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Transgender Activists Say State Anti-Bias Law Is Working

Submitted by Amaris Elliott-Engel on Tue, 09/09/2014 - 19:58

Here's a piece I wrote for the Connecticut Law Tribune on the state of transgender rights:

Studying landmark cases may be a hallmark of a legal education, but there are times when the lack of case law may be a good thing.

In the three years since Connecticut enacted a law banning discrimination based on gender identity, James J. O'Neill, a spokesman for the Connecticut Commission on Human Rights and Opportunities, reports that the commission has not received a single discrimination complaint based on gender identity or expression.

The dearth of complaints to the state's civil rights regulators does not mean that transgender people and those who identify with or express themselves as members of the opposite sex do not face discrimination, advocates say. But the law is working to protect people in unofficial ways, said Rachel Goldberg, general counsel for the Stamford Urban Redevelopment Commission and a board member of the national Lambda Legal organization, which advocates for the civil rights of lesbians, gay men, bisexuals and transgender people.

As an advocate, Goldberg, who is transgender, testified in favor of the Connecticut law three years ago. As an attorney, she said she was able to prevent an employee from being fired for undertaking the process to change genders by citing the Connecticut's explicit protection for gender identity. She explained that going to court is not always the best option for employees because new employers are reluctant to hire workers who have sued their past bosses.

"Having that law on the books makes [avoiding court] possible," she said.

The statute codified a 2000 ruling from the CHRO that Connecticut's nondiscrimination laws cover sex and gender identity, Goldberg said. The 2011 law puts lawyers representing individuals in gender identity cases in a stronger position, she said. While opposing counsel might have been able to argue in the past that gender-identity protection was the opinion of just one judge and a CHRO ruling is the opinion of just a few regulators, it's much harder for them to dismiss point-blank statutory language.

The update to Connecticut's law comes as federal level is expanding as well. The U.S. Department of Labor recently issued a directive to government contractors clarifying that discrimination based on gender identity and transgender status is sex discrimination. President Barack Obama has issued an executive order prohibiting federal contractors from discrimination on the basis of sexual orientation and gender identity, and the Labor Department's directive is an interim step to implement regulations to provide those protections.

The action by the Labor Department is "huge," said Jennifer Levi, director of the Transgender Rights Project at Boston-based Gay & Lesbian Advocates & Defenders, an advocacy group that has been active in Connecticut. "Gay, lesbian and transgender people continue to face an unbelievable amount of discrimination in the workplace," Levi said. "Having a prohibition against discrimination with entities that contract with the federal government really extends the commitment to nondiscrimination."

Levi also said that Connecticut's anti-discrimination law is "a very strong law. It makes it every clear that a person's gender identity is determined by a person's assertion of what it is."

Levi, who has conducted training sessions throughout Connecticut in tandem with the CHRO on the law, said that many of the state's employers have revised their employee manuals to ban discrimination on the basis of gender identity and sexual orientation.

"Laws provide legal protection but they also send an important message to those who are protected under the laws" as well as to those who have to abide by the law, Levi said.

Connecticut's law is not the only legal development that has advanced transgender rights.

Meghan Freed, of Freed Marcroft in Hartford, whose practice includes LGBT law, notes that the Connecticut Insurance Department issued a directive last December to stop insurers from having a blanket ban on providing health insurance benefits related to a person's gender identity or expression.

"The monetary reality of costs associated with gender transition is a huge deal," Freed said. "It's an affirmative thing."

The department said that an insurer's refusal to pay for medically necessary treatment regarding gender transition would be an unfair insurance trade practice. The department cited the General Assembly's enactment of the law to prohibit discrimination based on gender identity and expression.

The Insurance Department also cited Connecticut's law requiring parity between medical coverage and mental health coverage.

Medical services for gender transition are still classified as a medical disorder called "gender dysphoria," although advocates bridle at the notion that the issue is an illness of sorts, Freed said. Gender dysphoria is a diagnosis listed in the American Psychiatric Association's "Diagnostic and Statistical Manual of Mental Disorders" and refers to people who strongly identify with and want to be the opposite gender.

Goldberg agreed that the biggest impact of Connecticut's antidiscrimination laws has been in the area of health care. Before the enactment of the state law, almost every health insurance policy contained language that excluded medical coverage for people who are transgender, even if the same procedure would be available to someone who was not transgender, Goldberg said.

While there has been a lot of progress in protecting people from gender-identity discrimination, the protections for transgender youth needs a lot of work, as has been illustrated in the case of Connecticut's "Jane Doe," a transgender teen who the Department of Children and Families at one point placed in an adult prison because of her allegedly unruly personality. Attorney Aaron Romano has called the state's treatment of his client unconstitutional.

Goldberg said there are significant issues about ensuring youth can get into the right shelters, are able to use the right bathrooms, and have protection for their gender identity if they end up in the juvenile justice system, Goldberg said.

7th Circuit Strikes Down Same-Sex Marriage Bans in Wisconson & Indiana; LA Court Becomes First to Uphold Ban

The Seventh Circuit ruled today that Indiana's and Wisconsin's bans on same-sex marriage are unconstitutional, the Associated Press reports. Judge Richard Posner, writing for the court, opined that “'the challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction — that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended — is so full of holes that it cannot be taken seriously,'” the Wisconsin Gazette reports.

Yesterday, U.S. District Judge Martin Feldman, who sits in Louisiana, became the first judge to rule that a state-level ban on same-sex marriage was constitutional, the AP also reports. According to the news wire, Feldman opined that "gay marriage supporters failed to prove that the ban violates equal protection or due process provisions of the Constitution. He also rejected an argument that the ban violated the First Amendment by effectively forcing legally married gay couples to state that they are single on Louisiana income tax returns. Furthermore, states have the right to define the institution of marriage, Feldman wrote."

TN Judge Becomes First to Uphold Same-Sex Marriage Ban Post-Windsor

Earlier this month, a Tennessee state-court judge likely became the first in the country to uphold a state's ban on same-sex marriage since the U.S. Supreme Court struck down the federal Defense of Marriage Act as unconstitutional, according to Daily Kos. The ruling came in the case of a same-sex couple who got married in Iowa and seek to get divorced in Tennessee. The judge opined that the definition of marriage '“should be the prerogative of each state. That neither the federal government nor another state should be allowed to dictate to Tennessee what has traditionally been a state’s responsibility, which is to provide a framework of laws to govern the safety and wellbeing of its citizens.”'

Justice Ginsburg Says SCOTUS Won't 'Duck' Next Same-Sex Marriage Case

According to the Associated Press, U.S. Supreme Court Justice Ruther Bader Ginsberg says the justices won't duck the issue of same-sex marriage after several courts around the country have found bans on same-sex marriage unconstitutional. She expects a case on the issue to be heard by June 2016.

Alaska Supreme Court Rules Same-Sex Couples Entitled to Death Benefits

The Alaska Supreme Court ruled last week that same-sex couples should be entitled to receive death benefits when one partner dies--despite a ban on same-sex marriage in Alaska, Reuters reports.

The Supreme Court also ruled earlier this spring that same-sex couples must be given the same treatment regarding tax exemptions for disabled veterans and senior citizens, Reuters also reports.

Fourth Circuit Strikes Down Same-Sex Marriage Ban in Virginia

The Fourth Circuit has become the second circuit court of appeals to uphold a state ban on same-sex marriage as unconstitutional. The Tenth Circuit already ruled that Utah's ban and Oklahoma's bans are unconsitutional, and now the Fourth Circuit has ruled the same for Virginia's ban. The Fourth Circuit, 2-1, ruled today that "'denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the (U.S. Constitution's) Fourteenth Amendment cannot countenance,'" Reuters reports.

Colorado AG 'Standing Alone' in Opposition to Same-Sex Marriage

There has been a flurry of legal activity eroding Colorado's ban on same-sex marriage. Most recently, a federal judge rejected Colorado Attorney General John Suthers' request to halt proceedings after the judge's decision declaring Colorado's ban on same-sex marriage unconstitutional, the Denver Post reports. Both state and federal judges have declared the ban unconstitutional, and "some attorneys and advocates have accused Suthers of standing alone in opposition," the Post further reports.

Oklahoma's Ban on Same-Sex Marriage Struck Down By Same Panel

The Tenth Circuit has once again acted to strike down a state ban on same-sex marriage. The same panel of judges, 2-1, that voted to strike down Utah's ban on same-sex marriage voted to strike down Oklahoma's ban on same-sex marriage, USA Today's Richard Wolf reports. The dissenting judge, Judge Paul Kelly, is the first federal judge to oppose same-sex marriage in any case, USA Today reports.

Another Ban Goes: Florida's Prohibition on Same-Sex Marriage Struck Down

Florida's ban on same-sex marriage was struck down today by Florida Circuit Judge Luis M. Garcia, the Associated Press reports. Garcia characterized the issue as one of equal protection for a powerless minority: "'Whether it is ... when Nazi supremacists won the right to march in Skokie, Illinois, a predominantly Jewish neighborhood; or when a black woman wanted to marry a white man in Virginia; or when black children wanted to go to an all-white school, the Constitution guarantees and protects ALL of its citizens from government interference with those rights."

Florida's ban prohibited both same-sex marriages and domestic partnerships, the AP reports.

 

Same-Sex Marriage Licenses Being Issued in Colorado With Ban 'Hanging On By a Thread"

After a Colorado state judge ruled that the state's same-sex marriage ban is "hanging on by a thread," at least three counties have been issuing marriage licenses to same-sex couples, the Associated Press reports.

In one decision, Adams District Judge C. Scott Crabtree ruled Wednesday that the ban violates the U.S. Constitution's equal protection clause and the arguments in support of the ban about protecting family and promoting the procreation of children are just a "'pretext for discriminating against same-sex marriages,'" Fox 31 out of Denver reports. Some counties were already issues licenses after the 10th U.S. Circuit Court of Appeals threw out Utah's ban on same-sex marriage, Fox 31 also reports.

In another decision, Boulder District Judge Andrew Hartman allowed the Boulder County Clerk to continue issuing marriage licenses to same-sex couples, The Daily Caller reports. Hartman opined that that the ban is "'hanging on by a thread and the court must presume that it remains valid.'"

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