Sunday, February 22, 2009

Hospital visitation and health care decisionmaking autonomy for EVERYONE

Wisconsin may be poised to go down the same road Maryland choose last year -- the conflation of recognition of same-sex couples with the needs all people have, especially LGBT people estranged from their families of origin, to hospital visits from loved ones and medical decisionmaking by the person who knows them best. (Even Obama got it wrong in his acceptance speech). And Wisconsin is actually getting it worse; they are making couples register as domestic partners to get rights that all human beings deserve.

It seems that whenever a state passes anything with the phrase "domestic partners" for same-sex couples, that's supposed to count as a gay rights win. But look at what Wisconsin actually plans to do. The couple must be same-sex only and must live together. If they register, then they can visit each other in the hospital and make medical decisions for each other.

What is wrong with this picture? Ask my 60+ year old friend in Maryland, who is single yet cares as passionately as her coupled friends about who gets to visit her and make health decisions if she can't. And she's not even estranged from her closest living relative -- a sister 2500 miles away. Think about the gay people who move to gay-friendly areas, away from families of origin. I care that the people they consider family be able to visit them in the hospital. I care that their wishes about a surrogate health-care decisionmaker be upheld.

There ARE answers. A free, easy to use, highly publicized advance directive registry. There are models in gay-unfriendly states, like Idaho, and they protect everyone. How about a law that requires hospitals to ask who you want to visit when you've admitted? It won't help emergency admissions. But the people listed in the advance directive registry should be admitted. And a "close friend" category would help, and I didn't make up that category. Many surrogate health care decision making statutes already list "close friends" among those who can make decisions. At least when no one else is at the hospital, when a person will be without visitors, "close friends" should be allowed.

I hate to put a damper on the celebrations in Wisconsin. I just think it's wrong to conflate recognition of same-sex couples with the basic human right to health care decisionmaking by the person we choose and the chance to be surrounded by loved ones in our darkest hours.

Saturday, February 14, 2009

How about the freedom NOT to marry?

Freedom to Marry week garnered more attention than usual this year, no doubt a result of all the attention to California's Prop 8 and the litigation challenging it.

Most Freedom to Marry activists say they want same-sex couples to have the choice to marry. When questioned by marriage skeptics, they assure that they don't believe everyone needs to marry; they just want gay people to have the choice, like straight people do.

I have been saying for years that this idea of a choice to marry is illusory. As long as marriage is the only way to garner economic security and emotional peace of mind -- not because it's natural but because our laws and policies make it that way -- marriage isn't a choice, for straight or gay couples.

Take my partner and me, for example. I've got a good job with health insurance, and it covers Cheryl as my domestic partner. Only same-sex couples can cover their domestic partners at my work, a policy that has irked many of my straight colleagues over the years. (Two I know of have married because of the health insurance). But the theory for providing the benefits was this: gay couples can't marry, so the way to be fair to them is to provide benefits for their domestic partners. Since straight couples can marry, they must marry, or no health care for their partners.

The District of Columbia may well allow same-sex couples to marry in the foreseeable future. Maybe my employer won't change its policy, out of deference to Virginia and Maryland employees who won't have the same option. But maybe they will. Or maybe they'll change it for DC residents. Once we can marry, their reason for extending benefits to our domestic partners will disappear.

If that happens, will anyone really believe that I have a choice whether to marry my partner? Let's see. Stand on principle and let her flounder, with her multiple health issues, without any health insurance. Or marry so that she has access to decent health care. We celebrate our 20th anniversary this month. No one can doubt our commitment. I want the freedom not to marry, and I want it for my straight colleagues as well.

But until marriage stops being the dividing line between relationships that count and those that don't, there's no freedom and there's no choice. So don't be fooled by Freedom to Marry supporters who say they are fighting for our choice. it just ain't so.

Wednesday, February 11, 2009

Delaware got it wrong; this child has two mothers

It looks like it's contagious; last year the highest court in Maryland eliminated that state's de facto parent doctrine, thereby depriving children of lesbian couples in that state the right to a relationship with and support from both their parents if only one mother legally adopted the child. Last week, the neighboring Delaware Supreme Court made the same ruling. In spite of the 10 year relationship between Lacey Smith and Charlene Gordon (pseudonyms to protect their privacy), during which the couple decided to have a child, the court ruled that the child had only one mother.

The couple had tried donor insemination and IVF. When those failed, they did an international adoption. Both women went to Kazakhstan to get the child, but only one could adopt, and it was Smith who did that. Gordon took adoption leave to care for the child and covered the child under her employee benefits. Both women supported the child. Thirteen months later, the couple split up.

The trial court ruled in Gordon's favor and awarded the couple joint custody. The supreme court reversed. It found that Gordon was not a parent under state statutes and that there is no de facto parent doctrine in Delaware. Had the couple lived in the District of Columbia, which recognizes de facto parents by statute, Gordon would have qualified. She then would have had an equal right to custody and an equal obligation to pay child support.

Had the couple's assisted reproduction efforts succeeded, Gordon could have made another argument. Consistent with the 2002 Uniform Parentage Act, Delaware makes a man who consents to a woman's insemination, with the intent to be a parent of the child, the child's parent. That's sex discrimination. It creates an avenue to parenthood for an unmarried male partner of a woman using assisted reproduction but not for an unmarried female partner under the exact same circumstances. Of course a court would have to decide that the existing statute is unconstitutional, and fix the unconstitutionality by extending it to same-sex partners, in order for the court to find two mothers. That might happen....but how about fixing this with legislation for couples who have children by either adoption or donor insemination?

Wednesday, February 4, 2009

Something's Up in Colorado

Thanks to my colleague, Tony Varona, for alerting me to new legislation introduced in Colorado allowing two unmarried people to designate each other as entitled to make medical decisions, inherit, sue for wrongful death, and more, through use of a simple form.

I discussed an earlier Colorado effort along these lines in my book. The previous proposal, however, was not open to unmarried heterosexual couples. I said in the book, and I'll say again here, that any scheme that omits unmarried heterosexual couples reinforces the supremacy of marriage. It tells straight people that if they want to protect the economic or emotional security of their families they need to marry. And it tells everyone else that they have second-rate families and relationships, and since they can't marry the state will throw them some kind of bone.

Sure enough. The article reporting this legislation quotes a sponsor of the previous bill, Senator Shawn Mitchell, as opposed to this one because it includes different-sex couples. That, he says, dilutes marriage. Good thing, I say. And here's what a whole lot of Colorado folks have to say about the bill.

Beyond Marriage Goes to Creating Change

Creating Change was fabulous as usual. "Beyond marriage" ideas showed up in several ways. At a Thursday morning plenary for some of the day-long institutes, activist Urvashi Vaid's top-10 list included expanding relationship recognition. (It was number 4) "Why ask for what exists?" she asked. "We need to broaden the definition of family." And then she recommended my book to everyone! A proud moment for me, indeed.

Queers for Economic Justice held a reception and honored two of the original drafters of the "Beyond Marriage" statement, Richard Kim and Suzanne Pharr. QEJ executive director Joseph DeFilippis was a major coordinator of the meeting from which the Beyond Marriage statement emerged in 2006. Kenyon Farrow, emcee of the QEJ event, referred to the statement, and to QEJ's commitment to its principles. Congratulations to Richard and Suzanne for well-deserved recognition!

"Beyond Marriage 2009" was the workshop session I coordinated. Terry Boggis, director of Center Kids, the families program at NY's LGBT Center, described the kinds of family structures served by the center and the way in which marriage fails to speak to their needs. For example, she described one family consisting of a lesbian and a gay man who decided to raise a child together and live in the same apartment building. Debanuj Dasgupta focused on immigration issues, urging LGBT participation in immigration reform. He pointed out the limitations of the Uniting All Families Act, especially the income requirements. Nicky Grist, ED of the Alternatives to Marriage Project, highlighted that amazing group's work on health care issues. (How do they do so much with such a small budget? And imagine what they could do with more funding!)

I highlighted the campaign to end federal funding of marriage promotion. And I discussed paid sick leave laws, urging those in states where bills have been or might be introduced to urge the broadest possible definition of sick family members for whom an employee can use that leave.

Many people, at different points throughout the conference, talked to me about plugging into a "beyond marriage" movement. Sigh. I wish we had one!