Thursday, April 26, 2012

Here's what's really unfair about Social Security

Today Representative Linda Sanchez is introducing the Social Security Equality Act of 2012.  It's the same proposal I critiqued here two years ago.  Yes, it's true; same-sex couples do not get to take advantage of Social Security's provision of "special rights" to married couples who have one primary wage earner.  Those couples put less in to the Social Security system and get more out of it than anyone else --- single people, unmarried couples, and couples who are married but have two more-or-less equal wage earners.  All same-sex couples who have two close-to-equal wage earners will not benefit at all from this "equality" proposal.

As I have said before, African-American married heterosexual couples are among those disadvantaged by the current system because they are much more likely than White couples to be equal earners.  We have a true LGBT rights champion, Ben Jealous, as the head of the NAACP.  What the LGBT rights movement should be doing is beginning a coalition with him and getting a diverse group of advocates together to lobby for reform that will stop privileging one-primary-earner couples.

Tuesday, April 17, 2012

Merrie Monarch Festival features the best hula in the world...and not a small measure of gender-bending

It's the perogative of the blog writer to write about whatever she likes.  So I diverge from my usual topics to write about my amazing long weekend in Hilo, Hawaii attending the 2012 Merrie Monarch Festival.  You can learn more about the festival here. This competition, limited to US halaus (hula schools), is regarded as the most prestigious in the world.  Think of it as the olympics of hula.  It is held in the most uncomfortable venue imaginable...a tennis stadium where spectators are packed into bleachers and narrow portable chairs for six hours with only one break, three nights in a row.  Tickets are almost impossible to obtain for anyone outside the Hawaiian Islands, since requests must be postmarked no earlier than the first postal day after Christmas (no internet sales) and the requests that arrive at the office in Hilo the next day -- something that cannot happen even by express mail from the mainland -- exhaust the supply of tickets.  We got ours from craigslist...something that is hard but was achieved through my partner Cheryl's vigilance in posting a request to purchase tickets before we had even learned that we had failed through the mail channel authorized by the festival itself.

If you have never seen competition hula, you may have no reference point for even imagining what it looks like. Certainly it is nothing like the image of hula for tourists as a form of sensual enticement to visit Hawaii.  Hula is a deep and rigorous spiritual and cultural practice, connecting practitioners to the history, language, and land of Hawaii, and the legends and gods that feature prominently in Hawaiian culture.  Each halau performs one hula kahiko -- the ancient style of hula -- and one hula 'auana -- the modern style.  The former includes ancient Hawaiian chants and drumming as well as performing the steps and hand motions; the latter involves dancing to a song -- a mele in Hawaiian -- accompanied by modern instruments, and it celebrates the people, places, natural beauty, or inherited stories of Hawaii.  Every hula tells a story; the hand motions are words. The head of the halau is the kumu hula, who selects and choreographs the mele that the dancers perform. Although some might balk at this characterization, I found myself thinking of hula as a combination of a practice that ties a people together, like the retelling of the story of Exodus among Jews at Passover, and a spiritually and ethically rooted physical practice bearing some relationship to martial arts (at least as I understand them as an observer of friends who do martial arts), including profound respect for teachers (kumus), past and present, and exacting discipline.

The Merrie Monarch Festival is named for King David Kalakua, whose nickname was the Merrie Monarch.  He was the last king of Hawaii and is credited with reviving traditional Hawaiian culture that had been banned as a result of pressure from Christian missionaries.

Men (kane) as well as women (wahine) dance hula, although there are many fewer men.  There were nine male halaus and twenty-one female ones in the competition.  Also, the only solo competition is for women.  I confess that I initially thought the title of "Miss Aloha Hula" was somewhat akin to a beauty contest.  Not so.  (Although as I think about it, the title itself is misleading in that regard).  It is actually the first night of competition, in which twelve women each perform a solo kahiko and a solo 'auana and one woman attains the title of Miss Aloha Hula.  Although some of the competitors were typical beauty pagaent material, the winner and the runner-up were the two largest women who competed.  In fact, I found it striking that being a woman -- or man -- of size in no way detracts from the ability to excel at hula.

And now for the gender-bending.  The men performing kahiko are often scantily clad, evoking the kind of cheering from the audience one might normally see directed towards women.  (By contrast, when one Miss Aloha Hula contender appeared in a sparkling tightly-fitted gown for her 'auana performance, a lone audience member whistled and got no traction or support from others in the audience). The women are much more covered up.  You can see the differences in this example of the women, from the overall winning halau, Halau I Ka Wekiu, and this example of the men, from third place winner Ka Leo O Laka I Ka Hikina O Ka La.  Well, the women from Oakland, California danced kahiko in a style largely resembling that of the men.  Their halau, the Academy of Hawaiian Arts, is headed by Kumu Mark Keali'i Ho'omalu, who explicitly said he was trying to shake things up.  I thought these women were fabulous; the judges clearly thought otherwise, as they did not score in the top five.  The audience loved them, but audience adoration seemed to bear no relationship to ultimate success in many instances.  For what it's worth, my hands down favorite wahine kahiko was Halau O Kamuela, and they didn't place in the top five either. Also in the gender-bending category, consider all the men in skirts, for example this first place kahiko winner and this second place 'auana winner.

The entire competition is broadcast live in the islands and streamed live on line.  You can watch all the performances here (or see most of the them on You Tube without commercials...).  Next year is the 50th anniversary of the Merrie Monarch.  Some halaus sat out this year because they are focussed on preparing for next year.  If you want to go, I have to recommend finding someone in Hawaii to mail for your tickets.

Wednesday, April 11, 2012

Start solving real problems; don't blame everything on the decline of heterosexual marriage

Marriage is not the right public policy answer to our social and economic problems.  But that doesn't stop the right-wing "marriage movement" from asserting that it is, something I decree often in this blog.  Here's a good rebuttal, by Jodie Levin-Epstein of the Center for Law and Social Policy, to one of the latest incarnations of the "promote marriage" argument.

Monday, April 9, 2012

Ninth Circuit refuses to rehear Diaz v. Brewer en banc. Is this case heading to the US Supreme Court?

Last week the Ninth Circuit denied Arizona's petition for rehearing en banc in Diaz v. BrewerI have written about what I dislike about this case.  In short, Arizona state employees had domestic partner health benefits for same- and different-sex partners, something made possible only because Arizona defeated a "super-DOMA" in 2006.  The super-DOMA would have prohibited state recognition of not only same-sex marriage but rights for unmarried partners.  Different-sex couples featured prominently in the campaign to defeat the super-DOMA. Then, in 2009, when the state revoked the benefits, Lambda Legal sued to block the rescission but only on behalf of workers with same-sex partners, effectively abandoning the constituency that made it possible for the gay employees to have the benefits in the first place.

The plaintiffs won in both the District Court and the Ninth Circuit, and it's the Ninth Circuit win that remains intact now that the Court will not hear it en banc.  The panel ruled on Equal Protection grounds that there was discrimination against gay and lesbian employees and that the state could not justify the discrimination on the grounds of cost because there were so few same-sex couples taking advantage of the benefits.  I'm writing a longer article now with my critique of Lambda's decision to abandon different-sex couples.  Lambda has framed the case as seeking for gay employees what straight employees already have.  They do this by asserting that since straight couples can marry they have lost nothing by losing domestic partner benefits.  I do not support this dismissive and disrespectful characterization of unmarried different-sex couples.  The movement I want to be a part of does not make marriage mandatory for different-sex OR same-sex couples, yet that's the upshot of the Lambda argument.  All the gay plaintiffs swore that they would marry their partners if Arizona law allowed it.  Presumably this means that those who did not want to marry could not be plaintiffs in this case.  For a movement whose origins rest squarely with a commitment to family diversity, this amounts to abandoning a constituency of gay families and relationships that do not put themselves within the mold of marriage.  If this is what equality gets us, it comes at the cost to the liberty and justice that used to animated discussions of LGBT families and relationships.

So the courts found the discrimination to exist against gay employees only precisely because different-sex couples can marry. At this posture, what's left for Arizona is to file for cert in the US Supreme Court.  This case has received almost no media attention, and certainly nothing compared with that of Perry v. Brown, challenging California's Prop 8, or even the Gill case argued so ably by Mary Bonauto in the First Circuit Court of Appeals last week. The latter case concerns the constitutionality of the part of DOMA that denies federal recognition to legally married same-sex couples.

But Diaz is closer to US Supreme Court review than either of those cases. With this denial of en banc review, the case is ripe for a cert petition.  The case places squarely before the Court whether a state that does not allow same-sex couples to marry may differentiate between same-sex couples and married heterosexual couples.  Thus, it is a case with huge implications for anti-discrimination law.  If the Supreme Court were to hear it, gay rights advocates would assert, in the highest court in the land, that it's fine for states to prefer married couples over unmarried couples, in fact that marriage is great and states can promote it; they just have to let same-sex couples who can't marry have access to the same benefits.  No surprise to my steady readers that I hate this argument.  There are a lot of LGBT folks who hate it too, but their voices aren't heard too loudly these days.

Friday, April 6, 2012

Shannon Minter awesome (as usual) in Maryland Court of Appeals argument on availability of divorce for same-sex couples

Can a married lesbian couple divorce in Maryland even though they could not marry there? (yet)  A trial court in Maryland said no, and the appeal of that ruling was heard today in the Maryland Court of Appeals.  You can watch the oral argument by NCLR legal director Shannon Minter here.  (Click on document 4/6/12 - No. 69 -- Port v. Cowan)

Tuesday, April 3, 2012

Male UPS employee Calvin Radtke, and his MTF trans wife, Christine Radtke, are legally married in Minnesota

In 2005, Calvin Radtke and Christine Alisen were married in Minnesota.  Calvin works for United Parcel Service, and he added Christine to the health care benefits plan provided by his employer and administered through Miscellaneous Drivers and Helpers Union Local #638 Health, Welfare, Eye and Dental Fund ("the Fund").  Five years later, when various Fund employees realized that Christine was born a man, the Fund terminated her eligibility for coverage.  The Fund took the position that the couple was not legally married because Minnesota does not recognize same-sex marriage and sex as "observed and recorded at the time of birth" determines whether a person is male or female.

Christine filed an action against the Fund in federal district court in Minnesota.  (The case is in federal court because the employee benefits are governed by a federal statute -- ERISA -- and such cases are heard in federal court.)  On Monday, District Court Judge Michael J. Davis (a Clinton appointee) ruled that Calvin and Christine are legally married and that the Fund erred in dropping Christine from coverage.

Christine participated in the Transgender Program at the Univeristy of Minnesota Medical School in the 1980's.  In 2003, she had sex reassignment surgery.  In 2005, she obtained a court order changing her name and directing the Wisconsin State Registrar to issue a replacement birth certificate in her new name and gender.  Wisconsin did so, and a month later Christine and Calvin married.

In the litigation, the Fund cited court rulings from other states holding that a person's sex is determined at birth.  In one of the most nefarious cases, Kantaras v. Kantaras, the Florida appeals court held that Michael Kantaras was not the father of the children his wife conceived through donor insemination because he was not legally married to her at the time of conception since he had been born a woman.

Judge Davis noted that cases from other states were irrelevant.  The only issue was whether the couple was married under Minnesota law.  Judge Davis concluded that if Christine was female under Minnesota law then she was Calvin's legal spouse.  He determined it was inappropriate for the court to "invent" a federal definition of sex based on sex assigned at birth.  Rather, he determined it was proper to look at Christine's current birth certificate and official documents issued by Minnesota.  Like most states, Minnesota allows a person to change his or her sex on a birth record after sex reassignment surgery.  Minnesota does this after a court order or a letter from a doctor that the person "has completed gender reassignment surgery or hormone therapy."  (Note that this suggests that surgery is no longer required in Minnesota, something especially important for FTM transgender individuals). Wisconsin does this as well, which is why Christine was able to get a new birth record there.

The Court then noted that "the only logical reason to allow the sex identified on a person's original birth certificate to be amended is to permit that person to actually use the amended certificate to establish his or her legal sex for other purposes, such as obtaining a driver's license, passport, or marriage license."  "There is no basis," the Court continued, "to conclude that Minnesota recognizes Plaintiff as female for some purposes -- birth records and driver's licenses, but not for others -- marriage certificates."  Thus, Christine is a woman and the Fund was wrong to drop her coverage.

While the case was pending, the Fund actually amended its definition of eligibility to explicitly state that in deciding whether a marriage is between a man and a woman, it will recognize only "the anatomical sex of the individual at the time of birth."  Really?  The Fund has an independent stake in the resolution of this issue?  This is truly an outrage.  The Court in this case was not in a position to address the validity of this definition because the Fund had yet to apply it to Christine (and might not).  But it might be a matter of time before another individual faces this rule.

Of course if same-sex marriage were recognized the issue of Christine's legal sex would be irrelevant here.  But until then cases will continue to occur whose resolution turns on the sex of one spouse.  I find the ones concerning parentage, like Kantaras and another case not cited by the Court, In re Marriage of Simmons, from Illinois, especially troubling.  In those cases, children lost a parent as a result of the court's refusal to recognize either the marriage or some other basis for determining parentage.

This is an important ruling because it stands in contrast to the many decisions ruling otherwise.