Friday, August 29, 2008

Federal judge indicted for sexual assault

Federal district judge Samuel Kent of Texas was indicted on two counts of abusive sexual conduct (that's sexual contact without permission) and one count of aggravated sexual abuse (that's sexual contact by force). He is charged with federal crimes because they were allegedly committed at a federal courthouse against an employee. The indictment is here.

Sexual assault is so often hidden and diminished, especially when committed by men in positions of power, that it's refreshing to see a federal judge -- someone appointed by the President to a lifetime position -- called to account.

On a quite different note, there is what I assume to be very inartful drafting in the indictment. Federal law defines a sexual act as one committed "with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person." But the indictment states that Kent engaged in unwanted sexual acts against the employee (called Person A) "with an intent to abuse, humiliate, harass, degrade and arouse and gratify the sexual desire of Person A." I rather doubt the Kent's intent was to arouse and gratify the alleged victim, or that the government meant to alleged that. It's of no legal moment, but it strikes me a fairly perverse error.

Thursday, August 28, 2008

Lawrence v. Texas scorecard coming

Having finally figured out a few things about creating tables, I've been working on creating a Lawrence v. Texas Scorecard, which will show how Lawrence has been interpreted and applied in the various federal circuits. It hopefully will be a handy reference that I will update regularly.

Lawrence v. Texas Scorecard: Federal

A long, long time ago, I promised to bring to this space a scorecard showing the application of Lawrence v. Texas by the lower courts. At long last, here it is. I haven't tried to give a detailed analysis, but simply to provide the cases, the state action or policy subject to challenge, the level of due process scrutiny applied, and the result.

Cook v. Gates, 528 F.3d 42 (2008)
Don't Ask, Don't Tell policy
Intermediate scrutiny
Second No case

Third U.S. v. Extreme Associates, 431 F.3d 150(2005)
Rational basis
Fourth No case

Fifth Reliable Consult. v. Earle, 517 F.3d 738 (2008); see also U.S. v. Coil
442 F.3d 912 (2006) (obscenity)
Sex toy ban
Rational basis
Sixth Beecham v. Henderson County, Tennessee, 422 F.3d 372 (2005); see also Flaskamp v. Dearborn Public Schools, 385 F.3d 935 (2004)
Firing for adultery
Rational basis
Seventh No case

Eighth No case

Ninth Witt v. Secretary USAF, 527 F.3d 806, (2008)
DADT Intermediate scrutiny
Tenth Seegmiller v. LaVerkin City, 528 F.3d 762 (2008)
Firing for adultery
Rational basis
Eleventh Lofton v. Secretary FDFC, 358 F.3d 804 (2004);
Wililams v. Morgan
, 478 F.3d 131 (2007)
Adoption ban;
Sex toy ban
Rational basis (both)

Valid (both)
D.C. No case

Monday, August 25, 2008

City claims jerking off in video booths an HIV risk

The Legal Satyricon reports:
Massachusetts superior court rules that video booths may have First Amendment protection and that an adult video store’s successful measures to cure prior secondary effects should be taken into account when considering a city’s denial of a license renewal. Additionally, the City argued that the public interest would be harmed by allowing the video booths to remain open, as they contributed to the transmission of HIV (a frequent claim by anti-erotica activists). The court noted that since there was no sexual contact between patrons, and they could only observe one another through glass windows, this argument was unpersuasive. See Capital Video v. City of Springfield [PDF].
Guys, guys. This is the problem with abstinence-only education: confusing and misinformation about HIV risks. Guys, look: barring some pretty odd circumstances, people have to touch each other to transmit HIV. You can't just rely on judges' antipathy to adult businesses to buy the same boilerplate arguments every time, regardless of the facts!

Updates on trans discrimination

Sorry, I'm too sick at the moment for anything but links.

Jillian Weiss has an in-depth post at Transgender Workplace Diversity on a transgender discrimination case in Connecticut. There, Connecticut's federal district court ruled that both Title VII and Connecticut law prohibit anti-transgender discrimination, but dismissed the plaintiff's suit on the evidence.

Also via TWD, a new survey of over 800 transgender veterans and former servicemembers documents the high prevalence of anti-trans discrimination, both in employment (more than one-third) and within the VA.

On the now concluded trial in Schroer v. Library of Congress:
Kentucky's governor reinstates an anti-discrimination executive order (covering sexual orientation and gender identity), while Louisiana's governor lets one lapse (covering only sexual orientation)

Tuesday, August 19, 2008

Trial starts in LoC transgender discrimination case

A long-awaited trial began today here in D.C. in Schroer v. Library of Congress, a major case testing federal protections for transgender workers. Diane Schroer was offered a job as a counterterrorism expert, only to have that job offer withdrawn when it was revealed the she is a trans woman.

From hunter of justice:

The mere fact that the case is going to trial is important. Most employment discrimination cases settle if they survive summary judgment. Judge Robertson has denied two motions to dismiss and a summary judgment motion, rejecting the government's arguments that transgender persons are not covered under Title VII. [All three opinions plus motions and responses are available here.] Given "the factual complexities that underlie human sexual identity," the court reserved a decision on whether transgender discrimination is a subset of sex discrimination until it heard more evidence on the nature of gender and gender identity.

This should be one fascinating trial. The ACLU LGBT Rights Project represents Schroer; trial counsel will be James Esseks, Sharon McGowan and Ken Choe, all ACLU staff attorneys.
Lots of background on the case is at Transgender Workplace Diversity. As Jillian Weiss points out there, Judge Robertson's decisions in this case signal progress in recognizing protection for trans workers, but leave a lot of unanswered questions and room for confusion. I wish I could skip work to go observe the trial.

Monday, August 18, 2008

California Supremes: No religious exception to civil rights in medicine

The California Supreme Court said today:
Do the rights of religious freedom and free speech, as guaranteed in both the federal and the California Constitutions, exempt a medical clinic’s physicians from complying with the California Unruh Civil Rights Act’s prohibition against discrimination based on a person’s sexual orientation? Our answer is no.
The unanimous decision, ten years in the making, came in Benitez v. North Coast Women's Care Medical Group (PDF). Lupita Benitez was stalled, given unnecessary treatments, and finally turned away when North Coast made clear it would not provide artificial insemination to a lesbian. Benitez ultimately got the services elsewhere and is now a mother of three, but fought to the state's highest court to make sure that facilities like North Coast can't use religious beliefs as an excuse to discriminate in the provision of health care.

Background on religious exemptions

North Coast's religious freedom defense won't be going before the U.S. Supreme Court: the Court has interpreted the federal constitution as not requiring religious exemptions from "neutral laws of general applicability." Employment Division v. Smith (1990). Nevertheless, state constitutions may and often do provide more robust protections for individual rights than does the federal constitution, so religious objectors have continued to argue for religious exemptions from various laws in the state courts. The California Supreme Court rejected such an argument in 2004 in the Catholic Charities case (PDF), which involved the California Women’s Contraception Equity Act. There, the court declined to set out a specific test for religious exemption claims, concluding that under even a strict standard -- i.e., the most protective for religious objectors - there wouldn't be an exception for Catholic Charities.

Reasoning of the decision

The court draws the same conclusion today in Benitez. Specifically, it says that the state's antidiscrimination law furthers a compelling state interest in social equality, and there is no way for the state to advance that interest without some burden on the religious exercise of medical providers. The court notes, however, that if North Coast specifically objects to providing artificial insemination to lesbians, it stay true to its religious beliefs by choosing not to offer that service to anyone.

North Coast made the intriguing argument that the text of the California constitution mandates an unprecedented, almost total protection for religious objectors to state laws. The constitution says religious liberty is "guaranteed," but "does not excuse acts that are licentious or inconsistent with the peace or safety of the State." North Coast therefore argued that combating "licentiousness" or protecting "the peace and safety of the State" are the only permissible grounds for laws that do not allow religious exemptions. The court rejected this approach. Concluding, the court made clear that North Coast can seek to prove that it denied services to Benitez on some other ground, but can't simply claim liberty of conscience.

Impact of the decision

As was much discussed after Marriage Cases, the California Supreme Court is the most-cited state supreme court in the nation. The decision in Benitez is likely to be followed in other states' courts. The decision's implications go far beyond the field of infertility care or even health care more generally: it means that there is no general religious-belief exception to the civil rights laws in the provision of commercial services and public accommodations.

This decision is correct. There are, of course, areas antidiscrimination laws can't reach because of the right to privacy and the freedom of association. But so far as they go, these laws should not be subject to a carve-out for those who claim a religious obligation to discriminate.

Saturday, August 16, 2008

USAID's anti-prostitution pledge as compelled speech

Since the initiation of the President's Emergency Plan for AIDS Relief (PEPFAR) in 2003, U.S. funds for international HIV/AIDS work have required that foreign grantee organizations adopt an "anti-prostitution pledge" (hereinafter APP), squarely opposing not just sex trafficking but prostitution, coerced or otherwise, and the legalization thereof. In 2005, the funding restriction was implosed on U.S. groups as well.

The policy is as follows:
(e) Limitation
No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to promote or advocate the legalization or practice of prostitution or sex trafficking. Nothing in the preceding sentence shall be construed to preclude the provision to individuals of palliative care, treatment, or post-exposure pharmaceutical prophylaxis, and necessary pharmaceuticals and commodities, including test kits, condoms, and, when proven effective, microbicides.
(f) Limitation
No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking, except that this subsection shall not apply to the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative or to any United Nations agency.
(22 U.S.C. section 7631)
Even if an organization receive only a small fraction of its funding from USAID, all its activities are restricted. The APP has been assailed as deeply counterproductive to HIV/AIDS work, especially because adopting the APP may have the effect of alienating the sex workers grantee groups are trying to reach with education and services. It's been reported that some organizations have already scaled back planned outreach activities, for fear that anything other than a punitive approach to sex workers would be construed as "support for prostitution." (See these articles from RHRealityCheck for background and criticisms of APP). The policy has also been strongly criticized for equating all forms of prostitution with the abominable crime of human trafficking.

There is, perhaps, a similarity here with the recently reported Department of Health and Human Services proposal that would equate birth control with abortion, thereby allowing federal grant recipients to block women's access to contraception based on their religious views. Except, of course, that everyone agrees that human trafficking is a moral horror, whereas there is deep disagreement on abortion. The commonality is that both policies seek to equate something less widely opposed with something much more widely opposed.)

The APP has been challenged in both DC and New York federal courts as infringing First Amendment rights. There is a, of course, a long history of battles over speech-related restrictions on federal funds, with mixed results. In Alliance for Open Society International v. USAID, the New York district court issued a preliminary injunction in 2006 after finding that the APP was unconstitutional compelled speech.

On appeal, the government told the Second Circuit it was going to issue guidelines permitting grantees to set up a subsidiary organizations that would not have to comply with the APP. On that basis, the D.C. Circuit upheld the APP in DKT v. USAID, also relying on the government's representations that grantees would be able to engage in all the speech they wanted through a subsidiary.

Then, the government issued the guidelines (PDF). They require that, in order not to be bound by the APP, the subisidiary have completely separate facilities, staff and finances from the grantee. "Mere bookkeeping separation" is not enough. This goes further than funding restrictions in other federal funding programs, and creates serious practical hurdles for grantees who feel it is important to engage in programs not bound by the APP. To make things more exciting, whether there is sufficient organizational separation will be determined by the government on a case-by-case, totality-of-the-circumstances basis. Mmmm, vague-alicious.

The Second Circuit then sent the case back to the district court to consider the guidelines, leaving the injunction intact. Finding that these new guidelines were not all they were cracked up to be, the New York district court last week said that the APP was still impermissible compelled speech and was still enjoined (except with regard to plaintiff DKT, because the D.C. Circuit's decision was binding on it as a party to DKT v. USAID).

This is a major blow against the government, but the story continues. The government will have another chance to persuade the district court when the comment period is complete and the guidelines are finalized. There have been many critical comments, including from that champion of sexual health education, Rep. Henry Waxman. And even if the grantee organizations win, the APP will likely remain binding on foreign grantees.

Expect litigation to continue over the APP into the next year. While even a markedly more Democratic Congress may be unlikely to repeal the APP, what's more imaginable is a Democratic administration loosening the guidelines. We'll have to wait and see.

Friday, August 15, 2008

Cal. AG's Prop 8 language upheld

The struggle over marriage equality in California continues to be an interesting one. There were the 2004 San Francisco marriages, and the court decision nullifying them. There was the long-running Marriage Cases, that concluded with a state supreme court protecting same-sex couple's right to marry. And since then, there's been litigation seeking to stop that ruling from going into effect; litigation trying to keep Proposition 8 (which would overturn Marriage Cases) off the ballot; and now, litigation over the official language for Prop 8.

The state's official summary for Prop 8, at the time it was first circulated to get it on the ballot, said that it "Amends the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California." But last month, the AG published the official summary for the ballot states that Prop 8 "Changes the California Constitution to eliminate the right of same-sex couples to marry." Prop 8 supports sued, saying the summary was unfairly argumentative.

A superior court judge has now rejected that argument (PDF). The judge noted that state law creates a high standard for challenging prejudicial ballot language, and judges will normally defer to the Attorney General. The petitioners argued that the statements "(i) use a strongly negative, active tense verb to characterize the effect of the measure; and (ii) focus too narrowly on the measure's effect on same-sex couples." The court said pithily,
There is nothing inherently argumentative or prejudicial about transitive verbs, and the Court is not willing to fashion a rule that would require the Attorney General to engage in useless nominalization.

Nor is the Court persuaded that the Attorney General's title is argumentative because the term "eliminates" is "negative." It is noteworthy that the ballot title recommended by Petitioner in his moving papers – "Limit on Marriage" – also begins with a "negative" term. Petitioner has failed to explain why the term "eliminates" is inherently argumentative, while the term "limit" is not.

Next, the Court rejects Petitioner's argument that the title is argumentative because it states as fact that same-sex couples have a "right" to marry. This statement is not argumentative, prejudicial, or controversial, in light of the California Supreme Court's decision in the Marriage Cases, which recognized the right. This Court is bound to follow the Supreme Court's decision.

Finally, Petitioner argues that the title is argumentative because it is under-inclusive, focusing narrowly on one of the measure's "effects," rather than the measure's "purpose." However, this argument fails because the Attorney General is not required to distinguish between a measure's intended consequences (purpose) and its actual consequences (effects). Rather, the Attorney General's mandate is to state the chief "purpose and effect" of the measure.
On similar grounds, the court rejected arguments that the summary is misleading.

The court also rejected challenges to the sample arguments for the ballot. As to the opponents' argument's contentions about the affect on public school curricula, the court said:
There is at most a reasonable difference of opinion as to whether Proposition 8 will have any effect on what may or could be required teaching in schools. Further, under current California law, children cannot be required to attend any health-related instruction, including instruction on the subject of marriage, against their parents' will.
Petitioner's also said it was misleading to include the argument that marriage and domestic partnerships don't provide couples the same security. The court observed that this argument was essentially accepted by the supreme court in Marriage Cases.

This all seems pretty straightforward to me. Of course, the petitioners are right to be concerned that the new wording could bias voters against Prop 8; it seems obvious to me that the wording is a victory for Prop 8 opponents, because it focuses on the existing constitutional rights of same-sex couples. What seems critical to me is that the state law on ballot language does not prohibit language that might give some slight advantage to one side or another. Rather, it requires a high standard of blatant argument or inaccuracy, which is a far more workable standard. Since whether a particular framing of an issue favors one side or is simply more accurate is to some degree in the eye of the beholder, a high standard is needed to provide an administrable rule of law that won't mire judges in political disputes. The seemingly inevitable downside is that the AG will get mired in those disputes to some extent, and may give some slight (or at least perceived) advantage to one side.

Tuesday, August 12, 2008

Medicaid and gender transition; High school GSA victory; Mixed surrogacy decisions

NY federal court dismisses challenge to New York's Medicaid exclusion for gender transition therapies. The case is Casillas v. Daines, 2008 WL3157825 (S.D.N.Y. Aug. 5, 2008), and concerns a trans woman who had hormone therapy covered by New York Medicaid for over 20 years, until it was cut off a few years ago by a new state rule. Interesting posts about the case are at Leonard Link and hunter for justice. There's also an article in the New York Law Journal. Previous litigation on this issue has been mixed; see The Necessity of Sex Change: A Struggle for Trans and Intersex Liberties (PDF) by Noa Ben-Asher, 29 Harv. J. L. & Gender 51 (2006).

This decision rests on a federal regulation that says states may "place appropriate limits" on Medicaid services through "cost utilization procedures." This suggests a broad discretion to exclude medically necessary services, even if they are otherwise mandated by the law. It cuts very much against the grain of the statutory text, and the court seems to read is granting states broad discretion to cut off services based on cost.

Technically, the decision involves whether the the plaintiff can to sue enforce the Medicaid Act under 42 U.S.C. Section 1983, which provides various remedies for violations of federal law; it does not necessarily resolve whether the Pataki-era regulation actually violates federal law or not (a question that could be presented by, for example, a federal preemption claim). But if "utilization control" reg is read - as the court does here - as limiting the statutory text of Medicaid, proving an actual violation could be an uphill battle as well.

Whatever the legal difficulties of challenging such an exclusion, I very much hopes that, as Arthur Leonard suggests, the much more progressive Paterson administration will be open to reversing this Pataki-era rule.

Via Feministing: Highschool Gay-Straight Alliance wins groundbreaking lawsuit in FL. Read the opinion in Gonzalez v. School Board of Okeechobee County here (PDF).

A Florida school district justified banning a gay-straight alliance because it
1) is necessary to maintain the integrity of the abstinence only program, 2) will avoid unhealthy premature sexualization of students, 3) will protect GSA members from the risk of contact with potentially dangerous outside adult influences, and 4) will ensure that GSA members do not have access to adult only materials.
The district even argued that simply saying it's okay to have a non-heterosexual identity is inconsistent with federal abstinence-only standards! The court saw through each of these transparently bogus justifications. I found particularly interesting the court's observation that "When directed towards non-heterosexual students, [the district's] abstinence only message loses the core of its health and safety and child welfare component because a marriage-dependant abstinence only message is of de minimus relevance to non-heterosexuals" who cannot legally marry in Florida. This is relevant here because the federal Equal Access Act has an exception for promoting students' well-being - and the court held that this exception can't be satisfied by banning a gay-straight alliance in favor of a rigid abstinence-only-until-marriage curriculum. The court also stated clearly that the district's other purported justifications were "speculative at best" and amounted to an argument for banning all student speech on sex

And from Leonard Link:New Connecticut Decisions Differ on Enforcement of Gestational Surrogacy Agreements Involving Gay Male Couples:

These different results arise partly because a recent amendment to the Connecticut law governing birth certificates, which specifically mentions gestational surrogacy contracts, does not go into effect until October 1 of this year, leaving the courts to try to determine how to handle this situation in light of prior statutes that make no mention of such agreements. In addition, the DPH, which plays the crucial role in issuing birth certificates, has taken the firm position that only biological or adoptive parents should be listed on the certificates.


There is a pressing need here for some clarity, as it appears from the nearly simultaneous appearance of three Connecticut cases involving gay couples that Connecticut’s general receptiveness to enforcing gestational surrogacy contracts – as evidenced by numerous prior decisions involving married couples contracting with women to bear children for them – has made the state a favored jurisdiction for such agreements. ...

Transgender status in custody decisions (Indiana)

As has been the case with sexual orientation, the transgender status of a parent, or a parent's partner, romantic interest or friend has often been raised in child custody disputes, and some courts have been swayed by anti-trans prejudice. While nowadays most American court recognize that sexual orientation should not be a factor in custody cases, here as elsewhere judges tend to have a harder time seeing past gender variance. A nice overview of the topic is in K.J. Carter, The Best Interest Test and Child Custody: Why Transgender Should Not Be a Factor in Custody Determinations, 16 Health Matrix: Journal of Law-Medicine 209 (2006) (abstract here).

Eugene Volokh recently posted at the Volokh Conspiracy about an interesting, and encouraging, decision from the Indiana Court of Appeals in Lowhorn v. Lowhorn (PDF). There, primary physical custody and joint legal custody had been given to the mother in 2002, but the father had petitioned in 2006 for sole legal and physical custody. He complained that Mom had failed to consult him about various matters, including going to a new church (Jesus Metropolitan Community Church, an LGBT-friendly nondenominational church), but it seems Dad's primary beef was a friend of Mom's. From the trial court's findings:

19. Mother has consistently subjected the children to be publicly scrutinized and embarrassed by forcing them to regularly spend time with Mother's friend, a middle-aged male to female transgendered person.

20. Despite the children pleading with Mother that she not force them to be around this person, Mother continues to subject the children to being seen with the person in restaurants, in front of their friends, and at the children's extracurricular activities.

21. [When] Father learned of Mother's behavior from the children and saw the harmful effects the same had on the children, he confronted Mother about the same.

22. During the confrontation, Mother admitted to the foregoing and promised she would never allow the children to be around her transgendered friend again.

23. Subsequently, [mother], also concerned about the children's discomfort and confusion with her transgendered friend, admits to taking the children to a therapist, Erin Hamilton, without consulting [father] or providing him with any information regarding the children's confusion prior to the children's disclosure to him.

24. Dr. Richard Lawlor stated in his custody evaluation that he did not think Diana's unilateral choice of therapist was appropriate due to concerns that 'the particular therapist involved may have an agenda that would not seriously consider realistic concerns of the children'.

25. However, Mother has continued to subject her children to these circumstances repeatedly, despite the children's and Father's pleading.' ...

Wowza. For those not familiar with family law, a custody change requires a "substantial change" in circumstances that were relevant to the original custody determination. When reviewing the trial court's change of custody, the appeals court is supposed to affirm unless it is "clearly erroneous," i.e., there is no evidence at all to support the trial court's findings. The appeals court found that the findings of a substantial change with regard to Dad's other concerns were clearly erroneous. It went on to reach the same conclusion regarding the mother's friendship.

The Good: The court found no evidence that the children's contact with their mother's friend was harmful, and cited cases concerning parents' sexual orientation and same-sex relationships. This indicates that the court properly understands a case like this is analogous to those cases: neither the individual status nor a relationship involving someone of that status should be a custody decision, only the way in which the parent carries on their relationships. The court quoted the psychologist's custody evaluation, which stated that "there is no psychological research to support the finding that involvement with transgendered individuals is of any risk to children."

Furthermore, the court found no support for the conclusion that, to the extent the children were distressed, this was caused by the mother's friend or her friendship rather than by parental reactions to it. In cases where social prejudices come into play, this is a crucial distinction to make, because children's reactions to a situation may be heavily influenced by their parents' reactions.

The Bad:
At the same time, the court seemed to buy into the idea that the mother was as much to blame as the father for the children's distress. The court quoted the psyhologist's opinion that "the children's discomfort is a combination of [their father]'s conservatism and their mother's extreme liberalism" and "overly aggressive approach to trying to make sure both children grow up unprejudiced." This "overly aggressive approach" apparently involved taking them to MCC a few times with a trans friend, took them out to dinner with the same friend, and thereafter invited that friend over to dinner at her home two or three times a month. While one can certainly imagine a hypothetical in which an "overly aggressive approach" to teaching tolerance to one's children had harmful effects, such a characterization seems unfounded here.

Perhaps more to the point, the appeals court left the door open to show that mother's friendship with a trans woman did in fact merit a custody change, if it be shown that "the primary origin of the children's confusion and discomfort" is internal rather than caused by their parents' responses to the situation. In other words, the court leaves open the question whether, if children are themselves sufficiently prejudiced against a group of people that being around them is distressing, such exposure can be the basis for a custody change. The lesson would seem to be to harden your children's prejudices early, before your ex starts introducing them to lesbians, transsexuals, Jews, atheists, etc.

Finally, the court seemed to find it significant that the children only saw Mom's trans friend "dressed as a female" once, and not in a public place. The apparent inference is that if the kids had been exposed to a trans woman dressed as a woman - particularly in public - this might be a different story. This is directly contrary to observation made by the psychologist, and recognized by the court, that being around trans people is not harmful to kids.

To suggest that this lack of harm is somehow become harm when trans people present as their authentic, post-transition gender seems akin to drawing a distinction between a parent having a same-sex relationship and the children meeting the parent's same-sex partner. Obviously if parents, or their friends or lovers, lack appropriate boundaries that is one thing. But suggesting that kids should only be exposed to trans people if they present as their birth sex is like saying that the kids can meet Mommy's girlfriend only if she's introduced as a "roommate" and they are never seen holding hands. It also invites what will inevitably be arbitrary line-drawing by courts about at what point in transition, if ever, it is appropriate for trans people to present as their authentic gender around their or someone else's kids.

All in all, the appeals court's decision in Lowhorn v. Lowhorn sets a positive precedent, moving the law in the direction of disregarding transgender identity and expression in custody determinations - just as sexual orientation is now generally disregarded - even if this court isn't all the way there.

Thursday, August 7, 2008

What's at stake in November: ballot initiatives

At her blog hunter of justice, the inestimable Nan Hunter has compiled a list of ballot initiatives that would change laws relating to gender and sexuality. The list includes nine states and ranges from initiatives to repeal local antidiscrimination laws in Maryland and Michigan; to bans on marriage, abortion, and adoption by unmarried couples; to a Colorado initiative to endow fertilized eggs with all the legal rights of persons. It's not just in California that ballot measures could make a big difference this year.

Wednesday, August 6, 2008

OT: Does our first modern "war crimes" case involve any war crimes?

Lawyers reading this have probably already sampled the already copious commentary out there about the Hamdan trial and verdict. For those who are curious, however, I commend to you Marty Lederman's post at Balkinization. In short, I think it is truly remarkable that the first US "war crimes" trial since the
Civil War involved charges that bear such little resemblence to the cases before other war crimes tribunals around the world (e.g., Sierra Leone, Rwanda, former Yugoslavia, Cambodia, and the various cases now before the International Criminal Court), or to historical war crimes cases.

Same-sex marriages to be "edited" out of 2010 Census

The Census Bureau has said that it will "edit" out same-sex marriages from the 2010 Census, purportedly to comply with the Defense of Marriage Act. The Census published a technical note in 2000 explaining why it would count "spouse" responses from same-sex couples as "unmarried partner" responses. At the time, two Census Bureau staffers produced a working paper arguing that "editing" these response in this way was distorting the demographic picture of same-sex couple households.

In 2000, of course, no state legally recognized same-sex marriages (at least not as a general matter, the unusual cases of some transgender people and their spouses notwithstanding), so (as Arthur Leonard notes) the question was merely theoretical (or to look at it in another way, one could assume that same-sex couples saying they were married were not, in fact, legally married). Now, California and Massachusetts do recognized marriage without regard to sex, so adhering to the same policy - even in those two states - means that couples who are in fact legally married in their state of residence will be shown to be "unmarried."

DOMA may or may not require the policy. Arguably, it only prohibits recognition of same-sex marriage for purposes of substantive law, not for the Census. (DOMA's definitional section reads: "In determining the meaning of any Act of Congress, or of any ruling, regulation or interpretation of the various administrative bureaus and agencies of the United States....") Moreover, even if it applied DOMA surely wouldn't bar the Bureau from reclassifying couples as unmarried, but breaking out these couples statistically from other "unmarried" couples, thus largely eliminating the loss of valuable data. If I read the news coverage correctly, the Bureau is in fact keeping track of these couples separately, but not in their published data; in published data, they'll be included with all other "unmarried partners."

Could this policy be challenged in court? Of course, you couldn't just sue for a declaratory judgment on the applicability of DOMA, because the Bureau could have created this policy on its own without DOMA. The Census Clause of the Constitution is really only concerned with counting heads for purposes of apportioning U.S. House sites. Beyond that, Title 13 of the U.S. Code pretty much lets the Census Bureau decide what other information to collect beyond that, so they don't have to ask about marital status at all. Past litigation over the census has centered on undercounting, overcounting, and residence determinations. Unlike those cases, whether couples are counted as married or unmarried doesn't affect the apportionment of House seats, nor is it apparent that it would affect funds provided private or public agencies that are based on population data.

The remaining obvious ground for a challenge is the Equal Protection right of same-sex couples who are legally married in their state of residence. Although the harm to such couples may be purely symbolic, this kind of injury is sufficient for standing if it sufficiently particularized, which it is here. Cf. Heckler v. Matthews, 465 U.S. 728, 737 (1984) (Social Security recipient had standing to challenge gender-based dependency requirement even if it did not affect the amount of his benefits).

The marriage equality movement has generally avoided the federal courts in favor of pursuing protections under state law, for sound strategic reasons. With a federal bench that is more conservative than ever, the chance that marriage litigation would set bad precedent is unacceptable. But might this case be different? The treatment of legally married couples in the Census presents a narrow question that is potentially quite distinct from the federal recognition of marriage for purposes of substantive legal protections and obligations, so that the biases of the judiciary may be less and any negative precedent could be narrowly cabined.

Of course, this was presumably the unsuccessful strategic thinking behind the federal court challenge to Nebraska's broad ban on recognition of same-sex relationships (Citizens for Equal Protection v. Bruning). While the plaintiffs tried to narrowly focus the case on the across-the-board prohibition of any form of relationship recognition, the Eighth Circuit produced a major negative federal precedent on the issue of marriage. One might hope that the Census dispute provides a clearer distinction, but one couldn't guarantee it. So while it seems on the surface that the Census policy could be challenged under the Equal Protection Clause, I'm not sure whether it's wise (from the point of view of same-sex couples) or likely. Which is unfortunate, because in light of the changes in the American legal landscape since 2000 - i.e., that there is now a substantial population of legally married same-sex couples in the United States - the Bureau's policy is almost certainly unconstitutional.

Monday, August 4, 2008

Sexual device ban to Supreme Court?

Back in February, a panel of the Fifth Circuit invalidated Texas's criminal ban on the sale of sexual devices (PDF). On August 1, a majority of the Fifth Circuit's 17 active judges voted not to rehear the case en banc (PDF), over the votes of seven dissenters. (One of these, Bush appointee Emilio Garza, called into question not only Lawrence v. Texas but forty years of privacy jurisprudence. Garza has often appeared on conservative Supreme Court shortlists.) The decision stands, in direct conflict to a decision of the Eleventh Circuit upholding a similar Alabama law. Given this split, a Supreme Court petition is likely. Will the Court hear the case? And if so, how will it decide?

The case turns, of course, on the scope of the Court's holding in Lawrence v. Texas. Lawrence was 6-3, and five of those six remain on the Court. O'Connor was of course replaced by Alito, who (I think it's safe to say) could be expected to vote to uphold the Texas law. Eugene Volokh has predicted that the Court will take the case and reverse, upholding the law. Dale Carpenter has a different take, noting that the Court may "simply believe the case is beneath its dignity, or is embarrassing, or does not involve an issue of sufficient importance," but guessing that if it took the case it would affirm 5-4. Both note possible grounds for distinguishing Lawrence: the relative importance of the implicated activity in people's lives, and in particular its role in intimate relationships. Assuming Kennedy's vote would decide the case, these certainly sound to me like they could be central factors.

On that basis, I'd suggest that both the likelihood of a grant of certiorari and the likelihood of affirmance would be significantly enhanced to the extent that the case can be framed as being about the right of persons with disabilities to achieve sexual intimacy with their partners, rather than about "the right to sex toys." There is a very strong case to be made that access to sexual devices is of great importance to people with a wide variety of disabilities -- from erectile dysfunction to limited mobility -- in achieving sexual intimacy in relationships. Framing the case in this way makes it very difficult to distinguish from Lawrence. (Indeed, the only relevant distinction noted by the judges who have favored upholding these laws is the commercial element- that it is selling the devices that is illegal, not using them - and the Court has already rejected a similar approach in the area of birth control.)

This concern was part of the Fifth Circuit's reasoning, as it was in state supreme court decisions striking down similar laws, but these decisions mainly focused on the general interest in sexual privacy, the degree of protection granted to that general right, and the state's interest in banning sex toys. While these broad principles should be sufficient, Lawrence strongly suggests that a focus on intimate relationships makes the strongest case, particularly for Kennedy. The right to use sex toys, in and of itself, seems to some as frivolous, and beneath the dignity of constitutional protection, as a "fundamental right to homosexual sodomy." The advantage of the device case is that since the law regulates and is challenged by sellers, who are asserting the rights of their buyers, focused arguments about the special harms to a class of affected persons can readily be made by any vendor; there is no need to find the factually perfect case.

To the extent possible on the existing record, the plaintiffs in this case should attempt to focus their case before the Supreme Court on the rights of persons with disabilities in the context of intimate relationships. Perhaps more importantly, the case could be helped by amici representing persons with various kinds of disabilities, or perhaps by medical associations.

Friday, August 1, 2008

Public opinion divided on marriage, Supreme Court

Expect some more substantive postings to come on family law and other matters, but for now I'll just pass on these results from a new Quinnipiac University poll:
"American voters oppose same-sex marriage and they don't want to recognize same-sex marriages performed in other states, but by a narrow margin, they don't want their states to ban it," said Maurice Carroll, director of the Quinnipiac University Polling Institute. "And they don't want to amend the Constitution on this issue. "Given a range of choices, they divide into thirds - for gay marriage, for civil unions, for a complete ban."
There are, of course, many ways to spin this: you can focus on majority opposition to same-same marriage as such, or on opposition to state and federal bans. Also, you can focus on marriage or you can focus on recognition and rights: While it's true that only a third of Americans say plain and simple that they support marriage equality, it's also true that only a third of Americans oppose legal recognition and rights for same-sex couples. That represents a huge shift in opinion over the last several years. (What's not news is that women are still significantly more likely to support marriage equality than men.)

And on the Court:
Looking at the U.S. Supreme Court and social issues, American voters narrowly disapprove 43 - 39 percent of the job the Court is doing, the lowest rating in five years of Quinnipiac University surveys on the Court and the first time the Court has received a negative score. Voters say 42 - 33 percent that the Supreme Court is moving in the wrong direction.

While 33 percent of voters say the Court is "about right," 25 percent say it is too liberal and 31 percent say it is too conservative.
So only a third of Americans think the Court's ideological balance is right, but the rest are divided between "too liberal" and "too conservative." It would be very interesting to follow these questions up by asking for specific examples of what the Court has been doing. Does this result reflect division of Americans on the high-profile social issues with which the Court is so often associated? Or do the people who think the Court is "too liberal" have different decisions and different issues in mind than the people who think it is "too conservative"?