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Posts by Zack
Earlier this month, the U.S. Department of Housing and Urban Development (“HUD”) issued guidelines about housing discrimination based on sexual orientation or gender identity. The new guidelines makes clear that HUD’s position on such discrimination is that it is prohibited under the Fair Housing Act, although the federal law does not currently specifically state that it covers sexual orientation or gender identity discrimination.
A new development in the HUD guidance is that the agency now indicates that discrimination against transgender or transsexual individuals may be considered sex discrimination under the Fair Housing Act. At least one federal court has also indicated that gender identity discrimination may be covered under laws barring sex discrimination.
Although this guidance provides a way for lawyers fight for clients who have been discriminated against on the basis of sexual orientation or gender identity, amending the Fair Housing Act to include sexual orientation or gender identity as illegal grounds for discrimination would do far more to deter such conduct.
The State Department announced yesterday that it would be changing a long-standing policy that controlled how transgender or transsexual individuals changed the gender marker on their passports. The old policy required that such individuals have surgery before they could change the gender marker.
According to the press release on the policy, surgery will no longer be required. The new policy requires that an attending medical physician certify that the applicant has “undergone appropriate clinical treatment for gender transition.” However, regulations regarding exactly what appropriate clinical treatment may be required under the new policy have not yet been disseminated.
The policy does not allow passport officials to ask for additional medical information other than the certification.
Updated: 2:30 P.M. The guidelines are available here.
The medical certification permits a psychiatrist, internist, endocrinologist, gynecologist, or urologist to give certification. The certification must include the physician’s full name, their medical license or certificate number, the issuing state or other jurisdiction of their medical license, the Drug Enforcement Administration (DEA) registration number assigned to the physician, the address and telephone number of the physician, and must contain the following language:
(1) Language stating that he/she is the attending physician for the applicant and that he/she has a doctor/patient relationship with the applicant;
(2) Language stating the applicant has had appropriate clinical treatment for gender transition to the new gender (male or female);
(3) Language stating “I declare under penalty of perjury under the laws of the United States that the forgoing is true and correct”: and
(4) Annotate the application “gender transition” to record the reason for issuing the full validity passport in the new gender.
On Tuesday, June 2, President Obama signed an Executive Memorandum that extended some health benefits to family members of federal employees involved in same-sex relationships. The effect of this memorandum is to give some benefits that are currently given to married partners of federal employees to domestic partners of federal employees.
The practical effect on you, if you are an employee of the federal government and if you and your same-sex partner are domestic partners, includes the following:
Your children may be able to get the same subsidies for child care as your counterparts with opposite sex spouses.
Your partner may be able to get some benefits that are given to family members under employee assistance programs.
Your domestic partner may qualify for portions of your federal retirement annuity if you provide for them to do so.
Your domestic partner may qualify for evacuation, relocation, travel, or other payments, under certain circumstances.
You can now take some time under the Family Medical Leave Act for the needs of your domestic partner.
Your partner may be entitled to other payments or assistance under federal law where such assistance is given to partners of married employees.
Despite these benefits extended for domestic partners of federal employees, the memorandum does not extend health coverage or other benefits that are currently given to married partners. The President indicates that legislative action is needed in the future to provide more benefits to same-sex domestic partners of federal employees.
Imagine this situation: you and your partner have a child together. You are not the biological parent, and you never adopted the child because it wasn’t legal when your child was born and you never thought that you and your partner would separate. Then, something happens, and your partner forces you to leave the home and will not let you see your child. The police will not intervene because it is a “family matter,” and your child’s school and doctor will not talk to you without a court order. You are forced to go to court and have a Judge decide whether or not you are a parent of the child that you raised with your ex-partner for your child’s entire lifetime. If you do not have a lawyer, you will have to hire one or figure out how to call witnesses, present evidence, and conduct a hearing on your own, without help.
This situation does happen in Maine, but it can be avoided. The best thing that you can do to protect your rights as a parent is to adopt your child jointly with your partner. Not all states recognize same-sex adoptions. To protect yourself if you cannot adopt or if you may travel somewhere where your adoption will not be recognized, you should consult an attorney about writing up an agreement when your child is born. That agreement, called a “parenting agreement” or a “co-parenting agreement,” sets out each parent’s status and intent to raise a child together. It can also include provisions to protect you if you and your partner separate.
A co-parenting agreement can help you and your child’s other parent separate while making sure that each of you has a role to play in your child’s life. You can also use a properly executed parenting agreement as evidence in a family law case. A co-parenting agreement is a private agreement that could possibly keep you from having to enter the court system at all, and affords you protections if you do. Every same-sex couple with children should create one.
If you are someone who is a member of the LGBTQI community who needs to consult with a lawyer, you should consider looking for someone who has a practice that handles a lot of LGBTQI issues or who has a lot of LGBTQI clients. Many legal issues that LGBTQI individuals face are matters that generally only affect individuals who do not have legally recognized relationships or are issues that only affect transgender individuals. Many of these individuals also face discrimination. Even if your situation is one that is not related to your sexual orientation or gender identity, it is often more comfortable to have a lawyer who is familiar with your life experience and relationship status, without extensive explanations.
In estate planning matters, the lack of legal recognition for same-sex relationships often means that attorneys must use different means to protect client’s assets or interests than for other individuals. Wills or powers of attorney sometimes require specialized language to protect assets or the interests of a surviving partner. Individuals in same-sex relationships often face tax issues, gift transfer matters, or other problems that married couples do not.
Same-sex couples also face unique situations in family law. An attorney with experience in this matters can advise you on how to protect yourself in a new relationship, or how to dissolve a relationship while protecting your rights regarding children or property. Even experienced family law attorneys without experience or knowledge of LGBTQI matters sometimes advice clients that there is nothing that can be done because of the law. Attorneys with experience in these areas know what can be done, and often use creative approaches that can resolve your legal issues. These attorneys also know how or if a marriage, civil union, domestic partnership, or adoption performed in another state or country will be recognized in the state where the attorney practices.
Finally, transgender or non-gender-conforming individuals face a host of legal issues that other people do not. These individuals often need to change gender markers on identity documents and often change their names. It is imperative that these individuals are represented by a lawyer who, not only knows what special procedures they must follow, but also treats clients respectfully and compassionately and uses the correct name and pronouns.
Members of the LGBTQI community are often treated differently by the law. In hiring a lawyer, they should make sure that the lawyer they hire is aware of the differences and has the knowledge and experience with these differences to represent them effectively.