ENDA, marriage equality and moving the ball forward

It was the best of times, it was the worst of times. I am elated at President-elect Obama's (how I love saying that phrase) resounding electoral college win, slightly dismayed at the margin of the popular vote (although it is practically a "mandate" compared to previous elections), and overwhelmingly sad at the level of prejudice displayed against LGBT people in California, Arizona, Arkansas and Florida. It is not yet clear whether California's Prop 8 will pass or not, but the closeness of it shows how many people are against us.

I will spend today reveling in the accomplishment and recovering from the blow. I spent the post-election morning commiserating with Larry Flick on Sirius OutQ, who was devastated by the bad news, and the many callers who expressed their disappointment, anger and despair. But I will put away my disappointment and get back to work. Progress, not perfection.

It seems almost too much to bear, coming as it does so soon after the ENDA debacle last year. I was also overwhelmed with despair and grief then too. But I have come to be much more philosophic about these things. In fact, although I was very angry with Barney Frank then, I've come around to his point of view on how to get it accomplished. Indeed, I will take the same position about marriage equality that Barney Frank took about gender identity in ENDA.

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A Marriage Story

My partner and I were legally married on August 22 in Florida in a beautiful ceremony on the beach at sunset. Same sex marriage in Florida? Well, sort of. It's a long story. Transgender people are in a unique position when it comes to marriage. We were thinking of getting a civil union in New Jersey, but there is some confusion because civil union is only for same-sex partners. Now, you may be thinking that we are a same-sex couple. I think that too. But that doesn't mean the state thinks it...

In several cases, the state courts have refused to recognize a change in gender as legal. In Texas, Mr. and Mrs. Littleton found this out when Mr. Littleton went into the hospital for a simple procedure and died as the result of medical malpractice. In due time, Mrs. Littleton contacted a lawyer and sued for medical malpractice. The opposing lawyer found out that Mrs. Littleton had transitioned years ago and claimed that no malpractice suit could be maintained because her marriage was invalid. Despite the fact that she had sex reassignment surgery and that her gender had been recognized by the state in the form of a new birth certificate, the Texas courts agreed and threw the suit out of court.

In Kansas, Mrs. Gardiner found this out when her husband died without a will. By law, she was entitled to a percentage of her husband's estate, with a percentage also going to her husband's children. Her lawyer contacted her husband's estranged son to tell him that his father's estate was in probate. The son found out that Mrs. Gardiner was transgender, and hired a lawyer to claim that she was entitled to nothing as a result of her identity. Again, despite the fact that she had transitioned years ago and that her gender had been recognized by the state in the form of a new birth certificate, the Kansas courts agreed with the son, and gave the entire estate to the estranged son.

In Florida. Mr. and Mrs. Kantaras were getting divorced. Mrs. Kantaras did not want her husband to have visitation of her 6 year old dautgher, whom Mr. Kantaras had adopted, and claimed that their marriage was a sham because Mr. Kantaras was transgender. The Florida courts agreed.

Courts in Ohio [In re Ladrach, 32 Ohio Misc.2d. 6, 513 N.E.2d 828 (1987)] and my home state of New York [Anonymous v. Anonymous, 325 N.Y.S.2d 499 (N.Y. Sup. Ct. 1971)] have made similar rulings. In short, every court that has considered the matter to this point has said that states do not recognize a change of gender in the context of marriage. If my female partner and I get a civil union, will that be invalidated on the same grounds? No one can say for certain.

So I had our lawyer contact the county clerk in Florida, who contacted his lawyer, and after providing a copy of my birth certificate (with an "M" on it) and my name change order and an affidavit certifying these were all referring to me, we were issued a marriage license, recognized by the State of Florida and the federal government. Nonetheless, I was saddened that this loophole had been created because the state disrespected transgender identity, and those involved suffered such sad consequences.

Of course, when we tell people we were married in Florida, people ask "You mean there's same sex marriage in Florida!?" And we reply "Well, sort of..."

For those who want more scholarly treatment, here is a law review article by Frye and Meiselman, provocatively entitled "Same-Sex Marriages Have Existed Legally in the United States for a Long Time Now"and an article by NCLR attorney Shannon Minter Transgender Persons and Marriage: The Important of Legal Planning

We are very, very happy.

Update on Transgender Employment Issues

So many interesting things have happened in the last month on transgender employment issues, I'm going to make a list. The most important news is about the signing of legislation in Iowa, Vermont, Colorado and Oregon. But not all is rosy...

- The Governor of Iowa signed the bill including gender identity into the state's antidiscrimination law, as did the Governor of Vermont, the Governor of Colorado, and the Governor of Oregon.

The Governor of Ohio by executive order restored a ban on discrimination against state employees based on gender identity and sexual orientation, which had been removed by his predecessor in 1999 However, the Governor also noted his opinion that any Ohio legislation purporting to outlaw discrimination based on sexual orientation or gender identity would be rendered unconstitutional by the state's constitutional ban on same-sex marriage It is difficult to understand the connection, and I note that federal court opinions already cover all transgender employees in Ohio.

A transgender employee won a lawsuit against an insurer, Highmark Blue Shield, that refused to cover the costs of her sex reassignment surgery This comes on the heels of reports that more employers are covering the costs of such surgery

However, not all is rosy for transgender employment rights:

The Connecticut legislature failed to pass legislation adding gender identity to the state's non-discrimination law (I note that all transgender employees in Connecticut are covered by a state administrative ruling.)

The transgender experience in the job market: The American Lawyer publishes a letter, by one of the few transgender lawyers in a large law firm, discussing its article on strides made by gay lawyers in overcoming employment discrimination in large law firms, and noting that transgender lawyers have not been included in the largesse

ENDA: An editorial published in the Washington Blade, an important gay newspaper, suggests that the inclusion of transgender people in anti-discrimination legislation threatens gay people

Identification records: At a "Town Meeting" held on the newly released regulations under the Real ID Act, two witnesses testify about the negative effects on the transgender community, with one noting that "you don't know what it's like to get carted off the security line by a couple of burly cops" (comments at 41:00 and 1:15)

ENDA: The Concerned Women of America suggest that the federal legislation to ban employment discrimination based on gender identity and sexual orientation, the Employment Non-Discrimination Act, would be an unconstitutional infringement of employers under the First Amendment rights to freedom of speech and freedom of religion

Corporate Diversity: Micron Corp., after a shareholder resolution requiring protection of employees based on gender identity and sexual orientation, adds sexual orientation but refuses to add gender identity

And here are some other notable transgender tidbits:

The National Center for Transgender Equality and the Human Rights Campaign release a groundbreaking guide for transgender people about coming out as transgender

Identification records: Transgender passengers are having more and more passport problems because of federal rules written by people who don't understand transgender identities

A transgender police officer on the Kansas City police force came out, and things are going well for her so far

The San Francisco police commission elected a transgender woman as its president

Schools K-12: A Texas transgender high school student, suspended from school for dress code violations, is reinstated after intervention by a pro bono lawyer

Transgender experience in the job market: The Transgender Economic Empowerment Initiative, aimed at reducing chronic unemployment and underemployment in the transgender community, established in San Francisco, and a similar program in Los Angeles, the Transgender Job Placement Program

Trans culture: Executives at Frameline, San Francisco's LGBT film festival, made the unprecedented decision to yank a film, The Gendercator, from this year's schedule due to community outrage over its satirical portrayals of transsexuals in a mythical future

A transgender woman, Jenny Bailey, has been chosen mayor of Cambridge, England, as it celebrates its 800th anniversary