Federal Bureau of Prisons Makes Major Change in Transgender Medical Policy

September 30, 2011

(San Francisco, CA, September 30, 2011)—A settlement was announced today in the case of Vanessa Adams, a Federal Bureau of Prisons (BOP) inmate at FMC Butner in North Carolina, who has gender identity disorder (GID). Adams sued BOP in order to receive appropriate treatment for her GID.

Adam’s challenge to BOP’s treatment of transgender prisoners has resulted in BOP ending its so-called “freeze frame” policy in which treatment for any person with GID is kept frozen at the level provided at the time he or she entered the federal prison system.  In Adams’ case, this meant that because she had not received treatment for GID before being incarcerated, BOP refused to provide her with medically necessary care even though its own doctors diagnosed her with GID, told her about treatments available for GID, and knew about the seriousness of her medical condition.

“We applaud the BOP for getting rid of an unfair policy that has denied medically necessary care to many people.  We hope that other state and county prison systems will follow BOP’s lead and eliminate discriminatory policies that are based on bias rather than medical need,” said Jody Marksamer, a staff attorney at the National Center for Lesbian Rights.

The change in policy was promulgated via two memoranda, dated May 31, 2011 and June 15, 2010, from BOP’s Medical Director to all BOP’s chief executive officers.  The May 2011 memorandum ends:

“In summary, inmates in the custody of the Bureau with a possible diagnosis of GID will receive a current individualized assessment and evaluation.  Treatment options will not be precluded solely due to level of services received, or lack of services, prior to incarceration.”

The memo also states that “current, accepted standards of care will be used as a reference for developing the treatment plan.”

The memos have been distributed to all individuals in the prison system who have been diagnosed with GID, as well as to the medical staff treating these prisoners.

When the suit was filed on February 24, 2009, Adams was at a federal prison in Florida. There she was being denied medically necessary hormone therapy and prevented from otherwise expressing a female gender identity because she had not received this treatment prior to her incarceration.  In a June 7, 2010 ruling, Federal District Court Judge Joseph L. Tauro rejected BOP’s argument that Adams’ claim was moot because BOP had finally started Adams on hormone therapy.

Citing BOP’s consistently callous conduct toward Adams, the fact that BOP could stop her treatment at any time, and that BOP did not disavow its policy, Judge Tauro sent the case to mediation.  With today’s settlement, the parties jointly agreed to end the case.

Cassandra Capobianco of Florida Institutional Legal Services said, “It is critical not only for Vanessa’s health and safety but for the good of other prisoners that BOP’s policy has been changed.”

“BOP’s freeze frame policy trapped transgender prisoners in despair, leading often to depression, suicide attempts, and in many cases, serious self-harm, as was the case with Vanessa,” said Jennifer L. Levi, Transgender Rights Project Director for Gay & Lesbian Advocates & Defenders (GLAD).

In addition to GLAD, Adams was represented by Florida Institutional Legal Services (FILS), the National Center for Lesbian Rights (NCLR), Bingham McCutchen LLP, and Allyson Kurker.


The National Center for Lesbian Rights is a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education. www.NCLRights.org

Gay & Lesbian Advocates & Defenders is New England’s leading legal organization dedicated to ending discrimination based on sexual orientation, HIV status, and gender identity and expression. www.GLAD.org

Florida Institutional Legal Services is a non-profit organization that advocates for institutionalized people and other vulnerable people and groups.

Media Contact:

NCLR Communications Director Erik Olvera | Office: 415.392.6257 x324 | EOlvera@NCLRights.org

NCLR Challenges Cozen O’Connor’s Refusal to Provide Death Benefits to Surviving Same-Sex Spouse

September 23, 2011

(San Francisco, CA, September 23, 2011)—The National Center for Lesbian Rights filed a brief in federal district court in Pennsylvania yesterday arguing that private employers cannot hide behind the federal Defense of Marriage Act (DOMA) to justify discriminating against same-sex spouses in private benefits plans.

NCLR is representing Jennifer Tobits, the widow of Sarah “Ellyn” Farley, whose parents have challenged the couple’s marriage and now seek death benefits provided by Ellyn’s employer, the law firm Cozen O’Connor P.C. Cozen’s arguments in the case jeopardize the policies of countless employers who currently provide equal benefits to same-sex spouses, including many of the nation’s Fortune 500 corporations.

Under Cozen’s retirement plan, Jennifer is entitled to Ellyn’s death benefits as her surviving spouse.  Ellyn’s parents have argued that the couple’s four-year marriage is invalid because of DOMA and that Cozen should pay the benefits to them. Rather than pay the benefits to Jennifer, in January 2011, Cozen filed an action in the federal district court for the Eastern District of Pennsylvania to determine whether Jennifer or Ellyn’s parents should receive the benefits.

In a motion filed earlier this month, Cozen claimed that although its plan does not state that it excludes same-sex spouses, DOMA prevents the firm from recognizing Ellyn’s marriage and treating Jennifer as a surviving spouse. Jennifer’s response, filed yesterday, explains that DOMA does not prevent private employers from respecting the marriages of same-sex couples and providing equal benefits.

“Cozen O’Connor cannot hide behind DOMA to justify its discrimination. DOMA does not require private employers to discriminate when they set the terms of their own benefits,” said NCLR Legal Director Shannon Minter. “Federal law requires employers to give certain protections to different-sex spouses, but it doesn’t prohibit employers from offering those protections to same-sex spouses as well. A marriage is a marriage, and Cozen O’Connor can and should respect the spouses of all employees equally.”

Cozen never gave any indication to its employees that it planned to discriminate against their same-sex spouses. The firm has several offices in states where same-sex couples can legally marry and has diversity and non-discrimination policies that include sexual orientation.

“Federal law requires employers to be very clear with employees about eligibility requirements for benefits,” said Teresa Renaker, a national expert on employee benefits law, who represents Tobits along with NCLR and Jerner & Palmer, P.C. “If Cozen O’Connor insists on discriminating against same-sex spouses, the firm needed to make this clear to its employees, instead of waiting for disaster to strike as it did here.”

NCLR and co-counsel Benjamin L. Jerner, Tiffany Palmer and Rebecca Levin of Jerner & Palmer, P.C., and Teresa Renaker and Julie Wilensky of Lewis, Feinberg, Lee, Renaker & Jackson, P.C. are defending Ms. Tobits’s right to receive death benefits as Ms. Farley’s spouse.

Media Contact:

NCLR Communications Director Erik Olvera | Office: 415.392.6257 x324 | EOlvera@NCLRights.org

NCLR Responds to Execution of Troy Davis by the State of Georgia

September 22, 2011

(San Francisco, CA, September 22, 2011)—Late last night, the State of Georgia executed Troy Davis for the 1989 murder of Savannah Policeman Mark MacPhail even though seven witnesses from his trial recanted their testimony and no physical evidence linked him to the crime, and despite petitions signed by hundreds of thousands of people on his behalf.

Davis maintained his innocence up until his execution.

Statement by NCLR Executive Director Kate Kendell, Esq.:

“This is a sad and shameful day for justice and democracy. With scant and tainted evidence the State of Georgia proceeded with its scheduled execution of Troy Davis. Every barrier to protect a possibly innocent man from death fell away and now we all bear some measure of responsibility for Davis’s death. As a nation, we have lost a bit of our decency and humanity with Davis’s execution. It is long past time for our nation and everyone committed to a just and fair system to renounce the death penalty. It is no deterrent, and as the body count rises of men and women who may well have been innocent, our democratic ideals and faith in justice are tarnished.”

Media Contact:

NCLR Communications Director Erik Olvera | Office: 415.392.6257 x324 | EOlvera@NCLRights.org

NCLR Celebrates End of “Don’t Ask, Don’t Tell”

September 20, 2011

(San Francisco, CA, September 20, 2011)—Today, “Don’t Ask, Don’t Tell”–the discriminatory nearly two-decade old policy that bars lesbian, gay, and bisexual people from serving openly in the military–is officially over.

In July 2011, President Barack Obama, Secretary of Defense Leon Panetta, and Chairman of the Joint Chiefs of Staff Admiral Mike Mullen certified that the military was prepared for the implementation of repeal, starting a 60-day process.

Statement by NCLR Executive Director Kate Kendell:

“Today is not just the end of ‘Don’t Ask, Don’t Tell,’ it is the beginning of a new era in which government policies that discriminate based on sexual orientation and gender identity are rightly seen as shameful and outmoded. We salute President Obama for his leadership in bringing this inexcusable discrimination to an end. We also honor the thousands of men and women who were harmed by this policy, including many who made great personal sacrifices in order to speak out against it. While more work lies ahead in the movement for full equality, today we should celebrate how far we’ve come.”

Media Contact:

NCLR Communications Director Erik Olvera | Office: 415.392.6257 x324 | EOlvera@NCLRights.org

“Don’t Ask, Don’t Tell”: In the Olden Days

September 19, 2011

By Huong T. Nguyen

At the beginning of this school year, Rowan, my 6-year-old son, held court in his first-grade class about “Don’t Ask, Don’t Tell” (DADT).

The unprompted conversation with his classmates went something like this:

Rowan: My mom was in the military.

Classmates: Really?

Rowan: Yeah, but she was kicked out because she was gay. (His peers gathered around to hear his tale.)

One classmate: No, I don’t believe you!

Rowan: No, really, I saw her uniform! In the “olden” days, gays weren’t allowed to be in the military. But now, they can. My mom doesn’t want to go back because she has a family now.

Classmates: (Silent, in apparent admiration for the speaker whose mom served in the military or who got kicked out because she was gay, or because they really had nothing to say.)

Kids and their sense of time! Those “olden” days are not yet so old. In fact, although Congress repealed the discriminatory “Don’t Ask, Don’t Tell” policy at the end of last year, tomorrow will be the first day that the repeal will officially go into effect, due, in part, to the intense opposition to the repeal even after its passage.

Tomorrow, like most Americans, I will wake up early and help my kids get ready for school before I grab coffee, get dressed, and drive to work. Nothing exceptional will happen for us—except I will remind my kids of DADT’s official demise. Their reaction will likely be: “Mom, isn’t this old news?”

But tomorrow, in thousands of households across the world, American lesbian, gay, and bisexual soldiers and their families will let out a big collective sigh of relief. Their lives will be much more secure, and the pressure of having to monitor every statement and action will be gone.   Starting tomorrow, an Army medical officer, home after her second tour in Afghanistan, could be greeted with public displays of love and affection at the airport by her wife. A Navy mechanic could name his husband as his emergency contact without fear.
A Marine officer could bring her girlfriend to the yearly Marine Birthday Ball. Civilians and straight soldiers alike take these life events for granted, but the repeal will usher in significant, tangible changes in the lives of lesbian, gay, and bisexual soldiers and their families.

DADT’s demise does not simply mean the repeal of an 18-year-old law. While that’s true, let’s not forget that LGB soldiers have been legally discriminated against since the founding of this country through previous iterations of the ban. More than that, the repeal means that hundreds of years of state-sponsored prejudice against LGB soldiers are no longer legally acceptable in at least one form. It means that those who have been discharged or driven out of the military prematurely—likely numbering in the tens of thousands throughout history—are vindicated by the repeal; they have not suffered in vain. And, perhaps most importantly, future generations of our lesbian, gay, and bisexual sons and daughters will no longer endure the same pain, suffering, or devastating loss to their careers as their predecessors did.

The repeal also has far reaching consequences for all Americans. We can take some comfort by looking to certain events that ushered in the Civil Rights Movement of the 1960s for African Americans as a loose guide to the changes that could occur in the years to come for the gay rights movement (footnote: used for lack of a better, shorter, and more inclusive name). Significantly, only a mere 19 years separate President Truman’s executive order in 1948 integrating black and white troops and the United States Supreme Court’s 1967 decision in Loving v. Virginia striking down laws prohibiting interracial marriages. That’s less than a generation apart, and well within some of our lifetimes, if what’s past is prologue.

Maybe the first graders have it right all along. We adults take things too seriously sometimes. The goal is to work toward a time—perhaps inwhen our kids can say—in 20 years (and here I’m channeling Rowan at 25): “Can you believe it? In the “olden” days, people used to believe it was okay to discriminate based on sexual orientation or gender identity. How stupid!”

NCLR guest blogger Huong T. Nguyen shared her military dismissal under “Don’t Ask, Don’t Tell” through her diary-blog series published by NCLR at the end of 2010. This latest piece ends the series. Read Part One: Where There’s a Will, There’s a Way, Part Two: Light Bulb, Part Three: A New Identity, Part Four: The Education of Private Nguyen, Part Five: The Girl, Part Six: No Air, Part Seven: The Truth Will Set You Free, Part Eight: The Trial, Part Nine: The Story, Part 10: There’s A Place For Us, and The Repeal: No One Left Behind.

Nguyen is an attorney in the San Francisco Bay Area, where she resides with her wife and two children.

NCLR Responds to Order Releasing Proposition 8 Federal Trial Video

September 19, 2011

(San Francisco, CA, September 19, 2011)—Today, U.S. District Court Chief Judge James Ware ordered the public release of the video recording of the historic trial in Perry v. Brown.  In that trial, which took place in January 2010, two same-sex couples challenged Proposition 8, the 2008 ballot measure that stripped the freedom to marry from same-sex couples in California. Following the trial, now-retired Chief District Judge Vaughn Walker ruled in August 2010 that Prop 8 is unconstitutional. That ruling has been on hold while the proponents of Prop 8 appeal Judge Walker’s ruling.

The Prop 8 proponents have fought to prevent the public from viewing the official video recording of the trial. The couples who are challenging Prop 8 filed a motion seeking to unseal the video recording, and Chief Judge Ware heard the motion on August 29. The City and County of San Francisco and Media Coalition members, including the Los Angeles Times, CNN, The New York Times, FOX News, NBC News, and The Associated Press, joined the plaintiffs in asking the court to release the videotape of the public trial.

In today’s ruling, Chief Judge Ware said that public access to trials and court records are “[f]oremost among the aspects of the federal judicial system that foster public confidence in the fairness and integrity of the process.” Judge Ware ordered that the video recordings be made public on September 30, 2011, unless a further delay is ordered by the district court or a higher court.

Statement by NCLR Legal Director Shannon Minter, Esq.:

“Judge Ware’s ruling is a great victory for openness and transparency. Our democracy depends on the public’s right to know what takes place inside our nation’s federal courts, especially in cases addressing fundamental constitutional rights that affect every person. The proponents of Prop 8 should be ashamed for fighting to bar public access to this historic trial.”

Media Contact:

NCLR Communications Director Erik Olvera | Office: 415.392.6257 x324 | EOlvera@NCLRights.org

NCLR Responds to North Carolina Constitutional Amendment Measure that Would Ban Marriage Equality

September 14, 2011

(San Francisco, CA, September 13, 2011)—Today, the North Carolina Senate voted 30-16 to put a sweeping constitutional amendment before voters that would not only bar same-sex couples from marriage, but also deprive them of any type of legal recognition.

On Monday, the bill, SB 514, cleared the House Rules Committee before it immediately moved to the full House, where legislators voted 75-42 to move it forward. The measure will go before voters in May 2012.

Statement by National Center for Lesbian Rights Executive Director Kate Kendell, Esq.:

“This is a sad and shameful day for North Carolina and its citizens. There were many voices in the North Carolina legislature who spoke eloquently for families, love and justice, but those intent on furthering their bigotry won the day. As with every other measure like it, this amendment will one day be relegated to the dustbin and seen as part of a regrettable history.  In the meanwhile we stand with the many families and communities who are mobilizing in North Carolina to defeat this hateful measure.”

Media Contact:

NCLR Communications Director Erik Olvera | Office: 415.392.6257 x324 | EOlvera@NCLRights.org

NCLR Applauds New NCAA Inclusion Policy Benefitting Transgender Student Athletes

September 12, 2011

(San Francisco, CA, September 12, 2011)—The National Collegiate Athletic Association (NCAA) last week announced that it has approved an important policy that clarifies opportunities for transgender student athletes to participate on college athletic teams in accordance with their gender identity.

The NCAA— which governs sports for more than 1,200 colleges and institutions—worked closely with the National Center for Lesbian Rights’ Sports Project and Griffin Educational Consulting to develop the policy, which according to the announcement “will allow a transgender student athlete to participate in sex-separated sports activities so long as the athlete’s use of hormone therapy is consistent with the NCAA policies and current medical standards.”
“I commend the NCAA’s commitment to creating and supporting an inclusive culture that fosters equitable participation for student athletes,” said NCLR Sports Project Director Helen Carroll. “That core value is strengthened as the NCAA unveils this new policy that will not only allow, but encourage transgender student athletes to participate on athletic teams. This is truly historic, and it will give transgender student athletes equal access and opportunities to play college-level sports without any obstacles.”

Under the policy:

  • A transgender male student athlete who has a medical exception for testosterone hormone therapy may compete on a men’s team, but is no longer eligible to compete on a women’s team without changing the team status to a mixed team.
  •  A transgender female student athlete who has taken medication to suppress testosterone for a year may compete on a women’s team.

Under the new policy, transgender student athletes who are not undergoing hormone therapy remain eligible to play on teams based on the gender of their birth sex and may socially transition by dressing and using the appropriate pronouns that match their gender identity.

In October 2009, NCLR and It Takes A Team!, An Initiative of the Women’s Sports Foundation,  invited experts on transgender issues from a range of disciplines—law, medicine, advocacy, and athletics—to take part in a national think tank on equal opportunity for transgender student athletes. NCAA leaders were part of the think tank that was charged with identifying best practices and developing model policies for high school and collegiate athletic programs to ensure the full inclusion of transgender student athletes.

NCLR’s Carroll and Dr. Pat Griffin, former director of It Takes a Team!, compiled the thank tank information into a report titled “On the Team: Equal Opportunity for Transgender Student Athletes.” The report—released in October 2010—provides a comprehensive guide to the integration of transgender student athletes in high school and collegiate athletic programs, and was utilized by the NCAA to draft its policy.

The new policy takes effect immediately. The NCAA has and will continue to provide resources to its members about gender identity and its role in intercollegiate athletics, as well as educational material about the inclusion of transgender student athletes and best practices.

“We applaud the NCAA for leading the way on this issue and developing a policy based on science, fairness, and the principles of inclusion and equality,” said NCLR Legal Director Shannon Minter. “Thanks to this policy, more transgender students will enjoy the lifelong benefits of participating in sports, and transgender children will have more positive role models for leading healthy and active lives.”

For more information about the NCAA’s policy, contact NCAA Director of Gender Inclusion Karen Morrison at KMorrison@NCAA.org.

Download your copy of “On the Team: Equal Opportunity for Transgender Student Athletes.”

Read more about the NCAA’s LGBT resources.

Media Contact:

NCLR Communications Director Erik Olvera | Office: 415.392.6257 x324 | EOlvera@NCLRights.org

California Legislation Addressing Inequality in Treatment of Same-sex Spouses and Patners of Nursing Home Residents Moves to Governor

September 9, 2011

(Sacramento, CA, September 9, 2011)–The Legislature has given final approval to legislation authored  by Assembly Member Mike Feuer (D-Los Angeles)  that would provide same sex spouses and registered domestic partners of nursing home residents the same financial protections available to opposite sex married couples. Without these protections, Californians in same sex relationships risk losing access to joint financial resources, such as bank accounts or stock, when their partner or spouse applies for the Medi-Cal long term care benefit.

“When spouses make the difficult decision to place their loved ones in nursing homes, they should concentrate on finding the best possible care. They should not have to worry that their spouse could lose access to joint financial resources and face poverty due to unequal treatment and discrimination,” said Feuer. “I hope the Governor will act swiftly to address this inequity, which could leave same sex spouses of nursing home residents without the means to support themselves.”

Under current law, Medi-Cal’s long term care benefit helps to pay for medical care and services for people who have a chronic illness or disability, including the costs of placing an elderly person into a nursing home. To qualify for this benefit, some recipients are first required to contribute significant resources toward their medical costs. Existing law provides protections for opposite sex married couples that allow them to shield assets so that the spouse outside the nursing home retains a means of financial support and is not forced into poverty by these cost-sharing requirements.

Unfortunately, these critical protections currently do not apply to same sex spouses or registered domestic partners, who therefore face the prospect of being denied access to shared assets. The federal government recently issued a memo clarifying that states have flexibility in administering the long term care benefit. Assembly Bill 641 enables California to take the lead in ensuring that same sex couples are afforded the same financial protections provided to opposite sex couples.

“This bill extends critically needed protections to same sex couples who would otherwise be left impoverished by the costs of long term care,” said National Center for Lesbian Rights Executive Director Kate Kendell. “This bill will correct a terrible injustice and ensure that all elder couples have the same safeguards under Medi-Cal.”

AB 641 mandates the implementation of the spousal assets protections for same sex couples and registered domestic partners and requires DHCS to fast track implementation.

“LGBT spouses and life-long partners are often torn apart because the current long-term care system unfairly discriminates against same sex couples,” said Equality California Executive Director Roland Palencia. “This bill remedies the harm caused by current state law by ensuring the implementation of new federal guidelines that give states flexibility when administering long term care benefits. This is a critical change that helps LGBT seniors have the same dignity and respect afforded to all elderly people. We thank Assemblymember Feuer for championing this critical piece of legislation.”

“AB 641 is a major step forward in ensuring that same sex partners receive equal treatment under the law,” said Patricia McGinnis, Executive Director for California Advocates for Nursing Home Reform. “It will provide the same protections afforded to opposite sex couples during one of the most difficult times in life when one spouse must enter a nursing home.”

The bill now goes before consideration by the Governor.  A full copy of the bill is available here.

NCLR Applauds New Protections for LGBT People in Federal Hospital Visitation Rules

September 7, 2011

(San Francisco, CA, September 7, 2011)—Today, the U.S. Department of Health and Human Services released new guidelines that strengthen the November 2010 hospital visitation rules that protect patients’ rights to be visited in the hospital by their families and loved ones. Today’s guidance, which is effective immediately, strengthens patients’ rights to choose their own representative to make medical decisions if they are unable to speak on their own behalf. This guidance makes several important changes to current policy and provides significant protections for lesbian, gay, bisexual, and transgender (LGBT) patients and their families.

The new guidance requires that when a patient is competent to choose a representative and surrogate decision-maker, hospitals must honor that request, even if the person had previously designated someone else. In addition, when a patient is incapacitated, hospitals must recognize a patient’s self-identified family members, regardless of whether they are related by blood or legally recognized. This rule specifically includes same-sex partners and de facto parent-child relationships, and even prohibits a hospital from requiring proof of a relationship in order to respect that relationship. Where a patient is incapacitated and more than one person claims to be the patient’s representative, hospitals must resolve the dispute by considering who the patient would be most likely to choose. The hospital must consider factors including the existence of a legally recognized marriage, domestic partnership, or civil union, a shared household, or any special factors that show that a person has a special familiarity with the patient and the patient’s wishes. Importantly, the guidance does not require that the marriage, domestic partnership, or civil union be legally recognized by the state in which the patient is being treated.

Statement by NCLR Federal Policy Director Maya Rupert, Esq.:

“We applaud President Obama for providing these crucial protections for LGBT patients and their families. Every person deserves the security that comes from knowing that if they are unable to make decisions for themselves, they can choose who will speak for them and that hospitals will respect their chosen families and friends.  All patients and families should be allowed that critical measure of dignity, at one of life’s most vulnerable times, and today’s guidance removes a source of great anxiety and distress for many LGBT people.”

Media Contact:

NCLR Communications Director Erik Olvera | Office: 415.392.6257 x324 | EOlvera@NCLRights.org


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