Tuesday, September 20, 2011

End of DADT improves life for the children of same-sex couples

In all the glee over the end of Don't Ask, Don't Tell, there's a constituency that has received littled notice: children with a gay servicemember nonbiological parent. Those parents have been unable to adopt their children, or sometimes even to live with them, for fear that knowledge about their family circumstances would trigger a discharge. That fear is now lifted. The children will now have greater economic and emotional security.

It's been bad enough when the couple raising the child stays together and does the best they can to nurture their children under a veil of secrecy. But it's been especially difficult if the couple splits up. The bio mom has had the heavy weapon of threatening to out her ex-partner if she tried to maintain a relationship with their children.

A case scheduled to be argued in the California Court of Appeal next week illustrates another insidious impact of DADT on gay and lesbian parents. California has some of the best law in the country for assuring that children do not lose one parent when their parents split up. But when S.B. and S.Y. split up, S.B. denied that S.Y. was a parent of the two children (now 11 and 6) adopted by S.B. during their thirteen-year relationship. Part of the evidence she used was that the couple was not registered domestic partners, S.Y. did not adopt the child, and S.Y., a Colonel in the U.S. Air Force Reserves, maintained a separate residence for most of their relationship, even though she spent evenings and several nights a week in the home with the children.

After a two day trial, the court found that S.Y. did qualify as a presumed parent under California law. To S.B.'s contention that S.Y. was nothing more than someone she was dating who sometimes spent the night, the trial court said the following: "The [respondent] made sacrifices at her job, personally, financially, to care for the children. A guy who is spending the night on the couch ... would not do all these things, would not clean up my kid’s puke or set up college accounts, pay for their therapy, volunteer at school and so forth." The court made numerous other factual findings in support of its ruling.

S.B. has appealed. The appeals court is supposed to accept the facts as determined by the trial judge, who was in the best position to judge the credibility of the witnesses and weigh the evidence. Hopefully, that will be enough to sustain these children's rights to a relationship with both their parents.

From now on, fewer children should be in this position, as the end of DADT removes one more barrier to recognition of their families.

Thursday, September 15, 2011

Protecting Families: Standards for LGBT Families available online

At a plenary session of this year's Lavender Law conference, attorneys Bill Singer (New Jersey) and Joyce Kauffman (Cambridge, MA) unveiled an aspirational document designed to safeguard the parental relationships formed in same-sex couple families. Protecting Families: Standards for LGBT Families aims to keep families out of court by honoring the child's relationship with parental figures even when the relationship of the adults has disintegrated. You can now read and download the entire document here.

The document urges advance planning through obtaining legal protections for parental relationships, but in some states this can't be done, and in any state there are lots of people who don't have the money or don't make the time to make this happen. The legal system is so foreign to many non-lawyers. Or I'm reminded of the New Jersey couple who several years ago had one child and intended to have another, after which they planned to do second-parent adoptions of both children; they were waiting because it would be less expensive to do one proceeding for both children than to do two separate proceedings. But before there ever was a second child the nonbiological mother died, and the lack of a legal parental relationship meant that the child lost out on years of social security child benefits. It's precisely for situations like that that I advocate statutes establishing parentage at birth without the need for an adoption. See our DC statutes.

The standards are most important when the parents split up and there are no protections in place for a nonbiological or otherwise legally unrecognized parent. At this point the standards are aimed at the parent(s) with the legal power, and they make clear that honoring existing relationships is critical; that a voluntary resolution is best; and that homophobic arguments should never be used.

At the Lavender Law session where these standards were presented, an audience member asked whether the standards could be enforced on lawyers, whether a lawyer could be disciplined for not following them. The answer, of course, was no; no state bar is going to say a lawyer can't make an argument that is legal to make, even if it is unethical by these standards. But when lawyers refuse to represent a client who insists on a position contrary to these standards, it does send a message about what's right. Unfortunately, there are plenty of other lawyers the client can find.

There aspirational standards have value even if there is no enforcement mechanism. I personally thank Bill and Joyce for the hours they spent developing this important document.

Friday, September 9, 2011

National LGBT Bar Association gives 2011 Dan Bradley Award to...me

And here is what I had to say about receiving this honor.

When I was a child, as my brother Stan who is here with me today can attest, I wanted to be an actress. And here I am. In Hollywood. Accepting an award. And so I would like to thank the Academy…I mean the Board of the National LGBT Bar Association…for recognizing the lifetime of work it has been my privilege to pursue.

I’m proud to be in the company of the previous honorees, from Nan Hunter, who received the inaugural Dan Bradley award, through Jon Davidson, last year’s recipient. I will forever cherish my place among them.

I am not the only Dan Bradley honoree this year. For almost 20 years, the Access to Justice Committee of the Georgia State Bar has conferred a Dan Bradley award. This year it went to Phil Bond, who for 15 years has been the managing attorney for Georgia Legal Services in Macon, Georgia. Mercer Law School, Dan’s alma mater, awards two of its students Dan Bradley internships every year. And the Legal Aid Association of California annually grants two Dan Bradley law student fellowships.

So who was Dan Bradley, that from coast-to-coast organizations keep his memory alive? On the National LGBT Bar website, he is remembered as the first chair of the ABA Section of Individual Rights and Responsibilities’ Committee on the Rights of Gay People. Here is a little more about him.

Dan was raised from age 5 in a Baptist orphanage in Georgia, separated from his five brothers and sisters. He worked his way through college and law school, and upon graduation in 1967 he joined legal services to work on behalf of migrant farm workers in Florida. He devoted himself to legal work for poor people with no access to civil justice, and when the Legal Services Corporation was founded in 1975 he was named the first San Francisco regional director. The next year he took a leave of absence to work on Jimmy Carter’s campaign. He was asked to play a role in the Carter administration, but he declined, concluding that he needed to keep a low profile. Dan Bradley was a closeted gay man.

Nonetheless, in 1979, he accepted the position as the second president of the Legal Services Corporation. In an interview with the New York Times three years later, after he stepped down and came out, Bradley described the double life he had led. It was filled with what he called “sheer, unmitigated fear.” Every day of it, he told the reporter, was “a terrible agony.”

Ronald Reagan had a plan to dismantle the Legal Services Corporation. Dan Bradley had a plan to stop him. Dan prevailed. Although Dan was personally ready to come out a year before he left public service, he didn’t. He feared it would help LSC enemies in their effort to abolish his agency.

Once he left government, Dan did come out, and he used his public stature to become a prominent gay rights advocate. He served on the boards of national gay organizations and became chair of the new ABA gay rights committee. Dan called on the ABA, at its 1983 annual meeting, to pass a resolution opposing discrimination on the basis of sexual orientation. Abby Rubenfeld remembers walking past the ballroom where the House of Delegates was meeting and hearing delegates laughing at what they considered the preposterousness of Dan’s proposal.

In 1985, Dan was diagnosed with AIDS. In June, 1987, he led a group of demonstrators who were arrested at the White House protesting Reagan’s inaction in combating the disease. In October 1987, he was a leader of the National March on Washington. Three months later, he was dead --- of AIDS-related complications. He was 47 years old.

Dan didn’t live to see the ABA adopt the resolution he had urged. That happened in 1989. Although there is still no federal protection against discrimination in employment on the basis of sexual orientation, something Dan actively pursued, he would undoubtedly be impressed with the advances in achieving LGBT rights of the last 20+ years.

But he would also know that right now, in his Georgia home town and elsewhere, there are men and women living the same double life he once led, afraid of losing their jobs, or their children, or their lives.

The Legal Services Corporation Dan fought so hard to save lives on, hampered by restrictions he would have hated. It also has, in inflation-adjusted dollars, less than half the funding it did when he was president. State funding and some private funding now provide 70% of the cost of civil legal assistance to the poor. LSC funds are distributed according to census data on where poor people live, but other funding sources are not, causing great disparities in the availability of lawyers. The lowest funded states are in the Rocky Mountains and the south, Dan’s home region, where funding is as low as 1/10th that available in the highest funded states. That’s a lot of poor people without access to civil justice.

I know that Dan would feel a special kinship with those of you here today who work in legal services offices representing poor LGBT clients.

I’ve made family law the focus of my work, with two specific emphases: protecting the ability of LGBT parents to raise their children and not making marriage the legal dividing line between relationships that count and those that don’t. These two passions come together in my opposition to the shocking phenomenon that in some states a child born to a lesbian couple has two mothers if the couple is married, or in a functionally equivalent legal status, but only one mother if the couple is not. Reinvigorating the discredited distinction between “legitimate” and illegitimate children, this time in the context of same-sex couples, is, to say the least, unacceptable.

And speaking of the field of LGBT family law, I would like to give a special shout out to the members of the National Center for Lesbian Rights National Family Law Advisory Council on which it is my privilege to serve. NFLAC consists of family law practitioners from around the country, in friendly states and hostile states, who represent LGBT clients in the formation and dissolution of their families. I have been so enriched by NFLAC members, from whom I hear stories of how LGBT people are actually arranging their family lives, sometimes in ways I could never have imagined. And to law students, if you want to do challenging work that makes a difference, LGBT family law is a growing field. I would like all the members of NFLAC to please stand to be acknowledged.

I wish I had the time to say something about each NFLAC member, but I do want to mention just a few people. Deb Wald from San Francisco, our chair, does more than conceptualize and organize our meetings. She spent much of the last few months organizing the pioneering parents luncheon held yesterday that honored a dozen clients who fought through the appellate courts of their states for the right to raise their children. Bill Singer, from New Jersey, takes the lead every year in organizing the day-long Family Law Institute, which was also held yesterday, that allows over 100 LGBT family law practitioners from around the country to discuss the issues they have in common. Alison Mendel. You are the only person I have ever nominated for the Dan Bradley award – before there was NFLAC, when I felt the work of individual family law practitioners went completely unacknowledged. Contrary to what is written in some publications, NCLR did not do the first second-parent adoption in the country, and it didn’t happen in California. In 1985, Alison Mendel, practicing family law in Anchorage, Alaska, got a judge to sign the first lesbian second parent adoption in the country. Alison still does LGBT family law, and other LGBT rights cases, in Alaska, and she’s looking to hire a new law graduate. Finally, Joyce Kauffman in Cambridge, MA. I have to mention you by name because you were my lawyer. When my ex and I wanted to do a second parent adoption of our daughter but we had long before split up, you made it happen. Thank you.

I’d like to close by acknowledging the members of my family who are with me – my partner Cheryl, my brother Stan and his partner, Brian. Thank you for your love, which turns out to matter more than anything else. Other family members are with me in spirit: My chosen family in Washington DC, and my daughter Lainey, who couldn’t take time off from her job in Boston. My father would have been here, but he died in 1998 at the age of 91. His journey from distaste and despair over my sexual orientation to acceptance of me and acknowledgement of the importance of gay civil rights is a testament to both his love and to the capacity of everyone to change and grow.

The closet almost destroyed Dan Bradley. On leaving the government, he told the New York Times, “I think I helped save Legal Services. Now I have to try to save myself.” Until not a single gay or trans person feels that way, and until HIV no longer infects 20% of men who have sex with men, there’s a lot of work to do.

Let’s do it!

Thursday, September 8, 2011

LGBT family law practitioners honor clients who are "pioneering parents"

At a luncheon today that was part of the Family Law Institute associated with the National LGBT Bar Association, twelve clients were honored for pursuing their right to raise their children through the appellate courts of states around the country. No one sets out to be a test case. But each of these clients was threatened with losing his or her child, and each kept going at great emotonal and financial cost, determined to keep that from happening.

The circumstances of the cases varied. Some won and some lost. And, as it turned out, some parents who lost in court nonetheless were able to remain actively involved parents. Some who won established great law for those who followed but did not get what they hope with respect to their own children.

For example, Michael Kantaras is a transgender man who married a woman who knew he was transgender. He adopted the child she was pregnant with when they married. And he consented as a husband to her insemination by donor semen and raised that child as well as his own. When the marriage ended, she argued that they did not have a valid marriage because he was legally a woman and therefore he was not the legal parent of the children. Although he won at the trial court, the appeals court ruled that, indeed, Michael was a woman and the marriage was not valid. The appeals court did not make a decision about the children, but Florida law made it unlikely he would obtain any ability to raise them. But Michael's story had a happy ending. Dr. Phil offered to provide the couple a family mediator, and through mediation they agreed to share raising the children.

On the other hand, in 1985, lesbian mother Sara Eaton won a stunning victory in the Alaska Supreme Court, which ruled that the trial judge was wrong to change custody of her son to her ex-husband. The court ruled that it was improper to rely on any real or imagined stigma that might come from the biases of others towards lesbian mothers. Language from that case has been cited in numerous other court rulings in the last 25 years. Well, Sara won on appeal, but when the case went back to the trial court the child had been living with his father for quite some time, and, on "best interests" grounds, the trial judge left the child there and gave Sara visitation rights. Sara appeared at the luncheon today with her son -- now 30 years old.

Several of the clients honored were nonbiological moms whose former partners tried to keep them from seeing the children they had planned for and raised together.

Credit for the luncheon goes to Deb Wald, chair of the National Center for Lesbian Rights National Family Law Advisory Council, for doing the lion's share of the work to make it happen.

Sunday, September 4, 2011

Primetime My (Extra)Ordinary Family sends mixed transgender message

I was all excited about the ABC Primetime program last week on transgender children. Especially excited because in my class this coming week I am teaching a court opinion in a dispute between divorced parents over custody of their son who wants to dress like a girl. The court sides with the father, who insists the child's gender variance should be discouraged. The case is as painful to read as those in which a trans parent loses his or her child after transitioning -- including having parental rights terminated, the most extreme measure the state can take against a parent.

Just a couple of years ago, Barbara Walters did an extraordinary job covering trans kids on a 20/20 special. Same network. I figured it would be just as good.

Well some of it was. The journey of a couple to understand their son who always knew he was a girl...including their decision to allow him to start a new school year, at age 10, as a girl. (The child's older sister goes into the classroom first to explain to the situation to the other students. Priceless.) The mom who wrote a book, "Princess Boy," because her son said that's what he was. Even the 19-yr-old MTF who finances her surgical procedures by earning money as a sex worker. That was hard to watch but it felt real.

But there was a catch. A big catch. Let's call him the repentant transexual. A man who decided in his 30's to transition to a woman who later regreted it and had surgery to revert to being a male. What was the point of this segment? If I have to ask the old Sesame Street question -- which of these things is not like the other? --this segment wins and it's not because he regreted his choice. It's because he was never a transgender child. That's right. A show about trans children -- young people, some very young, who know they are not the gender that matches their bodies -- with one segment about a man who never thought he was a different gender as a child and who makes his later journey sound like it was about fitting in with the trans friends he had later in life.

Maybe the producer of the show thought this added some kind of "balance;" maybe someone at the network thought such balance was necessary. But this wasn't balance. It was an adult describing a life trajectory completely different from everyone else's. All it will do is fuel the fire of those who are convinced there is no such thing as a transgender person, young or old.

Shame on you, ABC.