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US Bankruptcy Court in 2 states declare DOMA inapplicable and unconstitutional

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Two months, two opinions. The US Bankruptcy Court for the Southern District of New York and the US Bankruptcy Court for the Central District of California, in two separate decisions, have held that the Defense of Marriage Act is unconstitutional, and will not hold up to judicial scrutiny. On May 4, 2011 New York declared that a joint bankruptcy filed by a legally married same-sex couple may not be dismissed solely because DOMA defines a spouse as “a person of opposite sex who is a husband or wife.” On June 13, 2011, California took this one step further by holding that, not only did DOMA not prevent a same-sex couple from jointly filing for bankruptcy, it actually “deprives [the couple] of the equal protection of the law to which they are entitled,” and “violates their equal protection rights afforded under the Fifth Amendment of the United States Constitution.”

When you think of groundbreaking legal events, “bankruptcy court” may not be the first thing that springs to mind. These opinions, however, may open the door for more comprehensive attacks on DOMA. These opinions may eventually lead to repeal of DOMA. Only time will tell, but whatever follows in the months and years ahead, we should remember that the US Bankruptcy Court was willing to stand up for the LGBT community, and uphold the community’s constitutional rights in the face of great legal and political pressure.

Marriage – It’s about more than a commitment

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As of July 24, 2011, it will be legal for same-sex couples to marry in New York state. As a Mainer, may be tempting for you and your partner to race to the Big Apple for some fast-track nuptials. Before you buy your plane tickets or pack the car, however, there are a few things you should consider.

The state of Maine does not currently recognize same-sex marriages performed out of state. That means that when you come home after your destination wedding, whether in New York, or in Massachusetts, Connecticut, New Hampshire, or any other state that allows same-sex marriage, you will still not be considered legally wed in your home town. Beyond that, there is a provision in Maine law stating that if a couple leaves the state to get married for the purposes of evading Maine law – which is what you would be doing by going to New York for your same-sex wedding – then your marriage is void.

It may not sound like there is much difference between “void” and “not recognized.” When it comes to the law, however, words have very specific meanings, and what may not sound different can, in fact, have very difference consequences. Because you would be leaving the state for the purpose of obtaining a marriage license that would not be granted here, your marriage would probably be considered void under Maine law. This means that, even when Maine does recognize same-sex marriages from out of state, or when Maine grants marriage licenses to same-sex couples here, your marriage could be considered invalid, because it was void when it was issued.

There is still time before you head South and take the plunge into wedded bliss to consult with a lawyer. There is far more to this issue than can be covered in one blog post, and meeting with a lawyer who can sit down with you and explain all of the potential issues that can arise from an out-of-state same-sex marriage will be more than worth your time.

Discrimination under the Maine Human Rights Act

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Have you been told by a potential landlord that you were denied for housing because of your sexual orientation, gender identity, or gender expression or that it was because they did not approve of the sex of your partner or of your “lifestyle”?  Has an employer made an adverse job decision that has negatively affected you because of your sexual orientation, gender identity, or gender expression?  If so, then you might consider speaking to a lawyer about your rights and the Maine Human Rights Commission.  The Maine Human Rights Commission is a state agency that is in charge of investigating and enforcing Maine’s anti-discrimination laws, as set out in the Maine Human Right Act.  The Maine Human Rights Act covers areas ranging from employment, housing, and public accommodations to fair credit extension and educational opportunities. The Act outlines the definition of sexual orientation in the act as being actual or perceived “heterosexuality, bisexuality, homosexuality or gender identity or expression.”

Even though many of us may believe and wish to believe that discrimination against our fellow community members is lessening over the years, it is always good to know that there is a state agency that is vested with the power to hear complaints related specifically to discrimination based on our actual or perceived sexual orientation, gender identity, or expression. To learn more about the Maine Human Rights Commission and their procedures– visit their homepage – they even have an online form to submit complaints.

There are other actions you can take in addition to going through the Maine Human Rights Commission.  You may have a case under federal law or in state court.  If you believe that a discriminatory act has happened to you, you should seek the advice of counsel immediately.

New Federal Guidance on Housing Discrimination

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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.

Probate Judges must give reasons for denying name changes

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The Law Court recently returned a decision on the appeal of a name change of a transgender identified individual. The Law Court, in their decision, noted that there was nothing in the record that evidenced fraud on the part of the petitioner and remanded the case back to the Probate Court for further action. The Law Court directed the Probate Court that if the request for name change was denied, again, that the decision be in writing and with details as to the reason for the denial. No action has happened since the decision was published, but it is anticipated that an additional hearing will take place in the near future.

The reason this is interesting for transgender individuals is because some Probate Courts have requested additional information from transgender identified petitioners that are not related to the statute or case law for name changes in the State of Maine. The decision from the Law Court did not address the additional level of scrutiny that has been applied by some Probate Judges to perceived transgender petitioners, but it is anticipated that if the Probate Court denies the name change on the basis of the petitioner’s transgender status, that this will become an issue before the Law Court in the near future.

New Policy regarding Gender Change for Passports

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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.

Presidential Memo Extending some Benefits to Same-Sex Partners

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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.

Congratulations to Dani Smith

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We depart from our usual format as we want to do a shout out to Dani Smith, a graduating student at Mt. Ararat High School who is headed to Dartmouth.  Dani was the Jump Start Leader this year for Southern Maine’s chapter of GLSEN (Gay, Lesbian, and Straight Education Network).  This past year as part of a civil rights team with her school and with work on a campaign through the Jump Start team she was able to assist in having a local card store no longer carry an offensive product, a joke pill called “gay away.”  For all of Ms. Smith’s efforts she was named GLSEN’s 2010 Student Advocate of the Year and gave a speech in New York City as part of their award ceremony.  National and local news covered stories about her work, including Bay Windows, the Brunswick Times Record, and the Portland Press Herald.  We are encouraged that Dani and members of her generation are fighting and working towards equal human rights for all.  Congratulations, Dani!

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