Leonard Link

Wisconsin Appeals Court Rejects Equal Protection Challenge to Age Limits in Sex Law

The Court of Appeals of Wisconsin has rejected the argument that a statute making it a crime for anybody to have sex with a person age 16 or 17 who is not married to that person violates the constitutional requirement of equal protection of the laws. Ruling in State of Wisconsin v. Pryes, 2009 WL 1606746 (June 10, 2009) (not officially published), the court upheld the refusal by Circuit Judge Patrick L. Willis of the Manitowoc County Circuit Court to dismiss charges against Dennis S. Pryes, who was charged with violating the statute by having sex with an unmarried 16-year-old woman.

Wis. Stat. Sec. 948.09 provides: "Whoever has sexual intercourse with a child who is not the defendant’s spouse and who has attained the age of 16 years is guilty of a Class A misdemeanor." The word "child" is defined in 948.01 as "a person who has not attained the age of 18 years." Children who are age 16 or 17 can married in Wisconsin with parental consent. Pryes, then 51, was charged with having sex with a 16 year old. He moved to dismiss the charges, claiming a violation of due process and equal protection, arguing that the state had no rational basis for allowing some 16 year olds to have sex but forbidding it for others.

The court agreed with the trial judge that the distinctions drawn by the statute are rational. The court focused its attention primarily on the equal protection challenge, pointing out that this case did not involve any suspect classification, and thus the state could impose differential treatment if there was any rational justification for it.

" While Pryes complains that Wis. Stat. Sec. 948.09 classifies married persons differently than unmarried persons, there is a rational basis for that distinction," wrote Judge Lisa S. Neubauer for the court. "The purpose of sec. 948.09 is clear: to protect minors between the age of sixteen and eighteen from the consequences of sexual intercourse. Pursuant to Wis. Stat. Sec. 765.02, a person between the age sixteen and eighteen may marry with parental or custodial permission. Therefore the minor is not without protection or guidance in making his or her decision to marry. While Pryes is correct that once married, the State is no longer able to initiate charges on the minor’s behalf under sec. 948.09, this is precisely the type of balancing we expect from the legislature."

As the court sees it, the legislature can decide that in general people within that age range do not yet have the maturity to make for themselves the decision to engage in sexual intercourse, which may lead to pregnancy outside marriage, sexually transmitted diseases, or other complications. By exempting married persons from this prohibition, the state is counting on their parents or guardians to make a judgment about their maturity that will serve the state’s protective purpose. "Many of the significant interests of the state are addressed when a minor has obtained permission to marry – most obviously the lack of considered consent, heightened vulnerability to physical and psychological harm, the lack of mature judgment, the potential for sexual exploitation and the potential for a minor bearing a child outside of a marital relationships," wrote Judge Neubauer. "Wisconsin Stat. Sec. 948.090 reflects the legislature’s judgment that absent the assurance of parental guidance and considered consent involved in the marriage of a minor, the state is justified in continuing to protect the minor until age eighteen."

The court rejected Pryes’ invocation of cases – primarily due process cases – from other jurisdictions sustaining challenges to criminalization of consensual sex, pointing out that those cases were all distinguishable. And the court found that any due process concerns raised by the statute were satisfied by the legislature’s legitimate objective to protect teenagers from the consequences of sexual activity prior to the state’s 18 year old age of consent.

The court designated this as an unpublished decision.

Same-Sex Marriage and the 2010 United States Census

The Constitution commands that an enumeration of the population be made by the federal government every ten years, for the immediate purpose of allocating seats by population in the House of Representatives and, by extension, electoral votes for presidential elections.  Of course, this decennial census is important for many reasons apart from those.  Ever since the 1960s, when the Supreme Court adopted the "one person, one vote" rule for all legislatures except the US Senate, the Census has also become vitally important for drawing up district lines for state, county and municipal legislatures.  And, as federal programs that premise rights or benefits have grown, population data has become essential for the dispersal of federal funding for programs.  States and localities also rely on Census data for their budgeting and allocation of resources for programs.

The Defense of Marriage Act (DOMA) says in Section 3 that the federal government will not recognize same-sex marriages for any purpose of federal law.  Taking that as a literal command, the Bush Administration took the position that the 2010 Census would not count as married any same-sex couples, regardless whether they were legally married under the laws of a foreign country or one of the states that authorizes same-sex marriages.  When the last Census was held, in 2000, the question of counting same-sex marriages was irrelevant, because same-sex couples were not allowed to get married anywhere in the world!  It is amazing to think that in less than 10 years same-sex marriage has become available in several other countries and that by the time the Census is taken next spring, it may be legal in more than half a dozen states.  (The picture in the U.S. is complex.  As of now, same-sex couples can marry in Massachusetts, Connecticut, and Iowa, with new laws extending the right to marry to go into effect in the coming months in Vermont, New Hampshire, and Maine.  But the Maine law may not go into effect if sufficient signatures are submitted to the state government to force a "people's veto" on the ballot.  The NY State Assembly has passed a marriage bill that is pending before the State Senate.  The NJ Legislature may be poised to enact a marriage bill after the November election.  It is possible that pending litigation will revive the right to marry in California, but certainly not in time for the 2010 Census; on the other hand, there are about 18,000 couples who married in California prior to the passage of Proposition 8 and whose marriages have been validated by the California Supreme Court, and there is still an open question about the marital status of California residents who married in other jurisdictions prior to the passage of Proposition 8.  I said this was complex....)

So, what should the U.S. Census do in 2010 when U.S. residents who live as legally married same-sex couples mark their Census form as "married"?  The software in use from 2000 would note the genders of the individual respondents and reject the category "married" for such couples, instead classifying them as unmarried partners.  (The 2000 Census was the first one to begin providing anything approaching a reasonable statistical picture of same-sex couples in the U.S., by including a category of unmarried partners instead of just counting every unmarried person in a household as totally unattached to the other unmarried people in a household.)  Last winter some gay scholars and journalists took up the cry that the Bush Administration's interpretation of DOMA as precluding an accurate count of same-sex married couples in the U.S. was preposterous and homophobic.  With the election of a new administration that had announced its dedication to achieving equal rights for gay people, this was an important challenge.  And some unhappiness was expressed as the new administration went into its fifth month with no announcement that this issue would be addressed.

Then late last month there was a big blow-up in the gay blogosphere and media as more and more people became informed about a legal brief filed by the Justice Department (DOJ) in a pending lawsuit in California that challenges the constitutionality of the Defense of Marriage Act.  DOJ defended DOMA's constitutionality, arguing that the issue was so clear-cut that the trial court should dismiss the case outright, using some arguments and examples that commentators found offensive and contradictory to President Obama's election promises.  In the wake of the outcry, there came a rush of announcements of various administration initiatives on gay issues.  One of them involves the Census.

By the end of June, word had come out that administration lawyers had determined that DOMA does not require failing to count and enumerate and report same-sex marriages, although of course they can't be recognized legally for any purpose of federal law until DOMA is repealed.  (The president has pledged to work for repeal of DOMA, but not right now.)  Now the Census Bureau faces logistical challenges of quickly gearing up to implement the administration's decision that same-sex marriages should be counted and reported as marriages.

An article in USA Today that appeared in several US newspapers on July 6 sets out some of the problems they are confronting.  They must make a change in the software that was used to read the machine-readable census forms in 2000, since that software will immediately reject the classification of "married" if the individuals involved are of the same sex.  Writing and testing new software in time for the spring administration of the Census is difficult, as anybody who has been involved in a project to custom-write and install new software can appreciate.  You don't want lots of glitches on something as important as the Census.  At my school, the introduction of new software for the class registration system took years and went through several trial runs before we actually were able to conduct on-line course registration.  Now project those difficulties onto a project to enumerate and classify more than 300 million people... Doing this is not easy.

In addition, there are important questions about how the data should be presented.  For one thing, if DOMA has not been repealed by the time the Census data is ready to be reported, it seems likely that there will have to be distinctions made in the reported data between same-sex and opposite-sex marriages since so many different programs of federal, state and local governments use census data for their budgeting purposes, and appropriations for programs are also directed on the basis of Census data.  If these marriages can't be recognized for programmatic purposes, then they will have to be presented as a separate item line.  And, in addition to federal DOMA, more than 40 states are governed by constitutional amendments or statutes that similarly prohibit them from recognizing same-sex marriages, so the complications mount.

The article also points out the phenomenon of inaccurate self-reporting.  Many same-sex couples who have gone through commitment ceremonies, or holy union ceremonies through their religious denominations, will consider themselves "married" and may check that box, even though they have not taken the step of legal marriage.  There are now enough jurisdictions offering same-sex marriage without a residency requirement that anybody who wishes to marry and has the resources to travel can do so, but that's a substantial trip in many parts of the country.  If what the Census hopes to do is generate reasonably accurate data on legal same-sex marriages, that may prove a hopeless task without some method of cross-validating the answers against state marriage registries.  I'm not aware that they make any attempt to do cross-validating on different-sex marriages, and I bet there are plenty of inaccuracies there as well.  (I was told the story of a major non-profit agency that adopted domestic partnership benefits for same-sex partners and decided, as a matter of equity, that they couldn't require documentation of a partnership without requiring documentation from different-sex partners that they were actually married.  The result was to discover a significant proportion of their employees receiving spousal benefits who were not legally married....  so I suspect that Census data on marriage is already inflated by heterosexuals who self-report as married but have not taken the legal steps.) 

The Census Bureau people have many issues to ponder... which makes it even more ridiculous that Republicans in the Senate have been holding up confirmation of President Obama's highly-qualified appointee to head the agency, Professor Robert M. Groves, because of their articulated fears that he is an advocate of "sampling" in order to correct for undercounts of hard-to-count populations.  While the Republicans fight about a policy that they fear will lead to a more accurate (or, in their view, possibly inflated) count of transient and minority voters, who are more likely to vote Democratic than Republican, the Census Bureau remains without its designated leadership as the days tick away and the actual enumeration required by the Constitution looms.  In addition, the Bush Administration starved the Census Bureau in its appropriations, so this vital job has been underfunded and there is lots of catch-up going on to get ready to conduct the enumeration. This is one government operation that can't be put off.  Redistricting to reflect shifting population must be done in time for the 2012 federal election.  State legislatures need to get down to work in time to assure that the next federal elections can be conducted in a timely manner, and that the allocation of electoral votes for the 2010 presidential election properly reflects the county's population.  Let's get moving, guys!!

Obama Administration Proposes to End HIV Immigration Ban

The Department of Health and Human Services, Centers for Disease Control and Prevention, have published a proposal to eliminate the current requirement that applicants for immigration to the United States (or for regularizing their status after arriving here) be tested for HIV and excluded if they are HIV+, subject to the possibility of obtaining a waiver.  Under the proposed rule, published in the Federal Register on July 2, both the exclusion and the testing requirement would be eliminated from 42 CFR Part 34, the location in federal regulations of medical exclusions.  See 74 Fed. Reg. No. 126, pages 31797-31809.

The proposal, accompanied by explanatory documentation, is an extensive document, as required by practice and custom to inform the public of the reasons for a proposed administrative action so that comments can be submitted and taken into account by the agency before issuing a final regulation.  In this case, comments are due to HHS by August 17, 2009.  They can be submitted via email to Part34HIVcomments@cdc.gov.  They can also be submitted in hard copy through regular mail to Division of Global Migration and Quarantine, CDC, US Department of HHS, Attn: Part 34 NPRM Comments, 1600 Clifton Road, NE, MS E-03, Atlanta, Georgia 30333.   There is also an all-purpose internet website for receiving comments on regs: http://regulations.gov.

Most the supplementary material concerns the history of the HIV ban, which was adopted during the 1980s prior to the major breakthroughs in medical treatment that have made HIV infection a manageable disease for those who have access to current treatment and who are lucky enough not to experience intolerable side-effects from treatment or develop resistance that can't be overcome by newer meds.  the new treatments, introduced in the mid-1990s, have caused the mortality rate associated with HIV to plummet, and it is anticipated that in the U.S. among those who can access treatment, lifespans may return to something like their pre-AIDS-crisis norms.

HHS makes the point in this document that the reason for the exclusion does not really apply to HIV infection, because it is not casually transmitted.  The document actually deals with this issue in a rather cursory manner.  It is clear that most of the analytical work behind this document relates to the questions of costs and benefits.  As part of its function as an administrative agency proposing a change in federal regulations, HHS/CDC is required to estimate the benefits and costs of the change as compared to the status quo or other alternative courses of action.  HHS/CDC identifies three potential courses of action with respect to the HIV ban - status quo, remove the ban but continue requiring testing, or remove the ban and discontinue requiring testing.  They are proposing the third, but indicate that they are open to arguments about whether testing, either mandatory or elective, should remain in the mix.  There is an interesting discussion about the pros and cons on the testing question.

Most significant is the attempt to quantify costs.  Here the great difficulty is the need to estimate incidence, especially when we are talking about immigration from a range of countries that varies widely in the quality of data available about HIV prevalence, and the even greater difficulty of estimating what portion of the immigrant pool in a given year is likely to be HIV-infected.  Furthermore, the data on costs of HIV treatment are a moving target, and there are a variety of ways that people may finance those costs in our economy, lacking a uniform national health care system of the type common in some other countries.  The best estimates they come up with is that changing the rule may generate millions of dollars in additional costs, but the exact amount is not certain because so many factual assumptions need to be made without really solid data to back them up.

Anyone who is interested in submitting a comment to HHS/CDC should probably click on the link below, print out the complete proposal for themself, and then address those issues on which they have relevant expertise to offer.  There is probably plenty of room for activist and advocacy comment, but the most valuable comment would come from people with relevant knowledge and access to information to case light on the points on which the proposal is vague or uncertain.

Here's the link:

http://edocket.access.gpo.gov/2009/E9-15814.htm

Once comments have been submitted, they will be available for viewing at http://www.cdc.gov//ncidod/dq.

California Appeal Court Rejects Constitutional Challenge to Presumed Parent Status and Orders Reunification of Child with Lesbian Co-Parent

In a sharply contested child visitation dispute involving former lesbian partners that drew in the right-wing Liberty Counsel on behalf of the biological mother, the California First District Court of Appeal ruled on June 26 that a trial court order recognizing the parental rights of the co-parent and ordering reunification with the child after a lapse of many years did not violate the due process or equal protection rights of the biological mother. Finding record evidence supported the trial court’s conclusion that the former lesbian partner was a presumed parent and that the presumption had not been rebutted, the court also ordered the trial court to consider requiring the biological mother to help defray the reunification travel costs of her former partner. Charisma R. v. Kristina S., 2009 WL 1813148.

The women had lived together for several years and registered as California domestic partners when they decided to have a child through anonymous donor insemination. Kristina R. became pregnant. Charisma assisted throughout the pregnancy, was present at the birth and cut the umbilical cord, and the child was given a hyphenated surname on her birth certificate recognizing the parental connection with both women. Charisma assisted with child care during the first six weeks of life, and then became primary caregiver when Kristina returned to work. However, after a few more weeks, Kristina moved out with the child, and then moved from California to Texas to be with relatives. Kristina filed documents to dissolve the domestic partnership, and cut off contact between the child and Charisma, who filed suit in California seeking an order confirming her parental status and requiring Kristina to allow renewed contact. Years have passed since there was contact with the child.

The trial judge found that Charisma was a "presumed parent" pursuant to California’s parentage law, and that Kristina had failed to rebut the presumption. As a result, acting on the recommendation of child evaluators appointed by the court, the trial judge ordered that a process of supervised reunification be undertaken. However, when Kristina objected to being required to help defray Charisma’s expenses of traveling to Texas for reunification, the trial judge backed off, expressing doubt that this was the type of "runaway parent" situation where such an order could be made.

The Court of Appeal found that Kristina’s attempts through Liberty Counsel to undermine the trial court’s judgement was unavailing. At the heart of her argument was that Charisma’s parenting experience with the child was too brief for these doctrines to apply to her. It was a matter of just a few months between the birth of the child and Kristina’s action in moving out. But the court concluded that there was no durational test imposed by the statute, which finds presumed parental status when the non-biological parent "receives" the child in her home and acts as the child’s parent. Wrote Presiding Justice Simons, "We conclude that receipt of the child into the home must be sufficiently unambiguous as to constitute a clear declaration regarding the nature of the relationship, but it need not continue for any specific duration. This conclusion is consistent with the public policy favoring a child having two parents to provide emotional and financial support, which prior courts have emphasized in interpreting the UPA. Although cohabitation for an extended duration may strengthen a claim for presumed parent status, section 7611(d) does not require that cohabitation or coparenting continue for any particular period of time."

Liberty Counsel evidently made the usual slippery slope argument that allowing legal status to a biological stranger would open the door to all kinds of invalid and intrusive parenting claims by non-parents, earning this rebuke from the court, in a footnote: "It is frivolous for Kristina to assert that extending presumed parent status to Charisma would justify extending such status to babysitters, nannies, or other home caretakers. Among other things, such persons would not have engaged in a joint effort to conceive a child in a committed romantic relationship, would not have their last name attached to the child on the birth certificate, and would not be able to hold themselves out as the child’s mother without strenuous objection from the biological mother and her relatives."

The court found that overwhelming record evidence supported Charisma’s claim to be a parent in this case, and that Kristina’s objection to various aspects of the testimonial and documentary evidence did not affect that decision, giving the weight of the uncontradicted evidence presented by Charisma. It also noted that Kristina’s unilateral decision to move out with the child had prevented Charisma from establishing a longer duration of actual parenting of the child. "Accordingly," wrote Justice Simons, "this is not a case where the short duration of parenting reflects negatively on an alleged parent’s commitment to establishing a parental relationship. The relatively short period that Charisma parented Amalia is not alone a basis to rebut the parentage presumption."

In holding Kristina’s constitutional equal protection claim to be without merit, the court asserted that Kristina "has not shown that a similarly situated biological mother opposing a petition to establish presumed parentage would be treated differently under the law if the alleged parent, lacking a biological connection to the child, were a man instead of a woman. In other words, Kristina has not shown that a case involving a man in Charisma’s circumstances would be decided any differently under the law."

The due process argument presented a more serious issue, since the U.S. Supreme Court has protected the right of biological parents, if not proven unfit, to make decisions about the contact of their children with third parties, the key recent precedent being Troxel v. Granville, 530 U.S. 57 (2000), in which the Supreme Court invalidated a state law that mandated allowing grandparents to have visitation rights over the objection of biological parents. But the California appeal court found Troxel distinguishable in this case, because Charisma is deemed a parent, not a legal stranger, under California law.

"Troxel is inapposite," wrote Simons. "There, the court considered a nonparental visitation statute; at issue here is a statute determining the identity of Amalia’s parents. Unlike the order in Troxel, the order declaring Charisma a parent of Amalia by definition did not extend rights to a non-parent. . . In this case, Kristina and Charisma decided to have a child together, they jointly pursued the goal of Kristina becoming pregnant, and Charisma was present at the birth and cut the umbilical cord. Kristina’s parentage claim arises from the fact that she gave birth to Amalia. And, at the time of the birth, Charisma had an inchoate parentage claim because she ‘actively consented to, and participated in, the artificial insemination of her partner with the understanding that the resulting child would be raised by [Kristina] and her as co-parents.’ Charisma’s parentage claim was not legally complete until she accepted Amalia into her home, but it arose at the same time as Kristina’s claim. Because Charisma ultimately satisfied the legal standards for presumed parent status and her showing was not rebutted, declaring her a parent is not giving parental rights to an unrelated individual; it is recognizing the parental role that existed from birth."

The court pointed out that Kristina’s "true complaint is that the state has seen fit to declare a person without a biological connection to Amalia a parent." But the court found that Kristina had presented "no authority or reasoned argument that a state infringes on a biological parent’s substantive due process rights by extending parental status to a nonbiological parent in the circumstances of this case. It may be that there are different circumstances in which such an order would be unconstitutional, but any such determination would require a careful analysis of the specific facts and interests involved in the case." The court pointed out that a careful balancing of interests would be needed in such a case, and that the child’s interest in maintaining ties with the co-parent would also have to be weighed in the balance, not just Kristina’s interest as a biological mother.

The court rejected an argument that the recommendations of the evaluators appointed by the court were biased because it was shown that at one time they had been donors to the National Center for Lesbian Rights, which had provided some assistance to Charisma in this case, and also rejected a claim that the trial judge was biased against Kristina. Finally, the court rejected the trial judge’s conclusion that the costs of reunification could be born by Charisma without any assistance from Kristina, noting that the statute authorizes such expenses when it is in the interest of the child to be reunified with the parent and travel expenses as a result of a custodial parental move would make it difficult for the non-custodial parent to participation in those activities.

Given Liberty Counsel’s participation in the case and the raising of constitutional questions of first impression, it is likely that an appeal will be sought.

Indian Court Rules on Colonial-Era Sodomy Law

It was quite exciting to read the opinion by Chief Justice Ajit Prakash Shah in the decision in Naz Foundation v. Government of the National Capital Territory of Delhi, WP(C) No. 7455/2001, issued today (July 2) by the High Court of Delhi at New Delhi.  In this case, a human rights organization brought a declaratory judgment action seeking a declaration that Section 377 of the Indian Penal Code, a provision drafted and first enacted during the British government of the 19th century, violates the Indian Constitution, at least as applied to the private conduct of consenting adults.  The statute, in typical Victorian language, outlaws "unnatural offenses" - what in other settings were usually called "crimes against nature" that were "not fit to be named among Christians."  Whether they are fit to be named among Muslims and Hindus is another question....  According to an article published quickly in The Times of India, this opinion will have nationwide effect, although of course subject to appeal to the Supreme Court.

In any event, the British administration imposed this statute (which had no real predecessor in Indian local law) on its colony, and the statute survived the transition to independence, in India as in other former British colonies.  The NAZ Foundation, pointing to legal developments in other major world powers, calls on the court to find that the law violates the rights to liberty and privacy guaranteed in Articles 14 and 15 of the Indian Constitution.  The government's response is divided - the Justice Ministry argues to uphold the law, while the Health Ministry argues for it to be struck down.  The Law Reform Society has already called for it to be replaced with specific provisions outlawing rape and sex involving minors, effectrvely decriminalizing consensual adult sex.  The evidence on the ground is that the law is not enforced as such against homosexuals, but is used as a basis for police harassment, discrimination, gay-bashing, etc., and, according to the Health Ministry, has proved an impediment to HIV prevention work.

The court finds that this law invades privacy rights that have become well established under the Indian constitution in other spheres, and also that it discriminates on the basis of sexual orientation, a form of discrimination that the court finds is forbidden by analogy to other kinds of discrimination that have been found to violate the equality requirements of the Constitution.  In other words, this case finds, in effect, both substantive due process and equal protection violations, going one step further than the US Supreme Court went in Lawrence v. Texas (2003). 

This is the ruling of a territorial or provincial court, not a nationwide appellate precedent, but it is an important start.  When the case was first filed, the court had ruled that NAZ Foundation could not bring such an action, but an appeal to the nation's Supreme Court resulted in a reversal and a remand for the court to consider the challenge on the merits.  This opinion, running more than 100 points and containing exhaustive citation both to prior Indian decisions as well as decisions from many other jurisdictions, including Canada, the US, South Africa, and Europe (Court of Human Rights), is full of exiting quotable language, especially about the importance of respect for diversity and difference in modern Indian constitutional law.  Will the government appeal this, or will it accede to the views of the court and undertake the reform that has been promised - in a wobbly and indefinite sort of way - by the current government? 

This is hardly the first former British colony to declare its colonial-descended sodomy law invalid.  South Africa was there earlier, and several other such decisions, including one by the highest court in Hong Kong, are cited in this case.  Perhaps the government will see no need to prolong the agony, and will take the necessary legislative steps to comply.  The court quotes at length from statutory language proposed by the Law Reform Society to make the necessary changes.  (Without 377, it is argued, there is no statutory basis to prosecute rape or child abuse.) 

Congratulations to NAZ Foundation and their counsel: Anand Grover, Trideep Pais, Shivangi Rai, Mehak Sothi, and Tripti Tandon.

Federal Judge Finds Dismissal of Transgendered Employee May Violate the Constitution

U.S. District Judge Richard W. Story ruled on June 25 that Georgia legislative officials may have violated the 14^th Amendment’s Equal Protection Clause when they terminated an employee because she was undergoing gender transition. Rejecting a motion to dismiss by five Georgia officials who are charged with responsibility for the dismissal decision, Judge Story found that Vandiver Elizabeth Glenn’s complaint "clearly states a claim for denial of equal protection" on alternative theories of sex discrimination or discrimination on the basis of a medical condition, gender identity disorder. Glenn v. Brumby, 2009 Westalw 1849951 (N.D.Ga.).

Lambda Legal staff attorneys Cole Thaler and Gregory R. Nevins, in Lambda’s Atlanta office, represent Glenn.

The ruling is significant in going beyond Title VII, the federal employment discrimination statute, to find a federal constitutional basis for challenging a state government employer’s discrimination against a transgendered employee.

According to Judge Story’s opinion, Glenn, perceived by the defendants as male, was hired by the Georgia General Assembly’s Office of Legislative Counsel in 2005 to be a Legislative Editor, in which position she was charged with editing proposed legislation and resolutions for grammar, spelling, and format. She did not have any policy-making role.

Glenn was diagnosed with gender identity disorder in 2005, and her doctors determined that gender transition was a "medically necessary treatment" for her. In line with the accepted medical protocol for dealing with gender identity disorder, they recommended that she begin living full-time as a woman prior to undergoing gender reassignment surgery.

In October 2006, Glenn informed her immediate superior at work that she was a transsexual who planned to transition in 2007. The superior, Senior Editor Beth Yinger, responded that she foresaw no problem with this, but when Glenn showed up to work on October 31 garbed and groomed as a woman, Yinger’s boss, Sewell Brumby, sent her home as "inappropriately dressed." In July 2007, Glenn notified Yinger that she intended to proceed with gender transition, and a few months later provided educational materials to Yinger, who passed them along to Brumby, who told Yinger he would consult with legislative leaders about how to handle the situation.

On October 16, 2007, Brumby met with Glenn, confirmed that she planned to go ahead with gender transition, and then discharged her. Brumby’s stated reason for the discharged, as described by Judge Story, was that "in the view of Glenn’s employers, gender transition surgery and presentation as a woman in the workplace would be seen as immoral, could not happen appropriately in Glenn’s workplace, and would make other employees uncomfortable."

Glenn sued based on two equal protection theories: discrimination on the basis of medical condition, and discrimination on the basis of sex. The defendants moved to dismiss, arguing that she was attempting to bring a "class of one" equal protection claim, of a type the Supreme Court recently ruled cannot be asserted in the context of government employment. According to the Supreme Court’s 2008 decision in Engquist v. Oregon Department of Agriculture, a government employee can assert an equal protection claim only by showing that they encountered discrimination because of membership in a particular group.

Judge Story found that Glenn’s allegations were "not consistent with a class-of-one claim," because she did not asset that the defendants acted against her because of "characteristics unique solely to Glenn," but rather because of her gender identity disorder and her sex, characteristics shared by others.

Story found that there is precedent in federal law for finding an equal protection violation based on the way a government employer deals with an employee with a particular medical condition. The most obvious example are cases alleging discrimination on account of HIV status. In such cases, the court applies rationality review, and the government’s action can be challenged by showing that there is no legitimate non-discriminatory justification for the discrimination. As to sex discrimination, federal courts have held that a higher standard applies. Sex discrimination is presumptively unlawful, and the burden is on the government to show that it has an important policy justification for discriminating based on sex. It is now well-established in federal law that discrimination based on the failure of an individual to conform to sexual stereotypes is a form of sex discrimination.

In this case, Story wrote, Glenn had met the burden of showing that she was treated differently based on her GID and her failure to conform to sexual stereotypes, and had placed into question the legitimacy of the employer’s reason for discharging her. "Defendants do not claim that Glenn’s transition would have rendered her unable to do her job nor do they present any government purpose whatsoever for their termination of Plaintiff’s employment," wrote Story. "Indeed, ‘no government interest has been identified... and this issue is properly a question to be decided should the court reach the merits of this claim,’" he wrote, quoting from the prior case about HIV discrimination, Doe v. U.S. Postal Service (1985).

As Story pointed out, "Anticipated reactions of others are not a sufficient basis for discrimination. Furthermore, unequal treatment fails even the most deferential equal protection review when ‘the disadvantage imposed is born of animosity toward the class of persons affected,’" he asserted, quoting the Supreme Court’s landmark gay rights opinion from 1996, Romer v. Evans.

Judge Story’s denial of the motion to dismiss, in language suggesting that the defendants’ case as described so far has no legal merit, is likely to lead to some sort of settlement rather than a trial.

Two Gay African Felons Denied Relief by Third Circuit Under Convention Against Torture

Two gay men from Africa who engaged in criminal activity in the United States and thus were found statutorily ineligible for asylum or withholding of removal were also denied relief under the Convention Against Torture (CAT) by different panels of the U.S. Court of Appeals for the Third Circuit. In each case, the court found that the petitioner had failed to show that he would be likely to be subjected to government-imposed or abetted torture in his home country if deported. Mark v. Attorney General, 2009 WL 1497248 (3^rd Cir., May 29, 2009) (not officially published); Awuku v. Attorney General, 2009 WL 1741500 (3^rd Cir., June 22, 2009) (not officially published). Both opinions were per curiam.

In the earlier of the two cases, Mr. Mark, a native and citizen of Liberia, entered the U.S. on a visitor’s visa in 1988 and had "temporary protected status" until 2000. His conviction on drug-dealing and possession charges led to felony convictions and a cumulative sentence of 57 months, and Homeland Security sought his deportation. Under the law, a felon sentenced to 60 months or more must be deported. Mark argued that the Attorney General should exercise discretion to grant withholding of departure, which is possible under the statute for felons sentenced to fewer than 60 months, or should grant relief against deportation under the Convention Against Torture (CAT).

As summarized by the court, "He testified that, before he left Liberia at age twenty, fellow students taunted, beat, and on one occasion stabbed him because of his homosexuality. He testified that he was never arrested because of his homosexuality, and that police instead sometimes helped him and made sure he got home safely. He also fears that he will not be able to obtain HIV medication in Liberia." The Immigration Judge (IJ) found him ineligible for withholding of removal or CAT relief, and he appealed to the Board of Immigration Appeals, which adopted the IJ’s reasoning and denied relief.

The 3^rd Circuit panel noted that it was up to the Attorney General, not the court, to exercise discretion on whether to consider a particular applicant’s felony record as not serious enough to require deportation when his cumulative sentence fell below 60 months. As to the CAT claim, the IJ had mentioned that there was some evidence in the record that "homosexuality is illegal in Liberia," but that Mark had not presented any evidence "that he would be arrested or subjected to mistreatment, whether rising to the level of torture or otherwise, if returned to Liberia." When questioned at the hearing, Mark, who represented himself pro se, testified: "I didn’t know what will happen, Judge, when you send me back home. I don’t know. I don’t have no clue what will happen to me when I, send me back home. And I’m scared."

The court stated that the burden is on the applicant to prove eligibility for relief under the CAT, and that although the IJ is responsible for seeing that a hearing record is made on the necessary facts, the burden of proof nonetheless remains with the petitioner. In this case, the IJ considered the State Department country report on Liberia as well as a newspaper article indicating that the country was cooperating with the UN on a program to provide access to HIV medication. Neither of these sources supported a contention that Mark would more likely than not face torture in Liberia, and he presented no specific evidence that this was likely, merely stating his fears. Thus, the 3^rd Circuit rejected his appeal.

In the second case, Mr. Awuku, a native and citizen of Ghana, had entered the U.S. in 1993 and received lawful permanent resident status, but over the following years accumulated several firearm and drug convictions, and Homeland Security initiated removal proceedings. Based on his criminal record, he was statutorily ineligible for asylum or withholding of removal, so his only hope to remain in the U.S. was relief under the CAT. In this case, it appears that there was plenty of evidence in the hearing record that conditions for gay people in Ghana are horrific, but the IJ, the BIA and the court all agreed that this was not enough.

Reading the court’s summation of the evidence leads one to conclude that empathy is not a characteristic of decisionmakers in the judicial system when dealing with alien felons, especially those convicted of firearms and drug offenses. The BIA stated, with the approval of the court apparently, that for purposes of the CAT, "torture is ‘an extreme form of cruel and inhuman treatment, that does not include ‘rough and deplorable treatment, such as police brutality.’"

Consider this quotation from the opinon: "And while the IJ did note that homosexual Ghanaians face criminal penalties and sometimes abuse rising to the level of torture, he also found that Awuku had ‘failed to show that he would be identified as a bisexual or homosexual if he were returned to Ghana’ or that ‘he would in fact engage in homosexual activity in Ghana.’ But, the IJ found, even if one or both of those situations were extant post-removal, ‘the evidence did not support the conclusion that it is more likely than not that [Awuku] would be subject to torture..."

Well, what is the evidence recited by the court about conditions for gay people in Ghana? How about the State Department country report? The court quotes this: "Human rights problems in Ghana include deaths resulting from the excessive use of force by police; vigilante justice; harsh and life-threatening prison conditions; police corruption and impunity ... societal discrimination against women, persons with disabilities, and homosexuals. . . The law criminalizes homosexuality, and lesbians and gays face widespread discrimination, as well as police harassment and extortion attempts. There is a minimum misdemeanor charge for homosexual activity, and homosexual men in prison often were subjected to sexual and other physical abuse."

The court also noted a 2008 N.Y. Times article documenting that "anti-gay hysteria has been sweeping across swaths of Africa, fueled by sensationalist media reports" and specifically naming Ghana as one of the countries affected. The court also noted a United Nations report that "is replete with examples of Ghanians, and in one case an Austrian national, who were either criminally prosecuted for engaging in homosexual conduct, or who were physically assaulted by non-governmental actors because of their sexual orientation."

But evidently this court is affected by the rather narrow and peculiar definition of torture that was embraced by the Bush Administration during the past decade, concluding: "This evidence, while unsettling, is ultimately insufficient under the CAT and this Court’s case law. The record at best establishes the possibility that Awuku will suffer societal discrimination and abuse, criminal penalties, maltreatment in prison, and harassment and extortion from government officials, should he be identified as a homosexual. The record, however, fails to demonstrate that it is ‘more likely than not’ that Awuku will be tortured because of his sexual orientation or, more importantly, that any torturous acts will be ‘inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

And so Awuku, who actually was deported in March 2009 because the court had denied his motion for a stay while his case was pending, was denied relief under the CAT in this decision. As in the case of Mark, Awuku was representing himself pro se.

Let's take progress where we can get it - Delaware moving to the gay rights column

It may be just a blip on the radar screen in light of the ongoing battles to enact same-sex marriage in the big states (New York, California, New Jersey), but every little bit counts.  On Wednesday night, the Delaware legislature finished up work on approving a gay rights bill, according to a report in this morning's BNA Daily Labor Report.  The measure passed the House 26-14 and, on Wednesday night, the Senate 14-5, and was sent on to Governor Jack Markell, a Democrat.  I couldn't find any info on-line about Markell saying whether he would sign it, but I did find a news story from 2007, when Markell was State Treasurer, reporting on his testifying in favor of a pending gay rights bill at that time, so I think it's likely that he remains a supporter.

The bill does NOT include gender identity, just sexual orientation, and in that sense is a retrogression, since most recently adopted gay rights measures have also included gender identity.  There is a big exclusion for religious and religiously-affiliated organizations, but an exception to the exception - that is, the measure does apply to their employment of people in jobs that generated taxable business income.  So, for example, a church that invests in a bowling alley; the bowling alley would not be exempt from the law, just because it is owned by a church, if the income from the bowling alley is "unrelated business income" (unrelated, that is, to the church's purely religious activities).

There is also a provision stating that the law does NOT require employers to provide benefits to unmarried partners of their employees.

With those caveats, however, it is a full-service sexual orientation anti-discrimination measure, extending to employment, housing, public accommodations, etc.  And the legislature rejected various symbolic amendments proffered by the right-wingers that would have loaded it up with nonsense about what school teachers can say and reaffirmations of support for traditional marriage.

Good for Delaware.  I hope the governor signs it promptly, in time for this weekend's 40th Anniversary of Stonewall celebrations.

Indiana Appeals Court Rules for Lesbian Mom on Grandparent Visitation Claim

A unanimous three-judge panel of the Court of Appeals of Indiana ruled on June 23 in Matter of Visitation of C.LH., 2009 Westlaw 1765688, that a trial judge, Hendricks Superior Court Judge Karen M. Love, abused her discretion in ordering that the homophobic grandparents of a lesbian mother be given ten hours a month of visitation with their young grandson. Judge Edward W. Najam, Jr., wrote the opinion for the Court of Appeals. The opinion identifies all parties by their initials.

B.L.H. gave birth as a single mother in October 2001. She had a difficult pregnancy and was living with her parents at the time. She continued to live with them for several years, and they played the primary caregiver role with her son, C.L.H., until mid-2007, by which time she had established her own household. Early in 2007, B.L.H. met K.W. and they began dating. Soon K.W. had quit her job, moved in with B.L.H., and taken over the primary caregiver role for the child. B.L.H.’s job required a fair amount of travel.

B.L.H.’s parents were not happy about this development. Her mother considers homosexuality to be a sin, and when she suffered a stroke shortly after learning about K.W., B.L.H.’s father attributed the stroke to shock about her daughter’s homosexuality and lesbian partner. B.L.H. tried to maintain some sort of relationship with her parents and allow them to see the child from time to time, but their active hostility to K.W. and desire to exclude K.W. from contact with them proved a problem.

Things came to a head around Christmas time of 2007, when the grandparents thought they had a commitment from B.L.H. to bring the child to visit them and receive his Christmas presents. When B.L.H. and the child did not show up, the grandparents went to B.L.H.’s house around 9 p.m. and demanded to see the child, who had already been put to bed. When B.L.H. refused to wake the child to see the grandparents, grandfather became "very angry," told B.L.H. she should never again set foot on their property, and seemed to threaten her "if anything were to ever happen" to the child.

After this, B.L.H. cut off contact with the grandparents. After several months of no contact, they filed suit under the state’s Grandparent’s Visitation Act, seeking court-ordered visitation. They requested a visitation schedule that would be more characteristic of a non-custodial parent than grandparents, including several contacts and some sleepovers each month, as well as several weeks in the summer. B.L.H. formally opposed the lawsuit, but indicated that she might be amenable to working out some kind of visitation scheme informally.

Judge Love appointed a Guardian Ad Litem, who interviewed all parties and submitted a report to the court indicating that B.L.H. is a fit parent, that K.W. was providing good care to the child, who was well-adjusted and doing well in school, and that the visitation schedule sought by the grandparents was not "realistic." The Guardian Ad Litem concluded, "Mother is a fit parent and appears to be making decisions based on what she believes to be in [C.L.H.’s] best interests. She has reasons for denying Grandparents visitation with [C.L.H.] which are valid given the interactions between the family members over the last year or so."

Nonetheless, Judge Love determined to award substantial visitation time to the Grandparents, premised largely on their significant role as primary caregivers during the child’s preschool years, and the likelihood that they would provide the only link for the child with their extended family, since B.L.H. had cut off contact with her sister and other relatives. Judge Love had noted that the child had become best friends with a cousin who was around his age, but that this contact had also ceased.

Judge Love found that it would be in the best interests of the child to maintain contact with the grandparents, order ten hours of visitation a month, while opining, "What would be ideal for [C.L.H.] would be for Grandparents to find a way to accept Mother’s homosexuality, to welcome [K.W.] as part of Mother and [C.L.H.’s] family and to understand that, while they filled an extremely important role in [C.L.H.’s] life from birth through pre-school, they are not his parents and do not have the status of parents nor the right to make demands upon Mother. Further, it would be ideal for [C.L.H.] if Mother could find a way to forgive her parents for their negative response to her homosexuality and her choice of partner, to see from their perspective their understandable hurt after being pushed out of [C.L.H.’s] life and Mother’s life, and to find a way to give [C.L.H.] the gift of not only a loving immediate family, but also a loving extended family."

Judge Najam found the most significant flaw in Judge Love’s ruling was the failure to give appropriate weight to B.L.H.’s constitutional rights as a parent. If a legal parent is fit, then there is a strong presumption, enforced by substantial federal due process rulings, that her decisions about the raising of her child, including with whom the child associates, are binding and take priority over the desires of third parties. He noted that in prior rulings, the court had observed that the Grandparent’s Visitation Act contemplated "occasional, temporary visitation as found to be in the best interest of the child," and that "the Grandparent’s Visitation Act carves out a narrow statutory exception to the otherwise sacrosanct parental authority in a child’s upbringing."

Yet Judge Love’s award of ten hours visitation per month, in the face of discord between the mother and the grandparents that was largely instigated by the grandparents, failed to comport with this narrow approach. "The ultimate question is whether visitation in the face of family discord is in the child’s best interest," wrote Judge Najam. "Here, the trial court’s visitation order is not supported by its findings or the undisputed evidence. The record reveals a significant level of discord between Grandparents and Mother due to Mother’s relationship with K.W. and K.W.’s relationship with C.L.H. The trial court found that the parties ‘hurt’ one another, but the court’s order does not indicate that it considered the totality of the circumstances in determining the best interests of C.L.H."

Najam pointed out that the Guardian ad litem had found the B.L.H. had "valid" reasons for denying visitation to her parents. "While a trial court is not required to accept a parent’s reasons for denying visitation with grandparents as necessarily true, here, the undisputed evidence shows that Mother is a reasonable person and has a rational basis for the decision, which she did not come to easily," wrote Najam. "The trial court did not make any finding regarding the validity or reasonableness of Mother’s decision."

After noting that B.L.H. tried to maintain some relationship with her parents despite their disapproval of her sexual orientation and her partner, and that she gave up on this "after she felt physically threatened by Grandfather" at Christmas time in 2007, Najam asserted that the grandparents "did not have clean hands when they filed their petition for visitation. Confrontations initiated by Grandparents created unnecessary conflict and stress within the family. While they are entitled to their opinions concerning Mother’s relationship with K.W., Grandparents’ open hostility toward Mother created an unhealthy environment for C.L.H. In time, when civility is restored, Mother and Grandparents may reach a private reconciliation which enables Grandparents to visit with C.L.H., but under the circumstances Grandparents have failed to show that it is in the best interests of C.L.H. for the State to intervene and compel visitation against the well-founded concerns of Mother, who is a fit parent."

Kathleen M. Sweeney and Robert A. Schembs of Indianapolis represented B.L.H. on the appeal. Surprisingly, in light of their having instituted the lawsuit, the grandparents did not respond to the appeal to protect their victory in the trial court, leaving the court to make its ruling based on the trial record and the arguments of B.L.H.’s attorneys.

Missouri Appeals Court Rejects Lesbian Co-Parent Custody and Child Support Claims

A three-judge panel of the Missouri Court of Appeals, Western District, ruled on June 23 that a lesbian co-parent’s attempt to establish legal ties with the child born to her former partner could not be entertained on the merits under Missouri’s archaic family law, and that she also could not seek financial support from her former partner for the child whom she bore during their relationship. The court noted but never mentioned any significance of the fact that both children were conceived with sperm from the same anonymous donor, and thus they are biologically half-siblings.

The ruling in White v. White, 2009 Westlaw 1748551, drew a partial dissent from one member of the panel, who thought that the child support action should have been allowed under an estoppel theory.

The two mothers, Leslea Diane White and Elizabeth Michelle Crowe, were partners for about eight years beginning in 1997, according to the opinion for the court by Judge Joseph M. Ellis. They agreed to have children and raise them together as one family. Michelle, who had changed her surname to White during the relationship, bore C.E.W. in December, 2001. Then Leslea bore Z.A.W. in July 2004. The mothers’ relationship terminated in November 2005.

"For the next several months," write Judge Ellis, "the children lived part of the time with Leslea and part of the time with Michelle," but in May 2005 Michelle decided to cut off any contact between Leslie or Z.A.W. and C.E.W. Thus, the half-siblings were denied further contact, and Leslie was denied further contact with C.E.W., a child with whom she bonded as a parent over a period of more than three years. "It appears that neither the children nor the women have had any contact with each other since that date," observed Ellis.

The following January, Leslea sued in Boone County Circuit Court, both on her own behalf and on behalf of both children, seeking a declaration that the two women are both parents of both children. She asked the court to award joint legal and physical custody and to order both women to pay reasonable child support for the expenses of raising both children. Michelle filed a motion to dismiss the case, claiming that Leslea lacking standing to assert these legal claims and that the Missouri Uniform Parentage Act, which Michelle argued was the exclusive vehicle for determining issues of parentage in the state, provided no legal basis for Leslea’s claims. Leslea relied on a construction of the Uniform Parentage Act that has been adopted in some other states, as well as various common law and equitable theories.

The Boone County Family Court Commissioner rejected Michelle’s motion, but on appeal Circuit Court Judge Gary G. Augustine reversed this decision and dismissed the case. Leslea appealed to the Court of Appeals.

The court rejected Michelle’s argument that the Missouri Uniform Parentage Act provides the only mechanism for determining parental status in Missouri, but otherwise ruled against Leslea on all counts.

First, the court found that the Act itself could not be construed to authorize a declaration of maternity under these circumstances. Although the Act does provide that its terms should be construed in a gender-neutral way, the court rejected the argument that this meant that a woman could seek a declaration of maternity at the same time as the identity of a child’s biological mother was already known and established. The court found that the provision for establishing parental identity was to serve to affirm biological relationships, and since Leslea is not claiming to be biologically related to C.E.W., she cannot use the statute for that purpose.

Turning to non-statutory arguments, the court rejected all the common law and equitable theories that Leslea had raised. It found that Missouri courts had not accepted such theories as "de facto parent" or "in loco parentis" as a basis for establishing legal parenting rights, and that old cases on which Leslea had relied concerning stepparents were no longer valid as precedents because the legislature had enacted specific provisions dealing with stepparents that displace old common law rules.

The court also rejected Leslea’s attempt to use the theory of equitable estoppel, under which courts may preclude a party from denying particular facts on equitable grounds, finding that this legal theory had been embraced by Missouri courts only in a defensive posture, not as an affirmative theory to establish standing in a custody or visitation dispute.

Finally, the court rejected Leslea’s argument that this case presented "exceptional circumstances" that would justify allowing a "third party" to seek custody even though a child’s biological parent had not been deemed "unfit." "Neither our statutes nor our case law remotely suggest that any third party that comes along has standing to bring an action seeking custody of children," wrote Ellis. This was an offensively gratuitous statement, in light of the uncontested facts that the women were in a long-term relationship when the children were conceived and Leslea was not just "any third party that comes along," but acted as a mother towards both children from their respective births until Michelle cut off her contact with C.E.W.

"Leslea has not cited, nor has our independent research revealed, any case involving third party custody that did not involve intervention in pending litigation by third parties or the third parties being named as parties in the initial custody case," wrote Ellis, finding that prior use of the "exceptional circumstances" doctrine had occurred in cases where a third party had been drawn into the litigation surrounding dissolution of a legal marriage. The court refused to draw analogies to this case.

Leslea had also argued on appeal that there was some contractual basis for her claim that the two women should be held obligated for child support for both children, but the court noted that she had not raised this claim in her original petition and argument before the trial court, so it was waived before the court of appeals. Leslea additionally raised various constitutional claims, none of which impressed the court, which rejected the argument that her right to due process or equal protection of the law was violated by denying her standing to bring this case. The court totally skirted the argument that the children themselves might have rights to maintain contact with both of their parents or with each other, for that matter, merely noting that the parenting statute does not authorize a child to seek to establish parental ties with a third party.

Judge Alok Ahuja joined with the other judges on every point except the estoppel claim, arguing that the facts alleged by Leslea could provide the basis of a claim under the contract-related doctrine of "promissory estoppel," which authorizes legal relief for somebody who has relied on an express promise and changed his or her position in such reliance. In this case, Leslea alleged that the women had both become pregnant and bore children in reliance on mutual promises that the children would be raised jointly and supported by both women. While Judge Ahuja agreed with the majority of the court that this theory could not be used to establish standing to seek custody or visitation, the judge contended that Leslea’s claim concerning child support might be established under this theory.

Lambda Legal Senior Staff Attorney Susan Sommer represents Leslea White and the children, and is preparing papers to seek permission to appeal to the Missouri Supreme Court.