Plain and Simple: Making the Case for Fair Treatment of Trans Students

by Laura Kiritsy, Manager of Public Education

GLAD has litigated two cases in Bangor, Maine. The first was Bragdon v. Abbott, in which Senior Attorney Ben Klein represented a woman with HIV who was denied treatment by a dentist who had a written policy of refusing to treat anybody with HIV. Ben argued that case all the way to the U.S. Supreme Court, where he won a landmark victory in 1998 that established anti-discrimination protections for people with HIV under the Americans with Disabilities Act.

Fourteen years later, Ben and I drove the 440-mile round trip in his 2001 Honda Civic DX (with manual locks and windows) back and forth to Bangor so he could argue another important case, Doe v. Clenchy. GLAD is representing Susan Doe (a pseudonym), a transgender girl who had her education disrupted when the public school she attended did an “about face” by excluding her from the girls’ bathroom after a male student repeatedly harassed her. 

The hearing took place on Wednesday in Penobscot County Superior Court in downtown Bangor before Judge William R. Anderson. The day before his court appearance, Ben followed his standard argument preparation on our drive to Northern Maine. First, he lowered the volume of the Glee soundtrack and treated me to a preview of his argument on the drive up. It was nearly flawless, although I didn’t interrupt with umpteen questions, as judges often do. Then, after a sumptuous dinner at the local Longhorn Steakhouse, Ben retreated to his hotel room for a final review of his notes and a session of yoga and meditation. Meanwhile, I retreated to my room to eat a Snicker’s bar and watch a Civil War documentary.

At counsel table along with Ben were Jennifer Levi, the director of our Transgender Rights Project; John Gause, counsel for the Maine Human Rights Commission, which is also a party to the case, and Jodi Nofsinger, a Maine attorney who is also part of our litigation team. Susan, who is now a sophomore in high school, was seated close behind them, along with her very supportive mother and father.

To give some context for this case, Maine has a statewide law prohibiting discrimination against people based on gender identity and expression in all areas, including public education and public accommodations, plain and simple. To defend against what otherwise seems to be a cut and dry case of discrimination, the school has pointed to a Maine Human Rights Commission regulation that permits schools to have separate restrooms for boys and girls, a regulation the school interprets to mean it can ignore a student’s gender identity in that one instance.

Ben countered that the Commission’s regulation cannot override the state’s non-discrimination law, making his arguments quite thoroughly and forcefully, despite the anticipated barrage of questions from the judge. He made the case that the plain language of Maine’s non-discrimination law prohibits the school from denying a girl access to facilities that other girls use simply because she’s transgender. Lastly, he argued that the school violated the law because not only did it exclude Susan from the girls’ bathroom thereby treating her differently than all other girls, it forced her to use a separate facility thereby treating her differently than all other students. 

Ben was satisfied that the arguments “went as well as they could have,” as the judge really seemed to be wrestling with the issues presented in the case. That’s a common experience; our litigation frequently raises new and novel legal issues that judges are often encountering for the first time. Indeed, just as Judge Anderson is wrestling with the rights of transgender people, the judge in the Bragdon case wrestled with the issue of proper access to care for people living with HIV/ AIDS 14 years earlier. Now, it’s simply a no-brainer that people can’t be discriminated against in any setting because of their HIV/AIDS status. We’re working toward the day when treating transgender people equally and respectfully is also a no-brainer.

As with so many of our cases, we understand that the argument before Judge Anderson is just the first step in a long process that may potentially lead to a full trial, and ultimately a decision from the Maine Law Court, the state’s highest court. So now, we await a ruling.

Stay tuned.

Fighting on Every Front for DOMA's Demise

Our efforts to dismantle DOMA have been keeping us very busy here at GLAD headquarters this week. Our DOMA legal team – Mary Bonauto, Gary Buseck, Ashley Dunn, Vickie Henry, and Janson Wu – was locked away preparing our motion for summary judgment in our Pedersen lawsuit. We let them out to eat lunch, but that’s about it.

Meanwhile, the public affairs team was doing its part to ensure that the upcoming Senate Judiciary Committee hearing on the Respect for Marriage Act (RMA), Sen. Diane Feinstein’s bill to repeal DOMA, successfully demonstrates to committee members, Congress and the public just how much DOMA hurts married same-sex couples and widows or widowers.

The hearing is on July 20 in Washington, D.C. and we were proud to help Connecticut’s Sen. Richard Blumenthal, an RMA cosponsor, identify a constituent to testify about the injustice he’s suffered under DOMA – one Mr. Andrew Sorbo, a retired teacher from Cheshire who lost his husband and partner of 30 years, Colin Atterbury, to pancreatic cancer only to learn that his household income would be reduced by 80 percent because of DOMA. We profiled Andrew for our online DOMA Story Book project and his story is both moving and maddening. It can’t help but impact Judiciary Committee members.

Speaking of our DOMA Story Book project, we also compiled 20 of them into a soft-cover book that will be distributed to each of the Judiciary Committee members. Hot off the presses, a copy of “DOMA Stories: How Federal Marriage Discrimination Hurts American Families” just landed on my desk. Despite its compact size, it really packs a punch.

It’s hard not to be moved by the stories of couples like Tom Casey Hopkins and Darrel Hopkins, a Vietnam veteran who simply wants the same spousal benefits for his husband that other married vets enjoy, or Judy Paiva and Sandy Ansell, who live under a cloud of uncertainty and anxiety, because DOMA prevents Judy from sponsoring her spouse Sandy, a native of Canada, for U.S. citizenship.

Though I’ve read all of these stories plenty of times before, there is something very powerful about seeing and reading them in this book form, perhaps because it makes the evidence of DOMA’s many injustices completely undeniable. We’re proud of this publication and we’re grateful to the many, many couples who have generously shared their stories with us. It’s because of folks like them that we’re fighting on every front for DOMA’s demise.

And in addition to wrapping up their motion, a couple of our DOMA team lawyers are assisting our partners at Freedom to Marry with legal analysis and crafting testimony. And while GLAD won’t be testifying at the hearing due to our pending DOMA lawsuits, Mary Bonauto will be attending the hearing next Wednesday to offer moral and technical support to the folks testifying in favor of the RMA.

Be it in the in the legislature, the public square, or in the courts, we won’t rest until DOMA is gone.

Something on Which GLAD & NOM Agree! Courts Have a Role to Play in the Real World

On the heels of the U.S. Department of Justice’s (DOJ) announcement last week that it would no longer defend DOMA against legal challenges by GLAD and other organizations, the National Organization for Marriage (NOM) issued an action alert urging members to immediately call their congressional reps to demand they defend the odious law.

“It’s a constitutional outrage,” NOM President Brian Brown wrote in the alert. “Why do we even have courts if the President himself gets to decide which laws are constitutional?” (Emphasis added).

Interesting question from an organization that seems to believe that the only reason courts exist is to give “activist judges” a place to while away their weekday afternoons. Google “National Organization for Marriage” and “activist judges” and 71,800 hits later, you’ll get the picture. Nowhere was NOM’s disdain for the judiciary more apparent than in their successful multi-million dollar effort to oust three of the Iowa Supreme Court justices who ruled in favor of same-sex couples who sought access to civil marriage rights in that state – complete with a campaign ad that begins, “Activist judges on the Iowa Supreme Court have become political, ignoring the will of the voters.”

And that’s really what it comes down to for NOM – judges that don’t rule their way are activist, and the people should always be able to vote on whether same-sex couples should be able to access the institution of civil marriage. Occasionally they toss their talking points when it suits their ends, like when it’s time to rally their supporters to cajole Congress into taking on the DOMA defense. But it’s telling that while Brown was slamming Obama’s decision to stop defending DOMA in an email to his constituency, NOM board chair Maggie Gallagher was on Fox News saying that Obama’s decision would be beneficial because the president “wasn’t really defending this law at all -- his justice department was trying to throw this case.”

Dignity, Respect, and Equal Treatment (O'Donnabhain Trial Concludes)

Trial ended today in Rhiannon O'Donnabhain's challenge of the IRS over their refusal to allow her a tax deduction for the costs of her treatment for Gender Identity Disorder. The IRS presented testimony from a final expert witness and both sides made their closing arguments.

Both parties will next file briefs with the court on November 6. Following that, each side will have seventy-five days to file a response brief (due January 21, 2008), after which the judge will issue a decision.

At the conclusion of today's trial proceedings, Rhiannon O'Donnabhain issued the following statement:

"I'm glad to have had the opportunity to tell my story and it was important for me personally, as a citizen and tax-payer, to have my day in court.

It also was important for the transgender community, my community, to speak in an official forum about what it means to be a transgender person living in this country.

I hope that this case sends a clear message that transgender people deserve dignity, respect, and equal treatment not just for our medical care, but in all aspects of our lives - just as every human being deserves dignity, respect and equal treatment.

I also hope that this case addresses some of the misunderstanding, bias, and prejudice transgender people face in our lives every day. Because what's really at the heart of this case - and my story - is a basic misunderstanding about the critical importance of being able to express my gender identity. It's something everyone should be able to do."

O'Donnabhain Tax Trial Resumes Thursday

The potentially precedent-setting trial, O’Donnabhain v. Commissioner of Internal Revenue, resumes this Thursday, August 23, in Boston.

Rhiannon O'Donnabhain, represented by GLAD, is challenging the IRS over their refusal to allow her a tax deduction for sex reassignment surgery related to her treatment for Gender Identity Disorder.

The trial began on July 23 and recessed on July 27. On Thursday, the IRS will present their final expert witness, and both sides will make closing statements.

Check back here later this week for a post-trial wrap-up.

More on Trans Medical Deduction Case

While the O'Donnabhain trial is temporarily in recess, the case, Rhiannon, and the GLAD attorneys representing her continue to receive supportive press (read this editorial from David Yas of Massachusetts Lawyers Weekly) and feedback. Thanks to all who have written such supportive and encouraging emails and comments.

Clearly this case is affecting many people. Here is a sampling of the comments we've received:

"Thank you for representing Rhiannon in this US Tax Court Case. It will affect me as well. I have an almost parallel journey to hers, was navy though 24 years."

"I am a bisexual cisgendered female resident of Massachusetts currently dating a hopeful Male-to-Female transgendered bisexual woman who I love very much and support strongly in her pursuit of aligning her sex with her gender. As such, I am so pleased that GLAD is supporting the transgender community in such a strong way. Bennett Klein as well as all of the other amazing GLAD contributors have my thanks and encouragement."

"GLAD is like a pit bull. You better look out if they decide to sink their teeth into you, even if you're the Internal Revenue Service."

Looking for help?
GLAD's Legal InfoLine offers help for individuals in the New England area dealing with legal issues related to their gender identity or expression, sexual orientation, and/or HIV status. If you have concerns or questions, visit our Legal InfoLine online for more information on the resources GLAD can provide.

O'Donnabhain Trial Wrap Up

What a week.

Yesterday was the final day of trial (for a while) in GLAD’s case representing Rhiannon O’Donnabhain in U.S. Tax Court. And that has meant that for the first time ever in tax court there was a rich and full discussion about transgender identities.

At the heart of the case is the question of whether one transgender woman will be guaranteed equal treatment by the Internal Revenue Service. But this case goes beyond Rhiannon as an individual. Having a court consider the experience of one trans woman has been an important opportunity to show the pervasive discrimination that transgender people face every day.

On Tuesday, the first day of the trial, we heard from three fact witnesses. Rhiannon and two of her primary health care providers testified to a courtroom packed with local and national media, students, supporters, and government officials. The focus of the day was Rhiannon’s personal story, what she’s gone through, and what it feels like to live as a trans woman in the world.

We heard expert testimony on the second and third days. Through this testimony both parties developed more fully what individuals with expertise in the area understand about what it means to be transgender.

One of the striking things about the trial was the level of discussion about trans identities, and about how trans people live in and experience the world. People in the courtroom seemed moved by the discussion. It’s hard to imagine that anyone left without a richer understanding of transgender people’s lives.

The trial will continue August 23, with testimony from the government’s second and final expert witness, followed by closing statements from both parties.

More press coverage: Bay Windows, Congressional Quarterly and In Newsweekly, including a profile of Rhiannon O'Donnabhain.

Press Coverage of Trial, Day One

Scott Malone filed this article for Reuters on the first day of the trial.

In Newsweekly has this story on the case.

You can also listen to an interview with GLAD Attorney Jennifer Levi on the Human Rights Campaign's radio show The Agenda (recorded Monday night).

O’Donnabhain v. Commissioner of Internal Revenue Trial Begins

GLAD Attorney Jennifer Levi (left), Rhiannon O'Donnabhain (center), and GLAD Attorney Karen Loewy prepare for court on the first day of the trial

Civil Unions are Inadequate

The New York Times agrees, judging from the editorial in today's issue.

What do you think?

Loving Equality

June 12th marks the 40th anniversary of Loving v. Virginia, the landmark Supreme Court decision that advanced racial equality and the freedom to marry in America.

In 1967, Virginia residents Richard Loving and Mildred Jeter, an interracial couple, married in Washington DC. When they returned home, they were arrested for violating Virginia's Racial Integrity Act, which prohibited their marriage. The couple challenged the arrest all the way to the US Supreme Court. Writing in a unanimous decision, Chief Justice Earl Warren stated that banning interracial marriages constituted "invidious racial discrimination," thus violating the equal protection clause of the 14th Amendment.

Committed, loving couples whose relationships had previously been treated with legal disregard and societal disrespect were finally able to marry.

Is the Loving decision relevant to today's struggle for marriage equality?

Writing in an op-ed piece in this Sunday's Washington Post, University of Pennsylvania Law Professor Kermit Roosevelt makes an insightful argument that, indeed, it is. Roosevelt makes the case that court decisions based on the constitution's Equal Protection Clause, such as Loving, reflect evolving societal understanding of what constitutes invidious discrimination - "discrimination designed to oppress a particular group or to brand its members as inferior."

"Restricting the benefits of marriage to opposite-sex couples," Roosevelt points out, "is increasingly seen as invidious, an inequality inflicted for no good reason."

We couldn't agree more.

GLAD is joining a coalition of organizations led by Freedom to Marry in launching an ad campaign this week to commemorate the Loving decision and celebrate its importance:

• as a milestone in the fight against racial inequality,
• for its importance in securing the freedom to marry as a civil right,
• for its embodiment of the importance of social justice activism and independent courts, and
• for its relevance to today's ongoing battles against unfair exclusion from marriage.

Massachusetts Backs Marriages of New York Couples

New Yorkers Tanya Wexler and Amy Zimmerman married in Massachusetts in May, 2004

New York gay and lesbian couples who married in Massachusetts before July 6, 2006 - the date a New York court explicitly prohibited marriage between same-sex couples in that state - have a fully valid marriage. That was the final judgment made by a Massachusetts court on May 10.

GLAD attorney Michele Granda, who argued the case, calls the ruling "a cloud that’s been removed from these marriages. There shouldn’t be any question that those marriage licenses are worth the paper they’re printed on, and that Massachusetts fully backs the currency.”

Today's New York Times ran an article about the decision and what it means for New York couples.

Marriage Equality Press Conference

Here is a video of the press conference following last Monday's Connecticut Supreme Court hearing.

Happy Anniversary!

Today is the third anniversary of equal marriage in Massachusetts. After GLAD's landmark court victory in Goodridge v. Department of Public Health, loving, committed same-sex couples in Massachusetts began legally marrying on May 17, 2004.

We don't love each other more because we can legally marry. No law or court decision can do that. But marriage does mean we have respect and recognition, and we can better protect our relationships and our families. Legal marriage means more people being treated as full and equal citizens.

Today is a day for celebration in Massachusetts. And it's also a day to remember that work must continue to gain full equality for lesbian and gay citizens throughout New England, and throughout the country.

Fighting for Dignity and Respect

Take a look at more photos from the day

After yesterday's oral argument at the Connecticut Supreme Court, GLAD Attorney Ben Klein and the eight plaintiff couples in the case participated in a press conference on the courthouse steps.

Ben opened by saying: "Today the plaintiffs argued for the right to the same treatment and dignity that all other families get. Under the Connecticut constitution, we believe that they are entitled to the same respect and dignity of any other couple."

Lead plaintiffs Beth Kerrigan and Jody Mock then took the microphone to explain how important it is to them and their children to be able to say that they are married, and how heartened they were to hear one of the Justices bring up that point in court. "We have five year old boys in kindergarten, and they always ask us 'are you married?' And it breaks our heart to have to say the truth, which is that we're not. But we're fighting for that."

12:59

In closing, Ben focused his argument on the fact that marriage is more than the sum of all the tangible rights and benefits associated with the word “marriage.” Rather, the ability to say that you are married is one of the benefits of marriage. There is no adjective or verb associated with the word “civil union” and gay and lesbian couples and families deserve a legal status that let’s them convey to the world that they have access to the same level of equality enjoyed by CT’s other citizens.

Ben also rebutted the state’s argument that the legislature could have rationally believed that civil unions are better because they are more likely to be granted recognition in other states. Ben said that the premise was all wrong. Only a few states have civil unions but all states have marriage recognition laws. No one can prejudge whether a marriage will be respected in whole or in part because the outcome of a marriage recognition analysis might turn on what aspect of marriage someone needs to have recognized, as well as potentially competing public policies. For example, a state may respect a marriage to enforce child support obligations arising from a marriage because the state policy of protecting children surmounts any competing public policy.

12:55

After Ben's return to the podium, Justice Borden revisited the issue of whether the plaintiffs should be considered a suspect class or a quasi-suspect class. Are gays and lesbians politically powerless now? Or do we look at whether they historically have been politically powerless? What lens do we look at in applying that part of the test?

Ben responded that, to answer this, the Court has to look through an historical lens, to reflect the reality that systemic discrimination does not appear in a short timeframe. And also a national lens, because Connecticut citizens are affected by what happens nationally. There have been gains, but gays and lesbians as a group are still subject to the control of the majority, and there is still inequality.

12:43

Attorney Judith Ravel, representing Dorothy Bean, the town clerk who refused to issue marriage licenses to the plaintiff couples, gave a brief statement for her client. Mrs. Bean, she said, did the only thing she could do, which is to follow the instructions of the attorney general.

The Justices didn't question her.

Still, she said with emphasis, "Mrs. Bean got served, and she didn't like it."

12:40

Rosenberg rounded out her statement by saying that changing the defintion of marriage in the state of Connecticut should be a matter for the Legislature.

12:40

Rosenberg advanced several arguments about why limiting marriage to different-sex couples related to a rational state interest, including maintaining the traditional meaning of marriage, promoting consitency with the laws of other states, the possibility that the rights associated with civil union will be recognized by states prohibiting marriage for same-sex couples.

Justice Borden asked whether the state relies at all on the "responsible procreation" argument; Rosenberg responded that although amici raised that argument, the state doesn't rest on it.

Rosenberg began her conclusion by stating that marriage is not a matter of constitutional law for the court to decide; rather, it's a legislative matter that should be decided by the people.

Justice Borden wondered about the analysis applied to the Virginia Military Institute case; Justice Norcott identified it as the McLaurin analysis, which may fall somewhere in between an intermediate analysis and strict scrutiny.

Justice Borden continued to ask whether Rosenberg thought it was important for all children, including the children of same-sex couples, to say that their parents are married. He also asserted that there is a good amount of evidence pointing to the equal parenting abilities of same-sex and different-sex couples.

In response, Rosenberg revisited her idea that the plaintiffs' feelings about the word marriage - valid as they may be - didn't lend themselves to a legal argument, and that that may be an issue for the Legislature.