GLAD's Top 10 Victories of 2011

It’s been an exciting year fighting for equal justice under law for LGBT people in the New England states, and we’re grateful that we’ve got a lot to show for it. In the spirit of the umpteen other end-of-year lists, we bring you GLAD’s Top 10 Victories of 2011. They’re in no particular order, since we’re all about equality here.

10. DOJ says Defense of Marriage Act is indefensible – and more!

In response to Pedersen v. OPM, our Second Circuit DOMA challenge – and the ACLU’s Windsor v. United States DOMA challenge – the U.S. Department of Justice in February announced it would no longer defend the law in court, believing it to be unconstitutional. Even better, the cases called the question of the level of scrutiny that should apply to DOMA and President Obama and Attorney General Eric Holder concluded that heightened scrutiny should apply. That means Congress, which assumed responsibility for defending DOMA, will have a significantly harder time proving that DOMA should not be struck down.

9. Maine’s anti-trans LD 1046 is resoundingly defeated

GLAD was part of a coalition that worked to defeat LD 10146, a bill that would have repealed non-discrimination protections for transgender Mainers in public accommodations. Transgender Rights Project Director Jennifer Levi served as the coalition’s expert witness at a public hearing in May (pictured up top). The Republican-controlled legislature killed the bill by a wide margin in June.

8. GLAD lawsuit produces new Denny’s bathroom policy for transgender patrons

In June, GLAD’s Transgender Rights Project and Realty Resources Hospitality, which operates six Denny’s restaurants throughout Maine, announced an agreement resolving a lawsuit brought by Brianna Freeman, a transgender woman who was denied access to the women’s restroom at a Denny’s in Auburn, Maine. Realty Resources Hospitality agreed that at all of the restaurants it operates, all transgender individuals, including Brianna, will have access to the restroom consistent with their stated gender identity.

7. Connecticut Supreme Court establishes legal parentage for non-genetic parents in surrogacy

In a first-of-its kind decision, Connecticut’s high court ruled in January that a gay male couple who used a gestational surrogate to have children are the children’s legal parents, and that the state must permit both men’s names to be placed on the birth certificates. GLAD submitted an amicus brief on behalf of the American Society for Reproductive Medicine, the American Academy of Assisted Reproductive Technology Attorneys, Connecticut Fertility Associates, and New England Fertility Institute.

6. GLAD celebrates Connecticut’s new transgender non-discrimination law

In July, Gov. Dan Malloy singed HB 6599 into law, giving trans people the full protection of the state’s anti-discrimination laws. GLAD was part of the coalition that worked to pass the bill, presenting testimony, participating in the formation of strategy, and doing message development and training.

5. Executive Director Lee Swislow hikes the Appalachian Trail!

Okay, we know this isn’t a legal victory, but hiking 2,181 miles through 14 states (from Georgia to Maine) in all kinds of weather is no small thing -- just ask the folks who were left in charge here at GLAD during our fearless leader’s 7-month trek. Alas, we survived – and so did Lee. We’re glad to have her back (pun intended).

4. Blue Cross/Blue Shield decides to cover HPV Vaccine for males

In August, after GLAD’s AIDS Law Project Director Ben Klein urged Blue Cross Blue Shield of Massachusetts to make such a policy change, the health insurer decided it would cover the human papillomavirus (HPV) vaccine for males. GLAD praised the health insurer for taking this step because gay men are at particular risk of contracting anal cancer through HPV infections.

3. Federal Bureau of Prisons makes major change in transgender medical policy

In September, a settlement was announced in the case of Vanessa Adams, a Federal Bureau of Prisons (BOP) inmate at FMC Butner in North Carolina who has gender identity disorder (GID). Vanessa sued BOP in order to receive appropriate treatment for her GID and was represented by GLAD, Florida Institutional Legal Services (FILS), the National Center for Lesbian Rights (NCLR), Bingham McCutchen LLP, and Allyson Kurker. Under the settlement, BOP ended its so-called “freeze frame” policy in which treatment for any person with GID is kept frozen at the level provided at the time he or she entered the federal prison system. In Vanessa’s case, this meant that because she had not received treatment for GID before being incarcerated, BOP refused to provide her with medically necessary care even though its own doctors diagnosed her with GID, told her about treatments available for GID, and knew about the seriousness of her medical condition.

2. Ensuring New Hampshire’s anti-bullying law protects students

GLAD, along with co-counsel Neil Jacobs, MJ Edwards and Brian Boyle of WilmerHale recently represented a New Hampshire high school student who experienced an onslaught of anti-gay cyberbullying before the state Board of Education. After his school refused to address the bullying, the student and his father complained to the Board of Education but the hearing officer assigned to the case dismissed their complaint on the grounds that the board had no jurisdiction to hear their case. GLAD and co-counsel appealed the hearing officer’s decision to the full Board of Education, which agreed unanimously with GLAD’s position that the inability to pursue a case like would effectively render the anti-bullying law toothless.

1. Transgender protections passed in Massachusetts; important work remains

We end this list with a victory that reminds us that there is still much work to be done to secure full equality for LGBT people in New England: In November, Gov. Deval Patrick signed into law the Transgender Equal Rights Bill, which will provide essential non-discrimination protections for transgender people in employment, education, housing, and in situations where people face hate-based violence. GLAD was part of the coalition that worked to pass the bill. However, in passing the bill, the legislature removed critical protections for trans people in public accommodations, (i.e. restaurants, movie theaters, malls, and other public places).

GLAD and our coalition partners will not rest until transgender people in Massachusetts are fully protected under the Commonwealth’s non-discrimination laws.

Here’s to 2012! Happy New Year!

Advocating for Better MA State Police Conduct

GLAD primarily achieves its victories through impact litigation in the courts, but we also look for other ways that we can accomplish our mission. One recent example is our participation in the Massachusetts Transgender Equal Rights Coalition that resulted in the successful passage of a law that adds protections for transgender people to the state’s anti-discrimination and hate crimes laws. Another example is our participation in meetings with police that help to educate the police about LGBT concerns and gives us a way to discuss any concerns that we hear about through our Legal InfoLine.

Over two years ago, GLAD began to receive complaints through our Legal InfoLine from gay men who reported that some Boston Police officers were acting very aggressively towards gay men who were just walking through or near the Fens. Officers would approach the men and ask very invasive questions and threaten people with arrest if they did not answer truthfully.

As a result of these complaints, representatives from the Anti-Violence Project, the Violence Recovery Program at Fenway Community Health, the Male Center of AIDS Action Committee, the LGBT liaison from the Mayor’s Office and GLAD began to meet on a regular basis with some of the Boston Police leadership, including the Superintendent, and with the officer who is the liaison to the LGBT community.

Initially there was an exchange of information and a lot of learning that took place on both sides. The police heard about our concerns and issues, and the LGBT participants learned about how and why the police work in certain ways. After a number of meetings, we were able to build a collaborative and positive working relationship that allowed us to discuss any issues or concerns that we had. Some of the accomplishments include:

• Agreement on the rights that someone has when confronted by a police officer that finally led to a wallet card being produced that could be given out by LGBT outreach workers. These cards were used by the Boston Police to educate their officers in the field about the appropriate way to interact with someone they perceive to be LGBT.
• The Boston Police run all incident reports through a computer to help identify cases where a hate crime may have occurred. We were able to assist the police in adding other key words to their search so that more incidents would be identified as potential hate crimes.
• A caller to the InfoLine had been charged with a very serious felony in a situation where only a misdemeanor charge was warranted. The police were able to intervene and get the charges dropped.
• The Fens has signs that post the closing time of the park—but they don’t list the same time. We all agreed that replacing them with signs that are consistent is necessary, but so far the resources have not been found to make it happen.

When GLAD receives calls to the InfoLine that report Boston Police misconduct, there is now a forum for discussing the incident with the Boston Police. Interestingly, we have not had a complaint on the InfoLine concerning a Boston Police officer for over a year.

Due to the success of this collaboration with the Boston Police, when the InfoLine began to receive some complaints this fall about State Police misconduct on public land, a meeting was setup with the same LGBT groups and the Executive Office of Public Safety, the State Police, the Attorney General’s Office and the Department of Conservation and Recreation.

In 2001, GLAD won a settlement that resulted in the State Police issuing a General Order about how State Police should treat law abiding citizens on public property. At the meeting, it was good to see that the General Order had been reissued in 2009 and so was still in effect. This meeting was the beginning of a dialogue that we hope will lead to the establishment of a positive working relationship with the State Police. There has already been a second meeting with Colonel Marian McGovern and some of her staff and we have agreed to work with the Massachusetts State Police to create a training curriculum around LGBT issues.

Anyone with concerns about the police is encouraged to contact GLAD’s Legal InfoLine. The InfoLine is a free, confidential service. Contact the InfoLine at 800-455-GLAD (4523) Monday-Friday from 1:30-4:30pm or anytime at www.glad.org/rights/infoline-contact.

Correcting the record for Jon Huntsman

The Washington Blade, an LGBT newspaper in D.C., is reporting today on comments that Republican Presidential Candidate Jon Huntsman recently made about the Defense of Marriage Act (DOMA). Huntsman, a former governor of Utah and ex-ambassador to China, is the most moderate and LGBT-friendly of the Republican candidates but is polling at the bottom of the pack. Nonetheless, he definitely got it wrong when he suggested that “DOMA serves a useful purpose” in that it allows states to make their own decisions on marriage.

Here’s the full text of the exchange between Huntsman and Blade reporter Chris Johnson:

Blade: If I could just follow up on that really quickly, the Defense of Marriage Act prohibits federal recognition of same-sex marriage — even in states where it’s already legalized. As a matter of states’ rights, do you think it should be repealed?

Huntsman: I think the Defense of Marriage Act serves a useful purpose. It allows states to make their own decisions, to make their own way, and the Defense of Marriage Act, I think, is a safeguard for those states to make that decision.

DOMA allows states to make their own decisions on marriage? Really? Tell that to the plaintiffs in our Gill and Pedersen DOMA challenges. The states of Connecticut, Massachusetts, New Hampshire and Vermont decided to let them get married, yet that decision isn’t respected at the federal level because of DOMA. That’s not very useful to Gill plaintiffs like 81-year-old widower Herb Burtis, who can’t access his deceased spouse’s Social Security benefits; or federal postal worker Nancy Gill who can’t cover her wife Marcelle (the couple is pictured at left) on her family health insurance plan – which is why the federal court Judge Joseph Tauro ruled in favor of the Gill plaintiffs last year. (The case is now in the Court of Appeals for the First Circuit; we are currently awaiting a Pedersen decision from the Second Circuit Court.)

And rather than be able to ensure that all residents who marry within their borders are protected at the federal level, marriage equality states are forced against their will to discriminate against their own citizens, as our Attorney General Martha Coakley successfully argued in Massachusetts v. U.S. Dept. of Health and Human Services, the state’s lawsuit against DOMA. It’s a position that Gov. Deval Patrick – along with Connecticut’s Gov. Dannel Malloy, Vermont’s Gov. Pete Shumlin and Gov. Andrew Cuomo of New York, where same-sex couples can also marry – reiterated in a recent letter to Congress calling for DOMA’s repeal.

As Judge Tauro noted in his Gill decision, “the historically entrenched practice of incorporating state law determinations of marital status where they are relevant to federal law reflects a long-recognized reality of the federalist system under which this country operates. The states alone have the authority to set forth eligibility requirements as to familial relationships and the federal government cannot, therefore, have a legitimate interest in disregarding those family status determinations properly made by the states.” In other words, when states decide to enact equal marriage laws, the federal government needs to respect them.

So what Mr. Huntsman really should have said was that DOMA “allows states to make their own decisions, to make their own way, and the Defense of Marriage Act, I think, is a safeguard for those states that want to continue to discriminate against same-sex couples to make that decision.”

We’re happy to set the record straight for him.

World AIDS Day: The Fight is Not Over

Post by GLAD Senior Legal Assistant Joseph Wildey

I remember Linda Ellerbee, the anchor for Nick News, addressing an audience of curious tweens. Her tone, often upbeat, was unusually serious at the start of this particular episode. As the program began, Ellerbee informed the audience of what was then an epidemic in full swing: HIV/AIDS.

The year was 1992 and I was only seven years old, but I remember this television moment with particular vividness. I can recall her interview with Magic Johnson, and the demonstration of effective condom use that followed. An already neurotic child, I catalogued this experience in the folder I kept full of things to worry about.

Some time later I remember having a conversation with my mother about the topic. My mother was never shy about educating me, and she told me that HIV/AIDS was a disease that gay men got. I do not believe—because it is not in my mother's nature—that this statement was the result of prejudice or bias; at the time, it was a disease that mostly affected gay men. However, to my young ears, what my mother said sounded like, "If you are gay, you will get AIDS."

It was an alarming moment, then, when I realized I was gay. At that time, HIV/AIDS began to fade from the public consciousness; the advent of the “cocktail therapy” had extended life expectancy and created the perception that the disease could be a chronic yet manageable condition.

HIV/AIDS slowly became just another risk associated with sexual activity, breezed over in health class among the panoply of viral and bacterial consequences drilled into the heads of hormonally-active teenagers. The privilege to avoid confronting HIV/AIDS continued into college, even when I came out to my parents and friends. Among the small group of gay friends I developed, no one had been personally impacted by the disease and it simply was not discussed.

It wasn't until I was twenty-three that I befriended someone who identified as HIV-positive. I was introduced to this person by an acquaintance who informed me of his status prior to our meeting. Being uncomfortable with the topic, I feigned ignorance when he disclosed his status to me one night over dinner. But I listened with rapt attention as he told me about being diagnosed in 1986 and not having any idea what came next, or even whether he would be alive to experience a next anything.

I learned that my friend’s partner at the time also tested positive and passed away several years after his diagnosis. My friend showed me an address book that he used that contained hundreds of names, the majority of which were crossed out, indicating that the person died from the disease. It's hard to explain the emotions that this interaction evoked, because there were many, but one of the most prominent was a sense of guilt: I felt guilty for not taking the steps necessary to fully understand the epidemic and its history.

While I lived through the earliest years of the epidemic, my age effectively shielded me from what many painfully endured. My own awareness was raised slowly over time, and I am now in a position to effect changes in the attitudes and perceptions of others through my work at GLAD. It has been an eye-opening personal journey.

In my two years here, I have assisted Bennett Klein, our AIDS Law Project Director, with cases that would boggle the mind of anyone convinced that the stigma and discrimination tied to HIV/AIDS are concerns relegated to the past. Insurers still routinely deny coverage for necessary treatments related to HIV/AIDS, communities still discriminate against HIV-positive individuals, and HIV-positive individuals are still viewed by many as dangerous and distinctly “other.” HIV/AIDS has not gone away; it has just faded into the background.

In November, Magic Johnson renewed the focus on the epidemic when he reminded the world that he is still HIV-positive, twenty years after he first made his announcement. During his interview, he reflected on those first moments after receiving his diagnosis, and the considerations that influenced his disclosure. For me, his interview was a timely reminder that the enormous progress made during the past twenty years is contingent upon a continued campaign of consciousness-raising and education.

It is my hope that members of my own generation—those who grew up amid pervasive fear but came of age amid rising hope—remember the life or death struggle and reignite in themselves that sense of urgency and passion that existed in the earliest years of the epidemic. The fight is not over, but with every passing day it looks more and more winnable.