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.
Gaymers can go “gay” on Xbox LIVE
Xbox LIVE now allows the “gay.” And the “transgender.”
In an update to Microsoft’s Terms of Use and Code of Conduct policy, Xbox 360 gamers are now allowed to create profiles that use the words gay, lesbian and transgender, something that previously frequently resulted in suspension of accounts for what gaymers …
Wisconsin Trial Court Dismisses ACLU Lawsuit Seeking Domestic Partner Benefits For Lesbian and Gay State Employees
The Court’s opinion states: “The plaintiffs have offered a strong showing that the employment benefits in issue have been provided on a discriminatory basis. The defendants’ explanations offered for the continuing discrimination against these plaintiffs are unpersuasive and inadequate.”
“Losing doesn’t get any better than this,” said Larry Dupuis, Litigation Director of the ACLU. “We knew we had an uphill battle in the trial court because of the earlier case. But the court agreed with us that discrimination based on sexual orientation should be subject to strict judicial review and that it is unconstitutional for the state to deny equal benefits.”
The Court also found that providing the benefits would not be barred by the anti-gay marriage amendment that passed in 2006. After the amendment passed, the state had argued that the amendment barred the state from providing the benefits.
The ACLU filed the lawsuit in April 2005 on behalf of six lesbian state employees and their partners. The lawsuit charges that it is a violation of the state’s equal protection guarantees to deny lesbian and gay state employees access to the same health insurance and family leave protections that it provides to straight employees who are able to cover their spouses. The lawsuit was stalled for years because a number of Wisconsin municipalities tried to inject themselves into the lawsuit. The issue ultimately went up to the Wisconsin Supreme Court, which ruled that they were not entitled to become a party to the litigation.
“While we are heartened by the court’s decision, we urge the legislature to pass the domestic partner bill so there will be no need to appeal,” added Chris Ahmuty, Executive Director of the ACLU of Wisconsin. “Our clients are forced to pay expensive prices for inferior health coverage and sometimes even to forego necessary care. They suffer every day this issue goes unresolved.”
Wisconsin Department of Corrections employee Jayne Dunnum and her partner, Robin Timm, pay nearly $450 a month for private insurance for Timm who works on the couple’s organic farm and food store in Platteville. “We don’t care if it happens through the courts or the legislature. We just really need the health insurance coverage,” said Dunnum. “It’s a matter of basic fairness. I work just as hard has my straight colleagues and shouldn’t be denied the equal employment benefits.”
The case is Dunnum v. Department of Employee Trust Funds. The couples are represented by John Knight and Rose Saxe of the ACLU’s Lesbian Gay Bisexual Transgender Project, Larry Dupuis of the ACLU of Wisconsin, and cooperating attorneys Linda Roberson and Christopher Krimmer of the Madison law firm Balisle & Roberson.
Biographical information for all of the couples, today’s decision, the complaint, and additional information are available at http://www.aclu.org/getequal/caseprofiles.htm.
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Original source : http://gay_blog.blogspot.com/2009/06/wisconsin-tri…
Lesbians And Gays In Gaming
As gaming grows into a more mature artistic medium, elements of the “real world” that were once completely separate from games are creeping in, so make room for the gays and lesbians, everyone! Whether gamers like it or not, the issue of how to treat the gay, lesbian, bisexual and trans-gendered community in games is quickly becoming an area of controversy.
The influx of people who live non-traditional lives is forcing game companies to come up with more nuanced policies to deal with gays in games. For example, Bioware dealt with the issue by banning the words “gay” and “lesbian” from their forums, then unbanning them, and Microsoft and Sony have had their own methods of dealing with words and concepts that make some people uncomfortable.
A recent post on Ars Technica takes an in-depth look at the issue, specifically, the ad-hoc “Don’t Ask; Don’t Tell” policy many think is the answer to the problem. Basically, the argument goes like this: Games aren’t about your sexuality, so as long as you don’t identify yourself as gay or lesbian in an way, there won’t be a problem… which might make sense to you, but what if you substituted the word “Black” for gay?Censoring certain words from profiles is not only discriminatory, it also creates the idea that there’s something wrong with whatever the word is. The words “gay,” “lesbian” and “queer” present unique problems, however, as they are used as points of pride or as slurs, depending on how they’re being said and who is talking. All of which creates the kind of gray area that you can hardly expect the common Xbox Live citizen to either respect or understand.
While using “gay” and “fag” as insults has been around probably since the first online game was ever played, I imagine identifying yourself as homosexual on your profile would open you up to online harassment in a big way, but that’s exactly why gay people should be “allowed” to identify themselves online, if they choose to. I truly believe that if people hang out, game-with and otherwise co-exist with different kinds people, eventually the problem will settle itself. Because, in the end, it’s no big deal. See, gay people are just like you, and you’re just like them, and gay gamers just want to play games, so let’s all chill out and act like humans, eh? See Lesbians And Gays In Gaming
G4 TV * Tags = gay men gay news lesbian news transgender bisexual
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Original source : http://gay_blog.blogspot.com/2009/05/lesbians-and-…
Anti-Gay adoption service ends business in New York State
(New York City) New York Attorney General Andrew Cuomo announced Wednesday that Arizona-based internet companies Adoption Profiles and Adoption Media have stopped doing business in New York.
The Attorney General’s announcement follows a complaint filed last year by Lambda Legal on behalf of a New York gay couple who were barred …
Following Attorney General Investigation, Arizona-based Antigay Adoption Service Stops Business in New York: Lambda Legal’s Clients Vindicated
The Attorney General’s announcement follows a complaint filed by Lambda Legal on behalf of a New York gay couple barred from posting their on-line adoptive-parent profile by the companies in question solely because they are a same-sex couple. Adoption Profiles, LLC and Adoption Media, LLC were violating New York laws prohibiting such discrimination.
“New York Attorney General Cuomo has sent a clear message to all businesses that discrimination on the basis of sexual orientation will not be tolerated,” said Flor Bermudez, Staff Attorney at Lambda Legal. “Companies can’t come into New York and hang a sign on their door saying ‘Same-sex couples need not apply.’”
Lambda Legal clients Rosario Gennaro and Alexander Gardner knew for a long time that they wanted to have children and that adoption was the way to make it possible. The couple had a home study by a licensed social worker and obtained certification as Qualified Adoptive Parents from the New York City Surrogate Court. The couple wanted to post their profile on ParentProfiles.com and seek a match with a birth parent. However, the website’s eligibility requirements only allow a “Qualifying Husband and Wife Couple” that are “one male husband and one female wife” to use the service, thus discriminating against same-sex couples on the basis of sexual orientation, sex and marital status. The company was sued in California for violating that state’s antidiscrimination law and is no longer doing business there.
“We are thrilled that the New York Attorney General’s office made the right decision and that no couple will have to experience what we did in our effort to become parents,” said Rosario Gennaro.
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Original source : http://gay_blog.blogspot.com/2009/03/following-att…
Discovery Health Features Two Groundbreaking GLBT Profiles in TRANSGENDER M.D. and FOSTERING LOVE
(Silver Spring, Md.) — This month, Discovery Health will air two programs profiling incredible stories about members of the gay, lesbian, bisexual and transgender (GLBT) community. TRANSGENDER M.D. — premiering Thursday, February 12 at 8 PM ET/PT — follows the medical practice of Dr. Marci Bowers, the only OB/GYN in the tiny town of Trinidad, Colorado. Dr. Bowers is world-renowned for her progressive work in the field of gender reassignment and is the reason that Trinidad has become known as “the sex change capital of the world.” But Dr. Bowers has a secret — she was actually a “he.” Originally born male, Dr. Bowers formerly was known as Mark, a married father of three who came out with his desire to become a woman and underwent gender transition from 1996-1998. Today, Dr. Bowers lives happily as a woman with her partner in Trinidad. TRANSGENDER M.D. showcases Dr. Bowers’ dedicated work as she endeavors to give patients the same opportunity that she had, and the lives they have always wanted.
Premiering Wednesday, February 18 at 8 PM, FOSTERING LOVE is the story of a married same-sex couple in California with more than enough love to go around. Meet Jim and Mark, parents with an ever-growing family comprised of biological, foster and adopted children. Together for six years, Mark and Jim recently decided to move their brood from the city to the country to live and work on an alpaca farm. Amid this change, Mark and Jim are attempting to adopt Olivia, a baby girl they have fostered since birth — but complications with Olivia’s birth mother threaten to interfere with their dreams. Discovery Health’s cameras capture the joy and occasional frustration that come along with raising a family full of infants, toddlers and teenagers, while attending to a barnyard full of animals.
TRANSGENDER M.D. and FOSTERING LOVE are produced for Discovery Health by MEg TV. For Discovery Health, Lisa Lucas is executive producer and for MEg TV, Nancy Saslow is executive producer.
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Original source : http://gay_blog.blogspot.com/2009/02/discovery-hea…
Los Angeles Affiliate KABC-TV Refuses to Air Ad With Gay Families During Inauguration: ‘Too Controversial, Families Will Be Watching.’
LOS ANGELES, CA — Non-profit organization GetToKnowUsFirst.org produced five 30-second commercials featuring gay and lesbian families, with the message “Marriage promotes families. Support marriage equality.” The ads, while not tied to any current election, are the result of California’s passage of Proposition 8 in November. The group aired the spots in 42 of the states’ 58 counties — everywhere the initiative passed by 50% or more — during Tuesday’s coverage of the Presidential Inauguration. KABC is the only station that refused to sell the ad space.
The rejected ad profiles two African American men raising five children ages 6 through 25. Ironically, the family lives in Los Angeles.
The media buy was attempted by the organization’s ad agency, New and Improved Media. Its CEO, Keith Fisher, was surprised that KABC rejected the group’s money. Fisher said, “We usually only see this with risque content, as in a trailer for a movie.” He added, “If KABC thinks they have to protect the public from this family, something’s obviously very wrong over there.”
Chris Yokogawa, the ad agency’s media buyer, worked with the station, attempting to ease any concerns they might have. He said, “We went back and forth a couple of times. I explained that this family is far from controversial. They were firm in their rejection. They said it was too controversial to air during the Inauguration, since ‘many families will be watching.’”
The ad aired across California on Tuesday — before, during and after the Presidential Inauguration on Good Morning America, The Today Show, Despierta America (Univision) and Levantate (Telemundo) broadcasts, as well as on a wide range of regional news stations, CNN and FoxNews during evening coverage of the day’s events.
Project Coordinator John Ireland expressed astonishment at KABC’s rejection. He said, “This ad is about families. I challenge anyone to watch the commercials at www.GetToKnowUsFirst.org and articulate what is inappropriate about airing it at any time of day.”
One week prior, at attorney Gloria Allred’s urging, Rev. Rick Warren indicated he would be willing to show the ads to his congregation at Saddleback Church in Orange County. Days before the Presidential Inauguration, he changed his mind, dropping the offer.
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Original source : http://gay_blog.blogspot.com/2009/01/los-angeles-a…
ACLU Asks Court To Strike Down Arkansas Parenting Ban
At a press conference at the Arkansas State Capitol this morning, several of the plaintiffs described how Act 1, which is set to go into effect on January 1, impacts their families and why they decided to be part of the case.
Stephanie Huffman, who already adopted one child from the state in 2004, was one of the plaintiffs who spoke at today’s press conference. Huffman and her partner of 10 years, Wendy Rickman, want to adopt another child or a pair of siblings through the Department of Children and Family Services, but now can’t because of Act 1. “The state already knows we’re good enough parents that they placed one child with us before Act 1 passed,” said Huffman. “Who knows how many children are now cut off by this law from loving homes?”
In the lawsuit filed today, the ACLU argues that Act 1 violates the federal and state constitutional rights to equal protection and due process. Participating in the case are 29 adults and children from over a dozen different families, including a grandmother who lives with her same-sex partner of nine years and is the only relative able and willing to adopt her grandchild who is now in Arkansas state care, several married heterosexual couples who have relatives or friends disqualified by Act 1 who they want to adopt their children if they die, and a heterosexual woman who wants to be a foster or adoptive parent but can’t because she lives with her partner of five years. The complaint was filed this morning in Pulaski County Circuit Court.
“Ever since the election, we’ve been hearing from all corners of the state from dozens of families who are panicking about how Act 1 impacts them,” said Rita Sklar, Executive Director of the ACLU of Arkansas. “This law hurts families and children in many ways – it takes away parents’ right to decide for themselves who will adopt their children if they die, it denies the many children in Arkansas state care a chance at the largest possible pool of potential foster and adoptive homes, and denies couples who are living together but unmarried the chance to provide loving homes to children who desperately need them.”
Sheila Cole: Sheila lives in Tulsa, Oklahoma with Jennifer, her partner of nine years. Sheila’s adult daughter from an earlier relationship had a baby girl in May of 2008 who was placed in the Arkansas foster care system when she was two months old. Sheila wants to adopt her granddaughter and is the relative best able to take in the baby. Every week she makes a four-hour round trip to Bentonville for two hours of visitation with her granddaughter. Sheila has taken foster parenting classes with Oklahoma’s DHS and has passed a home study. She is now waiting for approval from Arkansas, but she’s worried she might not be approved to adopt her own granddaughter because of Act 1.
Stephanie Huffman and Wendy Rickman: Stephanie and Wendy have been together for 10 years and are raising two sons together, one of whom is a 7-year-old with special needs whom Stephanie adopted from the state in 2004. Stephanie and Wendy want to adopt another child, or perhaps a pair of siblings, but can’t because of Act 1.
Cary and Trina Kelley: Cary and his wife, Trina, have two young daughters and live across the road in Fayetteville from Cary’s mother Vickie Kelley and her partner Sophia Estes. Sophia and Vickie have been together 16 years, and cumulatively have three children and six grandchildren. If anything were to happen to Cary and Trina, who held their wedding in Vickie and Sophia’s backyard, they want Vickie and Sophia to be able to adopt their children. Trina, Cary’s wife, spent many years of her childhood in state care and she feels very strongly that children who need homes shouldn’t be cut off from loving relatives like Sophia and Vickie.
Kaytee Wright: Kaytee Wright lives on a farm in Cabot with her partner of five years, Alan Leveritt. Kaytee helps Alan raise his eight-year-old daughter from his previous marriage, of whom he has joint custody. Together she and Alan are also providing a home and financial assistance to a mother and her two young children through a Little Rock shelter for the working homeless. Kaytee was adopted from state care when she was just four weeks old, and she feels very strongly that good homes should be provided to children in the state system. Kaytee would like to adopt a child but cannot because she and Alan aren’t married.
For a complete list of all the plaintiff families and more detailed profiles, please visit http://www.aclu.org/lgbt/parenting/38199res20081230.html
The plaintiffs are represented by Christine P. Sun, Rose Saxe, and Leslie Cooper of the American Civil Liberties Union, Stacey Friedman, Garrard Beeney, and Jennifer Sheinfeld of Sullivan & Cromwell LLP, and Marie-Bernarde Miller and Daniel J. Beck of Williams & Anderson PLC on behalf of the ACLU Foundation of Arkansas.
The case is Cole, et al. v. Arkansas, et al. For more information on the case, including today’s complaint, visit http://www.aclu.org/lgbt/parenting/38199res20081230.html
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Original source : http://gay_blog.blogspot.com/2009/01/aclu-asks-cou…
Becoming Sam Adams: Portland Monthly profiles history maker
Becoming Sam Adams: Portland Monthly profiles history maker
