California marriage update

The New York Times reported last week that California is looking into whether the Mormon Church failed to report in-kind contributions to the Yes on Prop 8 campaign.

The Los Angeles Times reported that pro- and anti-equality groups are preparing for marriage to be an issue in California's 2010 judicial retention election, and for a possible initiative to repeal Prop 8.

Reuters reports on the concerns of civil rights groups representing racial and ethnic minorities that a decision to uphold Prop 8 would have effects far beyond LGBT rights. These groups have filed a brief supporting the Propr 8 challenges with the California Supreme Court.

At Bilerico: Is New York's new Democratic state senate majority backing away from a marriage equality bill, which civil rights advocates hoped to see introduced next year?

"Upskirt" peeping and privacy law

Via Feministing, I ran across an article by Tracy Clory-Florky at Salon that explores the Internet-fueled - though by no means new - trend of "upskirt" photography, which is now a sizeable pornographic genre all its own. It begins thusly:

On a warm summer day two years ago, a 16-year-old girl put on a skirt and headed to the SuperTarget in her hometown of Tulsa, Okla. As she shopped the air-conditioned aisles, a man knelt behind her, carefully slid a camera in between her bare legs and snapped a photo of her underwear. Police arrested the 34-year-old man, but the charges were ultimately dropped on the grounds that the girl did not, as required by the state's Peeping Tom law, have "a right to a reasonable expectation of privacy," given the public location. In non-legalese: Wear a skirt in public, and you might just get a camera in the crotch.

States and privacy experts are now trying to figure out what to do about this.

Samhita at Feministing is rightly miffed that this discussion gets bogged down in whether such photographs of unwitting passersby constitute an invasion of privacy. Of course they do. How do we know? Consider the analogous situation of the bathroom stall. The bathroom itself is a public place. The stall is, typically, not completely closed off from the rest of the bathroom; its walls do not extend all the way to the floor or ceiling. Others could certainly peep over or under. Yet most of us would agree that there is a general, reasonable, and fairly strong expectation of privacy in the closed stall. This has often come up in Fourth Amendment cases, and court generally agree that there is a reasonable expectation of privacy in the stall (though they sometimes disagree about how it applies to many situations involving law enforcement searches and surveillance).

When you wear a skirt on the street, the parts of your body covered by the skirt are like all of you when you're in a bathroom stall. Your deliberate concealment creates a reasonable expectation of privacy as to the parts concealed, even if someone could go out of their way to peek. This doesn't seem to me to be a difficult question.

A more difficult question is, what can be done about the dissemination of such photographs? As Clark-Florky points out:

When it comes to voyeurs who photograph or videotape up a woman's skirt (known as "upskirting") or snap a photo down a woman's shirt ("downblousing"), though, "there are not many practical, legal remedies available to people who find themselves the victim," says Anita Allen, a privacy expert and professor at Penn Law. That's if the woman even realizes she is a victim in the first place, which is unlikely, as the voyeur typically manages to go undetected. If the photo or video is published online -- which, increasingly, it is -- it would be difficult for the subject to ever come across the material. Even if she did, how could she recognize one underwear-clad rear as her own?

One thing we shouldn't do is start shutting down anyone who posts upskirt images. As the Salon pieces notes, upskirt images can be faked, and there is nothing wrong with playing into this fantasy of illicit voyeurism with consensual subjects pretending to be oblivious. I expect that a lot of "upskirt" material online is just that - certainly nearly all of it on commercial sites is. But it shouldn't be difficult to find out if someone is posting staged photos or truly peeping, and there is every reason the law should care about the latter.

Sex offender laws limited in Georgia, California

The Georgia Supreme Court, on a 6-1 vote, overturned a sentence of life imprisonment for failing to properly register as a sex offender (PDF). The court emphasized that failure to register is a "passive," nonviolent offensive, and that it is wholly disproportionate to sentence a man to life for failure to register, when the crime that got him on the registry had only a five-year sentence. The court noted that all other crimes meriting this sentence are far more violent and disruptive of society, and that other violent crimes merited lesser sentences than this. In a brief concurrence, one justice noted that: "Some people even believe that rotting in prison for life is more torturous and inhumane than a quick and instantaneous death."

Meanwhile, a California appeals court overturned a lower court's order that a man convicted of assault, but acquitted of any sex offense, register as a sex offender (PDF). The trial judge said it was not clear why the jury acquitted the man on the sex offense charges, but that he was still a danger to the public. The appeals court held that registration is a punishment, and accordingly can only be based on facts and convictions determined by a jury.

In California, sex offender registration comes with a strict residency restriction that can exclude individuals from entire neighborhoods and even entire cities. The intermediate appeals court did not invalidate any part of the voter-approved law under which the defendant was sentenced, but held that sex offender registration, far from being merely a public safety measure, constitutes "traditional banishment under a different name." The state supreme court is now considering a case directly challenging the constitutionality of what's known as Jessica's Law. The SF Chronicle covers these cases here.

H/t How Appealing.

Putting an end to trans murders

My indignation at the passage of Prop 8 pales in comparison to my outrage at two more murders of transgender women. From the Washington Blade:

Allyson Robinson, an associate director at HRC, said that she doesn’t think it’s alarmist to use the word “epidemic” for the violence that has been occurring against transgender people.

Robinson said that at least 15 transgender people have been killed this year because of their gender identity.

This epidemic should be at the top of the LGBT community's, and the broader civil rights community's, agenda. State and federal hate crimes laws would be a nice symbolic gesture, but are not likely to have a lot of practical effect. Antidiscrimination laws will help make it possible for more trans people to find safe jobs and housing. But we also need more and better social services and health care for trans people. We need policies and education to ensure that health care providers, police and prisons treat trans people with dignity and respect. We need to secure coverage for transition-related care under Medicaid and private insurance.

Best. Amicus. Ever. (God.)

As Prop 8 goes to the California Supreme Court, God is definitely in the mix - as amicus curiae. God's legal brief (PDF) comes to us via Mariette Do-Nguyen, founder of the World Divine Mission and "Heiress of the Almighty Eternal Creator." The brief is in the fine and colorful tradition of deranged and emphatically pro se legal filings that bring a bit of whimsy (along with wasted clerical work) to judges' chambers everywhere. This genre is known for its generous use of bold text, exclamation marks and wild tangents.

Did I mention that, according to God's brief, Rev. Falwell was right about 9/11 being punishment for America's rampant sodomy? Oh yes. The long illnesses of Chief Justice Rehnquist and Justice O'Connor (maybe God means her husband, or maybe he means Justice Ginsburg?) were also "a result of their services that badly hurt eternal life of human souls." George Bush, Bill Clinton, the CIA, Satan and "murdered unborn babies" also make appearances.

You may have missed it, but God, through his "Heiress," spoke (PDF) in the 2004 California marriage litigation as well, saying:

Master of universe asked me for through this Motion, He ordered worldwide government officials of Executive Branches, Legislative Branches and Judiciary Branches must quickly pass constitution amendment defending marriages right between a man and a woman, and ban all same sex partners/same sex activities; and same sex activities must be charges as crime [grave sins] against God tremendously damaging human race societies.

Please, sisters and brothers, pass God's word on.

Via Bilerico.

Calif. court finds for abused trans prisoner

Abuse of trans people in jails and prisons - either by prison staff, or by other inmates because of the neglect of prison staff - is rampant, and yet courts typically rejects suits by trans prisoners. Arthur Leonard reports on a happy exception in a very unhappy case. The plaintiff, a trans woman placed in a male prison, suffered repeated threats, assaults, and rapes - including by her cellmate - before prison officials finally responded to her complaints. A California appeals court rejected a claim based on her constitutional right to be free from cruel and unusual punishment - the standard for such claims based on neglect is very high, and notably it was originally set out by the Supreme Court in rejecting similar claims by an incarcerated trans woman. But, the court here said that the plaintiff could sue under the basic state law of negligence.

In this case, [the judge] noted with some surprise that California courts had never previously addressed the question whether the state’s tort law recognized a "special relationship" between inmates and jailers on which to ground a duty to protect. Generally, tort law imposes no duty on an individual to protect another individual from harm, but such a duty can be found if there is a special relationship such that the law will impose responsibility on an individual for the protection of another. Such a special relationship can be found if an individual has control over the environment of the other, and the other is particularly vulnerable to harm.

The court found that the situation of an inmate fit squarely within this description, which can be found in decisions by the courts of many other states and has been described in leading torts treatises by respected scholars. An inmate has no control over his environment, which is controlled by the jailer, and is vulnerable because he is not allowed to have weapons or any lawful means to protect himself against attack within the prison.

As Leonard notes, the state would be very wise to settle this case.

After Prop 8, what next for the LGBT movement?

The promised 2257 analysis is forthcoming, but give me a break: I have some kind repetitive stress injury, which needs a look from a doctor. Meanwhile, there are lots of reflections on Prop 8's passage out there, some of which I'd like to highlight here.

Some folks think this loss means we need to shift to a focus on building public support for same-sex marriage instead of hanging our hopes on litigation.

Jonathan Rauch:

The civil-rights model tried to separate marriage from the political process, because we didn't have nearly enough straight support to win. That left our opponents with the political field to themselves while we busied ourselves in the courts. Not any more. We now have enough straight allies to win, long-term, in the political arena.

To judge from the protests, that's where we'll be going. Goodbye Thurgood Marshall, hello Martin Luther King. Goodbye Lambda Legal, hello ACT-UP. Sure, more love, less anger than in the AIDS days. But the protests, provided they are peaceful and don't turn hateful or anti-religious, point the way forward.

The Los Angeles Times agrees:

Wresting equal rights from a society reluctant to grant them isn't easy. It can take years of nonviolent resistance, passionate speeches and even in-your-face radicalism. If people who voted yes on Proposition 8 say they didn't see it as a civil rights matter, that's because until now there has been nothing resembling a civil rights crusade by the gay community. Courts can assist downtrodden groups, but they never have and never will be enough to guarantee equality on their own.

The LAT has plenty of criticism for the No on 8 campaign, and for political leaders who opposed the measure but refused to come out front and fight it.

Nan Hunter points out that a same-sex marriage case remains pending in Iowa, and the prospective getting marriage through the legislature in New York and New Jersey is looking up. She also speculates that anti-gay groups will try to reproduce the newly-passed foster parenting and adoption ban in Arkansas. She goes on to say:

The place for our team to concentrate - the location of our greatest strength - is the non-marriage front. After all, if we had not had a Republican president and congress for these last years, we would have enacted ENDA in the first year or two of the Gore presidency. The priority would have been securing and implementing a national anti-discrimination law. I don't think that the focus we have seen on marriage would have mushroomed in anything like the way that it has. ...The upside potential for lgbt rights is enormous right now, although it may not have a lot to do with marriage.

She urges passing an inclusive ENDA and replacing the so-called Defense of Marriage Act with federal recognition for state-recognized domestic partnerships, civil unions, and marriages. Hunter also points to the ingenious efforts of Equality Utah, who are taking the Mormon church at its word: since y'all said during the Prop 8 campaign that you don't object to many forms of relationship recognition for same-sex couples, why don't you work with us to secure them?

Last and perhaps best, Bi-Furious takes a stronger tack on shifting the LGBT movement's focus away from marriage equality:

I don’t think it should be our top priority. I’m frustrated with the way it appropriates a disproportionate share of our advocacy and resources, to the exclusion of things I feel would be a much better use of those things. In many places we can still be denied housing and employment because of our sexuality. This is true in almost all places of those who don’t conform to binary gender norms (and those of the gender assigned to them at birth, thank you very much). People are still being harassed, beaten, raped, and murdered for their perceived queerness. ... Many medical professionals are still trying to counsel and medicate queers out of our sexual preferences or gender identities, and giving us less than their best care besides.... Save for the controversy over an ENDA that left out trans folks (and now that we have the kind of Democratic majority in Congress that even the people who wanted to leave trans folks out in the cold said we’d need to pass an inclusive ENDA, could we get on that, please?) pretty much everything I’ve heard about queer rights from mainstream sources in the past several years has been regarding marriage. I think this is a terrible misprioritization, and a gross misappropriation of our attention and energy. I rank marriage as less important than people’s lives and bodily integrity, and I don’t understand how the “gay agenda” doesn’t.

Hear, hear.

Does an anti-porn documentary violate federal law?

A recent documentary on pornography has prompted much discussion on blogs dealing with feminism, sexuality, sex work, pornography and related topics. The film is called The Price of Pleasure, and it intercuts clips from recent porn releases with clips from interviews with industry insiders and critics. The film is essentially a pointed argument that pornography is harmful to women and to intimate relationships. Among the many criticisms of the film is that its producers and distributor failed to comply with the detailed federal record-keeping requirements to which pornographers are subject. The law is 18 US Code Section 2257, and it is intended to ensure that only adults appear in pornography. It states that:

Whoever produces any book, magazine, periodical, film, videotape, digital image, digitally- or computer-manipulated image of an actual human being, picture, or other matter which—

(1) contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct; and

(2) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce;

shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.

Covered producers are also required to place a notice of compliance on all covered materials. The penalty for each violation is up to five years. Adult film producer Ernest Greene argues that the film is covered by, and violated, 2257 here and here. Adult Video News editor Mark Kernes makes the same argument here. Similar criticisms have been levelled at an explicit slideshow exhibited by anti-pornography at lecture appearances around the country. This material has been defended on the ground that it falls under a "fair use" exception to 2257. (They seem to be confusing copyright law with 2257, but the argument does go deeper than this misnomer.) And some critics of this anti-pornography agitprop contend that these legal arguments are weak, and attention should be focused on rebutting its arguments.

I haven't yet seen a serious, detailed analysis of 2257 and whether it applies to material like this, or for that matter anything written by a lawyer. I'll attempt that in a forthcoming post.

NYT covers trans voting challenges; blows it

I was going to write about the Nov. 4 New York Times article on voting difficulties faced by transgender voters, but Alex Blaze at Bilerico pretty much said it:

There are serious issues for many transgender people when it comes to voting. Their name might have changed since registering to vote, states with stringent photo ID laws (like Indiana) can pose a problem for trans folk whose gender expression doesn't match their drivers' license, and plain old transphobia of some poll workers might intimidate transgender people who have a right to cast a vote.

But you wouldn't know that from the article. Someone who's unfamiliar with the topic would probably think that transwomen are just more concerned with getting their hair done.

It didn't look like Ms. Carver would cast a vote this election, which was just as well to her because she was headed out for the evening and had a scarf around her head and large hoop earrings in her hair and tight clothes on her tall slim body. The official told Mr. Braxton that Ms. Carver could apply for a provisional ballot or even try going before a judge before the polls closed at 9 p.m., to try to get on the ballot.[...]

"That gives you an idea of her priorities," Father Braxton said, shaking his head. "She wanted to get her hair done."

I'm sure there were plenty of transwomen who wanted to vote in New York City who could have been profiled in this article. Or the Times could have done an article about voter apathy and used Michelle Carver as an example.

So good on the Times for at least referring to Michelle Carver with female pronouns and a female honorific. But this issue deserves serious coverage, not condescending commentary on a someone who isn't even facing the problems outlined in the beginning of the article.

Argh.

The Netherlands: Forced contraception for "unfit" women?

A draft bill in the Dutch parliament is causing a stir among disability activists and others: it would force women judged "unfit" to take contraception or face having any children they have taken away by the state. Notably, the English-language press coverage doesn't indicate the likelihood that this legislation will actually pass.

It's not clear whether there is any other consequence in addition to the immediate taking of any child for foster care. Women in this country who have been judged unfit to parent their previous children already face a high risk of having any additional children they have taken away - though the process is generally not automatic, as it appears would be the case under the Dutch bill.

In any case, the bill would still be an undue infringement on reproductive freedom. To the extent Europe's human rights courts agree, I would think it could be struck down - if it is ever passed - as a violation of the fundamental right to privacy in the European Charter.


H/t Feministing.

Prosecutors seek recusal of entire Ninth Circuit in obscenity case

Yes, you read that right.

Some of you will recall the kerfluffle this past June about Ninth Circuit Chief Judge Alex Kozinski's personal porn stash, which he foolishly (and apparently inadvertently) kept on a publicly-accessible server. This was big news in the legal community; Kozinski (a Reagan appointee) is one of the most prominent federal judges, perhaps best known for his witty opinions and his passionate interest in issues of speech, intellectual property, and the Internet. The revelation caused Kozinski to recuse himself from presiding over the obscenity trial of fringe pornographer Ira Isaacs. Kozinski also declared a mistrial and called for an ethics probe of his conduct.

When the Department of Justice sought to retry Isaacs, he argued that a new trial would constitute double jeopardy. This is the issue in his current appeal. And federal prosecutors think that since the circuit's chief judge declared the mistrial, all the other judges should recuse, and have the case heard by judge's from another circuit. There is apparently only one precedent for this, when the Eleventh Circuit recused themselves en masse from the 1992 appeal of a man convicted of murdering one of their colleagues. I don't really see a mass recusal happening here.

Scattered observations on the election

At Bilerico, Jillian Weiss recalls Barney Frank's statement last year that "if we can pick up 15 Democratic [House] seats, then I think we are in a good position to pass a transgender-inclusive ENDA." As Weiss notes, House Democrats picked up at least 19 seats. By the strategic standards of those who supported a non-inclusive ENDA, the time for that strategy is behind us. It is time to move forward with a fully inclusive bill.

Chris at Sex in the Public Square and Renegade Evolution have some reflections on the effort to pass Proposition K in San Francisco.

It now appears that even when all the votes are counted Prop 8 will pass. There is already litigation underway to challenge it. I've previously opined that attempting to challenge the substance of Prop 8, as somehow irreconcilable with the rest of the constitution, is a loser. But the leading argument being made now seems to be that Prop 8 is such a significant change that, under the state constitution, it should have been approved by the legislature before going to the voters (which would never have happened). The alternative argument is that the amendment isn't retroactive. It's not clear to me how strong these arguments are, but how the state's high court rules on them could well be an issue in the justices' 2010 retention races. Arthur Leonard gives a rundown of these suits, as well as the probably constitutional challenge to the Arkansas foster parenting/adoption ban.

Ballot measure, election results!

How Appealing collected the following AP headlines:

"California gay marriage vote still undecided"
(though it's not looking good)

"Florida voters pass amendment banning gay marriage"

"South Dakotans reject second try at abortion ban"

"Colo. voters soundly defeat anti-abortion measure"

"Ark. voters OK unmarried foster, adoption bans"

"Neb. voters approve ban on affirmative action"

Also, Federal Marriage Amendment standard-bearer Marylin Musgrave lost her house seat in Colorado!

In San Francisco, the tally on Proposition K is reportedly around 57-43 against. I don't know what those heavily involved in the campaign think, but to me that looks like a very strong showing for a highly controversial measure. It has sparked a lot of debate and perhaps will be back in the future.

The election results have me wondering about the following questions:

• Which Justice(s) will be announcing their retirement from the Supreme Court come next summer?
• How will the changed political landscape change the fight over trans inclusion in the Employment Non-Discrimination Act?
• Will any LGBT rights legislation move in Congress in Obama's first year in office?
• Will Proposition 8 (if it passed) be held to be retroactive?
• How many years will it be before voters consider reversing Proposition 8?
• When Arkansas's new adoption ban is inevitably challenged in court, will the Eighth Circuit Court of Appeals split with the Eleventh Circuit, which upheld Florida's ban?
• Will the defeat of the "embryo rights" amendment in Colorado and the all-out abortion ban in South Dakota forestall a push for similar measures in other states? (Hopefully so, and likewise the failure of the anti-trans measure in Montgomery County, MD to make it on the ballot!)