The passing of Adrienne Rich

I've been thinking about Adrienne Rich since I heard of her death on Tuesday.  When I look at her list of works, I find myself surprised at just how much of her work had a profound impact on me.  Of Woman Born completely changed how I thought about motherhood. During years of high drama in my personal relationships and those of my friends, I kept Women and Honor: Some Notes on Lying close by.  And I'm pretty sure the phrase "compulsory heterosexuality," or at least the force of the critique inherent in that phrase, comes from Rich's Compulsory Heterosexuality and Lesbian Existence, an article in the journal Signs in 1980.  That article described both lesbian existence and lesbian continuum in ways that continue to challenge today. (The law school casebook from which I teach Women and the Law contains an excerpt of that work).

When I think of her poetry, I think first of an adaption of one of her love poems that appears on the headstone at the grave of my friend Victoria Lane, who died from injuries sustained in a car crash in 1993, leaving a partner, Laura Solomon, and two young children. Laura chose the quote to be a lasting record of their love for each other.

But I'm reprinting here what I think is my favorite Adrienne Rich poem.  Thank you, Adrienne, for what you gave us all.  You made a difference, and you created work that will live and have meaning far beyond all of us.

PROSPECTIVE IMMIGRANTS PLEASE NOTE

Either you will
go through this door
or you will not go through.

If you go through
there is always the risk
of remembering your name.
Things look at you doubly
and you must look back
and let them happen.
If you do not go through
it is possible
to live worthily
to maintain your attitudes
to hold your position
to die bravely
but much will blind you,
much will evade you,
at what cost who knows?
The door itself
makes no promises.
It is only a door.

European Court of Human Rights rules against lesbian couple seeking second parent adoption in France

The European Court of Human Rights has ruled against Valerie Gas and Nathalie DuBois in their action against France for refusing to permit second parent adoption.  I wrote about the case when it was argued before the ECHR last year. This is a link to the judgment issued by the Court.

The international LGBT press is reporting the case as a judgment by the ECHR that marriage for same-sex couples is not required under the European Convention on Human Rights.  That principle is referred to in the opinion, but it's hardly news; the ECHR made that pronouncement in a case two years ago.  This case was not about marraige.  The case posed a question similar to the one that US states have had to consider.  French law, like that in US states, says that adoption terminates the rights of the biological parent.  The only exception is for adoption by the parent's spouse -- stepparent adoption.  When US states have allowed second parent adoption, they have done so by reading such provisions as waivable by the parties when in the child's best interest or by allowing a joint adoption by the couple so that, in effect, the biological parent's parental status is terminated by the adoption but achieved at the identical moment, along with his/her partner, through adoption.  It's not surprising that a country with a civil code, like France, would read its statutes narrowly; that's what happens in civil code countries.

The child in the case was born to DuBois after unknown donor insemination in Belgium. France limits assisted conception to infertile heterosexual couples, so the couple went out of the country to conceive a child.  The ECHR ruled that DuBois and Gas did not face discrimination based on sexual orientation because an unmarried heterosexual couple would also be unable to complete an adoption.  But an unmarried heterosexual couple using donor insemination wouldn't have to complete a second parent adoption to both be parents, so the Court really seems to have missed what is discriminatory here.

I wrote here a year and a half ago about the status of second parent/joint adoption in Europe, based on the research by Dutch law professor Kees Waaldijk.  The ECHR ruling means that member nations can continue to decide for themselves when to recognize that a child has two same-sex parents.  This is a very disappointing outcome.

Inter-American Court of Human Rights ruling in favor of Karen Atala (now available in English translation) constitutes total validation of the rights of lesbian mothers and their children

Thanks to UCLA (and Williams Institute) Law Librarian Stephanie Plotin, the English translation of the Official Summary of the Inter-American Court of Human Rights ruling in Case of Atala Riffo and Children v. Chile is now available here.  The Court rejected every argument made by Chile as justification for switching custody of Atala's children to their father after she began living with a same-sex partner. The Chilean Supreme Court granted custody to Atala's ex-husband in 2004.  American University Washington College of Law professor Macarena Saez, who represented Atala in the Inter-American Commission on Human Rights as well as the Inter-American Court, wrote about the case here.  The Court found that it lacked the jurisdiction to determine the custody of Atala's three daughters, but it reiterated in no uncertain terms that a parent's sexual orientation cannot be a basis for a denial of custody.  Some members of the Court spoke to two of the three daughters outside the presence of the parents or parties.  Based on what the girls stated, the Court found them to be the alleged victims in the case.  The Court found that Chile had violated numerous provisions of the American Convention on Human Rights, causing injury to Atala and her children.

Atala's former husband requested custody in 2003 after Atala  began living with her partner.  The first court found in his favor, but a subsequent court ruled against him, and that ruling was affirmed on appeal in 2004.  The father further appealed to the Supreme Court of Justice, and on May 30, 2004, that court granted final custody to the father.  The reasoning of the Chilean Supreme Court echoed arguments that have been made in many US states over the last 40 years.  The court said that Atala placed her own interests above those of her children; that the children would be confused about sex roles and sexuality; and that they would be "objects of isolation and discrimination" because of their different family environment.

Before ruling specifically on Atala's case, the Court ruled categorically that discrimination on the basis of sexual orientation violates the right to equality and non-discrimination contained in the American Convention on Human Rights.  Article 1.1 of the Convention states that the parties to the Convention "undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition."  The Court found that both sexual orientation and gender identity are categories that fall within "other social condition."  This obviously has ramifications well beyond this case.

The Inter-American Court then stated the obvious about the importance of ruling in custody cases based on the best interests of the children.  Because  alleged risks and harms had to be "real and proven, not speculative and imaginary," the Court ruled that "speculations, presumptions, stereotypes, or generalizations...with respect to certain traditional concepts of the family are not admissible."  Referencing the "best interest" standard in the abstract, without proof of risk or harm, could not justify discrimination based on sexual orientation. "Pre-conceptions of the attributes, conduct or characteristics of homosexual persons, or the impact that these could presumably have on girls and boys" are not admissible under the guise of determining the child's best interest.

Furthermore, the Court ruled that social discrimination that the children might face, "proven or not," could not justify a change in custody.  Noting greater acceptance of other family forms, such as interracial couples and single parents, the Court said that "both laws and the States themselves should assist society in advancing; otherwise, we run the serious risk of legitimizing and consolidating different forms of discrimination which violate human rights."  Therefore, a court determining custody could not consider possible social stigma a valid injury affecting the child's best interest.

To ensure that a custody decision is not based on discrimination, the burden of proving a "concrete, specific, and real injury to the children" rests with the State.  In this case, the Chilean Supreme Cort of Justice claimed it was ruling based on concrete evidence of injury, but in fact no evidence existed that the girls were injured because their mother lived with a same-sex partner.  The Inter-American Court further made clear that the prohibition against discrimination based on sexual orientation includes the right to "conduct inherent in an exercise of homosexuality," including the right to live with a partner.  The Chilean court was wrong to fault Atala for making a new life for herself with her partner.  Demanding that a mother limit her life choices, the Inter-American Court said, would mean requiring her to conform to a 'traditional' idea of women's role as mother.

Finally, the Court ruled that the Convention does not contain "any specified, closed concept of family," and the Chilean court was wrong in its conclusion that the girls needed to grow up in a 'normally structured family.'  The Court stated that, "the concept of family life is not solely reduced to marriage, and should embrace other family ties where the parties have a shared life outside of marriage."

The Court concluded that Chile violated the Convention by discriminating against Atala and her children (the latter because Chile used factors it would not have utilized if the children had two heterosexual parents).  In considering  Atala's sexual orientation, Chile interfered in her private life, something also prohibited by the Convention.  Private life, according to the Court, includes "the right to establish and develop relationships with other human beings."  In this portion of the opinion, the Court explicitly stated that "sexual orientation is part of a person's intimate life and is not relevant when analyzing aspects related to good or bad parenting by mothers or fathers."  The Court also found that Chile arbitrarily interfered with the right to family life provided in the Convention by separating the family unit created by Atala, her partner, her three daughters, and her oldest son.  "A single family model does not exist," the Court said.  The final right that Chile violated was the right of the children to be heard, since the Supreme Court did not explain why it ruled contrary to the wishes of the children.

Since the Inter-American Court lacked the power to award custody, it fashioned other relief.  Chile must provide free mental health treatment to Atala and her children should they request it; must publish the official summary of the decision on an official web site and in a national newspaper of wide circulation; must publicly acknowledge responsibility; must implement educational programs for civil servants and judges; and must pay damages and costs.  An article on the website of the Santiago Times puts the damages amount at US$60,000, plus $12,000 in legal fees.  The article also suggests that some gay rights advocates will be disappointed that the Court did not require Chile to change its civil code to explicitly ban consideration of sexual orientation in custody cases.

If you are wondering about the impact of the Atala case on custody disputes in the United States, well, the US is not a party to the American Convention on Human Rights and does not accept the jurisdiction of the Inter-American Court.  You can find the full list of parties here on the website of the Organization of American States.

Transgender father and his family featured on StoryCorps

Last Friday's StoryCorps excerpt on Morning Edition featured a conversation between Les and Scott GrantSmith as their 25th wedding anniversary nears.  When they married, Les was a woman; the couple then had two children.  Fifteen years ago, Les told Scott she was a woman in the wrong body; she feared Scott would leave and take the children with him. Instead, the couple stayed together.  Be sure to click on the link on the website that leads to an excerpt of the conversation between Les and his two daughters, Amanda and Thea; that part did not air on the radio.

Les's fear that transitioning would cost him his children is quite reality-based.  Judges are extremely reluctant to grant custody to a trans parent.  This is especially true if the children show any signs of anxiety or distress, even though such reactions may be both normal and exacerbated by the reactions of their non-trans parent.  One of the most poignant parts of the exchange between both Les and Scott and Les and the children is when Les says he would not have transitioned if it would have meant losing the children.  His younger daughter was seven years old at the time.  I have to wonder if he really believes he could have spent the subsequent decade living with the depression that finally brought him to talk to Scott.

I am sure many listeners are incredulous that Scott and Les remained together through this process.  I don't know of any statistics, but I do know other couples, both personally and through accounts of others, who stay married through one spouse's transition.  Those families do not wind up in front of judges. Forty years ago, all judges needed to be educated about gay and lesbian parents, to break down myths and stereotypes and allay fears that children would be harmed living with a gay father or lesbian mother.  As readers of this blog know, such prejudice continues today in some parts of the country.  Well, for trans parents, we are back where we were in the 70s with lesbian and gay parents.  I give a lot of credit to Scott for adapting to a circumstance he could have never imagined the day he got married and for believing that Les remained a good parent to their children.  For those whose transition stories don't have this happy ending, we need massive judicial education as well as resources for families and clinicians.

Florida Supreme Court to hear one birth mother/one genetic mother case; trial court to rule on stay of appeals court order

National press is now focused on a Florida case about which I wrote in December.  In D.M.T. v. T.M.H., the child's birth mother is claiming that her ex-partner, whose egg was used to create the embryo that became the child, is not a parent.  The couple raised the child together for two years before splitting up.  The appeals court ruled that both women are parents.  This is not the first case of its kind, but I assume the attention it is receiving is at least to some extent its location -- Florida -- where until last year lesbians and gay men could not adopt children.  Nothing amazes me anymore, but it does take a lot of nerve to argue, as the birth mother did, that because of that ban Florida has a public policy against the assisted reproduction arrangement the couple used.  That's the arrangement  the couple -- both women -- used.

The Florida Supreme Court has agreed to review the appeals court ruling.  Briefs will be due in April and May.  Meanwhile, the birth mother requested a stay of the appeals court order. Yesterday, the state supreme court denied the stay but ordered the trial court to consider the appropriateness of a stay within thirty days.  The trial court is to specifically consider the best interests of the child in deciding whether to issue the stay.

The Florida Supreme Court has also denominated the case as "high profile," which means that all the pleadings, motions, briefs, and orders are available on line.

We won't see the real thing...but you can watch George Clooney and John C. Reilly

From the moment I read David Boies's brilliant cross-examination of David Blankenhorn in the Prop 8 trial (Perry v. Schwarzenegger) I've been hoping the day would come when I could watch it on tape.  Unfortunately, that's unlikely.  First the Supreme Court said the trial judge (Vaughn Walker) could not live stream the trial.  Then Judge Walker said he would make a videotape, but only for himself, and that it would not be released. Fast forward more than a year after Judge Walker struck down Prop 8.  Gay rights supporters moved for the release of the videotape.  The new judge assigned to the case after Judge Walker retired, Judge Ware, did order the tape's release, but last month the Ninth Circuit reversed and ruled that the tape must be permanently sealed. That dashed my hopes to see Blankenhorn huff and puff and squiggle and wiggle, in an environment he could not control -- the courtroom -- under the questioning of a masterful trial lawyer.

While it's no substitute for the real thing, I nonetheless enjoyed watching George Clooney (confession: I always love watching George Clooney) play the role of David Boies and John C. Reilly play Blankenhorn in the staged reading of 8, Dustin Lance Black's play derived from the trial transcripts.  There were other superstars -- Brad Pitt as Judge Walker, Martin Sheen as Ted Olson, Kevin Bacon as Charles Cooper, the lead lawyer for supporters of Prop 8.  (Jane Lynch was terrific in some asides as Maggie Gallagher). You can watch the whole performance here.  The direct of Reilly and then the cross begins at 1:20, so you can fast forward to there.  There's a break from about 1:38 to 1:44 for interaction among the plaintiff lesbian couple and their two sons (I didn't care for those portions of the script....) and the cross examination resumes after that.

In remarks at the end of the performance, the real David Boies noted the irony that Prop 8 proponents wanted to keep the public from viewing the trial, but the performance of 8, through the wonders of the internet and by virtue of the stars in the roles, would be seen by far more people than would have watched the trial tapes themselves.  The play can't capture the twelve day trial, but it does highlight the dominant legal theme.  Judge Walker expected real evidence of what society gains from prohibiting same-sex marriage, and the Prop 8 defenders did not, could not, and did not think they should have to, produce such evidence.  After David Boies took the depositions of his opponent's expected witnesses, only Blankenhorn and one other wound up testifying.  Only Blankenhorn testified about the state's interest in preserving different-sex only marriage, and, well, watch the play yourself and you'll see why he was completely ineffective.  Better yet, read his direct and cross beginning on the 11th day of the trial here (on page 2716) and continuing on the 12th day here.