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 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.
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.
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!
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.
Same-sex couples with families face unique issues when planning for their families. In Maine, second parent adoption is one way to help protect your family unit. A local family struggled for years to be able to have second parent adoptions for same sex couples recognized. The love, time, and energy that these women poured into care for their family resulted in their being able to finally have their family unit recognized. (http://www.glad.org/uploads/docs/newsletters/glad-winter-briefs-2008.pdf) Because of their dedication and struggle now other families in Maine have the right and ability to have second parent adoptions.
Some same-sex couples who create a new family together or who have a child enter into their lives do not pursue adoption through the Probate Court. That family does not have the same protections that they would if the second parent had adopted the child or children. Those families have limited legal protection for both parents if that family unit splits at some future point. Having the second parent adoption in place would create less ambiguity and less legal trouble later on.
Not every state has second parent adoption. Nor do all states recognize second parent adoptions, even if they were valid where the adoption occurred. Consulting with an attorney who practices in the area of family protection for members of the community is crucial to know what your options are and what you should do to protect your family and your children.
Usually it takes a series of noteworthy occurrences to call our attention to things we may take for granted. Perhaps this is because of the seeming recent advances in LGBT rights (or lack thereof, as the case may be). Within the last week we, as a community, have been reminded of the necessity of advance health care directives. An advance health care directive, sometimes called a health care proxy or medical power of attorney, is a document that every individual should have.
The purpose of an advance health care directive is, in part, to name your agent for health care issues and decisions. Next of kin sometimes try to interfere with the designated wishes of their family members. By creating an advance health care directive, you can ensure as best able that your family follows your health care wishes.
The President’s recent memorandum requests that rulemaking be initiated, to ensure that hospitals that receive Medicare or Medicaid comply with federal regulations, and that additional recommendations by the Department of Health and Human Services on these issues be provided to the President within 180 days of April 15, 2010. While the underlying issues and stories address and acknowledge the issues of couples and chosen, non-blood related, family within the community after the aftermath of the tragic separation of Clay and Harold, the memorandum does not create any right or new law that protects the community and its members. Despite this recent action, every individual should take steps to protect themselves by taking the time to create an advance health care directive.
In Maine, the standard advance health care directive form published by the State of Maine incorporates elements that allow you to designate your health care agents, your end of life sustaining treatment, funeral or burial wishes, a DNR (short for “Do Not Resuscitate”), and a section for other requests. These sections all provide places for you to designate your wishes for someone to act on your behalf. You can specify individuals you do not wish to be consulted about your health care decisions. You can also specify what you want your agent to do on your behalf. You can use a directive to designate visitation for the family that you have chosen in life, not just to your near and dear blood relatives. In addition, if you are transgender, you can request that your family or agent and medical providers use appropriate gender pronouns and that they provide continuing hormone or other medical treatment.
In short, an advance directive gives the individual power to say what he or she wants for treatment and who he or she wants to be able to make those decisions, if they become incapacitated. This crucial document is worth the time and thought to not only create, but to discuss with your family, loved ones, and medical providers.
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.