Web Feature

The following is a list of antigay ballot initiatives that had been voted on in popular elections prior to 1996. In that year, in a case known as Romer v. Evans, 517 U.S. 620 (1996), the U.S. Supreme Court ruled that an initiative passed in Colorado to repeal existing sexual orientation anti-discrimination protections and prevent the adoption of such measures in the future violated the Equal Protection Clause of the U.S. Constitution. The success of Lambda Legal, the ACLU and the Colorado Legal Initiatives Project in litigating that case largely put an end to right-wing efforts to pass such measures.

 Note: This list does not include antigay measures introduced in legislatures, or ballot measures which seek only to repeal antidiscrimination laws or executive orders. Antigay ballot initiatives that failed to generate enough signatures to qualify for the ballot, or were struck down by courts in pre-election challenges, are also not included. For example, the 1991 measure in Riverside, Calif. the first antigay initiative ever introduced is not included because it was invalidated in a pre-election challenge litigated by Lambda Legal and the ACLU.

(1) These results were thrown out by a court because of voting irregularities; another vote was held in March 1994 and the initiative passed again.

(2) While a majority of voters approved this initiative, the Gresham city charter requires 60% of the vote for passage

TIENES EL DERECHO DE

• Ser abierto/a, honesto/a y sentirte orgulloso/a de ser quien eres. Tu escuela no puede forzarte a esconder tu orientación sexual o identidad de género.

• Tómate el tiempo necesario para conocerte. Es posible que estés confundido/a o no estés seguro/a de si eres lesbiana, gay, bisexual o transgénero. Sólo tú puedes decidir cuándo ha llegado el momento de poner tus sentimientos al descubierto ante tu familia o en la escuela.

• No tengas miedo. Tu escuela tiene la obligación legal de ofrecerte la misma protección que les ofrece a otros alumnos.

• Haz que te respeten. La política de tu escuela con respecto a la provocación, la intimidación o el acoso debe aplicarse a ti de la misma manera que se aplica los demás alumnos. Tu distrito escolar también tiene la obligación de protegerte contra el acoso sexual.

• Reporta cualquier maltrato. Para poder ayudarte, es necesario que tu escuela esté enterada de cualquier problema que tengas. Comunica al director de tu escuela cualquier tipo de maltrato.

• Presenta una queja. Las leyes federales requieren que las secundarias públicas tengan procedimientos para presentar quejas y muchas escuelas privadas también tienen políticas para tratar con cualquier problema que se le pueda presentar a un alumno.

• Crea una GSA. Los alumnos de las secundarias públicas pueden crear una alianza gay-heterosexual (GSA, por sus siglas en inglés) si en su escuela existen otros clubes que no sean parte del programa de enseñanza. Muchas escuelas privadas también reconocen y dan apoyo a las GSA.

• Intercede a favor de una política de no discriminar. Muchas escuelas y distritos escolares tienen políticas que prohíben la discriminación y el acoso que incluyen la orientación sexual y la identidad de género. Averigua cuáles son las políticas de tu escuela e intercede a favor de que se hagan cambios si fuera necesario.

• Ve al baile de graduación con un/a amigo/a. Legalmente, las escuelas no pueden exigir que sólo asistan parejas varón-mujer al baile de graduación.

• Usa la ropa que te haga sentir cómodo/a. Aunque las escuelas pueden tener políticas que determinen la manera apropiada de vestirse, los jóvenes LGBTQ deben poder vestirse de acuerdo a su identidad de género.

This document was authored by Gay & Lesbian Advocates & Defenders in Boston, in collaboration with a working group of lawyers, mediators, social workers and parents in Boston, as well as with Lambda Legal Defense and Education Fund, National Center for Lesbian Rights, Family Pride Coalition and the American Civil Liberties Union Lesbian and Gay Rights Project. This document has also been endorsed by Children of Lesbians and Gays Everywhere. Other organizations who wish to be listed as endorsers of these Standards should contact GLAD, and a current list of endorsers can be found on GLAD's website.

These Standards represent the collective recommendations about what we deem a threat currently facing our community. Because of the importance of this to our families and our children, as well as to our continuing fight to be treated appropriately by the legal system, we have taken the unusual step of agreeing to a set of very specific suggestions we are asking our community to follow. All of us ask that those of you who are dealing with conflict within same-sex families read, consider, disseminate, follow, and urge others to follow these guidelines.

First Printing: April, 1999

Protecting Families: Standards for Child Custody in Same-sex Relationships

Summary

These Standards are intended as a tool to help families who are at risk. Families whose ties are not defined by biology, adoption or marriage are put at risk by a legal system that does not provide a mechanism for protecting their relationships at times of crisis. Respecting our own families requires us to play this role for ourselves, our children, and each other. The text accompanying each of these principles is meant to help even those in deep crisis. We urge you to read and use the full document. The overarching aim of the standards, which are listed below, is to help families maintain the status quo for their children to the greatest extent possible at times of crisis or a breakup.

1. Be Honest About Existing Relationships Regardless of Legal Labels.

2. Consider the Dispute From the Perspective of the Child or Children.

3. Try to Reach a Voluntary Resolution.

4. Try to Maintain Continuity For the Child.

5. Remember That Breaking Up Is Hard to Do.

6. Seriously Investigate Allegations Of Abuse In Determining What is Best for the Child.

7. Honor Your Agreements.

8. The Absence of Legal Documents Is Not Determinative of the Issues.

9. Treat Litigation As A Last Resort.

10. Treat Homophobic Law and Sentiments as Off Limits.

Introduction¹

Our Successes In Creating Families

For many years now, both lesbians and gay men have set out to create our own families with children, often with partners, and sometimes with a partner coming into a family after a child's birth. Many refer to our families as those "of intention and function." As we near the end of the second decade of the phenomenon known as the "lesbian baby boom" or "gayby boom," it is important to establish guideposts about how to protect our children when our families separate.

Sometimes we form families with an adult who will not be a parent but is intended to have a special and important relationship with the child. This may be a sperm donor, surrogate mother, or some other person, and is referred to in this document as a "significant adult" or "family member."

Our community has much to be proud of in its successes in creating families outside of conventional models. We want these lesbian and gay families to be treated as families in all contexts and by the law. Many of us have sought to obtain some kind of legal recognition for our families, whether through second parent adoption, co-guardianship, domestic partnership benefits, or powers of attorney. To the non-gay world, we have stressed that our relationships are those of a "family" rather than of "housemates" or "roommates." We assert that "if it looks like a family, if it holds itself out as a family, if it functions like a family, then it's a family." However, we know that except for second parent adoption, legal mechanisms do not confer equal parental status on all parents, much less do they allow for the nuances of other important roles we have created, such as the involved non-parent, donor, or other significant adult whose role is conceived of as stable and permanent, even if not "parental."

The Nightmare of Divorce Without Legal Process

As in non-gay families, our families sometimes separate. As in non-gay families, when our family relationships undergo changes or break-ups, we experience feelings ranging from sadness and betrayal to hostility and anger about the end of the relationship and about the former family member. In addition to the emotional issues which must be resolved, there may be property division issues and child custody and visitation disputes with which to contend. There is no divorce system in the background, poised as a default to help our families sort these issues out according to uniform and predictable rules.

Preventing Harm to Children

The general lack of legal recognition for our important family relationships results in disrespect for our families and often can lead to the end of important family or parent-child relationships. After parents or families separate, some birth or adoptive parents terminate contact between the child and other parent or family member immediately; others allow visitation for a period of time until they find the visitation too inconvenient or form a new relationship. Of course, some parents work hard to maintain their children's relationship with a parent or other significant adult. Some parents have even sought second parent adoptions of their children with their former partners.

Preventing Harm to Our Collective Interests

Some parents who are not legally recognized and other sig- nificant adults, when faced with a total loss of their relation- ship with their child, have turned to the courts to restore contact between themselves and their children. Often, although not always, courts interpret state law schemes to give authority to even bring a lawsuit only to those people that the law defines as "parents."² Under these restrictive laws, "parents" are only persons related through birth, marriage, or adoption. In other words, in legal terms, the status of "parent" is an all or nothing proposition. Courts often wash their hands of considering the needs of children when the family member lacks a biological or adoptive relationship, but may very well have been involved in everything from planning for the birth of the child to caring for the child virtually every day of the child's life.

Legal cases are often very damaging to our collective interests in addition to threatening deep injury to the individual families and especially to the children. A focus solely on the legal rights of the biological or adoptive parent ignores the real relationships of many parents, significant adults, and children. It is extremely damaging to our community and our families when we disavow as insignificant the very relationships for which we are seeking legal and societal re- spect. Similarly, when an express agreement was entered into by the parties, it is very damaging later to turn around and claim that such an agreement has no validity simply because it has become inconvenient or feelings among the adults have changed.

As a legal matter, cases that go forward along these lines are likely to have the consequence of reinforcing narrow legal versions of what counts as a family, and of what mechanisms are available to create security in establishing a family. We convey to the courts a disrespect for our own families when members of our own community insist that our relationships -- of whatever duration and however intermingled -- do not amount to a "family," or that the other parent was really nothing more than a babysitter. Obviously, this kind of argument also undercuts efforts in other contexts to win legal respect for our families -- whether through domestic partnership, or adoption, or resisting restrictions on a divorced parent's visitation when a same-sex partner is present. More cases which state that the biological parent is the winner in law, or that the only real family that merits court protection is one created by biology or marriage, and that agreements mean nothing, will come back to haunt our community in many contexts.

Protect Our Children

These Standards are offered as an approach to the resolution of custody disputes upon the dissolution of a same-sex relationship, or non-married family.

These Standards are based on the belief that decisions about the care and custody of children whose same-sex parents, or other significant adults, share a commitment to and responsibility for those children should be based on the best interests of the children in the context of their actual relationships with each parent rather than on the relationship between the parents, or on the existence of a legal relationship with one of those parents.

The Standards are also grounded in the belief that our freedom to continue to create secure and stable families depends on respecting the methods we use to create them. Some individuals take on responsibility for children because they have entered into agreements which provide them some sense of security in their roles with those children. Thus, it is very harmful to our future ability to plan families when courts are encouraged (by some) to find the agreements invalid or legally unenforceable. By the same token, some individuals with a biological connection to a child (birth parent, sperm donor, egg donor) agree not to be involved in the child's life as parents and to forego the legal advantage that biology would otherwise give them. These individuals are encouraged not to use biology as a trump card that invalidates their agreements and to assert a superior or equal claim to those of the child's actual parents should disputes arise.

These Standards may serve as a guide to individual families. More broadly, they may serve as the basis for a continued discussion within our community about how to establish an ethic which respects and protects the actual parent/child and other important relationships in our families. These Standards are intended to be aspirational and voluntary and are certainly not intended to generate disputes that may result in additional litigation. Nor should the Standards be cited as legal authority.

Create Documents Supporting Your Family and Take Advantage of Legal Protections In States Where They Exist

People should be strongly encouraged to create legal and other documents articulating their intentions and expectations about the families they have and are creating. These may be co- parenting agreements, estate planning documents, or other types of agreements used in your state. A secondary benefit of such agreements is that the process of reaching an agreement can uncover, and encourage resolution of, areas where the understanding among the parties is unclear, or where there is outright disagreement. It is very important to identify and resolve as many potential disputes as possible. In the process, unexpected and undesired future scenarios should be considered, with special attention to the possibility of the family breaking up.

When possible, it is important to take advantage of legal mechanisms which exist in some states to protect the relationship between the parents and the child. A number of states permit co- parent adoption, a process by which non-biological parents become legal parents to the child. (Contact an attorney to find out if this is available in your area). Even in states without second parent adoption, a legal parent may be able to name another parent as a co-guardian or the non-legal parent may be able to obtain a limited parental status under state law. It is important to utilize all of the protections which may exist unless there is some important reason why that is not practicable (e.g. a known sperm donor who will not waive his parental rights for a second parent adoption where such waiver is required).

Encourage Families In Distress to Review These Standards

As a community, we must remember to speak up, and use the power of our own voices when we encounter families in distress. Encourage those families to review and apply these Standards. The lack of legal recognition of our family relationships has an enormous impact on our community and on every family among us. As a community, we need to provide the support and incentive to behave reasonably even at very difficult times. All of us have a responsibility to educate others to the reality that litigating custody disputes in conventional courts of law may well lead to erosion of the societal and legal credibility our community has gained for our families.

These Standards are offered in the spirit of community, and in the hope of creating a community where our children are safe, loved and protected. We encourage people to apply them to their own disputes, and to help friends and loved ones who may benefit from them by providing them this document and support in following its principles.

Standards

1. Be Honest About Existing Relationships Regardless of Legal Labels.

   Individuals should be forthright and honest about the existence and nature of the relationships between and among the parents, other significant adults, and the children.

   Each situation is unique and there is no single approach that will work for all families. It is critical to recognize the actual relationships between the parties and the child. A focus on legal labels can easily obscure the actual relationships.

   Of course, not everyone who claims to be a "parent" or "significant adult" after a dispute is actually a person whose relation to the child is contemplated in the spirit of these standards. It may be that the relationship between the adult and child is of such a short duration, or is so intermittent, or is so profoundly troubled in some way that no parent-child or other significant relationship exists.

   Agreements and documents, particularly when coupled with an ongoing course of conduct that establishes the intent of parent(s) to share parenting or allow an important relationship to develop with another parent or significant adult should be given great weight in determining the context in which the parties' relationships to the child developed.

2. Consider the Dispute From the Perspective of the Child or Children.

   Separating parents or families experiencing conflict with a significant adult should consider the best interest of the children involved to be paramount and should consider the child(ren)'s perspective. Continuity of their relationships with significant adults is vital to children's well-being. While individuals may be critical of each other, to a child, even a marginal parent is a parent. The abrupt termination of a relationship that was contemplated as permanent is very damaging. Sustaining the family members' present relationships with their children should be a primary goal of the resolution of the custody dispute.³

3. Try to Reach a Voluntary Resolution.

   At a minimum, this means that the persons involved should endeavor to reach a voluntary resolution about future care and support for the child. If the parties are at an impasse, consider involving family friends or relatives who know the family well, or retaining the services of a mediator or arbitrator who can help the parties reach a voluntary agreement.

   It may be helpful to know that courts themselves increasingly utilize the services of alternative dispute resolution providers. Mediation, the most common form of alternative dispute resolution, involves a confidential, voluntary form of structured negotiation designed to help the participants reach an informed, agreed-upon resolution with the assistance of one impartial mediator. Other forms of dispute resolution include arbitration and agreements negotiated with lawyers or in couples' therapy. (Consult an attorney knowledgeable in this area of law for recommendations of mediators and arbitrators.)

4. Try to Maintain Continuity For the Child.

   In arriving at a plan for the future, the parties should start with a presumption that an arrangement which most closely resembles the child's relationship with his or her family over the last two years (or for the life of the child when the child is under age 2) is best from the child's perspective.

   Although it may be difficult, each person should allow and encourage a comparable level of involvement in the child's life and activities as each had before the dispute unless they agree otherwise. This applies to school and extracurricular activities, as well as to the need to share or alternate holidays and other special occasions. To the best of their ability, all family members should aim to continue to provide financial support for the child. Maintaining the status quo to the extent possible should be the goal for the family. Continuity of their relationships with significant adults is vital to our children. The abrupt departure of a loved adult simply because one parent has changed his or her view of that person can cause great harm to a child.

   Hand in hand with assuming the child's perspective in considering the rights of family members comes viewing responsibilities for support and caretaking that way, too. Just as one who wishes to deny the relationship of the child and another family member must be urged to consider the impact on the child, a family member should do everything possible to maintain the status quo for the child in terms of support as well.

5. Remember That Breaking Up Is Hard to Do.

   Individuals should be helped to understand that the end of a relationship is invariably difficult and disruptive to all involved. Even the most amicable divorces take months to process, and many divorces are not entirely amicable. This is all the more reason to seek out the services of a trusted friend or professional mediator who can help the parents avoid impulsive and expedient decisions which are likely to be harmful to the child.

6. Seriously Investigate Allegations Of Abuse In Determining What is Best for the Child.

   Abusive adult relationships and child abuse do occur in some of our families. If there are allegations of domestic violence, it is important to determine, based on a thorough history, whether or not the allegations are founded. If abuse is substantiated after investigation, whether it is physical or emotional abuse between the parties and/or between the parties and the child, then it should have a role in determining what is in the child's best interests. The focus should be on safety and treatment, not on using the fact of abuse to deny another person's status as a parent or other significant adult. When a parent or significant adult is abusive, the other family members should use legally available means to protect themselves as well as the child. In some cases, this many mean a suspension of visitation or supervised visitation. Research shows that children are often negatively affected by domestic violence even if they are not physically hurt or do not directly witness physical violence. The impact of any abuse on the children should be discussed and incorporated into all negotiations.

   Allegations are different from substantiation. Allegations of abuse should be seriously explored in order to reach an honest determination as to whether there was abuse, or whether the feelings stated are those commonly associated with the break-up of a family relationship. A professional evaluator hired at the expense of the parents may be helpful.

7. Honor Your Agreements.

   Whether written or verbal, it is important to honor the agreements you have made. Of course circumstances can change from the time an agreement was formalized or a promise made. A commitment to a child involves significant emotional investment on both the child's and the adults' parts, so it is vital to be assured that important relationships are respected and permitted to remain stable by the child's other parent or caregivers.

8. The Absence of Legal Documents Is Not Determinative of the Issues.

   While it is important to take the available legal steps to protect our families, some cannot or do not pursue legal protections for their families. Some families do not fit the all or nothing definitions common in law. Money to obtain those protections may be an obstacle for some. Others may legitimately fear losing their jobs or homes by coming out in a court proceeding. Other obstacles may exist, too. For example, even in a state where second parent adoption is available, there may be another person (e.g. former spouse or sperm donor) whose non-consent to the adoption may prohibit the adoption under some states' laws.

   Thus, the failure of the parents and family members to take legal steps to secure their status as a family is only one factor in any evaluation of the child's best interests or of an agreement among the parties. In itself, the failure to take such legal steps cannot be a guiding or determining factor.

9. Treat Litigation As A Last Resort.

   Individuals need to understand that litigation is both a costly and time consuming process. In addition, court proceedings and files are often open to the public, thereby compromising the family's privacy. Lawsuits have a public dimension both for the family involved and, to some degree, for other same-sex families, too. Those lawsuits in which a parent asserts that another parent or family member who has no adoptive or biological relationship to the child cannot be heard from in court on the issues of visitation or custody run the risk of making bad legal precedent, and signal very real disrespect for our own families.

   More particularly, litigation provides a highly structured forum in which the final decision remains with a judge. Mediation, as discussed in Standard 3, gives all parties input into the dispute-resolution process and the content of any voluntary resolution.

10. Treat Homophobic Law and Sentiments as Off Limits.

    No one should reveal, or threaten to reveal, the sexual orientation of an opposing parent or other significant adult to employers or others, in an attempt to harass or intimidate the opposing party. No one should use the fact of a person's transgendered identity to gain any advantage over another.

    When litigation occurs, it is improper and unethical to appeal to anti-gay laws or sentiments. Individuals should not use the fact that gay and lesbian relationships are not recognized under current law to gain some advantage. Specifically, we emphatically urge those who are confronted with lawsuits not to resort to arguing that a person who has had a parental or significant relationship with the child but who is not a biological or legal parent cannot ask for visitation or custody because of "standing." If there is a well-founded belief that the child's best interests compel limiting contact between the child and former family members, then the court case should proceed on those terms and not whether an agreement is enforceable, or whether a non-legal parent can be in the court proceedings to begin with.

    Lawyers should consider: (1) limiting the terms of their representation to non-litigation options from the outset of the attorney-client relationship; (2) not relying upon laws or sentiments supporting the notion that parents have a more legitimate right to their children if they are biologically related to their children or related through adoption, than if they are not; and (3) after full discussion and disclosure to their clients, refusing to make arguments about lack of standing, and refusing to disavow written agreements, and so limiting their representation at the outset.

Conclusion

We can all agree that our children deserve to be loved and protected. This means that we ourselves as well as others should respect our families and our children's relationships whether the legal system would do so or not. We hope these proposed standards will be the basis for fruitful discussion and bring all of us closer to our shared goals.

Notes

1 This document began with the efforts of a concerned group of activists, lawyers, mediators, social workers and mothers who were gathered together by Gay & Lesbian Advocates & Defenders (GLAD), and who served as a sounding board and editor to the author, Mary Bonauto of GLAD. These include Silvia Glick, Joyce Kauffman, Sandra Lundy, Diane Neumann, Jenifer Firestone, Maureen Monks, Arline Isaacson and Pauline Quirion.

2 In these cases, courts often treat non-legally recognized parents and other significant adults as strangers to the child and deny the family member’s request for visitation. For example, in Vermont, the courts did not help Christine Titchenal who was forbidden by her former partner from seeing her 3 year old daughter Sarah. In New York, after separating from her partner of 17 years, Lynda A.H. was forbidden by her former partner from seeing her 3½ year old daughter. When a 9 year lesbian relationship ended in Texas, a 3 year old child suffered the biggest loss when the courts refused to intervene in a birth mother’s decision to forbid the child from seeing her other mother. Similar cases have been reported in virtually every state in the country.

3 Initial reluctance to add children to a family — a factor often used to suggest that one person has a more legitimate claim to a continued relationship than another — is not justification at all for terminating contact and a child and a person who has played a significant or parental role. As with any family, people who are ambivalent about having children often overcome their initial reservations and bond deeply. The fact that a person might not have anticipated doing so is completely irrelevant to the child’s experience of that family member, and the injury that the loss of such a person causes.

Dated in Boston, April 11, 1999.

Gay & Lesbian Advocates & Defenders
294 Washington Street, Suite 740
Boston, MA 02108
(617) 426-1350
(617) 426-3594 (fax)
www.glad.org

Lambda Legal Defense and Education Fund
120 Wall Street, Suite 1500
New York, NY 10005
212-809-8585
212-809-0055 (fax)
www.lambdalegal.org

National Center for Lesbian Rights
870 Market Street, Suite 570
San Francisco, CA 94102
(415) 392-6257
(415) 392-8442 (fax)
www.nclrights.org

American Civil Liberties Union
Lesbian and Gay Right Project
125 Broad Street
New York, NY 10004
(212) 549-2627
(212) 549-2650 (fax)
www.aclu.org

Family Pride Coalition
P.O. Box 34337
San Diego, CA 92163
(619) 296-0199
(619) 296-0699 (fax)
www.familypride.org

Children of Lesbians and Gays Everywhere
3543 18th Street, #17
San Francisco, CA 94110
(415) 861-5437
(415) 255-8345 (fax)
www.colage.org

Celebrate National Freedom to Marry Day in your own neighborhood this year with same-sex couples arm-in-arm on your street, in bridal gowns or tuxedos, trailed by a festive entourage. Engage your neighbors. Turn the heads of your friends. Express your need for marriage equality today.

Take it from those of us who have donned the dresses, the suits, the gowns, the winter gloves and scarves, carried the signs, rung the bells, blown the celebratory wedding bubbles, and tossed handfuls of birdseed at our brides and grooms: Street theater is effective in capturing attention and opening dialogue about lesbian, gay, bisexual, and transgender lives and relationships. Your neighbors will talk with you on the street, some for a long while and some only briefly, and they will talk with their friends and families later, at home.

Strolling wedding parties are also a great way to celebrate commitment to one another in an interactive, focused way. This toolkit contains suggestions, samples, and ideas for beginning, organizing, and carrying out your stroll.

Have fun, and show your community there is a role for everyone in gaining full marriage equality. And together, let us make gay, lesbian, bisexual and transgender lives and relationships known!

Strolling Wedding Party Guide

Sample Documents

Talking Points Along the Route

Contact List and Checklist

In a momentous legal victory, same-sex couples will be able to enter into "civil unions" in the State of Vermont beginning July 1, 2000. Thanks to the Vermont Supreme Court's ruling in December 1999, and the enactment of the civil union law in response to the decision, same-sex couples now have the option of forming a civil union. Whether you should enter a civil union, and what it all means, are questions this publication is meant to address.

In the midst of such unprecedented legal change, Gay & Lesbian Advocates & Defenders, Lambda Legal Defense & Education Fund, the American Civil Liberties Union Lesbian & Gay Rights Project, and the National Center for Lesbian Rights have compiled this pamphlet to help lesbian and gay couples considering entering into a civil union.

Inevitably you will have questions to which there are simply no definitive answers at this time. In a moment of social change like the present, there are no guarantees and those who come forward and participate in the civil union process will be "pioneers" of a sort. Those of you who enter into civil unions also will be "ambassadors" by showing the non-gay world that our families exist and need the protections of law many other families take for granted.

What is a Civil Union?

A civil union is a comprehensive legal status parallel to civil marriage for all purposes under Vermont state law. As of July 1, 2000, a same-sex couple from any state -- where each person is at least age 18, competent, and not closely related by blood -- may apply to Vermont town clerks for a civil union license, have that license "certified" by a judge, justice of the peace or willing member of the clergy, and then receive a civil union certificate. This process parallels Vermont law on entering into a civil marriage.

According to the Vermont civil union law, spouses in a civil union will enjoy the same state law protections and responsibilities as are available to spouses in a marriage. Thus, under Vermont law, all legal rights which apply to "family," "immediate family," "dependent," and "next of kin" also apply to spouses in a civil union. The civil union law is supposed to be "construed broadly in order to secure eligible same-sex couples the option of a legal status with the benefits and protections of civil marriage...."

There will be questions about how other states and private parties will treat the civil unions of non-Vermonters, or of Vermonters who simply travel to another state. These are addressed below.

Legal Status of Vermonters Entering into a Civil Union

Vermonters who enter into a civil union with a same-sex partner will be treated as married for purposes of the laws of Vermont. They will go from being "legal strangers" to being "legal next of kin" as described above.

The protections in the Vermont civil union law include preferences for guardianship of and medical decision-making for an incapacitated spouse; automatic inheritance rights; the right to leave work to care for an ill spouse; hospital visitation rights; control of a spouse's body upon death; the right to be treated as an economic unit for (state) tax purposes under state law; greater access to family health insurance policies; the ability to obtain joint policies of insurance and joint credit; parenting rights; and the right to divorce and to an ordered method for ascertaining property division as well as child custody and support. The law applies to private parties (like banks and insurers) as well, and discrimination against parties to a civil union is considered both marital status and sexual orientation discrimination.

Legal Status of Non-Vermonters Entering into a Civil Union

Same-sex couples from outside Vermont can also enter into valid civil unions in Vermont. What is less clear is the status of their civil unions in their home states. The legal commitment of couples who have entered civil unions deserves respect. Same-sex couples and their families need the same kinds of assurance as non-gay couples that their legal relationships are secure when they cross state lines. We think spouses in a civil union should be accorded the rights, protections and responsibilities accorded by state law to spouses, families, dependents and next of kin under each state's laws. Even though a couple in a civil union cannot claim to be "married," they can claim to have a civil legal status that is equivalent to civil marriage in order to secure access to the same laws.

We hope and expect that many private entities will treat parties to a civil union as married, or eligible for the rights and responsibilities of married people. The private sector will not likely respond with one voice. There will likely be some confusion about your legal status for banks, schools, retirement plans, credit card companies and in other transactions. Even though some states and other public entities will discriminate, we hope that some will not, and that they may come to recognize civil unions for some purposes even if not for all purposes. And of course, there are powerful arguments that civil unions should be given effect by all states.

What Would It Mean If My Partner and I Enter into a Civil Union?

If you have ever thought about getting married, you may now be thinking about entering into a civil union. It is an important commitment and should be considered carefully. It will have implications for other parts of your life. Since a civil union is supposed to confer all of the state law-based benefits, protections and responsibilities of marriage, entering into that status could affect many aspects of your public and private life.

Consider these few issues:

• Once you are spouses in a civil union, you are not "married"; but you are not "single" either. There are many forms (tax, insurance, memberships) which require you to select either "married" or "single." These limited options will pose challenges for everyone, and it will be important to state consistently that you are not "single." At the same time, you may experience discrimination and be denied the protections accorded to "married" people in some circumstances, particularly if you are not in Vermont. You may need to ask that a new box be created to describe your marital status.
• Under Vermont law, a civil union can be terminated in Vermont only if at least one of the parties is a resident for a year. Other states may or may not allow you to "divorce" under their state law. If they do not, the only way to terminate your civil union may be to move to Vermont and meet the residency requirement, or perhaps to another state which provides access to divorce for spouses in a civil union.
• Entering into a civil union may affect your ability to adopt as a "single" person both domestically and internationally. It may affect other parenting rights, too.
• The military still provides that an "attempted marriage" to a person of the same sex is a ground for discharge, and may view a civil union as the equivalent of a marriage for these purposes. In other words, entering a civil union is likely to violate the "don't tell" provisions of the military's anti-gay policy, and cause separation from military service for that reason.
• If an employer-sponsored domestic partnership plan requires you to be "single," then questions may arise as to your eligibility to participate. If it only requires that you be "unmarried," you could honestly state you are not married.
• Some states require married partners to support their spouses, and the same should be true of parties to a civil union. A civil union may well trigger community and marital property provisions which would apply at divorce.
• Some states also require spouses to assume the other spouse's debts to creditors, and this might apply to spouses in a civil union.
• If a person receives government assistance from a program which looks at your income, once you have entered a civil union, they may also take into account your spouse's income. This may affect your continued ability to receive benefits.
• People who receive pension, retirement or disability benefits through a formerly deceased spouse may no longer have access to those benefits once they enter into a civil union with a new spouse.

It is critical that you make an informed choice about whether to enter into a civil union based on your relationship with your partner and the unique circumstances of your life. Call the organizations listed in this brochure and near your home state for help finding a "gay friendly" attorney in your home state.

What is the Effect of a State's So-Called "mini-DOMA" Law on a Civil Union?

In our view, the existence of an anti-marriage law, or so-called "DOMA" (state "Defense of Marriage Acts") does not foreclose your state from providing legal protection to spouses in a civil union. Those laws forbid marriage of, or the recognition of marriages of, same-sex couples. It follows then that this does not exempt a state from recognizing the civil unions, or the "family" or "next of kin" or "dependent" relationship of the spouses in a civil union. In other words, even if a state has withheld the word "marriage" from same-sex couples, it is fair to argue that it has not withheld and may not withhold the state-created rights and benefits of marriage from those families.

Moreover, anti-gay and anti-marriage laws fly in the face of numerous constitutional guarantees. We cannot guarantee that all courts or policy makers will see this issue the way we do, but the record is replete in most states with these laws that they were trying to prevent same-sex couples from marrying, and were not withholding rights, protections and responsibilities from gay and lesbian couples. We regard these laws as unconstitutional and are carefully considering how best to secure their elimination over time.

These states have anti-gay, anti-marriage laws

(as of June 20, 2000)

Alabama
Alaska
Arizona
Arkansas
California
Colorado
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Michigan
Minnesota
Mississippi
Montana
North Carolina
North Dakota
Oklahoma
Pennsylvania
South Dakota
Tennessee
Utah
Virginia
Washington
West Virginia

How Can I Best Protect My Family?

All persons who enter into a civil union -- whether Vermonters or not -- should still maintain wills, powers of attorney, health care proxies, and partnership and parenting agreements to safeguard their families during this period of uncertainty. If second parent adoption or co-guardianship is an option in your state, it is still critical that you protect your relationship with your children by going through that process. Call any of our organizations for help finding an attorney who can help you.

Legal Status of A Civil Union Under Federal Law

Just as Vermont is powerless to change the law of other states, it is powerless to affect federal law on its own. For now, because of the so-called federal Defense of Marriage Act (DOMA), the U.S. government almost certainly will claim it need not recognize the civil unions of same-sex couples under 1,049 federal laws, benefits, programs, rules and regulations which apply to spouses in a marriage. This includes areas such as federal taxes, social security, and immigration among many others.

Your Role: Changing People's Minds

Bringing an end to our country's discrimination against same-sex families, civil unions, and marriages of lesbian and gay couples will take work both inside and outside legislatures and courtrooms. Every couple with a civil union certificate will be a living, breathing example to their families, neighbors, employers and communities -- changing the minds of people around them as people have done for the last 30 years by "coming out of the closet." This process, taking place across the United States, is as important as the legal and legislative work. In deciding to hold themselves out as the equivalent of a married couple, same-sex couples with civil unions will be on the front lines of social change.

Nuts and Bolts: How to Get a License

According to the Office of the Vermont Secretary of State, both members of a couple seeking a civil union need to go to a town clerk's office in any Vermont town. Vermonters need to go to the town clerk's office where one of them resides. The civil union application needs to be filled out and signed by both members of the couple. No blood test or medical exam of any kind is required. The license costs $20. Once processed by the town clerk, the application becomes a civil union license. Once certified by an "officiant," i.e. a judge, justice of the peace or clergy member, the license becomes a civil union certificate.

After receiving the license, the couple has 60 days to enter into a civil union. The license can be certified anywhere in Vermont whether the couple resides in Vermont or not. Once the license is certified, the officiant has 10 days in which to "file the certification" which then makes the status legally binding. The civil union is also "filed" and the record of the civil union is a public record available to anyone who asks for it (for a fee) from the town clerk's office or the Office of Vital Records in Vermont. The State will list the Secretary of State's office address as the residence for people who request this privacy measure because of a domestic violence or stalking threat.

The essential requirements for entering a civil union are:

• the couple must be of the same-sex;
• both parties must be 18 years of age;
• neither party may be so closely related that they would be barred from marrying;
• neither party may be in another marriage, civil union or reciprocal beneficiary relationship; and
• both must be of sound mind. If someone is under another person's guardianship, the guardian may consent to the civil union as long as the person is 18.

The application requires the applicants' ages and places of residence and the town clerk can request proof of both of these things, as well as divorce certificates from previous marriages, civil union dissolution papers, or the death certificate of a previous spouse if relevant. A driver's license should be adequate proof for age and residence. The application also asks for their parents' names and places of birth, though no proof is required for this information. Applicants must also answer questions about their race, occupation, total number of marriage or civil unions, how each of these marriages or civil unions ended, and each applicant's level of education. This information is not included on the civil union certificate and is kept confidentially at the Health Department for statistical purposes.

Clergy members from outside Vermont who want to perform civil unions there may become authorized to do so by going to a probate court and showing their credentials to the judge. Some courts may be willing to authorize out-of-state clergy through the mail.

The State of Vermont is currently preparing an explanatory document about the civil union process which they will be distributing to town clerks and other state officers. Couples can and should read it carefully at the town clerk's office before they apply. Among other things, it emphasizes that a person will need to be a resident of Vermont for six months in order to apply for a dissolution in that state, then remain a resident for another six months until the dissolution is made final.

Fighting Discrimination Against Civil Unions

Discrimination against lawful civil unions is wrong. We hope that all discriminatory anti-marriage laws (which we think don't apply to civil unions) will be repealed, and that other states will adopt civil union legislation or amend their marriage laws. If you need help to fight against anti-gay discrimination related to civil unions or marriage, contact one of the organizations listed in this publication. We invite you to join us in making this happen.

This is a thrilling victory -- and undoubtedly the beginning of a new era, but there's a need for patience, planning and strategic thinking in the work ahead for all of us. We are in a long term civil rights struggle. There is no quick fix for the discrimination we will encounter. The struggle to gain acceptance and to dismantle the legal regime erected against our families will take time.

Legal advocates do not recommend that lawsuits be filed in most instances of discrimination. We must proceed collectively and carefully, moving forward the best cases in the best places at the best times. The organizations listed below, in partnership with local lawyers, are happy to talk about the kinds of problems you are facing so that we can position ourselves with those few cases which will best move us forward toward full citizenship and equality.

There are valuable roles to play apart from litigation. The discrimination you face can be turned into a valuable educational tool when you share that experience with your community and with policy makers. We all need to talk with our elected leaders as well as our neighbors to persuade them that recognizing the "common humanity" of gay people (as the Vermont Supreme Court put it) and same-sex families is fair, necessary for strong families, valuable for communities and solid public policy. Join us in our collective work to win the Freedom to Marry, recognition and protection of all families, and full equality under law.

Lambda Legal Defense and Education Fund
National Headquarters
120 Wall St., Suite 1500
New York, NY 10005-3904
www.lambdalegal.org
212-809-8585

Gay & Lesbian Advocates & Defenders (GLAD)
294 Washington St., Suite 740
Boston, MA 02108
www.glad.org
617-426-1350

National Center for Lesbian Rights (NCLR)
870 Market St., Suite 570
San Francisco, CA 94102
www.nclrights.org
415-392-6257

ACLU Lesbian and Gay Rights Project
125 Broad St., 18th Floor
New York, NY 10004-2400
www.aclu.org
212-922-800

On May 17, 1954, the U.S. Supreme Court issued a landmark ruling in Brown v. Board of Education that “separate but equal” treatment for African-American people was unconstitutional. Exactly 50 years later, lesbian and gay couples in Massachusetts will begin getting married after the state’s high court ruled that it’s unconstitutional to provide anything other than marriage for same-sex couples.

The issues are different -- but the attack on the courts from right-wing groups is exactly the same. Extreme right-wing politicians and groups label any judge who disagrees with them -- and puts basic fairness above their political agenda -- an “activist judge.” See for yourself, below, just how little has changed in the right-wing playbook over the last 50 years. And go to www.LambdaLegal.org/JudgingDiscrimination for more on Lambda Legal’s Judging Discrimination campaign, which takes on these distortions and tells the real story.

On March 6, 2006, the Supreme Court ruled that the Solomon Amendment, which requires law schools to grant equal access to military recruiters in order to receive federal funding, is constitutional. However, the Court emphatically stated that law schools and law students are also permitted to express their disagreement with the military’s homophobic policy of excluding gay men, lesbians and bisexuals from serving. [1] As the Court stated, “[T]he Solomon Amendment regulates conduct, not speech. It affects what law schools must do — afford equal access to military recruiters — not what they may or may not say.”

If you’re a law student, alumnus or alumna, professor or otherwise employed by the school, there are many ways that you can express your disapproval of the military’s discrimination. Here are some examples, including some specifically mentioned in the Court’s opinion:[2]

• Post signs on school bulletin boards expressing your disapproval of the policy.

• Hand out flyers expressing your disapproaval of the policy, consistent with the school’s general policy for handing out flyers.

• Organize educational programs about the military’s discriminatory policy. Enlist your school’s assistance in producing and disseminating information about these programs.

• Seek discussion of the military’s antigay policy in existing courses.

• Advocate for Congress to repeal the Solomon Amendment as well as the “Don’t Ask, Don’t Tell” policy, and urge your school to be active in advocating that Congress repeal these provisions.

• Organize and engage in protests when the military is recruiting on campus. Protests should follow a school’s guidelines about time, place and manner of protest in a public forum. If, however, your school has an unfair policy regarding protesting military recruiters, you can advocate to change this policy — especially because the Solomon Amendment and this Supreme Court decision specifically permit protesting. If your school is public, any restrictions on speech should not be content-based, nor should restrictions on time, place and manner of the protest be unduly restrictive.[3]

• Urge your school to include an official statement in all recruiting-related materials that, by allowing military recruiters on campus, the school is NOT endorsing the military’s antigay policy, and that the school strongly opposes the discrimination inherent in “Don’t Ask, Don’t Tell.” Here is a sample statement:

  “The Supreme Court has ruled that Congress can require our school to admit military recruiters, in spite of our school’s strong policy against allowing any recruiter on campus who discriminates against lesbian, gay, bisexual and transgender people. [This school] deplores the military’s discriminatory policy and will continue to enforce its nondiscrimination requirements against all other recruiters.”

_____________________________________

[1] The current military policy, commonly known as “Don’t Ask, Don’t Tell,” is embodied in a federal statute (10 U.S.C. § 654(b)), as well as various Department of Defense ("DoD") directives. Section 654(b) provides for a service member's separation from the armed services if he or she has: (1) "engaged in, attempted to engage in, or solicited another to engage in a homosexual act;" (2) "stated that he or she is a homosexual or bisexual, ... unless ... the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts;" (3) or has "married or attempted to marry a person known to be of the same biological sex." 10 U.S.C. §§ 654(b)(1), (2), (3). While DoD Directive 1332.14(H)(1)(a) states that a service member's "sexual orientation ... is not a bar to continued service," lesbian, gay and bisexual service members are prohibited from being open and honest about their identity, relationships, and lives and continue to be subjected to investigation, discrimination, and harassment in the military based on their sexual orientation. In the decade since this policy was adopted, the military has discharged nearly 10,000 lesbians, gay men and bisexuals under the policy.

[3] Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (“Our cases make clear, however, that even in a public forum the government may impose reasonable restrictions on the time, place or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest and that they leave open ample alternative channels for communication of the information.’ [citations]”). Even in a nonpublic forum on a public campus, students may be able to challenge a speech regulation by establishing that the regulation is unreasonable or discriminatory based on viewpoint. See International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992) (In a nonpublic forum, “[t]he challenged regulation need only be reasonable, as long as the regulation is not an effort to suppress the speaker’s activity due to disagreement with the speaker’s view.”).

The California Domestic Partner Rights and Responsibilities Act of 2003 (“AB 205”) created comprehensive new protections and duties for registered domestic partners under state law. The attached chart, “California Domestic Partnership Law: An Overview,” summarizes the rights and duties afforded to registered domestic partners and compares them with the rights and duties of married spouses. There have been important developments since AB 205 was enacted — including court decisions, additional legislation and government policy statements. Significant examples of these are set forth below. This continues to be a dynamic, evolving field in which certain principles are increasingly well established under state law, while a number of questions with far-reaching implications — especially those involving federal law — remain unanswered.

Legislative Additions To The Protections Afforded By AB 205

Domestic Partnership Technical Amendments (AB 2580 – Goldberg): This statute made technical changes and clarifications to AB 205. It provides that any reference to a “date of marriage” (such as in laws relating to dissolution, spousal support and community property) be deemed to refer to date of registration. The statute also created a window in which registered partners could enter into the equivalent of a pre-nuptial agreement. The law further permitted a surviving unregistered partner to bring a wrongful death action in limited circumstances.

California Insurance Equality Act (AB 2208 – Kehoe): This law prohibits insurance companies and health plans from issuing policies or plans that discriminate against registered domestic partners. This means that all policies and plans that include coverage for spouses — including health, life, auto and homeowners insurance policies — must provide coverage on equal terms for registered domestic partners.

Death Benefits for Public Employees Who Retired Pre-AB205 (SB 973 – Kuehl): This law permits the registered domestic partner of a public employee who retired prior to January 1, 2005 (when AB 205 took effect) to receive death benefits if the retiree dies before the partner.

Property Tax Reappraisal Exclusion For Domestic Partners (SB 565 – Migden): This law built upon a Board of Equalization rule and the Board’s subsequent broadening interpretation of that rule, both of which protect registered domestic partners from property tax reassessment upon the death of one partner. SB 565 codified the BOE rules and expanded the protection to inter vivos changes (that is, those between living persons). Starting with the 2006-07 fiscal year, SB 565 excludes transfers of property between registered partners from the definition of “change in ownership” in Rev. & Tax. Code § 62, so that partners will not be subject to reappraisals and property tax increases upon the death of one partner, or upon dissolution or legal separation, as is the case for spouses.

Note that the constitutionality of the BOE’s rule was challenged by a couple of counties in Strong v. Board of Equalization, Case No. 05AS01701. After the Sacramento Superior Court upheld the BOE rule in March 2006, the counties appealed. The case is now being briefed to the Third Appellate District (Appellate Case No. C052818).

(PENDING) State Income Tax Equity Act of 2006 (SB 1827 – Migden): This bill would permit registered domestic partners to file their state income tax returns jointly (something AB 205 excepted from its general mandate that domestic partners shall have the same rights and duties as spouses, see Fam. Code § 297.5(g)), or as “registered filing separately,” with options that parallel those of spouses. The bill also would repeal AB 205’s rule that earned income shall not be considered community property for state income tax purposes. Because federal law does not recognize domestic partnerships, passage of SB 1827 will not alter the rules requiring registered domestic partners to file their federal income taxes as “single.” As of August 2006, this bill had been approved by the Senate and was pending before the Assembly.

Published Opinions concerning the Rights and Duties of Domestic Partners

California Cases

Businesses Must Treat Registered Domestic Partners The Same As Spouses: In Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, the Supreme Court held that the defendant’s refusal to extend the same benefits it provided spouses of its members to the registered domestic partner of a member violated the Unruh Civil Rights Act. The court explained: “It is clear from both the language of section 297.5 and the Legislature’s explicit statements of intent that a chief goal of the Domestic Partner[s] Act is to equalize the status of registered domestic partners and married couples.”

AB205’s Constitutionality Upheld: In Knight v. Superior Court (2005) 128 Cal.App.4th 14, petitioners argued that the legislature impermissibly had amended Proposition 22 (the “Limit on Marriages” initiative statute adopted in 2000), by extending most of the rights and duties of spouses to domestic partners without voter approval. The court disagreed, finding that Prop. 22 only restricted marriage and did not affect the legislature’s ability to enact domestic partner laws.

AB2580’s Wrongful Death Protection Upheld: Two separate decisions upheld the wrongful death cause of action provided for surviving registered domestic partners by AB 25 (passed in 2001) and certain unregistered partners by AB 2580. In Bouley v. Long Beach Memorial Medical Center (2005) 127 Cal.App.4th 601, the court rejected a due process challenge to the retroactive aspect of AB 25, which allowed a surviving partner to bring a wrongful death claim although the partner’s death occurred before the effective date of the domestic partner law. The court held there is no vested right in freedom from liability for causing the wrongful death of another. Armijo v. Miles (2005) 127 Cal.App.4th 1405, upheld the provision of AB 2580 that grants wrongful death standing to a surviving unregistered partner in specified circumstances, also rejecting the defendants’ constitutional challenge.

The Domestic Partnership Laws Do Not Discriminate Unlawfully Based On Sex: In Holguin v. Flores (2004) 122 Cal.App.4th 428, the Court of Appeal rejected a challenge by a heterosexual man who argued that the limitation of registered domestic partnership to same-sex couples under the age of 62 discriminated against him unconstitutionally based on his sex. He made this argument after being denied standing to sue for the wrongful death of his girlfriend because they were unmarried. The court held there was no equal protection violation because he could have accessed wrongful death rights through marriage, and was not in a worse position than domestic partners who must register to have that right.

Parenting Cases: The following cases address the parental rights and duties of unregistered partners under the Uniform Parentage Act and rules other than the Domestic Partner Act; yet, they are important for those advising same-sex couples who have or are considering children.

Elisa B. v. Superior Court (2005) 37 Cal.4th 108 (applying Fam. Code § 7211(d) and holding that a woman who planned with her partner for the birth of children, welcomed them into her home and held herself out publicly as a parent to them, was a parent and remained financially responsible for them after the couple separated).

Kristine H. v. Superior Court (2005) 37 Cal.4th 156 (birth mother who obtained pre-birth judgment confirming that her domestic partner was their child’s second legal parent was estopped from challenging the validity of that judgment).

K.M. v. E.G. (2005) 37 Cal.4th 130 (woman who donated eggs to her domestic partner and then helped to raise the resulting children in the couple’s shared home was a parent).

Charisma R. v. Kristina S. (2006) 140 Cal.App.4th 301, modified by 2006 Cal.App. LEXIS 928 (following Elisa B. and providing further guidance about when the domestic partner of a biological mother will be recognized as a child’s second parent under Fam. Code § 7211(d)).

Federal Decisions, Policy Guidance and Continuing Uncertainty

California Registered Domestic Partnership Does Not Confer Standing to Challenge the Federal DOMA: A gay male couple sued under the U.S. Constitution challenging California’s marriage law and the federal so-called “Defense of Marriage Act” (DOMA), seeking a California marriage license and the full range of federal rights that come with marriage. The Ninth Circuit Court of Appeals held that the district court correctly abstained from deciding the constitutionality of California’s marriage law while the state courts actively are considering that question under the state constitution, but incorrectly decided that the couple’s registered partnership gave them standing to challenge the constitutionality of DOMA. Smelt v. Orange County, 447 F.3d 673 (9th Cir. 2006).

Bankruptcy: The bankruptcy court has held that registered domestic partners are limited to a single homestead exemption because the federal statute uses the state rule, and California allows only a single homestead exception for spouses. In re Rabin, 336 B.R. 459 (Bankr. N.D. Cal. 2005). The Rabin court concluded that domestic partners likewise qualify for only one exception because AB 205 contemplated equality of treatment between domestic partners and spouses.

Federal Income Taxation: Although married couples with community property who file their federal tax returns separately are required to split their incomes and report half of each one’s income on the two returns, the IRS this year instructed that registered domestic partners are to continue to report their own individual incomes separately on their separate returns, notwithstanding that their incomes are community property. IRS Memorandum MASP-102170-06 (February 24, 2006).

Public Benefits Programs: Just as the property rights and duties that come with marriage can render individuals ineligible for certain means-tested public benefits programs, the same now can be true for registered domestic partners because AB 205 extended to them community property, the duty to provide each other financial support and mutual responsibility for debt. Domestic partners are advised to think carefully before registering if either one depends on MediCal for health coverage (including nursing home care), the AIDS Drug Assistance Program (ADAP) for HIV medications, a Section 8 housing subsidy or other similar programs. The dual federal-state nature of the MediCal program, in particular, gives rise to many questions and, as of this writing, there are no court decisions or state regulations to provide guidance.

Immigration: At this time, the state status of registered domestic partnership is not recognized in federal law, and thus is not a basis for requesting an adjustment of status under the immigration and nationalization laws. Those in the United States on a temporary visa or otherwise without secure legal status may want to think twice before attesting to an intention to remain in a domestic relationship with a U.S. resident by registering a domestic partnership. Although the contents of the registry are not easily accessible to the general public, domestic partnership registration forms are public records.

    *     *     *     *     *

Domestic partnership in California remains a dynamic field. Practitioners should anticipate that the coming years will bring more important changes as the laws continue to be interpreted and applied. Additional legislation may augment the benefits and duties provided to registered (and sometimes to unregistered) partners. The courts are likely to confront complex questions where state and federal laws interact. At the same time, efforts continue in the legislature and the state courts to end civil marriage discrimination against lesbian and gay couples. Those with questions about domestic partnership, marriage equality for same-sex couples, other family law issues affecting lesbians, gay men, bisexuals or transgender people, or discrimination based on sexual orientation, gender identity or HIV status, are encouraged to contact Lambda Legal’s Help Desk at 213-382-7600, ext. 330.

A while back an attorney from Columbia, South Carolina, called me about a young man’s experience while working at Foot Locker. Kevin Dunbar had suffered severe antigay name-calling and abuse by his fellow employees at the athletic footwear and apparel chain, and the attorney had secured affidavits from customers who had witnessed the harassment. One customer, shopping with her children, heard a coworker call Kevin a “punk ass” and “faggot.” The customer complained to management and was ignored. A few days later, another customer heard a coworker call Kevin a “faggot” and threaten to “whip” his “punk ass.” She gave Kevin her name and telephone number, because “as a Christian woman, I felt this was wrong and the Lord told me to help and heal because the pain and embarrassment I saw in Mr. Dunbar’s face was intense.”

Kevin complained to his supervisors about the harassment, but instead of remedying the problem, they fired him a few short weeks after the incidents that the customers witnessed. With such a compelling factual case — attested to by independent witnesses — Kevin’s situation demanded that something be done. But Kevin lives in South Carolina, which is one of 33 states that do not have laws covering sexual orientation discrimination in employment. Nor was there a local law offering any such protection. Additionally, there is no federal law explicitly covering sexual orientation discrimination. So what is an attorney practicing in one of those states to do when a client like Kevin walks in with a compelling story of sexual orientation harassment and discrimination?

Faced with this question, I considered the options available for Lambda Legal to help Kevin. South Carolina at that time had very favorable case law providing that employers’ promises to their employees could be the basis of a contractual lawsuit. And Foot Locker did have excellent corporate policies promising workers that they would be free from harassment and discrimination based on sexual orientation:

Verbal or physical conduct by Associates or others which harasses, disrupts, or interferes with work performance or creates an intimidating, offensive or hostile environment will not be tolerated. This includes harassment based on race, color, age, disability, national origin, sex, sexual orientation, or religion.

[Foot Locker’s express policy is] to seek and employ the best qualified people in all of its facilities and all its locations, to provide equal opportunities for the advancement of Associates, including promotion and training, and to administer these activities in a manner which will not discriminate against any person because of . . . sex . . . or sexual orientation.

Lambda Legal filed a lawsuit, alleging breach of contract for Foot Locker’s failure to honor its promises to Kevin. South Carolina courts had repeatedly held that an employee handbook can create an employment contract. Small v. Springs Industries, Inc., 292 S.C. 481, 357 S.E.2d 452 (1987); see also Conner v. City of Forest Acres, 348 S.C. 454, 560 S.E.2d 606 (2002); King v. PYA/Monarch, Inc., 317 S.C. 385, 453 S.E.2d 885, 889 (1995); Leahy v. Starflo Corp., 314 S.C. 546, 548, 431 S.E.2d 567 (S.C. 1993); Shelton v. Oscar Mayer Foods Corp., 319 S.C. 81, 459 S.E.2d 851 (S.C. App. 1995). We knew that a key battleground would be whether Foot Locker adequately disclaimed any contractual obligation. But we believed that we could prevail upon a jury that Foot Locker had made contractual promises to Kevin. South Carolina provides that, unless reasonable minds cannot differ, it is a jury question as to whether the disclaimer is unambiguous and conspicuous enough to be effective. Conner, 348 S.C. at 458-59; Fleming v. Borden, 316 S.C. 452, 450 S.E.2d 589 (1994); Baril v. Aiken Reg'l Med. Ctrs., 352 S.C. 271; 573 S.E.2d 830 (S.C. App. 2002); Williams v. Riedman, 339 S.C. 251, 529 S.E.2d 28, (S.C. App. 2000); Jones v. GE, 331 S.C. 351, 358, 503 S.E.2d 173 (S.C. App. 1998).

With our legal strategy in place, we set our sights on public opinion, to bolster awareness of the case and issues outside of the courtroom. For instance, we staged protests outside of Women’s National Basketball Association (WNBA) games, where Foot Locker was a prominent sponsor. A few months after we filed the lawsuit, Foot Locker entered into settlement negotiations with us, resulting in a cash payment to Kevin and company-wide training focusing on sexual orientation discrimination and harassment.

In the wake of the Foot Locker victory, Lambda Legal continues to look for ways to improve the workplace for all employees, especially those who live in states without employment protections. This can involve representing public employees who can vindicate their constitutional right to be free of sexual orientation discrimination. In private employment, Title VII protects employees against discrimination for failing to conform to gender stereotypes, and Lambda Legal is working to ensure that courts continue to recognize that LGBT people frequently suffer this discrimination and are protected under Title VII.

Lawyers with LGBT clients must consider every avenue of relief. In addition to a possible contract theory as in the Foot Locker case, some discrimination may violate state codes of professional conduct or ethics. Unionized employees may be protected against discrimination by collective bargaining agreements. Certain tort/common law theories may be available, such as infliction of emotional distress, defamation, breach of the covenant of good faith and fair dealing, wrongful termination in violation of public policy and interference with contract or prospective business advantage. See Grimm v. U.S. West Communications, 644 N.W.2d 8 (Iowa 2002) (allowing a lesbian employee to pursue tort claim for intentional interference with employment contract against a supervisor who was alleged to have discharged her maliciously and for improper purpose). An employee suffering harassment on the job may be able to seek redress for emotional injuries through worker’s compensation. Dickert v. Metropolitan Life Ins. Co., 428 S.E.2d 700 (S.C. 1993). And public employees enjoy constitutional protections against irrational discrimination.

It is vital that private attorneys keep the door open to LGBT employees who have suffered discrimination, even in unfriendly jurisdictions. We encourage any lawyer to contact Lambda Legal if he or she is struggling to find a solution to a discrimination case. We also encourage attorneys interested in fighting workplace discrimination to become Lambda Legal cooperating attorneys. There is an acute need in this area, as many supportive attorneys work for firms that will not represent employees in labor disputes. The struggle to achieve full workplace fairness is a difficult one, but we are making tremendous progress. As part of the Foot Locker settlement, the company agreed to train its managers and employees more aggressively about antigay harassment and to inform all employees on a quarterly basis how to report claims of sexual harassment or discrimination based on sexual orientation. Lambda Legal is also employing a similar contract-law strategy in our newest case on behalf of a Kansas man who was sexually harassed by a female coworker at Coldwell Banker Americana before he was fired for being gay. Once again we are arguing that the company has violated its own antidiscrimination and harassment policies. In states without clear protections for LGBT workers, this contract strategy is one way of making sure that antigay discrimination will not be tolerated.

Please note that prior to our filing suit, South Carolina changed its laws, allowing employers prospectively to disclaim contractual obligations if the employer includes specific statutory language in their handbooks. 

Last year, the Wisconsin legislature held sessions on a bill that, if passed, would terminate all state funding of hormone therapy and sex reassignment surgery for transgender people in state custody. The legislators who sponsored this misguided bill labeled it the “Inmate Sex Change Prevention Act,” and issued press releases touting the end of “extreme prison makeovers.” Various state officials attempted to educate the legislators about transgender health needs, testifying that transgender inmates removed from their medication were likely to require new treatments for resulting conditions, such as depression and suicidal ideation. These new treatments would incur additional unknown costs for the state, they said, although the bill had been presented as a cost-savings measure for Wisconsin. But the bill’s cosponsors were uninterested in developing any understanding of transgender health needs, and the bill passed into law. As a result, numerous transgender inmates in state prisons faced the abrupt termination of the hormone therapy they had received for years.

After the law took effect, Lambda Legal and cocounsel ACLU filed a constitutional challenge in federal district court, asserting that the law violated the Eighth and Fourteenth Amendments of the federal Constitution and we obtained a preliminary injunction barring the law from taking effect. The transgender inmates we represent have now been restored to their full dosage of hormone therapy as the case advances toward trial. Lambda Legal is awaiting the outcome of the class certification motion we filed asking the court to certify a class of transgender people who are, or will be, in the state’s custody.

The Wisconsin law was a particularly egregious example of the barriers to health care many transgender people face. But problems stemming from the misunderstanding of transgender health care needs are common, and often arise as transgender people navigate the complex maze of state vital records departments. In fact, Lambda Legal’s work in this growing area of civil rights law is as much about debunking myths and misconceptions about transgender people as it is about representing their claims in court.

In 2002, Lambda Legal represented a transgender man who had undergone sex reassignment surgery and obtained a court order declaring that his sex had been changed. Despite the order, the Virginia Department of Vital Records refused to change the sex marker on his birth certificate, claiming that no such change was possible until the man underwent a phalloplasty — an expensive form of sex reassignment surgery that is not always deemed medically necessary and that, moreover, is not required by the relevant Virginia laws and regulations. Officials at Virginia’s Office of Vital Records stated that, because he had not had a phalloplasty, the man didn’t meet the state’s legal requirement of changing his sex “by medical procedure.” Therefore, they disregarded the court order. Lambda Legal wrote a letter to the Virginia Attorney General threatening to sue the state over the agency’s actions. Faced with the truth about the procedure and Lambda Legal’s impending lawsuit, the state attorney general’s office backed down and finally granted the birth certificate amendment.

As in the Virginia case, many state health officials across the country require proof of a “sex change” or genital surgery before they will alter the sex marker on birth certificates. These types of policies reinforce the myth that all transgender people undergo a single “sex change operation,” regardless of an individual’s need or ability to undergo, or afford, the surgical procedures at issue. Possession of inaccurate identity documentation may limit a person’s ability to travel, apply for jobs or educational programs or obtain necessary government services, and makes transgender people vulnerable to violence and harassment. Attorneys, however, can work with public health departments to eradicate these misguided surgery requirements, and in states where court orders are required for document changes, attorneys can help their transgender clients by filing petitions that present sufficient evidence of gender transition.

Access to transgender health care is challenged further by laws and policies across the country that codify myths that the care is risky, cosmetic or monolithic. For example, the federal Medicare program excludes coverage of sex reassignment surgery, deeming it “controversial” and “experimental,” despite decades of research supporting its effectiveness. Exclusions like this one are rampant in the private insurance context, with many large insurance companies excluding all coverage for “sex reassignment treatments” or equivalent care.

Without insurance coverage, transgender people often struggle to afford necessary treatments; some are ultimately forced to obtain hormones and silicone injections illegally on the streets. In addition, transgender people often struggle with outright discrimination by health care providers, apprehension about disclosing their transgender status or full medical history to providers, reluctance to seek preventive care (such as pap smears for transgender men) and concern about leaked medical records. Moreover, widespread employment discrimination against transgender people has resulted in disproportionate unemployment rates and a consequent lack of any health insurance coverage.

Attorneys can be advocates for their transgender clients and the community members who face this array of obstacles to health care. They can write letters to biased institutions and providers, demanding that transgender people be provided with the same quality and scope of care that is provided to others. They can network with transgender-friendly health care providers in their area, in order to assess the community’s resources and provide assistance where needed. They can advocate for health insurance policies that include coverage for transgender care to be adopted in their own workplaces. Attorneys may contact Lambda Legal for assistance in drafting these advocacy letters. Lambda Legal also highly encourages attorneys interested in fighting transgender discrimination to become cooperating attorneys.

Too often, transgender people fall victim to discriminatory health care practices and regulations, especially in state systems such as prisons and juvenile justice facilities. Attorneys are well positioned to fight this discrimination and to oppose the codification of transphobia in health care laws and policies. We encourage you to join Lambda Legal in this struggle that is, for many, a matter of life or death. Learn more about Lambda Legal’s transgender advocacy.