Monday, June 28, 2010

William L. Taylor, 1931-2010

Civil rights lawyer, William L. (Bill) Taylor, died today at Suburban Hospital in Bethesda, Maryland. I knew him also as the father of Lauren Taylor, one of my oldest friends.

Bill was responsible for the strategy that, in 1987, led the Senate to defeat President Reagan's nomination of Robert Bork to sit on the Supreme Court. The Justice we got instead was Anthony Kennedy, author of the Court's two landmark gay rights cases, Romer v. Evans and Lawrence v. Texas. Just today, Kennedy was the swing vote in Christian Legal Society v. Martinez, the Court's ruling upholding the right of Hastings Law School to deny official recognition to a student group that excluded unrepentant gay men and lesbians.

Because of Bill's role in Bork's defeat, without which Kennedy would not serve on the Court, I feel enormous gratitude for Bill's efforts and for the benefits that the LGBT community reaped as a result of his work. Bork would have been Scalia's evil twin; when it comes to gay rights, Kennedy has been Scalia's nemesis.

I've written more about Bill's contribution and his passing here. Thank you, Bill. Your memory is a blessing.

Sunday, June 27, 2010

Another adult adoption story

Readers of this blog know my interest in the historical practice of a gay man or lesbian adopting his/her same-sex partner as a means of creating a legal relationship. Here are my previous posts.

Well, this week's Washington Post Sunday "On Love" page features the marriage of Bob Davis, 89, and his partner of 62 years, Henry Schalizki, 90. Deep in the article, Henry reports that he adopted Bob in 1990. Presumably summarizing the reasons the couple gave for that decision, the article states, "It gave them legal protections, offered an advantageous inheritance tax rate [my comment: I'm not sure what that would be], and made the pair into a family."

Six paragraphs later, in parentheses, the article notes that the adoption was nullified several weeks before the couple's wedding. Had it not been, incest laws would have barred their marriage. Adoption is not like marriage; there's no equivalent to divorce if it doesn't work out. That's one reason gay and lesbian family lawyers have been reluctant to advise a same-sex couple to go the adoption route.

So this article sent me to the DC Code. (Given that the couple moved to DC in the 1950's, I'm assuming the adoption was granted in DC). "Jurisdictional or procedural" grounds for challenging an adoption must be filed within a year of the decree, but otherwise the statutes are silent on when an adoption can be invalidated. I imagine the couple filed for "equitable" relief invalidating the decree so that they would be free to marry. They are fortunate that the DC Code appears to allow a judge the leeway to grant such an order. Otherwise, they would still be father and son.

Friday, June 25, 2010

HHS proposed regs on hospital visitation ignore the needs of those incapable of naming visitors

If ever there was a bi-partisan no-brainer it is that every hospitalized patient should be able to name his or her visitors, subject to a medical reason to exclude them. The proposed regs emerging from the Obama administration (on line now but subject to official publication on Monday) accomplish no more than that.

But what about emergencies, about patients unable to name their visitors? The proposed regulations are entirely silent on that, and we need comments in droves to get these regs to really meet the needs of the LGBT community.

To put this in perspective, I can only think of one well-known story of denied hospital visitation that would have been helped by the proposed regs. Julie Goodridge (of the famous Massachusetts marriage case - now divorced, but I digress) entered the hospital for the birth of the couple's daughter, and after complications and a cesarean section, her partner Hillary was denied the ability to visit her or their baby. (Hillary waited until the nursing shift changed and then identified herself as Julie's sister and got in.) Presumably when Julie entered the hospital she would have, if asked, identified Hillary as a visitor. The proposed regs require hospitals to tell patients they can choose their visitors.

But other cases, including Janice Langbehn's, for all the attention she has received from President Obama, are beyond the scope of these proposed regs. Janice's partner, Lisa, was an emergency admission. So was Robert Daniel, whose partner, Bill Flanigan, was denied access to him. (Lawsuits filed as a result of the actions of these hospitals failed). And Sharon Kowalski, whose partner, Karen Thompson's, battle to care for Sharon began when the hospital refused her access to Sharon on the night of Sharon's car crash.

Comprehensive regulations must address emergency circumstances by directing hospitals to admit certain categories of individuals as visitors. Here's my list: anyone named in a medical power of attorney, including alternates; anyone residing with the patient; anyone whose relationship to the patient places that person anywhere on the state's list of surrogate decisionmakers should the patient not have a medical power of attorney (this last one is very important as about 20 states include "close friends" on the list, and many LGBT individuals acknowledge their close friends as their family); and domestic partners. Now that federal regulations on sick leave by federal employees include and define the term "domestic partner" there is every reason to include this category in those who must be allowed to visit a hospitalized patient unable to name visitors.

Maybe there are better ideas than mine. So let's get talking. The one thing I know is that the proposed regs are painfully inadequate.

Thursday, June 24, 2010

West Virginia Supreme Court closes a door on co-parent guardianship...and never identifies the relationship of the two women involved

If you use the words "lesbian" or "same-sex couple" to search for court opinions on lesbian couples raising children, you would miss In re Richard P., handed down earlier this month by the West Virginia Supreme Court. In that case, two women, Cary and Jennifer, filed a petition to appoint Cary as the legal guardian of Richard and Devon, the two children Jennifer bore when she was married to Richard A. The opinion states that the two women reside together with the children, but it does not characterize their relationship in any way.

The case is important as a reminder of the large number of women who become mothers while in heterosexual marriages and later leave those marriages and come out. Even though we talk primarily about the children that lesbian couples plan for together, especially the legal issues involved in those cases, more same-sex couples raising children are like Cary and Jennifer -- raising a child born to one mom while she was married to a man.

In this case, the children's father was a particularly despicable sort. After being charged with sexually molesting his sons, he pled guilty to a lesser offense of "dissemination of matter harmful to minors." He was later convicted of molesting the 13-yr-old daughter of his girlfriend. He was not involved in this litigation.

Cary and Jennifer wanted Cary to adopt the children, but as an "interim measure" they sought guardianship for Cary so that she could make medical and educational decisions about the children, and to create stability for the children in case Richard tried to reassert parental rights. It's not clear why they were not filing for the adoption, but perhaps they were apprehensive about the home study that would have been required or they are in a West Virginia county that has not granted second-parent adoption. Also, although they stated that the father's parental rights had been terminated in Indiana, there was no evidence of this in the record, and the couple may not have wanted to give him notice of an adoption proceeding. The couple had concrete examples of times Jennifer was unavailable and third parties refused to allow Cary to make decisions concerning the children's medical care. In one instance, Cary was not allowed to visit Richard when he was hospitalized.

The record included a report about 13-yr-old Richard's psychological problems that referred to Cary and Jennifer as "nurturing parents." (emphasis mine). The couple referred to Cary as a "psychological parent," and the court specifically says that both women have "acted as parents" to the boys. At one point the opinion notes that "because Jennifer often travels for work, while Cary stays at home, Cary is frequently the parent who first responds to medical and other emergencies in the family." (emphasis mine). This matter-of-fact acknowledgement of Cary's role comes with absolutely no mention or discussion of the nature of Jennifer and Cary's relationship with each other.

The court concluded that it lacked the statutory authority to grant the couple's petition. A guardianship would have been proper if Jennifer was relinquishing parental authority or if she was gravely ill. The court was sympathetic to the needs of the family and noted that the couple's understandable goals could be met by executing a power of attorney. To clarify the law, the court explicitly stated that a power of attorney could be used to give "medical, educational, and other legal decisionmaking another adult." The court also noted that Jennifer could name Cary a "testamentary guardian" in her will and that a newly enacted statute, the "Caregivers Consent Act," would allow the creation of an affidavit that would give Cary the ability to consent to health care for the children. The court thus thought the couple could achieve all their objectives using laws other than the guardianship statute.

I read this court ruling in the BNA Family Law Reporter. Their headline for the opinion reads,"Mother and Friend May Not be Appointed as Children's Coguardians." I was intrigued, and I actually expected that the case would involve friends raising a child together. But it sure doesn't read that way. Given the use of the term "parent" to describe Cary, I think a better headline would have been "Mother and Co-parent..."

We are everywhere. Even when we don't say so.

Tuesday, June 22, 2010

New FMLA regs clarify what was already the law so let's not claim this is a dramatic shift

When the Obama administration issues its regulations on taking leave to care for a partner's child under the Family and Medical Leave Act, it will simply be reiterating what is already the law. It makes me a tad crazy that the new regulations suggest they are a change. While I believe that employers might have acted in violation of the law in the past (as the story of one couple in this New York Times article suggests), the regulations implementing the FMLA have always extended the right to leave to care for a child to whom one stands "in loco parentis." Such a person is anyone who is acting as a parent to a child, and the regulations have always made clear that neither a biological nor a legal relationship was necessary.

Now the NY Times article accurately states the language of the existing regulations, but still its thrust is that the Obama adminstration is doing something new; the first sentence of the article says that Obama's actions "expand" the rights of same-sex couples with children. But adding language that explicitly names the nonbiological parent in same-sex couple is not the same as "expanding" the law when the law already covers those relationships. I would concede that the new regulations clarify the law by expliciting naming same-sex couples and their children.

This is not a minor quibble. The language of the statute referring to "in loco parentis" relationships always recognized, since the FMLA's passage in 1993, that children may be cared for by individuals who are neither a legal nor a biological parent. To fulfill the law's purpose of allowing a worker to care for a sick or newborn child without losing his or her job, the law had to encompass all the circumstances under which an employee may end up with day-to-day responsibilities for a child's care and support. And it did. From the beginning. And if the statute was not clear enough, the original regulations explicitly stated that a legal or biological relationship was not required.

What more did a nonbio mom or dad need to take leave to care for a partner's biological child? Nothing. And many nonbio parents have taken such leave. (I did an informal survey of lawyers around the country about this in 2007, and this confirmed the availability of the leave for nonbio parents). The Tucson nonbio mom mentioned in the NY Times article could have filed a complaint against her employer, and she would have won -- not to take care of her partner, but to take care of their child. If she assumed the law would not apply to her parental relationship because it did not apply to her partner relationship, she was wrong.

I'm dismayed about the coverage of this for another reason. In my mind it plays into the idea that if a same-sex couple is not explicitly included within a law then the law provides them no benefits. But this wasn't true for the federal employee sick and bereavement leave policy that was the subject of final regulations last week. (See my earlier post.) Same-sex couples had been entitled to use their sick leave to care for one another because they fell within the larger category of those with a "close association." And that broader formulation meant that relationships beyond "couples" could also qualify for the leave.

For FMLA leave, same-sex couples can't be named because that would require a statutory change, but parent-child relationships exist independent of couple relationships. The "in loco parentis" standard was always the right standard; it's not because of a woman's relationship with her partner, but rather because of her relationship with the child that she should be allowed FMLA leave. And that's been in placed for the better part of the last two decades.

There is value in explicit naming. But it also turns the issue into part of the culture war about same-sex relationships and same-sex marriage. That's not where it belongs. No one should object to an adult taking leave to care for a child for whom s/he has day-to-day responsibility.

Tuesday, June 15, 2010

Final OPM regs value broad range of relationships and should be model for other reforms

I posted last fall about proposed regulations from the Office of Personnel Management concerning for whom a federal employee may use sick or bereavement leave. Yesterday, OPM issued the finals regs, in the process responding to comments received on the proposed regs.

The lesson from the definition of family in these regs is not just how family is defined, but the chronological process getting us to this definition. Had employees previously been able to use leave only to care for a spouse, I would have expected, in response to the President's directive to extend to same-sex couples whatever benefits did not require Congressional action, that some version of same-sex only "permanent partners" or "domestic partners" would have been added. After all, immigration reform seeks to add same-sex permanent partners, and extension of employee health insurance benefits seeks to add same-sex domestic partners. No talk of a broad definition of family there, and no ability for different-sex couples to eschew marriage if they wish to benefit from the relevant law. (The vast majority of countries that allow same-sex partners of citizens to immigrate also allow the unmarried different-sex partners to immigrate; it's the relationship that counts, not the formal legal status. Readers of this blog know I write frequently about how much marriage matters in American law (and shouldn't) as compared with all other Western countries...see a post here about Canada.)

Well for many years (dating back to Clinton), federal employees have been permitted to use their sick leave to care for "any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship." The regs finalized yesterday do not eliminate this definition; they merely provide specific examples of relationships that already fall within that definition, making explicit what the law already required (and acknowledging that there had been some inconsistency among agencies about applying the legal standard). The commentary to the regs states that the government is providing no additional benefit but rather clarifying that domestic partners (same-sex and different-sex) come within the existing definition.

In leaving in place the broad language, the commentary makes clear that a "close friend" can also be covered, "to the extent that the connection between the employee and the individual was significant enough to be regarded as having the closeness of a family relationship even though the individuals might not be related by blood or formally in law." This category is critical for LGBT individuals, especially those without partners, because our "chosen family" is so often our only or primary family. OPM specifically declined to provide an exhaustive list of relationships that come within the "close association" clause, prefering a case-by-case determination.

I lament LGBT advocacy that focuses on achieving for same-sex couples what heterosexual couples have -- the access to marriage (or its equivalent), with marriage the gatekeeper to all benefits and obligations, or, when marriage is not available, the access for same-sex partners to what married heterosexuals have (and no option other than marriage for different-sex couples). My book urges a much broader recognition of families and relationships, and I specifically advocated the federal sick leave definition as a model for all laws designed to facilitate a person's caretaking responsibilities.

The broad definition came at a time when explicit acknowledgement of same-sex partners might have triggered a political response. The language on "close association" and "equivalent of a family relationship" got so little attention that I had never heard of it and was shocked when I found it (and found regulations making clear that "nontraditional" families were included). Indeed, as I spread the word about this leave policy, I found no one in a gay advocacy group who had heard of it (except gay federal employee groups). This broad view of family is so much better than the narrow lens of marriage, but has been all but eclipsed by marriage advocacy. But the reality is that the new regulations could not cut back on the existing policy; that would have been politically indefensible. But broadening from marriage (or civil union/domestic partnership) to a broader definition just does not seem to happen. Ever. And that's a loss to far too many in our community.

Monday, June 7, 2010

Research shows good results for 17-year-old children born to lesbians using donor insemination

I remember the mid-1980's. My daughter was a toddler. Lesbians planning to bear or adopt children alone or in couples was still pretty new. There was no research, and as research came out, it faced the criticism that there were no longitudinal studies. San Francisco-based psychiatrist Nanette Gartrell saw a need and stepped in. When she told me she was planning to study through adulthood the children of lesbians born of donor insemination, it sounded ambitious and very far off. But that's how the US National Longitudinal Lesbian Family Study began.

Today, in the journal Pediatrics, the official journal of the American Academy of Pediatrics, Gartrell and collaborator Henny Bos published the results of their research on the psychological well-being of the children at age 17. You can read the entire article here. The researchers compared the 78 children of lesbians to norms used extensively in studying adolescents (a data set of 93 children from Dr. Thomas Achenbach) and found that the children of lesbians did better on every measure than the comparison group.

Gartrell and Bos speculate that these findings may be the product of how well planned-for they were; the parents active involvement in their children's education; and the use of verbal limit-setting more than corporal punishment or power assertion.

I found the comparisons within the group of children of lesbians studied especially interesting. 56% of the co-parenting couples had separated by the time their child was 17, and the children whose mothers had separated fared as well as the children whose mothers remained together. (71% of those who separated had shared custody, a figure substantially higher than divorced heterosexual couples). About one-third of the children were conceived using known sperm donors. Of the two-thirds conceived with unknown donor semen, 62% were permanently unknown and 38% were available to be identified when the children reach 18. There were no differences in well-being among these groups either.

This research won't settle the policy issues of course. It won't make Florida repeal its adoption ban, and it won't convince anyone who makes a career of arguing that children do best when raised by their married biological parents. But I'm grateful to Nanette Gartrell for her foresight to begin this work almost 25 years ago

Friday, June 4, 2010

Excluding different sex domestic partners bodes ill for federal law reform

Domestic partners of federal employees are now eligible for long term care insurance. The Obama administration determined that it could make this change, without going to Congress, as part of the review of federal employee benefits the President announced last June. The program will be limited, however, to same-sex partners. The final regulations state that "opposite-sex domestic partners were not included because they may obtain eligibility to apply for Federal long term care insurance through marriage, an option not currently available to same-sex domestic partners."

I had hoped that the approach Secretary of State Hillary Clinton announced the month before Obama's directive, covering both same- and different-sex partners of State Department employees, would prevail as reforms of benefits for partners of federal employees proceeded. I had hoped that Maine Senator Susan Collins would prevail in amending legislation extending the prize of benefits -- health insurance -- to both same- and different-sex partners.

My reasoning is simple. Two people who intertwine their lives with a level of economic interdependence should have the option to provide for each other's economic well-being, and that includes access to health care. (Yes, of course, everyone should have health care regardless of employment or relationship status...maybe someday). The federal regulations require that the domestic partners live together and intend to do so indefinitely, and that they "share responsibility for a significant measure of each other's financial obligations." Those are reasonable requirements, but they are equally reasonable for different-sex partners. For that matter, those two criteria should be enough for coverage for any two people, including those not in a sexually-based relationship.

Unfortunately, the emphasis on marriage for same-sex couples has obscured the ability to think about why federal employee benefits extend to anyone other than the employee. Instead, the focus of the current reform is essentially compensating for the inability of same-sex partners to marry. I lament this as a missed opportunity to think more expansively about the families and relationships that enrich all of our lives.

Sometimes, legislatures do go beyond the include-them-solely-because-they-can't-marry rationale. In Rhode Island, for example, both same- and different-sex domestic partners are authorized to make funeral and burial decisions. The law was vetoed by Rhode Island's governor last year, but overriden by the legislature in January. Oddly, however, a domestic partner must show economic interdependence -- measured by very specific criteria -- to qualify, but that factor that has nothing to do with whom the deceased would want to make a burial decision; it does make sense for health insurance coverage, because that is an economic matter, but burial decisions are about doing what the deceased would want, and that has nothing to do with intertwining finances. (In fact, my partner of more than 20 years and I would not qualify as domestic partners in Rhode Island if we did not already have wills naming each other as beneficiaries).

I do like one thing about the new federal regulations on partner long-term care insurance coverage. They require only a statement attesting to meeting the criteria, not submission of other proof. In response to some comments by those seeking more documentation, the final regulations explain that "we do not require documentation such as bank statements or other proof of financial support for spousal coverage." That part is a good model for the future.

But the limitation to same-sex couples is the wrong approach, as it makes marriage matter too much and fails many who deserve coverage. What next? After DOMA is repealed will same-sex couples have to get married for coverage?

Thursday, June 3, 2010

Texas Supreme Court lets stand ruling in favor of nonbio mom

The Texas appeals courts are split on whether a child is entitled to maintain a relationship with a nonbiological mother when the lesbian couple raising the child splits up. Last month I wrote about a terrible decision, but last December a different appeals court ruled that a nonbio mom, K.V., could proceed to trial on her claim for visitation rights with her daughter, M.K.S.

Because of the split among the Texas appeals courts, lawyers for K.V. feared that the Texas Supreme Court would grant review of the appeals court ruling in her favor. Last week, the Texas Supreme Court declined to do so. That means K.V. can proceed to trial on the best interests of M.K.S. and that, at least in some parts of Texas, children of lesbian couples need not lose their relationship with one of their mothers when that couple splits up.