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.

12:20

Rosenberg resumed her remarks by arguing that rational basis--the "model of judicial restraint"--is the appropriate standard in this case.

Justice Borden, who had a similar dialogue with Ben, asked Rosenberg how she would balance between the Glucksberg cautionary tale (against overly broad definitions of marriage) and Lawrence's cautionary tale (against overly narrow defnitions of marriage).

Rosenberg responded that this case will change the definition of marriage in a radically different way than either of those cases.

Borden led Rosenberg to a discussion of the idea that, even in Goodridge, Justice Marshall acknowledged that the Massachusetts Supreme Judicial Court acknowledged that it was, in fact, changing the defnition of marriage.

12:00

The Justices adjourned for their morning recess.

Just before leaving, they questioned Rosenberg about the level of scrutiny required for a suspect class argument, which she identified as strict scrutiny. But she maintained that the case was not about sexual orientation discrimination, since nothing prohibits gay men and lesbians from marrying a member of the opposite sex--they just choose not to do so.

Justice Borden questioned whether that was a realistic argument, if sexual orientation is a central part of their identity. And Justice Palmer, clearly troubled by the logic, responded that he thought it was a facile approach to a suspect class claim.

11:50

The justices began their questioning of Rosenberg by asking about the harms caused by marriage inequality. How, asked Justice Palmer, does the difference between civil union and marriage not stigmatize those relagated to civil unions? Appellate Judge Harper asked about how the denial of a marriage licence does not count as a constitutional harm.

Rosenberg maintained that, although she respects the plaintiff couples' feelings that they are stigmatized by not having access to marriage, those feelings do not go to the legal question at hand, i.e., whether the Legislature is required to use the word "marriage." She continued to say that there is nothing in the civil union law that is intended as derogatory for same-sex couples, and in fact civil unions indicate a step forward.

Justice Palmer asked if this "step forward" is the reason the defendants claim the plaintiffs can't satisfy the "political powerlessness" component of a suspect class argument. Justice Norcott interjected that, "if gay and lesbian folks in Connecticut had true political power, they'd have passed the bill across the street (in the legislative building), and we wouldn't be here."