Culhane: Pawlenty throws gays under the bus
OK, maybe it’s just because I’ve taught Torts for so long, but an apparently minor development out of Minnesota really has me irked.
First, consider these two stories:
(1) A California woman is mauled to death by vicious dogs, under circumstances so horrific that the owner is convicted of second-degree murder. Her surviving same-sex partner sues under the state’s wrongful death law. Under a strict reading of the statute, she would lose because she doesn’t have “standing” to sue – unlike the deceased woman’s mother, who does have such standing, even though her actual financial and emotional losses are much less. Yet the court allows the claim to proceed anyway, and she collects a large settlement.
(2) A New York couple enters into a civil union in Vermont. Later, one of the men dies because of alleged medical malpractice. Instead of contesting the merits of the suit, the hospital moves to dismiss the claim because the surviving “spouse” isn’t a spouse at all – the civil union doesn’t count. A trial judge allows the case to proceed, but the appellate court holds that the case should have been dismissed.
Since those cases were decided, the laws in both New York and California have been changed to allow “registered” same-sex couples to bring their claims – not necessarily to recover, simply to have the right to try to establish their losses.
These developments had no effect on Minnesota Governor Tim Pawlenty, who has just vetoed a bill that would have given surviving members of same-sex couples the right to make decisions about the remains of their partners and the right to sue in wrongful death for negligent acts that resulted in their partners’ demise.
When Pawlenty gave as the reason for his veto that the law was unnecessary because same-sex couples can protect themselves by executing living wills, he was flat wrong – at least as to the wrongful death part of the law.
Some quick background on wrongful death law (more than you’d probably ever want to know): These state laws are designed to provide the survivor with what he or she would have been expected to receive from the deceased: In most states, including Minnesota, damages can include some of the income that the deceased would have been expected to earn (whatever the survivor could have been expected to receive), as well as the loss of emotional support and companionship.
So what’s the problem for same-sex couples? Unlike most of tort law, suits for wrongful death are based not on judge-made (common) law, but on statutes that clearly define who’s eligible to recover. And most of the statutes continue to restrict recovery to certain named classes of survivors: In Minnesota, which is fairly typical in this regard, that’s limited to spouses and “next of kin.”
So why and how did judges in California and New York hold to the contrary? By looking to the purpose of the law, which is to compensate based on real loss, and to make sure that bad conduct is deterred. Since the strict categorical requirements of wrongful death laws frustrate those purposes, judges are tempted to “get creative.”
Given the purposes of the law and what the California judge called the “insurmountable obstacle” that gay and lesbian couples face in these cases – you can’t contract around a statute – why the veto?
Here’s a thought: Pawlenty wants to be President, and has to burnish his social conservative credentials first. So everything becomes a threat, suddenly, to “traditional marriage” – however tangential the message on marriage, and however real the costs to actual people.
Here are a few questions I’d like to ask Gov. Pawlenty.. I’m going to send them to his office (unless a reader living in Minnesota would like to!), but I don’t expect an answer.
“Governor, under the law as it now stands, a murderer would owe nothing to the surviving member of a same-sex couple, even if the deceased provided most of the support for that survivor. Can you explain and justify the policy that permits this result?”
“The result of these statutes is so unfair that judges in other states have ignored their language and looked to the purpose of the law in allowing these claims. Why not simply amend the law to better reflect the compensatory and deterrent purposes of wrongful death law?
“What advice would you give to same-sex couples to protect themselves against this result?
“If the same-sex couple had adopted a child, that child’s future prospects could be negatively and even dramatically affected by her surviving parent’s inability to recover for wrongful death. Why should that child be differently affected than the child of an otherwise identical opposite-sex couple?
“You described the law as “divisive.” Can you explain why this law is any more divisive than the one you signed last year, that prevented jointly owned homes from being sold to pay medical bills when one partner dies?”
Politicians in the Pawlenty mode continue to throw us under both the express and the local bus: Marriage and the puny but necessary baby steps that are necessitated by intransigence on full equality. We must hold him accountable, now and if he seeks the Presidency.
John Culhane is Professor of Law and Director of the Health Law Institute at Widener University School of Law in Wilmington, Delaware. He blogs about the role of law in everyday life, and about a bunch of other things (LGBT rights, public health, sports, pop culture, music philosophy and lots of personal stuff) at: http://wordinedgewise.org. A fuller bio can be found here. He can be reached via email at: johnculhane@comcast.net.
Being bored could be bad for your health
(London) Can you really be bored to death?
In a commentary to be published in the International Journal of Epidemiology in April, experts say there’s a possibility that the more bored you are, the more likely you are to die early.
Annie Britton and Martin Shipley of University College London caution that …
Withers: RIP Dennis deLeon, 1948-2009
This story might get lost with all the attention focused on Washington DC, but let’s take a moment to remember Dennis deLeon. The 61 year old activist died on Monday of heart failure.
“He was a pioneer and a visionary, and in his lifetime he sought to curb and eliminate health …
Our Genders, Our Rights
NEW YORK, NY - – - The Issues Magazine launched “Our Genders, Our Rights,” its Summer 2009 edition. A unique combination of articles, poetry, art and videos focus on a topic that is both utterly fundamental and wildly revolutionary: gender norms and gender identity.
Top writers discuss sex-selection abortion, gender expression, “Intersex” self-identification and a first-hand account of forced sex roles inside a polygamist compound in Texas.
Publisher and Editor-in-Chief Merle Hoffman’s editorial, “Selecting The Same Sex,” provides philosophical and personal insights into the issue of sex-selection abortion.
“There is one place where the definition of gender remains binary — in the womb. When it comes to sonograms, amniocentesis and standard pre-natal testing, there are no nuances. Here, the pronouncement, ‘It’s a girl,’ can translate into fierce and instant parental rejection. The fact is that when the issue is ‘sex selection abortion,’ the same sex is always being selected — female.” For Hoffman, this issue highlights questions of ethics, human rights and the moral autonomy of women.
“It’s about separating the chooser from the choice,” writes Hoffman.
In “Busting Bogus Biology and Beliefs” Mahin Hassibi notes: “For centuries, social constructs held that women owed allegiance and obedience to their husbands; children were the property of their fathers, who owned the children’s mothers.” Today, Hassibi says, discoveries in biology and reproductive technology may soon trump historical and cultural restrictions that wrongly limited women’s lives.
“My children would have undoubtedly been among the 439 seized in the raid,” writes Carolyn Jessop of the sweep through the polygamist compound. In, “American Taliban: Sect Controls Women’s Destinies,” Jessop gives an inside view of the abuse, misogyny and control of women’s bodies that continues today.
Writers also plunge into transgender concerns. “Asylum Pitfalls May Await the Transgender Applicant” by Victoria Neilson discusses the difficult process for trans applicants in the U.S. Eleanor Bader’s “Trans Health Care Is a Life and Death Matter” describes a pioneering feminist health program for trans patients in the South.
Photographic performer Tammy Rae Carland visualizes gender fluidity as the featured artist, and art editor Linda Stein conducts an interview with Elizabeth Sackler, whose passion for feminist art resulted in a new center at the Brooklyn Museum.
ABOUT US
On The Issues Magazine (www.ontheissuesmagazine.com) is a progressive, feminist, quarterly online magazine. Read more at the site — free and with archives from 1983. Merle Hoffman is the Publisher and Editor-in-Chief.
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House subcommittee approves benefits for same-sex partners
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Human Rights Campaign Calls on the LGBT Community and Allies to Participate in National, Grassroots Push to Lobby Congress Face-to-Face
The Human Rights Campaign, the nation’s largest lesbian, gay, bisexual and transgender (LGBT) civil rights organization, today launched a national, grassroots campaign called “No Excuses” to demand action from Congress on key issues of equality. Designed to take advantage of the congressional summer recess, when members are in their local offices and meeting with constituents, “No Excuses” will mobilize HRC’s 750,000 members and their allies to meet directly with lawmakers and push for federal legislative change. Members and supporters can get involved by visiting: http://noexcuses.hrc.org.
“While we salute and acknowledge the heroic members of Congress who have worked tirelessly on our behalf, far too many have dragged their feet on basic matters of fairness and equality that have lingered too long and hurt too many LGBT people and their families,” said Human Rights Campaign President Joe Solmonese. “Yes, there are many challenges facing this Congress and this president. But LGBT people often face additional hardship protecting their families, their loved ones and their jobs, and too few in Congress are willing to champion these issues of basic fairness. Now, more than ever, members of the LGBT community need to make their voices heard face-to-face and in the districts where they live.”
Using innovative online tools, one-on-one trainings and staff and volunteer follow-through, HRC members will press lawmakers to end discrimination in the military, treat all legally married couples equally, pass immigration reform that recognizes and honors LGBT families, outlaw workplace discrimination for LGBT employees, and treat all federal employees’ compensation equally.
The interactive “No Excuses” website allows supporters to download a meeting toolkit, schedule a meeting and report back on how it went. To take action, visit: http://noexcuses.hrc.org.
The in-district meetings will focus on the following key legislative priorities in the 111th Congress:
–Repeal the Defense of Marriage Act (DOMA), which denies legally married lesbian and gay couples more than 1,000 federal protections;
–Prohibit workplace discrimination for the LGBT community by passing an inclusive Employment Non-Discrimination Act (ENDA);
–Repeal “Don’t Ask, Don’t Tell” to ensure that service members who contribute to our nation’s security are no longer summarily discharged for who they are;
–Pass immigration reform that recognizes permanent same-sex couples and ends the painful separation of families;
–And provide health benefits equally to the nearly 3 million federal government employees, including same-sex domestic partners.
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Chicago HIV report sparks reaction
The Chicago Public Health Department’s alarming report, released Friday, that suggests the HIV infection rate among gay men in Chicago is nearly 20% has drawn varied responses from Chicago’s gay and lesbian community.
ChicagoPride.com surveyed a number of gay men on a busy Saturday night in Boystown.
From Waveland to Buckingham, the responses were varied with one common undertone that gay men no longer think HIV is a death sentence. And despite extensive media coverage on the recently release report, many were unaware of the report and its contents.
“I’m not at all surprised by these statistics.” Said thirty-something Al joined by Jared and Jamie outside of the Center on Halsted. “The fact that a lot of our own community members are not aware of their status is probably because of their fear of knowing.”
“We are very closeted in the U.S. regarding educating our youth,” added Jaime.
Some do not believe the numbers and conclusions published in the report.
“You can work the numbers however you want,” said Matthew a bartender at Buck’s. See Chicago HIV report sparks reaction
ChicagoPride.com –
* Tags = gay men gay news lesbian news transgender bisexual
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UN allows gay, lesbian group to join debates
(Geneva) The United Nations granted official status to a gay and lesbian organization from Brazil on Monday, allowing it to participate in U.N. meetings ranging from health to human rights.
The victory for the Brazilian Association of Gays, Lesbians and Transsexuals marks the third consecutive year the U.N. Economic and Social …
LGBT health survey shows trouble spots
BOSTON. The largest survey to date comparing the health of the lesbian, gay, bisexual and transgender community to heterosexuals and non-transgender residents showed sharp health disparities.
The statistics:
In a survey of nearly 1,600 Massachusetts residents:
- Almost 31 percent of transgender citizens reported considering suicide in the past year, compared to just 2 percent for heterosexuals and 4 percent for gay or lesbian.
- Nearly 35 percent of transgender citizens said they were threatened with physical violence during their lifetime by an intimate partner, almost three times the rate of non-transgender residents.
- Just 45 percent of bisexual women said they had never had a mammogram, below the 59 percent of heterosexuals and 58 percent of lesbians.
- Bisexuals reported the most days binge drinking, having four or five drinks in a sitting an average of nearly two times in the past 30 days. Bisexuals also reported smoking marijuana nearly twice as often as heterosexuals.
See LGBT health survey shows trouble spots
Metro.us
* Tags = gay men gay news lesbian news transgender bisexual
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Metro is playing catch-up, say supporters of gay protections
The argument that protecting Metro government’s gay employees would force the private sector to follow suit is all backward, supporters of a new anti-discrimination measure say.
Around the country, 90 percent of Fortune 500 companies’ anti-discrimination policies include sexual orientation or gender identity. In Nashville, some of the city’s largest private employers — http://www.vanderbilt.edu/“>Vanderbilt University and http://www.hcahealthcare.com/“>Hospital Corporation of America — put similar policies into place.
Against that landscape, the new measure’s supporters say, it should have a better chance of passage than a similar one proposed in 2003. But opponents say following the private-sector pack isn’t the way to go.
“Just because someone else does something doesn’t mean it’s right, and we learned that when we all took off from kindergarten,” said David Fowler, a former state senator and president of the http://www.factn.org/“>Family Action Council of Tennessee. “So unless we are going to act like lemmings and just blindly do what everybody else is doing, we need to stop and think before we make this a law.”
The city already has protections based on race, sex, religious affiliation and national origin in place, Fowler said, and protection based on sexuality is incongruous. He also said such a law could expose the city to lawsuits by people who feel it was broken.
See Metro is playing catch-up, say supporters of gay protections
The Tennessean
* Tags = gay men gay news lesbian news transgender bisexual
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