have never been in that situation. Same-sex couples, however, know the pain of uncertainty when one's legal rights are determined by state "Welcome to....." signs.

Still, contrary to what many people believe, the Obergefell decision did not resolve all the issues facing same-sex couples--especially those with children.

A recent Tennessee decision is a case in point. On Friday, June 24, 2016, a Knox County judge ruled that a same-sex spouse did not have parental rights or obligations to a child born to her spouse during the marriage. That same judge would never issue the same ruling if the couple were heterosexual.

The couple in this case used assisted reproductive technology to have their child. Sabrina and Erica Witt were married in 2014. Tennessee did not recognize their marriage. The couple decided to start a family and Sabrina gave birth to the child in 2015. When Sabrina filed for divorce her lawyer argued that Erica has no parental rights or obligations because Tennessee law uses the terms "husband" and "wife" in the artificial insemination statute.

The case is on appeal but other states have similar cases pending. The other states also fell into the category of nonrecognition states before the Obergefell decision. 

What many in the LGBT community fail to understand is our families remain at risk because of animosity directed against us. Many lawyers also fail to understand the pitfalls facing same-sex couples and their families. Litigation is expensive and appealing a bad decision adds to those expenses.

Lesbian and gay male couples who have children or plan to have them need to take specific steps to protect the rights and obligations of both parents. That includes shared parenting agreements and second parent or stepparent adoptions. No couple should rely on the "well, heterosexual couples don't have to do this." That may be true but the LGBT experience is different. 

Consider: in few situations will both parents be biologically or genetically related to the child. Couples use assisted reproductive technology, surrogacy and donors (known and unknown) to have a child. When only one intended parent contributes genetic material the other intended parent is an outlier. Some states have a rebuttable marital presumption that recognizes children born during a marriage to be the child of both spouses. That presumption is rebuttable and lacking a genetic or biological connection to the child is a surefire way of rebutting that presumption.

Couples need to consult a lawyer - whether they are married or not - when starting a family. Do not take anything for granted. And, if there is a divorce or separation--think of the impact on the child being denied the love and attention of both parents. Kids do not choose their parents; the adults start the process. It would be nice if the children were put first but that does not happen. The adults fight and the kids pay the price.

The worst part of these custody disputes is that lawyers, like the one representing Sabrina Witt, make anti-gay and anti-family arguments. With marriage equality in place, laws that with gender restrictive language like "husband" and "wife" must be interpreted to mean "spouse." It is a gender-neutral term that will apply to heterosexual and same-sex couples. Unfortunately, we continue to see passive-aggressive behavior from the bench and the bar because of opposition to marriage equality.

Taking steps to validate the rights of the biological and non-biological parent is essential. And, perhaps it won't take a Supreme Court decision to ensure equal rights for all families.

It's been almost two weeks since the mass shooting at Pulse. Two weeks since many Republicans did their best to avoid acknowledging that LGBT people were attacked. Two weeks since the bigoted and homophobic rantings of ersatz christians praised the killer and condemned those who died or were wounded. 

As we near the one-year anniversary of the Obergefell decision, it is apparent that more needs to be done.  Republicans rail against the LGBT community because that wins them votes with their base. At the same time, they bend over backwards to protect the sale of assault rifles by claiming that doing anything else is a denial of due process. 

The 49 people killed at the Pulse nightclub in the early morning hours of June 12 were denied their constitutional rights to life, liberty and happiness. 

And, the Republicans refuse to do anything--except offer a "moment of silence." But that comes as no surprise. The GOP saw nothing wrong with little kids being gunned down in their school--the shooter had a right to buy that assault weapon. The GOP saw nothing wrong with the Santa Bernardino attack on a Christmas party--those shooters had a Second Amendment right to buy assault weapons--no questions asked. The GOP sees nothing wrong with any of the shootings that have occurred.

The GOP is selective when it talks about due process rights, but only when it suits their purposes. Prospective gun buyers are entitled to it because that's what the NRA wants and Republicans will never stand up to the NRA. To hear Republicans talk one would think the NRA is the 4th branch of government. Republicans are cowards and afraid of the NRA. 

Most Americans want background checks but the Republicans ignore that fact. They only talk about what "the American people want" when it suits their purposes. Otherwise, they become tone-deaf.

Republican dominated state legislatures get their knickers in a twist over transgender men and women using public bathrooms. They create fictional voter fraud to justify restricting voting rights--but just for those who usually do not vote for Republicans.

Republicans do not care about the American people. They only care about their own position. They do not care about the danger facing American citizens from people who buy assault weapons and use them for the purpose for which they were designed--killing as many people as possible in as short a time as possible. The Republicans and the NRA are responsible for the deaths in Sandy Hook, Aurora, San Bernardino, Orlando and Charleston.

But, complaining about Republican inaction is not enough. It is equally important to offer some suggestions. Here are mine: 

Background checks--no sales without one;
A two-week waiting period between the time the application is made and the purchase can be completed;
Federal funding for research on the impact gun violence has on the United States;
Declaring gun violence a public health issue;
No one on a "do not fly" list is able to buy a weapon;
Restrict magazine size;
Ban the sale of all assault weapons--no exceptions; limit use to active duty or reserve military personnel and those weapons must be stored at a military installation;
Tax the sale of guns and ammunition (per bullet) at 200%. All tax proceeds are earmarked for anti-gun education;
No grandfathered clauses--all assault weapons must be surrendered;
More state laws, like Connecticut's, that restrict assault weapons;

Over the top? Tell that to the parents of the children from Sandy Hook, the families at Fort Hood, the survivors at San Bernardino and the families of the dead and wounded in Orlando. Tell that to those whose lives have changed forever--who may never recover from their wounds. Tell that to the parents of children killed because they or their friends left their guns loaded and available to inquisitive young minds. Tell that to the kids who killed their friends because they were playing with Daddy's gun and "it just went off."

In April 2016, the state legislatures in North Carolina and Mississippi enacted legislation requiring people to use public bathrooms that correspond with the gender showing on their birth certificates. These "bathroom bills" have created a hailstorm of criticism throughout the country and elevated the dangers facing transgender men and women. Cisgender men and women who may not look like some think they should are also at risk. Supporters of these laws--and other state legislatures, including Ohio--are considering them claim they will "protect" women and girls who use public restrooms from men claiming to be women.

Their position has no basis in fact. First, transgender women are not pretending. They are at great risk when using the men's room. Transgender men, for the most part, would never pass muster in a women's room. And, many women, including my spouse, are challenged on a regular basis when using the restroom because they do not present as a stereotypical female.

Other groups facing discrimination will be anyone who needs assistance with normal restroom activities.

These laws are being championed by people who are ignorant of the transgender community and the issues facing transgender men and women. Now that marriage equality is legal throughout the United States, these folks needed to find something else to occupy their time. It's too bad they could not have settled on something that is actually necessary.

Contrary to the rantings of these folks, there have NEVER been any incidents involving a transgender woman accosting a cisgender woman or girl in a restroom. That comes from law enforcement agencies around the country. There have been numerous incidents in which transgender men and women have been violently assaulted because of their gender identity.

The U.S. Department of Justice has filed a lawsuit against the state of North Carolina because that state's law violates federal laws, including Title VII of the Civil Rights Act of 1964, designed to protect transgender individuals from discrimination. U.S. citizens are not in danger from transgender men and women. Members of the transgender community, however, are endangered by these ignorant, transphobic and homophobic enactments by GOP led legislatures. 

National LGBT organizations are gearing up to protect transgender rights around the country. Education will be the first place to start.

In September 2015, the Alabama Supreme Court decided that a second-parent adoption granted in Georgia was invalid and refused to recognize it. On March 7, 2016, the United States Supreme Court, in an unanimous decision, ruled that Alabama got it wrong. The adoption was valid under Georgia law and Alabama had no legal basis for deciding otherwise. (The case is V.L. v. E.L., et al., 577 U.S. ___ (2016)) By the way, the Supreme Court issued its decision without holding oral arguments. The Justices obviously saw no reason to delay the obvious. Alabama was wrong, period.

The United States Constitution has a provision called the "Full Faith and Credit" clause. Under Full Faith and Credit each State is required "...to recognize and give effect to valid judgments rendered by the courts of its sister States." (V.L. at p. 3). 

The U.S. Supreme Court (aka SCOTUS) has issued several decisions affecting LGBT rights over the years. The last big one was Obergefell v. Hodges in June 2015 when the court decided that marriage equality could not be denied to same-sex couples. The V.L. v. E.L. decision runs along the same track but it addresses an issue on which SCOTUS has been silent--the right of same-sex parents to be legally recognized.

The V.L. decision is important because it removes any doubt that the Full Faith and Credit clause applies to adoptions involving same-sec parents. It also clarifies that one state must honor adoptions granted in another state even when there is disagreement.

This decision will provide considerable peace of mind to many same-sex couples and their children.

Just now realizing it's been almost a year since the last post. Lo siento! Much has happened over the past year for the LGBT community culminating with the June 26, 2015 U.S. Supreme Court decision in Obergefell v. Hodges. Here is the decision, 

On July 10, 2014, the New Hampshire Governor signed into law a bill repealing the state's reverse evasion statute. The old law declared any marriage entered into by a nonresident invalid if the couple's home state would not recognize the marriage. 

This created problems for lesbian and gay couples who married in New Hampshire but lived in one of the 30 states that do not recognize same-sex marriages. By extension, those couples would find their marriages would not be recognized by the federal government. 

Fortunately, all that is gone now with the new law taking effect. And, the law is retroactive. A section of the law applies specifically to same-sex couples. "Sec. 457.44 Nonresidents; Recognition of Same-Sex Marriage. Any marriage of a same-sex couple contracted in this state on or after January 1, 2010 by a party residing or intending to reside in another jurisdiction is valid and legitimate as of the date of its solemnization." 

Most lesbian and gay couples that married in New Hampshire and live in a non-recognition jurisdiction were probably unaware of the problems. However, it needed to be fixed.

Illinois has not taken action to repeal its reverse evasion statute and lesbian and gay couples living in nonrecognition states should not marry in Illinois until the law is repealed. Any couple that married in Illinois should consult a lawyer to determine their next step. In the long-term, the Illinois law can be used by a nonrecognition jurisdiction to deny marital benefits if the law is not fixed. 

As I've stated many times before, everything involving marriage equality is in a state of flux and it is important to understand your legal rights, responsibilities and obligations before making decisions. Events are moving quickly, changes are happening and the situation is constantly evolving. Often it can be difficult to stay on top of things.