Strides for same-sex couples in Uruguay, Columbia

Legal recognition for same-sex couples has been gaining ground here and there in Latin America, with some forms of recognition at the state or local level in Mexico, Argentina, and Brazil. (See Wikipedia's global summary for links to more info.) Now, there's progress at the national level in Columbia and Uruguay.

Last year, the Constitutional Court of Columbia issued two decisions granting partnership rights in relation to property, inheritance, health insurance and social security benefits. And this on April 17, that court issued another decision, extending equal rights with regard to pension benefits. Human Rights Watch praised the ruling, which followed a determination by a UN Commission that Columbia had violated its obligations under the International Convention on Civil and Political Rights.

Unfortunately, there doesn't seem to be a translation of the decision up anywhere, and I can't tell what the precise legal basis for these decisions is. My impression is that Columbia has incorporated its international human rights treaty commitments to at least some extent into domestic constitutional law. This is a marked contrast with the US, where our treaties are typically unenforceable in domestic courts and have no impact on domestic constitutional obligations.

While all of Columbia's progress on partnership rights has been through the judiciary, Uruguay enacted a civil union law that took effect April 18. It's important to note that while it's being called a "civil union" law, it doesn't appear to be like "civil union" laws in the U.S., i.e. providing all the legal consequences of marriage. Still, it's a huge step, and it's remarkable that the nation's Senate passed the bill unanimously last year.

Reasons not to love my profession: law firm preemptively sues employee

A New York law firm is preemptively suing a secretary who it claims sought a settlement for rape and sexual harassment claims and threatened to sue. Law.com notes:

Though such workplace claims are common, the filing of pre-emptive lawsuits against potential claimants remains a relatively rare and frequently controversial legal gambit. However, the tactic is a familiar one for the lawyer representing Bivona & Cohen.

Indeed, here's a 2004 column on a previous suit the lawyer brought for guess who, Bill O'Reilly. Its authors noted that such preemptive claims rely on bogus legal theories and would seem to be a form of retaliation in violation of Title VII of the Civil Rights Act.

Yet unless employers are strictly sanctioned for this tactic, they may not care if its meritless and even illegal. This tactic allows them to have the first say in the court of public opinion -- essentially by painting the putative plaintiff, and now defendant, as a slut, liar and money-grubber -- and thereby to demoralize the employee-claimant and deter future claims.

Seventh Circuit: anti-gay t-shirt must be permitted for now

The Seventh Circuit Court of Appeals yesterday issued a very interesting decision (pdf), granting a preliminary injunction to allow a high school student to wear a t-shirt reading "Be Happy, Not Gay" in order to express his belief in the sinfulness of homosexuality and to protest the Day of Silence.

I've yet read the whole decision carefully, so I may revise my opinions here but: Judge Posner wrote what I think is on the whole a quite thoughtful and sensitive opinion, as did Judge Rovner, concurring in the judgment. To sketch things very very simply, Posner took a strong view of the school's ability to regulate derogatory speech about minority groups, but felt that at least at this preliminary stage it wasn't shown that the statement was sufficiently derogatory to merit censorship. Rovner was more convinced than Posner that the shirt's wording was clearly derogatory and hurtful, but took a more limited view of schools' power to limit such speech. Posner seemed more open than Rovner to the possibility that the school might ultimately be able to justify its actions. Notably, both took seriously the problem of anti-gay harassment in schools, but whereas Posner thought schools may regulate anti-gay speech but must do so carefully, Rovner thought schools had no power to regulate it at all unless it was shown to concretely impede school functions, e.g. by starting fights.

The court did not mention Harper v. Poway Unified School District, in which the Ninth Circuit in 2006 denied a preliminary injunction (pdf) in a similar case involving a shirt that said "Homosexuality is Shameful." Justice Reinhardt's opinion there is also quite interesting and no doubt was read and considered by the judges heres, but was not cited because the Supreme Court later vacated the decision and ordered the case dismissed as moot. For what it's worth, I think the two decisions could be reconciled on the ground that the statement in Poway is more obviously inflammatory and hurtful.

EDIT: Prof. Eugene Volokh has a rather different take on the decision, and lively discussion follows over at the Volokh Conspiracy.

Maryland high court: yes-then-no still means no

In a lengthy decision issued last week, Maryland's highest court held that a rape is committed where the defendant persists with sexual intercourse after the other person withdraws their consent. You would think this was obvious, but a lower court had accepted as binding the high court's statement in 1980 that "ordinarily if [a woman] consents prior to penetration and withdraws the consent following penetration, there is no rape." The high court has now clearly stated that:

a woman may withdraw consent for vaginal intercourse after penetration has occurred and that, after consent has been withdrawn, the continuation of vaginal intercourse by force or the threat of force may constitute rape.

The case has been widely discussed on blogs such as Feministing and Feministe.

The majority opinion surveyed the history of the definition of rape and common law, and noted that way back in the day, the crime of rape was defined in terms of penetration because the law was concerned primarily with virginity and the value of women as, essentially, property. It also noted that even as the law began to discard some of its sexism, courts stated that the crime of rape was "complete upon penetration" - the point being to avoid acquitting a defendant simply because he didn't continue to ejaculation. Since these decisions were aimed at avoiding absurd results, they shouldn't now be interpreted to create the absurd result that a defendant escapes punishment if he engages in some consensual sexual activity and then forces further sexual activity upon another. Thus:

We conclude that post-penetration withdrawal of consent negates initial consent for
the purposes of sexual offense crimes and, when coupled with the other elements, may constitute the crime of rape. We also hold, however, that the trial court erred in failing to sufficiently address the jury’s questions on post-penetration withdrawal of consent, and such error was not harmless beyond a reasonable doubt.

Although it reversed the defendant's conviction, the court also addressed the issue of admitting expert evidence of "rape trauma syndrome." The court stated that before considering whether it could be admitted for any purpose at trial, lower courts should apply a standard test to determine whether the syndrome has broadly accepted scientific validity.

An interesting side issue in this case is what constitutes a "holding" or "dicta" of the court. The majority discussed this issue at length and concluded the 1980 statement about withdrawal of consent was non-binding "dicta." The dissenting judges argued that the offending statement constituted a clear "holding" and should be explicitly, prospectively overruled. All members of the court agreed that the court's former statement was wrong.

Another trans discrimination suit in Texas

A Texas newspaper reports on a new suit in brought in another part of the state by a fired refinery employee. The paper quotes from the complaint:

"Initially, Jeanmard was using the men's bathroom at the refinery but his presence was objected to by other male workers," the suit states. "This prompted him to begin using the ladies' bathroom, which was then objected to by the female workers."

How's that for a catch-22? Then the employer had the brilliant idea of requiring the plaintiff to call management for an escort for every bathroom visit.

The article seems to suggest the suit was filed in state court, which seems odd; I'm not aware of any precedent in Texas law for this kind of suit, whereas a Texas federal court just permitted one in the Lopez case.

BDSM discrimination case - BC, Canada

Following a ruling Tuesday by British Columbia's highest provincial court, the British Columbia Human Rights Tribunal will be permitted to proceed with a case in which a man claims he suffered discrimination because of being a BDSM practitioner. The Court of Appeal did not reach the question of whether the prohibition on discrimination because of sexual orientation in the Human Rights Code covers allegations like this. Instead, it agreed with a preliminary ruling in which the Tribunal said it "could not say that BDSM was clearly not within the scope of the meaning of sexual orientation." It therefore returned the case to the Tribunal to engage in factfinding about BDSM and then decide the applicability of the Code. Obviously, this case is one to watch -- I know of no other case in which courts have seriously considered this question.

The complaint was brought by Peter Hayes, who said the Vancouver Police Department denied him a chauffer's license due to his pagan religious beliefs and his BDSM orientation. The Tribunal decided to accept both the religion and sexual orientation complaints as a preliminary matter, and the City of Vancouver brought an interlocutory appeal seeking to have the sexual orientation claim rejected outright.

Several things are remarkable about this case. First, I submit that a claim like Hayes's would be dismissed out of hand in virtually any American jurisdiction prohibiting "sexual orientation" discrimination. This is because it is almost always defined to mean "heterosexuality, homosexuality, or bisexuality." (Sometimes other things such as "sadomasochism" are expressly excluded, but this seems redundant. It also, rather awkwardly, sometimes has the "gender identity and expression" shoehorned into it rather than enumerated separately.)

By contrast, the BC Human Rights Code contains no definition for the term. In the absence of a definition, Hayes would seem to have plain semantics on his side; the term "sexual orientation" could conceivably refer to a wide range of things. Vancouver is relying on the argument that (even without a definition), "sexual orientation" is a term of art that everybody knows only refers to homo-, hetero- and bisexuality. But according to the Court of Appeal, this is not utterly, patently obvious.

Remarkably, the British Columbia Civil Liberties Association filed a brief in support of Hayes, saying the Tribunal should seriously consider whether Code applies to BDSM, including whether a restrictive interpretation of the Code would infringe rights under the Canadian Charter and human rights treaties. The BCCLA lauded Tuesday's decision. It has also written a position paper arguing that "individuals should be free to engage in BDSM and any other consensual sexual practice without fear of government reprisal." This clear support for the rights of BDSM practitioners by a group describing itself as "the oldest and most active civil liberties group in Canada" is quite striking. In the U.S., one doesn't see state ACLU chapters, or other mainstream civil rights/civil liberties organizations, defending the rights of the BDSM community; this is left to much lower-profile groups like the National Coalition for Sexual Freedom.

The BCCLA brief - called a "factum" - is an interesting read. It discusses a line of Canadian jurisprudence saying that human rights legislation is subject to special canons of interpretation, and should be read in a broad, purpose-based way rather than in a narrow, technical way. Although the Court of Appeal didn't rely on this reasoning - because, after all, the scope of the Code wasn't squarely before them - it suggests an approach to statutes that is strikingly different from that of American courts today, and particularly our federal courts.

Feds indict biggest porn name yet -- John Stagliano

I've blogged previously about the Department of Justice's crusade to expand the definition of obscenity and lock up producers of adult pornography. This campaign has been roundly criticized, e.g.:

"I guess this means we've won the war on terror," said one exasperated FBI agent, speaking on condition of anonymity because poking fun at headquarters is not regarded as career-enhancing. "We must not need any more resources for espionage."

Yet, it has never really gotten much media attention. Maybe now that will change. The Feds started out by going after fringe producers who made extreme and disturbing films and were in some cases (e.g., the always-creepy Max Hardcore) accused of sexual assault against performers. Now, they're going after some big fish.

Today, DOJ scored an indictment against John Stagliano and his Evil Angel Productions. Evil Angel is one of the biggest names in the industry, and Stagliano is one of its most well-known and lauded directors. Among other accomplishments, Stagliano helped launch queer feminist writer Tristan Taormino as an adult film director, and his Fashionistas films spawned a big-budget Las Vegas stage show.

Stagliano says his films are not obscene, and he is bound to line up the finest legal talent on his side. If Evil Angel is smart, they'll also launch a public-relations offensive to paint the DOJ's porn prosecutions as an attack on Americans' private choices, a waste of government resources, and a distraction from fighting real crime and terrorism. Given the very high stakes involved,

As an aside: I haven't seen the specific films that are the subject of the indictment, but it appears from the titles that their themes involve female ejaculation, milk enemas, and BDSM. I would expect the government to focus on these themes to establish that they are obscene. Female ejaculation has previously been a focus of censorship in the UK, where the government took view that female ejaculation did not, in fact exist(!), and therefore pornographers were depicting urination. One wonders if we're in for similar excitement on this side of the pond.

Quick recap of Lopez SJ decision

Since my post yesterday was a bit rambling, here's a capsule summary. In short, the district court's opinion indicates that:

1) Discrimination against transgender applicants/employees can fall within the Price Waterhouse sex stereotyping theory
2) Employers cannot treat individuals as "dishonest" simply by virtue of their expressing a gender that does not match their birth sex.
3) Employers cannot expect individuals to affirmatively disclose that they are transgender.
4) However, it may be permissible to reject an individual if the employer believes in good faith that an individual has attempted to mislead the employer about his/her gender/birth sex, and draws an inference therefrom about their person's honesty.

Point (4), which I believe to be incorrect, was left open but not squarely adopted by the court. Even if that theory of defense is acceptable, the evidence doesn't look good for this employer. More generally, trying is defense could be messy and create more risk than employers would generally wish to tolerate. Employers would be wise, then, to treat this sort of personal information, and any employee statements or non-statements about it, as irrelevant to employment.

Arthur Leonard also has a very smart post about the decision here.

The case is Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 2008 Westlaw 902937 (S.D. Tex., Houston Div., Apr. 3, 2008).

More on Lopez v. River Oaks (trans Title VII case)

I've now had a chance to read the district court's summary judgment decision in Lopez v. River Oaks -- previously discussed here -- and it is a very interesting opinion.

As Sara Benson has already noted, this decision is particularly interesting because the Fifth Circuit, in which Texas sits, has yet to the applicability of Price Waterhouse gender stereotyping claims to anti-transgender discrimination. The district court here soundly criticized those courts that have rejected stereotyping claims:

Although these courts typically engage in analysis based primarily on perceived legislative intent to reach their conclusions, this Court is unpersuaded. The Court cannot ignore the plain language of Title VII and Price Waterhouse, which do not make any distinction between a transgendered litigant who fails to conform to traditional gender stereotypes and an “effeminate” male or “macho” female who, while not necessarily believing himself or herself to be of the opposite gender, nonetheless is perceived by others to be in nonconformity with traditional gender stereotypes. There is nothing in existing case law setting a point at which a man becomes too effeminate, or a woman becomes too masculine, to warrant protection under Title VII and Price Waterhouse.

Proceeding to the facts of this case, and the defendant's "misrepresentation defense," the court had several interesting points. First, it rejected out of hand the suggestion "that any person who dresses in a manner inconsistent with traditional gender stereotypes is necessarily deceptive." Interestingly, the court cited decades-old First Amendment cases holding that this sort of "deception" is not a valid reason to criminalize "cross-dressing."

Second, the court rejected the suggestion that employees have an affirmative duty to disclose that they are transgender. The court said in a footnote that even if there were any legally permissible reason why this information was "truly necessary," the employer "should have affirmatively sought such a disclosure."

Even assuming the information was relevant, in this case Lopez had done nothing to hide her gender history, and in fact made it fairly obvious: she gave both her adopted and birth names on her application, and listed as references two people who knew and disclosed that she was transgender.

In light of all this, and in light of the employer's stated reason for rescinding the job offer to Lopez -- Quote: "You presented yourself as a female and we later learned you are a male" -- why didn't the court grant summary judgment to Lopez?

Good question. Lopez's attorneys argued, rightly, that since Lopez's gender history and/or gender expression were irrelevant to the job, anything she did or didn't say about them was likely irrelevant. The district court appears implicitly to have rejected this view, or at least to have reserved judgment on it. Like many employers, the response of River Oaks employees to encountering a transgender applicant was confused and bumbling, so that it is difficult to tell whether it owed more to animus or mere good-faith stupidity. If this case case goes to trial, that will be the central issue.

I agree with Lambda Legal that it doesn't matter: even if you think someone out-and-out lied about something, if that something is a personal characteristic protected by law from discrimination, you are not permitted to draw any inferences about the person's character. But - regrettably - it's not hard for me to see how a judge might wish to cut an ignorant and baffled employer some slack in a situation like this.

Of course, the court didn't say anything like this -- it simply concluded that it would need to be proved whether River Oaks actually harbored concerns that Lopez was dishonest. This could make for a messy trial -- which would seem to be all the more reason for employers to treat employees' gender status as the totally irrelevant personal matter that it is.

Texas court rejects "deception" defense in trans employment suit

Lambda Legal just announced an important victory in a Title VII suit brought by a transgender woman in Texas. Izza Lopez sought and was offered a job at a medical imaging company in 2005, but the company rescinded the offer after it discovered she was trans. ( The company's explanation: she had "misrepresented" herself as a woman despite being born male.

The federal district court rejected motions for summary judgment by both sides, but Lambda viewed the decision as a victory for trans workers, since it apparently accepted the premises that (1) anti-trans discrimination can be considered sex discrimination under Title VII, and (2) employers can't, as a defense, characterize a person's gender expression as "deception" -- at least not where they made no attempt to hide their gender history.

As I've discussed previously, federal courts have had had difficulty grappling with the treatment of anti-transgender discrimination under Title VII. Employers will typically argue that it simply isn't covered by federal law or, as here, assert a "defense" that is simply a reframing of their discriminatory animus. For some background on this in the context of a still-ongoing case with similar facts, see this 2006 post by Arthur Leonard.

The decision isn't up on Westlaw yet, and Lambda's press release is skimpy on details, so it's unclear as yet why the court rejected Ms. Lopez's motion for partial summary judgment. Trans discrimination cases are unusual in that they so often involve "smoking-gun" evidence of discriminatory intent, and this case is no exception: the employer told her the decision was about being transgender. Once the employer's legal arguments are rejected, that wouldn't seem, at first blush, to leave much in the way of material fact questions. Probably there's more to it, and I look forward to reading the decision itself.

Volunteering and non-legal writing

Those are the things that have been occupying a lot of my time lately. I've been volunteering a few nights a week for Equality Maryland, which (as I've previously discussed) is developing the record for a lawsuit to keep an anti-transgender measure off the ballot in Montgomery County.

I've also been working on an essay about why feminists so often talk past one another on the subject of pornography. I've no idea where this essay will appear, but it caught my fancy recently and has sucked up a good deal of intellectual energy. I'll continue to update here, though, as time permits.

Interracial vs. same-sex marriage: the relevance of Title VII

From the beginning of modern marriage equality litigation in Hawaii to the pending cases in California and elsewhere, much of the legal debate has centered on the relevance of Loving v. Virginia. Marriage equality proponents have argued that miscegenation laws violated Equal Protection in a simple and straightforward way: by denying a person their choice of spouse because of their own race. For example, a man was barred from marrying a white woman because he was black, whereas he would not have been barred from so doing had he been white. It follows from this interpretation that bans on same-sex marriage are discriminatory in the same way: a person is barred from marrying a female person because she is female, whereas she would not have been barred from so doing had she been male.

The counterargument is that this misunderstands the concept of discrimination and the holding of Loving. While there may be a conceptual parallel between interracial and same-sex marriage bans, this was not the basis of the Equal Protection holding in Loving, which was focused on the clear intent and effect of miscegenation laws to promote white supremacy. Bans on same-sex marriage affect men and women equally: all are prohibited from marrying a person of the same sex. Put another way, the prohibition is not categorical but relational, and its effects are sex-neutral.

I was reminded of this debate today by a Second Circuit decision that concerns not the Equal Protection Clause but Title VII of the Civil Rights Act. In today's decision, Holcomb v. Iona College, the Second Circuit followed three other circuits in holding that, when an employee is fired because he or she is in an interracial marriage, they are subjected to race discrimination under the Act. The defendant's argument was similar to the states' arguments in favor of their marriage bans: in such a situation, the individual is not being discriminated against based on his own race, but on the interracial nature of the marriage, something not covered by Title VII. Said the court:

We reject this restrictive reading of Title VII. The reason is simple: where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.

The court quoted other decisions to the same effect:

Plaintiff has alleged discrimination as a result of his marriage to a black woman. Had he been black, his marriage would not have been interracial. Therefore, inherent in his complaint is the assertion that he has suffered racial discrimination based on his own race.

This is the prevailing view of "associational discrimination" under civil rights statutes. I can see no reason why the same reasoning should not apply to Equal Protection principles.

It is true, of course, that whether discrimination is "because of" x or y is subject to facile conceptual manipulation: where a decision is made that x and y should not go together, I see no reason why framing the decision as x-neutral, by focusing on the relational aspect of the rule, is any more or less logical in the abstract than framing it as x-based, by focusing on the individual x.

But in the real world, where x and y are people, we have quite sensibly chosen in the context of race to see such decisions as discriminatory. There is no indication that the Title VII decisions are based on the underlying ideology or agenda of the decisionmaker; rather, they are based on a common-sense analysis of application of the rule against discrimination. These cases should provide substantial support for the reasoning of marriage equality advocates.