Same-Sex Bi-National Couples: Joy Turns to Sorrow

From the Legal InfoLine

There have been some very confusing developments concerning same-sex bi-national couples during the past few days. It all started with a couple of deportation cases being put on hold because the couple was married, and the US citizen had applied for permanent residency for the foreign national spouse. These isolated cases then resulted in a statement from immigration officials that all green card applications of same-sex married couples would be held in abeyance. Because of President Obama’s statement that he feels DOMA is unconstitutional, there was hope in the LGBT community that the applications would be held in abeyance until there was a final determination as to whether DOMA was constitutional.

These developments sent shock waves of joy through the same-sex bi-national community. However, yesterday immigration officials made it clear that the Defense of Marriage Act (DOMA) is still being enforced and that any green card applications from married same-sex bi-national couples will be denied and not held in abeyance.

The Legal InfoLine gets many calls from bi-national couples who are desperate to find a way to stay together after the foreign national’s visa expires. And so the hope that was raised and then dashed is particularly painful. The unfortunate reality continues to be that a US citizen who is in love with a foreign national of the same sex, in most cases has no ability to improve the foreign national’s immigration status, and celebrating their love for each other by getting married can have negative consequences for the foreign national spouse.

Although immigration officials will not officially recognize a same-sex married couple, if they learn that the couple is married and the foreign national spouse has a short-term visa, they may use the marriage to deny that spouse entry into the US or deport the person if they are in the US. The reason for this is that they may interpret the fact that the foreign national is permanently attached to a US citizen as an indication that the person may overstay their visa date. For more information on why getting married poses risks, see our GLAD publication about this.

GLAD strongly recommends any same-sex bi-national couple who wants to marry or wants to deal with an immigration issue contact an immigration attorney who is experienced in LGBT issues BEFORE taking any action. The events of the last few days show that relying on what is being said in the media or what comes up on a Google search may prove to be inaccurate. Immigration is a high stakes issue, and you want to make sure that you have accurate advice before you take any action. GLAD can provide referrals to experienced immigration attorneys in the six New England states by calling our Legal InfoLine at 800-455-GLAD (4523).

My Afternoon on the Hot Seat, and Other Adventures in Transgender Advocacy

On Monday, I testified before the Connecticut Legislature’s Judiciary Committee in favor H.B. 6599, “An Act Concerning Discrimination,” which would add the phrase gender identity and expression in Connecticut’s non-discrimination laws. My prepared testimony was just about two minutes, but I spent the next hour on the hot seat, fielding questions from committee members about the bill and how, when adopted as law, it would be enforced. That is as it should be. It’s important to let those who are just learning about transgender people’s lives ask of all their questions and have them answered in a reasoned, thoughtful way.

I got lots and lots of questions about bathroom use by transgender people, which is no surprise since our opponents know that the more people talk about bathrooms the more generally insecure and scared people feel about supporting transgender non-discrimination laws. From Maine to Massachusetts to Connecticut and beyond, opponents of transgender equality have tried to derail progress and undermine legislative advances by speciously asserting that trans-inclusive civil rights laws will lead to gender-neutral bathrooms and/or create a rash of sexual predators in women’s bathrooms, including in radio and TV ads that have been effective in peeling away our support. Many lawmakers have become preoccupied with this misinformation even though more than 100 trans-inclusive non-discrimination laws and ordinances have been successfully implemented nationwide with no reported incidents of these alleged problems. And, as I explained at the hearing on Monday, the reality is that transgender people have to and do use bathrooms, often using the restroom that is consistent with our gender identity or expression regardless of our physiology or assigned birth sex.

Interestingly, though, for the first time at a public hearing, I also got questions about what happens when a masculine appearing woman (whether trans or not) uses the women’s room and other women complain to management or confront the individual telling her to leave. This was an easy question to answer because of it being so personal – I experience other women’s discomfort with me using women’s restrooms on a near daily basis. The reality is that when that happens, the person who is the object of other people’s uneasiness (often, me) has to stick up for herself and assert that she is in the right place and, because the law protects her right to be in that space regardless of other people’s derision and discomfort, the uncomfortable party often backs down. They don’t require the gender nonconforming person to physically prove or present identification backing up her asserted gender. Rather, they get a needed education about the fact of gender diversity that hopefully makes it so the next gender non-conforming woman they encounter in the restroom doesn’t have to face the hostility the first one did.

That’s how civil rights and non-discrimination laws work. They don’t make bias and prejudice go away immediately, but they definitely provide important legal protections for marginalized and discriminated people and groups. Hopefully, over time they also change hearts and minds by shifting the burden on others to explain why we shouldn’t be in public spaces -- or employed, or housed, or educated, etc. -- rather than on us to explain why we should. As I told the Judiciary Committee, other people may be made uncomfortable by [an] individual’s expression and that transgender person’s presence in their life but it’s just that kind of discomfort that I would say non-discrimination laws are intended to address and will diminish over time as transgender people just gain more visibility and more presence and more protections in our laws.

At the end of it all – the hearing actually lasted well over 11 hours – I think that proponents of H.B. 6599 made a compelling case of the passage of this bill. Our partners at ctEquality did a fantastic job of filling the room with supporters and lining up compelling testimony from trans men and women, parents of transgender youth, and a host of strong allies. I’m feeling optimistic about the passage of this bill this year, and, anyone who knows me well can attest to the rarity of such optimism.

As Director of GLAD’s Transgender Rights Project, I’ll be talking more about our work on H.B. 6599 and our entire docket of trans legal advocacy at an event next Wednesday called GLADHour. It’s an after-work happy hour at the Boston eatery Lir, so I promise not to cut into the fun by talking too long. But you’ll hear about the latest promising developments in Freeman v. Denny’s, a case in which we’re fighting for a Maine transwoman to have proper restroom access in a local restaurant, and our efforts to defeat a discriminatory bill – filed in response to Freeman – that would limit public restroom access for transgender people. The Transgender Rights Project is doing lots of other exciting and groundbreaking work. I hope you’ll show up to hear all about it. See you next Wednesday!

Jennifer Levi
Director, Transgender Rights Project

Photo by Glenn Koetzner for The Rainbow Times. See more photos.

It’s Tax Time: Good News/Bad News

I was on vacation for a couple of weeks, and so although I intended to send in my blog post from Puerto Vallarta, it just didn’t happen—somehow beach won out over blog. But I’m back, and now that we are in the middle of tax season, I thought it would be good to provide you with some tax-related information.

First, the bad news. Although GLAD has two lawsuits going to take down the Defense of Marriage Act (DOMA), until those cases conclude DOMA is still in force, and so that means that if you are a married same-sex couple you MUST each file a federal income tax return listing your status as single (unless one of you qualifies as a legal dependent under the IRS code). However, if you live in Massachusetts, Connecticut or Vermont, you MUST file your state tax as married (either married filing jointly or separately). If you live in another state that recognizes your marriage, check with our sister organization, Lambda Legal, about how to file your state taxes. GLAD has a publication that provides additional information on this topic.

Secondly, if because of DOMA you have been paying significantly more in federal taxes than you would have if you had been able to file as married, you may want to file an amended return as married now for the 2007 tax year, because for most people April 15, 2011 is the deadline for filing an amended return for the 2007 tax year. By filing an amended return as married, and then being rejected because of DOMA, you will be given a two year window to sue. This might buy you enough time for us to win our DOMA suit. You should consult with a tax professional before doing this, because filing an amended return could also increase your chance of being audited.

This tax burden is one of the many ways that DOMA continues to harm married same-sex couples. You can read some of the stories of families dealing with this issue on our website. And we encourage you to share your own story with us.

Finally, some important good news for transgender persons who have paid for medical treatment. You may now be able to claim those expenses as a medical deduction on your federal income tax. Thanks to GLAD’s victory in the O’Donnabhain case, treatment for gender identity disorder (GID) is now on the list of conditions that are eligible for consideration for a medical deduction on the federal income tax. As for any medical deduction, you need to have medical documentation that the treatment you received was appropriate for your particular diagnosis. For more details see our publication.

If you have questions about the above or any LGBT/HIV legal matter, contact GLAD’s Legal InfoLine at 800-455-GLAD (4523).

GLAD Goes to Washington

Yesterday I had the honor of accompanying Nancy Gill and Marcelle Letourneau, the lead plaintiffs in Gill v. OPM, GLAD’s First Circuit DOMA challenge, along with attorney Mary Bonauto, to Washington, D.C. The three were invited to speak at a press conference hosted by Congressman Jerrold Nadler of New York, who re-introduced the Respect for Marriage Act, his bill to repeal DOMA. Rep. Nadler’s history of active support for advancing LGBT rights on Capitol Hill is as long as his congressional career, which began in the early 1990s.

Nancy, Marcelle and I arrived at Reagan International Airport around 9:30 a.m. and took a cab to the Rayburn House Office Building, where the press conference was scheduled for 11:00 a.m. Nancy and Marcelle were making their first trip to D.C., and though they were about to share their story on a national stage – after waking up at 3 a.m. to catch our flight from Logan Airport – they were surprisingly cool, but enthusiastic. “Yesterday I was at home making cupcakes,” Nancy said in the cab. “And today I’m speaking at a press conference in Washington, D.C.!”

We were welcomed into Rep. Nadler’s office by Amy Rutkin, his chief of staff of 12 years. Mary was there waiting for us. We chatted with the congressman about New York’s rough and tumble political culture while awaiting the arrival of other press conference participants like Edie Windsor, a New Yorker who is also suing to overturn DOMA after a heartbreaking turn of events involving the illness and death of her spouse, Thea Spyer.

Rayburn Rm. 2226, where the press conference was held, was packed with reporters and LGBT advocates like Marc Solomon, the former MassEquality executive director who now works for Freedom to Marry, and Diego Sanchez, an aide to Congressman Barney Frank and the first out trans person to work on Capitol Hill. Freedom to Marry’s Evan Wolfson and Sean Eldridge, a GLAD donor, were also there.

Congressman Nadler spoke first, calling on Congress to undo the damage it created when it passed DOMA in 1996.

“DOMA cannot survive even the lowest level of judicial scrutiny and it has already been declared unconstitutional by a federal court,” he said, a reference to our Gill victory last July. He noted that former Republican Congressman and chief DOMA sponsor Bob Barr and President Bill Clinton, who signed DOMA into law, have since denounced DOMA and called for its repeal. “The time for dumping this shameful law is long overdue.” Rep. Nadler ended his remarks on a similar note, stating, “I am confident that with a president who is committed to repealing DOMA and the broad diverse coalition of Americans on our side we can and will dump DOMA once and for all.”

Reps. Tammy Baldwin, David Ciccilline, John Conyers, Barney Frank and Jared Polis also spoke, after which Rep. Nadler introduced Mary Bonauto, describing her as “a pioneering lawyer, a spectacular legal mind,” a description that while undoubtedly true, made Mary blush slightly. Mary introduced Nancy and Marcelle, who shared their story of how DOMA upended their plans for Marcelle to be a stay-at-home parent after they got married because as a federal postal employee, DOMA prevents Nancy from covering Marcelle on her employee health insurance plan. “We know that not all families can afford it, but we were willing to sacrifice my income to do what was best for our family,” Marcelle stated. “But because of DOMA, we couldn’t take this extra step to care for our children. I had to remain in the workforce in order to have access to health insurance.”

If you know Nancy and Marcelle, you know they’re devoted to their children above all else. (They even took them along on their honeymoon to Cape Cod after they got married in 2004!) They did a fantastic job articulating the emotional and financial toll that DOMA takes on real, hardworking families.

After Nancy and Marcelle did two TV interviews, it was off to lunch at the Rayburn House cafeteria -- the birthplace of Freedom Fries. Then Amy led us over to the Dirksen Senate Office Building for the 2 p.m. press conference held by Sen. Dianne Feinstein of California, who announced the filing of DOMA repeal legislation in the Senate. This is the first time Rep. Nadler’s bill has a companion Senate bill, so it’s a pretty big deal. Noting that there are 18,000 legally married same-sex couples in her home state who are raising kids, sharing the bills and caring for each other come what may, Sen. Feinstein -- who voted against DOMA in 1996 said, “because of DOMA they have been denied federal protections. It is time to right this wrong.” She was joined by Sens. Richard Blumenthal, Chris Coons and Kirsten Gillibrand and two married same-sex couples who shared their stories of how DOMA has harmed their families.

We wrapped up this great day with a visit to the White House, which we all agreed looks a little smaller than we imagined. Nancy asked a security guard if President Obama was home, and whether he’d like to come out and visit. Apparently, he was out. Oh well, his loss.

You can view videos of both press conferences in their entirety at the LGBT blog Towleroad.

See more photos

"The Court, the Closet and the Press"

The panel at Suffolk University's Masterman Institute Panel

Does the political theater of Supreme Court confirmation hearings push justices to the right on issues involving a free press? Dahlia Lithwick, Supreme Court writer for Slate, made this argument yesterday at a panel discussion on “The Court, the Closet, and the Press” at Suffolk University Law School.

Other speakers, including GLAD’s Mary Bonauto, Judge Nancy Gertner, and keynote speaker Stanford Law Professor Pamela Karlan, discussed recent cases where the Court weighed the interest of the public in robust discussion of important issues, against the fears of anti-equality advocates – and the court itself - around publicity.

Does the Court increasingly fear the media and the public – as evidenced in the decision not to allow the broadcast of the Prop 8 trial? As Professor Karlan pointed out, the court’s reasoning was that the trial should not be publicized because it involved controversial issues – i.e., because people might actually want to watch it.

Only those with the time and resources to be present in the courtroom could therefore watch the trial. And as more than one panelist pointed out, our current media environment allows people to restrict their information intake to sources with which they already agree; broadcasting, with its ability to reach large audiences that are not as self-selecting, is even more important today for public debate.

The legal and scholarly discussion was thought-provoking (and not incidentally it was fantastic to hear a panel entirely composed of smart and high-powered women), but Lithwick brought in the human dimension. The confirmation hearings of Justices Thomas and Alito were not only highly partisan political events – they were deeply scarring personal events for both men, and most likely their primary experience with the public and the media. And it wasn’t a good one. Lithwick says Alito in particular has moved to the right during his court tenure on speech issues. And she pointed out the sad symbolism of the Court having recently locked its front doors to the public.

Judge Gertner observed that Justice Sotomayor, too, had been called both a racist and a sexist in her hearing, but she seems to have gotten over it. Perhaps as a woman she has a tougher skin? But it certainly gave me food for thought – that as elected politicians use confirmation hearings to make political points and communicate with their bases, progressives may be setting themselves up to lose the war when the courts hear these issues and must decide whether it is “safe” to open up the political and legal process to public view.

Reality Check: The Big Lie About Catholic Charities, Adoption and Marriage Equality

Last month’s marriage equality hearing in Rhode Island left me feeling a little like Congressman Joe “You Lie!” Wilson. Wilson, you’ll recall, shouted his infamous exclamation at President Obama after the president stated in a speech to Congress that his health care legislation would not provide free health coverage for illegal immigrants, despite what vocal opponents of the healthcare bill were saying. As I watched Austin Nimocks of the anti-gay Alliance Defense Fund testify without blinking that marriage equality in Massachusetts “forced” Catholic Charities of Boston out of the adoption business, it was all I could do not to let loose a “You Lie!” right there in the marbled halls of the Rhode Island State House. Okay, I might have said something to that effect in a rather loud stage whisper, right before tweeting Nimocks’ comment with a terse analysis (“LIE!”) to our roughly 3500 Twitter followers. But the big difference between me and Joe Wilson is that my “You Lie!” moment was justified. Nimocks, unlike President Obama, was indeed lying. And no amount of truthiness on his part can change that fact.

It’s true that professional right-wingers have been spreading lies about gay people since Anita Bryant in the 1970s accused gay people of recruiting America’s children “to freshen their ranks” because they couldn’t have kids of their own. And if the LGBT community spent all of its time debunking their whoppers, we wouldn’t have much time to work on more important things, like passing marriage equality legislation.

So why is exposing this particular lie important? First of all because Rhode Island is one of the most Catholic states in the country, and the Catholic Church is lobbying hard against marriage equality legislation there. Their efforts seem to be having an impact, as the Providence Phoenix recently reported.

Secondly, since the Rhode Island Senate Judiciary Committee is set to hear testimony on marriage equality legislation today, senators are likely to hear the Catholic Charities lie over and over again, among other specious arguments about how allowing same-sex couples in the Ocean State access to civil marriage will destroy religious freedom.

Lastly, this is an issue I followed closely not for just professional reasons – I was on staff at the LGBT newspaper Bay Windows when the saga unfolded – but deeply personal ones. I and my four siblings were all adopted through Catholic Charities, so I know firsthand the immeasurable value of their good work. In 2006 I wrote an essay about my own experience and the impact of the agency’s decision to quit the adoption business.

So here’s a little reality check. Catholic Charities of Boston was not forced out of the adoption business because of marriage equality in Massachusetts. The organization voluntarily ceased doing adoptions after the state’s four Catholic Bishops got wind that gay parents had been adopting kids through Catholic Charities from an October 2005 Boston Globe story. Not surprisingly, all of this happened as the Massachusetts Legislature was wrestling with whether to put an anti-gay marriage amendment on the statewide ballot, which the local Catholic hierarchy supported wholeheartedly.

The Globe reported that over the course of about two decades, Catholic Charities placed 13 children with gay parents, out of about 720 adoptions they facilitated during those years. For the record, those 13 children were considered hard to place with adoptive parents because they were older or had physical or emotional difficulties, meaning had they not found loving parents who happened to be gay, they’d likely not have parents. Catholic Charities was accepting state funds to provide adoption services and was thus bound by the state’s gay-inclusive anti-discrimination law not to reject qualified adoptive parents based on sexual orientation. Oh, and by the way, the non-discrimination law has been on the books since 1989 -- long before marriage equality was but a doodle on Mary Bonauto’s legal pad.

The Globe also reported that though Catholic Charities President Bryan Hehir didn’t love the idea of placing children with same-sex couples, he saw it as “a legal accommodation in the name of a greater social good.” The story later states that, “Hehir said that to his knowledge, his agency has never sought an exemption from the nondiscrimination language.”

At least not until the four bishops, led by Cardinal Sean O’Malley of Boston, decided that Catholic Charities should be exempt from the state’s non-discrimination law, a move that was detailed in a March 11, 2006 Globe article about Catholic Charities decision to stop doing adoptions. When that proved to be a non-starter on Beacon Hill, the bishops simply elected to shut down Catholic Charities of Boston’s adoption services – despite a unanimous vote by the agency’s 42-member board to continue facilitating adoptions by gay people. As the Globe reported on March 11, Hehir and Catholic Charities board president Jeffrey Kaneb said the decision stemmed from their inability “to reconcile church teaching that placement of children in gay homes is “immoral” with Massachusetts law prohibiting discrimination against gays.” No mention of marriage equality as the reason for the policy change. In fact, nowhere in the entirety of the joint statement they released at the time do Hehir and Kaneb say same-sex marriage played a role in the decision to terminate adoption services. Because it didn’t.

In reality, it was just garden variety anti-gay bigotry on the part of four Catholic bishops that killed Catholic Charities of Boston adoption services. Who knew?

On the Trail: A Note from Executive Director Lee Swislow

I can’t quite believe this is happening. I’m flying to Atlanta on Sunday, March 13 and will spend the night in the Hikers Hostel. On Monday, March 14, I will get a ride to the trail head, walk the mile up to the summit of Springer Mountain, Georgia, and then turn around and start walking to Mt. Katahdin, Maine—just about 2200 miles north.

I have been thinking about hiking the Appalachian Trail for over 40 years and first thought about 2011 as a possible date to go at least 6 years ago. This was before I started working at GLAD, so I thought I would be ready to leave my job by 2011.

Then I got the best job in the world as executive director of GLAD. As 2011 got closer, I knew I didn’t want to leave my job. But I also knew that I still wanted to make my dream come true—I wanted to hike the AT.

I am so lucky to work at such a great place. Both the GLAD Board and the GLAD staff have been incredibly supportive. I have a seven month leave of absence so that I can both hike the trail and come back to a job I love.

As much as I have read about hiking the AT and as much as I have tried to prepare, I don’t really know what the next few months will bring. I will be blogging regularly at www.trailjournals.com/leeswislow, so if you are interested, you can follow this journey.

Life is full of twists and turns and ups and downs. Soon I will be experiencing that literally as well as figuratively. Wish me luck!

Lee Swislow
Executive Director

Know Your Rights: What is ‘heightened scrutiny’ and why is it important?

Courts have found that laws that discriminate against certain groups of people are more likely to reflect prejudice against that group than they are good public policy. Rather than being assumed to be constitutional, such laws need to be justified with exceptionally good reasons. This is called “heightened scrutiny” and has, for example, been used in cases where a racial group is being discriminated against.

GLAD has consistently argued in the courts that sexual orientation deserves “heightened scrutiny.” So it was an enormous breakthrough last week when the President and the Department of Justice (DOJ) agreed with GLAD on that point- and because of that also agreed that DOMA is unconstitutional.

This is only the opinion of the President and the DOJ, and what ultimately matters is how the courts view things. GLAD’s two DOMA cases, Gill and Pedersen, will continue, and we will have to wait to see how the courts rule on the issue of heightened scrutiny, and on DOMA’s constitutionality. If GLAD can convince the courts to accept heightened scrutiny as the proper standard of review, this would impact not only GLAD’s DOMA suits, but any suits that come before those courts which involve sexual orientation.

On the other hand, under the usual review standard that courts use, ”rational basis,” a law is presumed to be constitutional and, in order to demonstrate that, any valid reason (other than a discriminatory one) will do. It is certainly possible to win cases under the rational basis standard. GLAD’s Massachusetts marriage case, Goodridge, was decided on that basis, and U.S. District Court Judge Joseph L. Tauro concluded that Section 3 of DOMA is unconstitutional under rational basis, in GLAD’s Gill case now on appeal in the First Circuit. But heightened scrutiny review greatly increases the chances that a law will be found unconstitutional.

Until there is a final decision by the courts, DOMA remains the law of the land and is being enforced by the federal government. GLAD has prepared a helpful FAQ about what last week’s decision by the DOJ means. Take a look, and contact GLAD’s Legal InfoLine at 800-455-GLAD (4523) with your questions.