Parental rights in France

Yesterday France's Cour de Cassation denied a lesbian mother the opportunity to adopt her nonbiological child. My French is minimal, and I would love to see a decent translation of the rulings in the case. From what I can glean, however, the court hewed closely to France's Civil Code (it is a civil law country after all), which seemed to say that Mother A could not adopt with Mother B surrendering her parental rights. That, obviously, would not be in the best interest of the child, and on that basis the adoption was denied. The only other way both mothers could be full co-parents was for them to marry, currently not an option in France - but apparently a hot issue in the current presidential elections.

To further confuse things, I cannot quite figure out the difference between the above ruling and a ruling by the same court a year ago, which appeared to allow a lesbian bio-mom to delegate substantial parental authority to the nonbiological mother. (This based on what little I can make of the original French, along with a couple of news reports.) What this seems to mean is that a nonbiological co-parent in a pacte civil can take on a substantial parental role, but this is always subject to the (presumably revocable) consent of the natal parent. This sort of parental status is precarious indeed, and as breakup of the parents could destroy it. If you can help clarify matters here, please comment.

Going too far: Southern sex laws

I draw your attention to two seemingly disparate recent cases in Georgia and Alabama.

In one, the Eleventh Circuit upheld Alabama's law criminalizing the sale of sex toys. Yes, criminalizing, and yes, sex toys. Please note the baroque history of the case; the law has been vigorously defended by the Attorney General over the course of eight years, and this marks the fifth judicial opinion in the case. Your tax dollars at work, folks. The court held that "public morality" was a valid ground for criminalizing such activity, notwithstanding the apparent rationale of Lawrence v. Texas.

The Eleventh Circuit's rationale? It held that:

while the statute at issue in Lawrence criminalized private sexual
conduct, the statute at issue in this case forbids public, commercial activity. To the
extent Lawrence rejects public morality as a legitimate government interest, it
invalidates only those laws that target conduct that is both private and noncommercial.

This is a silly interpretation, but at least it means that, even with this law upheld, laws banning private use would fall, as apparently would laws against fornication, cohabitation, perhaps even adultery. But here's the rub:

Furthermore, we do not read Lawrence, the overruling of Bowers, or the
Lawrence court’s reliance on Justice Stevens’s dissent, to have rendered public
morality altogether illegitimate as a rational basis.

The court believed that the legitimacy of "public morality" as a legislative purpose was simply too old and hallowed to have been undone in Lawrence without the Supreme Court practically beating us over the head with it. This is the same logic they used in upholding a ban on adoptions by queer Floridians. Once again, one must ask: did Lawrence mean anything?

But on to Georgia -- where the state's highest court refused upheld the ten-year prison sentence of Genarlow Wilson for "aggravated child molestation," which apparently is a Southern legal term for what half of us did every other weekend in high school, namely being 17 and having consensual oral sex with a 15 year old peer at a party. (There is some suggestion the incident here was less than entirely wholesome; it's not clear from the press reports or court opinion. But Wilson was acquitted of rape, and the law at issue applies to the most clearly consensual acts.) Georgia's assembly recently changed this from a felony to a misdemeanor, but the high court held the change was not retroactive.

In both of these cases, there appears to be a broad public recognition that the result is unfair. In Alabama, a local newspaper's poll found 91% percent opposition to the toy ban, while another paper fired off a castigating editorial. In Georgia, legislators are proposing a statutory fix that would at least let pre-amendment cases like Wilson's get meaningful judicial review.

I am heartened to see public debate about cases like these, as I expect laws like these cannot withstand sustained public scrutiny. There may be a voting bloc to whom anything anti-sex looks good, but it is a narrow one indeed.

Utah rejects de facto parenthood

Utah's Supreme Court Friday flatly declined to follow Wisconsin, Washington, Massachusetts, New Mexico, Rhode Island, Pennsylvania, New Jersey and Massachusetts in recognizing a status of de facto or psychological parent at common law. It therefore denied standing to Keri Jones, a lesbian mother, to press for visitation rights for her young daughter. Jones had entered a civil union with the biological mother; had gones through insemination, prenatal care and birth as an intended parent; had been designated co-guardian of the girl, who shared both women's surnames; and helped raise for her two years before she separated from her partner, who subsequently had her stripped of guardian status and denied her all access to their daughter.

The court avoided any discussion of lesbian parenthood specifically, insisting that this was a major question of social policy to be decided by the legislature. It was the court's view that a common law parentage doctrine would inevitably be far too amorphous to determine a putative parent's standing (and thus jurisdiction), as it would essentially merge the question of standing with the merits of the case. It said that while the common law was always evolving, it could only work incrementally. And it further contended that it would be particularly inappropriate for the court to make this leap because "there simply are no bedrock principles" for determining de facto parentage. Apparently the doctrines (admittedly somewhat varied) of eight states do not count.

I find the argument that common law innovation can only be "incremental," and that recognizing de facto parentage would exceed these bounds, to be disingenuous. First-year tort law alone taught me that many of the "incremental" changes wrought by common law courts have profound affects. It seems to me that, in those areas that are still governed to a considerable extent by evolving common law, the court may always seek to adapt the law to new situations coming before it. The legislature can always abrogate their innovations.

A spirited dissent makes similar arguments, articulating a de facto test borrowing from other jurisdictions. It stated:

The child in this case is the product of a same-sex relationship, but she just as easily could have come from a more traditional one. Her opportunity to have the courts determine whether visitation with one of her parents is important to her present and long-term best interests should not be foreclosed. Indeed, children of dissolving, nontraditional relationships are just “as likely to become . . . victim[s] of turmoil and adult hostility as [are children] subject to the dissolution of a [traditional] marriage.” ... These children “need[] and deserve[] the protection of the courts as much as [children] of [] dissolving traditional relationship[s].” Id. To deny the forum of the courts for the resolution of children’s interests in nontraditional contexts would be to deny those children the protections afforded to all other children. This is contrary to “the public welfare and the true interests of justice.”

The dissent further noted that the legislature had not squarely considered the question now before the court, and thus it fell precisely within the "interstices" of the law (to use the majority's phrase) that the common law courts worked to fill.

What are the broader implications of this decision? Well, it reminds us that the strong trend toward nontraditional parental rights, at common law or by statute, is not an ineluctable one in the short term. Conservative state courts may still refuse to go this route, and from the point of view of the LGBT movement it may be wise not to litigate this issue at present in certain states. For my money, the court's assiduous avoidance of the "l word" suggests that even courts hostile to LGBT family rights are increasingly hesitant to take explicitly anti-LGBT positions when they justify their rulings facially neutral doctrinal terms. And that's progress of a sort -- for all the good it does Ms. Jones.

Adultery still a tort

An insurance liability decision by the Eighth Circuit Court of Appeals today provides a rare glimpse of the persistence the tort of "alienation of affections" in states such as South Dakota, and of the use of emotional distress claims for extramarital affairs. (I tackled these torts way back here.)

Here, Mr. Baar sued Mr. Pins for having an affair with his wife, and Mr. Pins sought to have State Farm Insurance defend and indemnify him under an accident liability policy. Pins failed; Baar's suit continues in state court.

New Mexico: another front on partner benefits

Via Queerty:

Three New Mexican lesbian couples have joined forces with the American Civil Liberties Union to combat the state's discriminatory retirement practices. It seems that straight couples can continue to extend benefits to their partners after leaving state jobs. Gays and lesbians? Not so much.

Oddly, the ACLU's own page on the case won't load just now, but check for yourself. This suit follows the Michigan ruling I mentioned earlier, and an Alaska decision last October that such discriminatory distinctions in benefits are unconstitutiona. As HRC's Carries Davis notes, "It is really just a matter of time before we start seeing wholesale litigation in this area."

If marriage is for procreation...

...then let's really define in terms of procreation! That's the straightforward logic of a new ballot initiative recently filed in Washington. No need for constitutional analysis here; while it may be getting difficult to tell the difference, this one is definitely a satire. The real anti-marriage campaigners are not amused. Neither are equality advocates in the state, who understandably don't view last summer's anti-marriage supreme court ruling as a laughing matter. I wonder whether anyone will vote for it?

Here we go... anti-marriage amendments in action

Yesterday Michigan's Court of Appeals held that, under the state's recent anti-gay constitutional amendment, public agencies cannot offer health benefits to same-sex domestic partners. This includes public universities, state agencies and local governments, irrespective of whether the benefits policy arises from collective bargaining. This is one of the first major indications (see below) of just how pernicious these amendments are going to be. One wonder whether voters in these states - who, polling data suggests, often oppose marriage equality while supporting other rights for same-sex couples - will experience buyer's remorse.

Without getting into the legal niceties (because I really should be studying), it seems clear to me that this decision could provide support for the Ohio Supreme Court if it decides (in a pending case) to strike down Ohio's domestic violence under a similar amendment. But as the Michigan court itself noted, much can be made of the slightly varying language from state to state.

Addendum: How Appealing collects press coverage of the Michigan ruling here.

Courts, prisons and gender-variant women

This post follows my previous post about Estate of DiMarco v. Wyo. Dept. of Corrections.

Why did Wyoming prison officials feel it was necessary to segregate Ms. DiMarco for 14 months in unusually harsh conditions? According to the district court, officials

had a legitimate reason to believe there was a potential, substantial risk of serious harm to either other WWC inmates or Plaintiff due to Plaintiff's physical characteristics [i.e., her penis].
DiMarco v. Wyoming Dept. of Corrections, 300 F.Supp.2d 1183, 1193 (D.Wyo. 2004)

This statement is at once refreshing and frustrating. Refreshing, because it shows a move away from an exclusive concern with the alleged threat posed by gender-variant women to other women of gender-segregated spaces, which has dominated legal and policy discussions in the contexts of prisons, homeless shelters, and bathrooms alike.

Here, the district court took notice of the Supreme Court's decision in Farmer v. Brennan; best known for establishing an impossibly high standard for Eighth Amendment claims against prison officials, that case concerned a trans woman who suffered horrific physical and sexual abuse when housed with male inmates. The district court rightly viewed Farmer as a cautionary tale about the extreme vulnerability of trans women in segregated spaces, and recognized that this risks exists even in an all-female space. The appellate court approvingly noted this concern, as well.

But prison officials, and both reviewing courts, also viewed DiMarco as potentially as much of a threat to other inmates as they were to her. Both courts noted that a majority of the women housed in the facility where DiMarco was sent had been victims of rape at some point. The implication, of course, was that anyone with a penis represents a threat of sexual violence -- a particularly bizarre conclusion when the person at issue not only lives and identifies as a woman, but (as both courts noted) is incapable of an erection. And while both courts emphasized DiMarco's "limited and unreliable background information" in this context -- she had changed her identity more than once, apparently in response to the stigma of her unusual anatomy -- neither considered that she had been convicted of a financial crime and had no history of violence.

Such fears are, of course, widespread, and therefore institutions -- be they prisons, shelters or workplaces -- must address them. But well-founded fears deserve one sort of response, and widespread but baseless ones another. Simply not revealing the information that would be likely to cause baseless fear is one possible response, while reassuring those concerned that they have nothing to fear is another. This is a delicate matter, to be sure, but punishing an individual for other people's fears is not a reasonable response.

As one anti-violence advocate has noted in the context of trans woman in women's shelters:

Stereotypes of transgender people attacking women come from movies and television shows that inaccurately portray transgender people as dangerous and abusive. This is far from the truth. When it comes to transgender people, the more serious risk is that violence will be committed against transgender people by others. Also, shelters need to learn that it is a myth that woman-only space is always safe. The occurrence of woman-to-woman abuse by both straight and lesbian women is real, and shelters need clear rules against it. By enforcing these rules for all residents, transgender and non-transgender, these spaces can become truly safe.
From Transitioning Our Shelters: A guide to making homeless shelters safe for transgender people

Still, DiMarco's case was treated more sensitively by the courts (if not, of course, the prison) than one have expected given the history of these issues when trans women are involved. Was the courts' sensitivity because they were convinced DiMarco had a congenital condition and was not transsexual? Certainly, the body of jurisprudence involving trans people -- wherein hypothetical intersex individuals are often discussed by way of contrast -- suggests as much. And yet the actual issues would have been no different had DiMarco been transsexual rather than intersexual.

For more information on intersex-related issues generally, see the Intersex Society of North America'. On the contested term "intersex" -- disfavored of late by doctors -- see this page.