Court of Appeals Rules Against Christian Legal Society, Denies Request to Reopen Challenge to University’s Non-Discrimination Policy

Today the United States Court of Appeals for the Ninth Circuit denied the Christian Legal Society’s request to present additional evidence in Christian Legal Society v. Wu, a case challenging a California law school’s policy that student groups may not discriminate based on sexual orientation, religion, or other bases. Today’s ruling brings an end to six years of litigation in this case, which began in 2004 when the Christian Legal Society (CLS) sued the University of California Hastings College of the Law because CLS wished to exclude gay and non-Christian students. In June, the Supreme Court of the United States rejected CLS’ challenge and held that public universities are free to require funded student groups to comply with non-discrimination policies. The Supreme Court sent the case back to the Ninth Circuit to determine whether any additional issues remained to be resolved in the case. The Ninth Circuit ruled today that the case is over and that the Supreme Court’s opinion upholding Hastings’ policy stands as the final judgment in the case.

The National Center for Lesbian Rights, along with cooperating counsel Paul Smith of Jenner & Block LLP, represents Hastings Outlaw, the lesbian, gay, bisexual and transgender student organization at Hastings, which intervened in the case to defend the constitutionality of the non-discrimination policy. Hastings College of the Law is represented by Gregory Garre of Latham & Watkins LLP and Ethan Schulman of Crowell & Moring LLP.

Statement by Shannon Minter, Esq., NCLR Legal Director:

“Today’s ruling brings a welcome close to six years of intense litigation, including a decision by the U.S. Supreme Court affirming that colleges and universities may adopt non-discrimination policies that protect lesbian, gay, bisexual, and transgender students. Hastings Law School did not adopt its non-discrimination policy to suppress any group’s freedom of speech, but only to ensure that all campus organizations are open to all students. Now that the Supreme Court’s decision is final, colleges and universities have a green light to ensure that all students have an equal opportunity to participate in student activities, without fear of being threatened with litigation by anti-gay groups.”

Groundbreaking Report Urges High School and College Athletics to Establish Standard, National Policies for Transgender Student Athletes

Report is the first to address transgender student athletes, provides comprehensive model policies

A groundbreaking report sponsored by the National Center for Lesbian Rights (NCLR) and It Takes A Team!, an Initiative of the Women’s Sports Foundation, is urging high school and college athletic associations across the country to adopt standard policies to provide transgender student athletes fair and equal opportunity to participate on athletic teams.

The report, “On the Team: Equal Opportunities for Transgender Student Athletes,” released on October 4, 2010, is the first ever to thoroughly address the complete integration of transgender student athletes within high school and collegiate athletic programs. The report is also the first to provide comprehensive model policies and a framework for athletic leaders to ensure equal access to school athletics for transgender students.

“Educators and parents must be open to this challenge if we are to create educational institutions that value and meet the needs of all students,” says report co-author Dr. Pat Griffin former director of It Takes A Team! “Once we recognize that transgender young people are part of school communities across the United States, educational leaders have a responsibility to ensure that these students have equal access to opportunities in all academic and extracurricular activities in a safe and respectful school environment.”

In October 2009, NCLR and It Takes A Team! 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. Think tank participants, including leaders from the National Collegiate Athletic Association and the National High School Federation met over several days, identifying best practices. Co-authors Griffin and NCLR Sports Project Director Helen J. Carroll developed these best practices into model policies and a framework for high school and college athletic leaders to ensure the full inclusion of transgender student athletes.

“An increasing number of high school- and college-aged young people are identifying as transgender. This report is an invaluable tool to guide coaches and administrators in providing equal opportunities for transgender student athletes in a fair and just manner, based on reliable information and data,” says Carroll. “No student athlete should ever be turned away from a team because an athletic department hasn’t established policies that would allow them to participate.”

According to the 56-page report, although “the needs of transgender students in high school and college have received some attention in recent years, this issue has not been adequately addressed in the context of athletics. Few high school or collegiate athletic programs, administrators, or coaches are prepared to fairly, systematically, and effectively address a transgender student’s interest in participating in athletics. The majority of school athletic programs have no policy governing the inclusion of transgender student athletes, and most coaches are unprepared to accommodate a transgender student who wants to play on a sports team. In fact, most school athletic programs are unprepared to address even basic accommodations, such as knowing what pronouns or names to use when referring to a transgender student, where a transgender student should change clothes for practice or competition, or what bathroom or shower that student should use.”

The report determined:

• The adoption of transgender-inclusive policies and practices dispels stereotypes and fears about gender diversity. When transgender students are stigmatized and excluded, even non-transgender students may experience pressure to conform to gender-role stereotypes as a way to avoid being bullied or harassed themselves.
• Failure to adopt transgender-inclusive participation policies is hurtful to and discriminates against transgender students because they may be denied the opportunity to participate in school sports.
• Failure to adopt inclusive participation policies also hurts non-transgender students by conveying a message that the values of non-discrimination and inclusion are less important than values based on competition and winning. Schools must model and educate about non-discrimination values in all aspects of school programming, not only for students, but for parents and community members as well.
• Failure to adopt policies that ensure equal opportunities for transgender student athletes may also result in costly and divisive litigation. A growing number of states and localities are adopting specific legal protections for transgender students. In addition, state and federal courts are increasingly applying sex discrimination laws to prohibit discrimination against transgender people.

Several studies show that schools are often hostile places for transgender students and other students who do not conform to stereotypical gender expectations. These students are frequently subjected to peer harassment and bullying. This mistreatment can lead to feelings of hopelessness, depression, and low self-esteem. When a school or athletic organization denies transgender students the ability to participate in sports because of their gender identity or expression, that condones, reinforces and affirms their social status as outsiders who deserve the hostility they experience from peers.”

The report provides:

• Model policies—created by leading athletic, legal, and medical experts—for including transgender students in both high school and college athletics that ensure the safety, privacy, and dignity of all student athletes.
• Specific best practice recommendations for athletic administrators, coaches, student athletes, parents, and the media.
• A thorough analysis of issues related to providing equal opportunities for transgender student athletes.
• An in-depth list of local and national resources to help address transgender issues in athletics.
• Definitions of key terms, as well as information about the legal rights of transgender people in the United States.

The report reflects a collaborative process, including the best thinking of think tank participants, based on current medical knowledge and legal protections for transgender people, about how to ensure equal opportunities for transgender student athletes. The purpose of the report is to provide leaders in education and athletics with the information they need to make effective policy decisions about the participation of transgender student athletes in high school and college athletic programs. It is intended for everyone involved with high school or collegiate athletics, including college presidents, school board members, high school state athletic association leaders, school principals and district superintendents, intercollegiate athletic conference commissioners, and sport governing organization leaders.

“We are confident that the report will be an essential guide for high school and college athletic leaders as they adopt policies to ensure that all student-athletes, including transgender students, will have equal opportunities to enjoy sports,” says Kathryn E. Olson, Chief Executive Officer of the Women’s Sports Foundation. “The Women’s Sports Foundation has always sought to advance the lives of girls and women through sports and physical activity. Our sponsorship of this think tank and support for the recommendations in this report are a part of this commitment.”

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

NCLR Applauds Court Decision Striking Down Don’t Ask, Don’t Tell

Today, a federal district court judge in the Central District of California held that the federal government’s policy of barring lesbian, gay, and bisexual people from serving openly in the military violates the United States Constitution. In a sweeping decision, Judge Virginia Phillips ruled that the government’s policy—popularly known as Don’t Ask, Don’t Tell—is unconstitutional on its face, and must be struck down. The decision details the voluminous evidence presented by the plaintiffs about the harm caused by the government’s policy. The court held that Don’t Ask, Don’t Tell violates the fundamental rights of lesbian, gay, and bisexual service members without advancing any important government interest. The court held that the law also violates lesbian, gay, and bisexual service members’ First Amendment rights because it forces them to be silent about the most basic information about their identities, family relationships, and daily activities, and prevents them from seeking protection from harassment and discrimination. The case was brought by the Log Cabin Republicans on behalf of its members and included testimony from a number of service members affected by the policy.

The decision will not take effect immediately. Judge Phillips asked the plaintiffs to submit a proposed judgment, including a permanent injunction against enforcement of the law, by September 16, 2010. If upheld on appeal, the decision would prevent the federal government from enforcing Don’t Ask, Don’t Tell against any service member.

Statement by NCLR Executive Director Kate Kendell:

“Today’s decision by Judge Phillips—following other recent decisions striking down California’s Proposition 8 and the federal Defense of Marriage Act–is another landmark victory for LGBT Americans. Once again, those who seek to defend discriminatory government policies failed to present a shred of evidence to justify laws that are based entirely on prejudice and fear. After considering the overwhelming evidence presented by the plaintiffs, Judge Phillips held that Don’t Ask, Don’t Tell inflicts severe harm on lesbian, gay, and bisexual service members who put their lives on the line to protect and serve our country, while undermining our national security by requiring the discharge of loyal, qualified, and highly trained personnel. This decision puts another nail in the coffin of official government discrimination based on sexual orientation. It is past time for our country to include LGBT Americans as equal citizens, and today’s ruling is a major milestone toward realizing that goal. We congratulate and thank the Log Cabin Republicans for bringing this historic case.”

Sonoma County Defendants to Pay Clay Greene over $650,000 to Settle Case in Which County Forcefully Separated Greene from his Partner of 20 Years

Late yesterday evening, Clay Greene and the estate of Harold Scull, Greene’s deceased partner of 20 years, reached a settlement resolving their lawsuit against the County of Sonoma (“County”) and other defendants.

Greene and Scull’s estate will receive more than $600,000 to compensate for the damages the couple suffered due to the County’s discriminatory and unlawful conduct.

“What Clay and Harold lost can never be replaced, but this settlement brings a measure of justice to their story,” said Amy Todd-Gher, Senior Staff Attorney for the National Center for Lesbian Rights, which represented Greene with The Law Office of Anne N. Dennis and Stephen O’Neill and Margaret Flynn of Tarkington, O’Neill, Barrack & Chong. “This victory sends an unmistakable message that all elders must be treated with respect and dignity, regardless of their sexual orientation, and that those who mistreat elders must be held accountable. Even as we celebrate this victory, however, we are deeply troubled that the County of Sonoma continues to refuse to take responsibility for their egregious misconduct and violations of the law in this case.  We urge every citizen of Sonoma County to demand more oversight of the Public Guardian’s office.  They need to be watched.”

Greene and Scull lived together for 20 years and had executed both mutual powers of attorney for medical and financial decisions and wills naming each other as beneficiaries. In April 2008, County employees separated the couple after Scull fell outside their shared home. In the next three months, County officials ignored the couple’s legal documentation, unlawfully auctioned their possessions, terminated their lease, and forced Greene into an assisted living facility against his will. The County did not consult Greene in Scull’s medical care and prevented the two from seeing one another. In August, 2008, before the partners could be reunited, Scull passed away after completing a photo album of the couple’s life for Greene.

In August, 2009, Greene and the representative of Scull’s estate, the couple’s longtime friend Janette Biggerstaff, filed a lawsuit alleging elder abuse, elder financial abuse, breach of fiduciary duty, intentional and negligent infliction of emotional distress, false imprisonment, and other claims.

In addition to agreeing to pay a substantial sum, as a result of the lawsuit, the County has changed or modified a number of important policies in its Public Guardian’s Office, including requiring County employees to follow protocols before seizing private property, preventing County employees from relocating elders or others against their will, and prohibiting County employees from backdating information in their guardianship database.

“This settlement will allow Mr. Greene to finally have the quiet retirement he deserves,” said Anne N. Dennis, one of Greene’s attorneys. “Although nothing can undo the harm to these gentlemen, we believe the changes made because of the lawsuit will improve services to elders and other individuals who need the assistance of the Sonoma County Public Guardian’s Office.”

Plaintiff Jannette Biggerstaff, the executor of Scull’s estate and a longtime friend of the couple, added: “There is no possible justification for what happened to my friends Harold and Clay, and I still feel outraged and heartbroken that they suffered such a terrible tragedy, which was made worse by the county spreading such terrible lies about Clay,” she said. “But I am pleased that their rights have been vindicated, and I’m hopeful that their story will help to prevent this from happening to other vulnerable people.”

NCLR Applauds District of Columbia Court of Appeals Decision to Uphold Marriage Equality

Today, in a 5-4 decision, the  District of Columbia  Court of Appeals – D.C.’s highest court – upheld marriage equality in the District by reaffirming earlier decisions of the D.C. Board of Elections and Ethics and the D.C. Superior Court. The appeals court held that the Board was correct to reject repeated petitions by anti-LGBT groups to put marriage equality to a citywide referendum.

In today’s ruling, the District Columbia Court of Appeals unanimously concluded that to put the matter of marriage equality to a vote would have the effect of authorizing discrimination under the Human Rights Act, which prohibits discrimination on the bases of gender and sexual orientation. The majority of the court also agreed with the Board that, under D.C.’s initiative law, such matters cannot be subject to a popular vote.

“We applaud today’s ruling of the District of Columbia Court of Appeals that marriage equality may not be put to a majority vote,” said NCLR Executive Director Kate Kendell. “The decision is important for many reasons, but most importantly, it protects families: those loving same-sex couples who wish to marry, and their children.”

NCLR Legal Director Shannon Minter added, “The decision is correct as a matter of law, because a ballot measure enshrining discrimination against same-sex couples into law would violate the D.C. Human Rights Act. This decision also respects the structure of city government – the right of the people’s duly elected representatives to enact marriage laws that do not discriminate – and affirms that majorities cannot selectively take away rights from minorities.”

Washington D.C.’s marriage equality law took effect on March 9, 2010 after several attempts to stall its implementation failed in court. NCLR is a member of the Campaign for All D.C. families, a diverse coalition that has long advocated for marriage equality in the District of Columbia, and which filed a friend of the court brief supporting the city in this case.  Covington & Burling LLP represented the Campaign throughout this case.

GLMA, NCLR Urge Investigation of Alleged Misuse of Prenatal Drug to Manipulate Sexual Orientation

Today, the Gay and Lesbian Medical Association and the National Center for Lesbian Rights respond to the recent article published by the Bioethics Forum of the Hastings Center, a nonpartisan bioethics institute, investigating the abuse of the steroid dexamethasone by administering the drug to pregnant women in the attempt to prevent female children from having atypical genitals or from growing up to be lesbian.

A statement from The Gay and Lesbian Medical Association and the National Center for Lesbian Rights:

“The Gay and Lesbian Medical Association and the National Center for Lesbian Rights are deeply concerned by recent reports that some medical providers have subjected pregnant women and children to serious medical risks by administering or recommending prenatal  dexamethasone  in order to prevent female children from having atypical genitals or from growing up to be lesbian. We strongly condemn such treatments as unethical and morally reprehensible. The goal of medical treatment is to alleviate human suffering and illness—not to stamp out the natural diversity of human existence. We urge the Department of Health and Human Services to take immediate action to investigate these allegations.”

NCLR Expands Elder Law Program

Fellowship launches the Del Martin Memorial LGBT Elder Advocacy Initiative

Today, the National Center for Lesbian Rights (NCLR) announced the expansion of the organization’s pioneering elder law advocacy work with the launch of the Del Martin LGBT Elder Advocacy Initiative. Daniel R. Redman, Esq. joins NCLR as the recipient of both the Pride Law Fund Tom Steel Fellowship and the Berkeley Law Foundation (BLF) Fellowship. Building on NCLR’s decade-long commitment to fighting for LGBT seniors, the Del Martin Initiative focuses on LGBT elders in long-term care facilities and other institutional settings. Through litigation, legislative work, and outreach to eldercare professionals, the project aims to make sure that LGBT elders are treated with dignity, care, and respect.

“We are deeply grateful to the Pride Law Fund and the Berkeley Law Foundation for their generous support of this project,” said NCLR Executive Director Kate Kendell. “NCLR’s pending case on behalf of Clay Greene, who was subjected to egregious mistreatment by officials from Sonoma County before and after the death of Clay’s long-term male partner, illustrates the profound vulnerabilities LGBT elders face. In coordination with advocates across the state, Daniel has already begun work drafting regulations to implement a law requiring LGBT-inclusive trainings for nursing home personnel. The Del Martin LGBT Elder Advocacy Initiative promises immediate results.”

“BLF is thrilled to invest in the Del Martin Initiative’s cutting-edge work on behalf of LGBT seniors nationwide,” said BLF President Holly Baldwin. “This project has it all: a dynamic young attorney working at an organization with a terrific track record of achieving social justice to support an underserved community with pressing legal needs. We couldn’t be more proud of Daniel and look forward to hearing about the Initiative’s successes for years to come.”

Redman received his J.D. in 2008 from the UC Berkeley School of Law (Boalt Hall), where he was an articles editor of the California Law Review, student notes editor of the Berkeley Journal of Gender, Law & Justice, and a research assistant to Professor Joan Hollinger. Prior to Boalt, he worked as a legal assistant at Gay & Lesbian Advocates & Defenders. During law school, he clerked at NCLR, worked as a summer associate at Simpson Thacher & Bartlett in New York, and externed with the ACLU-LGBT Project. After graduation, he joined Cooley Godward Kronish’s San Francisco office where, as a litigation associate, he continued to do pro bono work on behalf of LGBT clients. Redman has written on LGBT issues for Slate, The American Prospect, The New Republic, The Nation, Berkeley Journal of Gender, Law & Justice, and Connecticut Law Review.

Incarcerated Transgender Woman Can Pursue Case for Appropriate Medical Care

A U.S. district court judge in Massachusetts has denied the government’s request to dismiss the case of Vanessa Adams, a Federal Bureau of Prisons (BOP) inmate with gender identity disorder (GID). For years, the BOP denied Ms. Adams treatment for her serious medical condition. As a result, Ms. Adams attempted suicide multiple times when prison doctors failed to provide any treatment. She eventually removed her own genitals. Ms. Adams now challenges the federal policy that prison doctors and other medical providers used to justify the denial of her treatment.

At issue is BOP’s so-called “freeze frame” policy in which treatment for any prisoner with gender identity disorder is frozen at the level being provided when he or she entered BOP. In other words, because Ms. Adams did not receive treatment for GID before being incarcerated, BOP would not provide it to her after her incarceration.

Vanessa Adams is being represented by Gay & Lesbian Advocates & Defenders (GLAD), Florida Institutional Legal Services (FILS), the National Center for Lesbian Rights (NCLR), and Bingham McCutchen LLP. The organizations hold the position that people should receive medically-necessary treatment for serious health conditions while in our nation’s prison system, including transgender-related health needs.

“Unfortunately, despite the fact that GID is well-recognized as a serious medical condition, individuals with GID face stigma and bias. In Vanessa’s case, stigma and bias alone have deprived her of the medical attention she needs. By filing this case, she seeks to ensure that transgender inmates with serious medical needs get appropriate care, just as prisoners with heart conditions and diabetes should,” said Jennifer L. Levi, Transgender Rights Project Director for GLAD.

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

“We’re pleased that the judge recognized the inhumanity of the BOP policy, and that Vanessa will have her day in court,” said Shannon Minter, Legal Director of NCLR.

In its June 7 ruling, the Court rejected BOP’s argument that Ms. Adams’ claim should be invalidated because the prison finally started her on hormones. Citing the BOP’s consistently callous conduct toward Ms. Adams, the fact that BOP could stop Ms. Adams’ treatment at any time, and the fact that BOP continues to enforce its freeze-frame policy, the Court ruled that the question of the constitutionality of the policy remains open.

This case will now in all likelihood proceed to trial.

More information about Adams v. Federal Bureau of Prisons, including the complaint and the decision, can be found at www.glad.org and www.nclrights.org.

Student Non-Discrimination Act Introduced in the U.S. Senate

Today, the National Center of Lesbian Rights (NCLR) applauds Senator Franken for introducing the Student Non-Discrimination Act in the Senate. The Student Non-Discrimination Act is federal legislation designed to ensure that all students have access to public education in a safe environment free from discrimination, including harassment, bullying, intimidation and violence. The proposed legislation would provide nationwide comprehensive prohibition of discrimination in public schools based on actual or perceived sexual orientation or gender identity. The measure would provide victims of such discrimination with meaningful and effective remedies, modeled after Title IX.

“We applaud Senator Franken for introducing the Student Non-Discrimination Act in the Senate and his advocacy for LGBT youth and their allies,” said Kate Kendell, Executive Director of the National Center for Lesbian Rights. “The passage of this crucial bill would reaffirm our country’s commitment to our youth and help to ensure the promise of a healthy and safe learning environment for all.”

“LGBT youth have the right to a quality education and are denied this right when school discriminate and become hostile environments,” said NCLR Youth Project Director Jody Marksamer. “This legislation would ban discrimination  against LGBT youth and thus would ensure the safety of public schools for everyone, regardless of their sexual orientation or gender identity.”

On January 27, 2010 Representative Jared Polis introduced the House version of the bill, H.R. 4530. The bill currently has 106 co-sponsors.

The National Center for Lesbian Rights helped draft this key legislation and is among the number of national organizations that support its passage. NCLR’s support for federal legislation to end discrimination against LGBT youth in our nation’s schools is a part of the work of its Youth project, which  seeks to advance the rights of LGBT youth through education, public policy, and precedent-setting casework. By bringing the issues faced by LGBT youth front and center, NCLR changes the legal landscape for all youth, and ensures health and safety for the next generation of all young people.

State and National Civil Rights Groups Laud Maryland For Providing State Employee Benefits To Married Same-Sex Couples

Heartened that the State of Maryland has taken an important step forward for the rights of all families, the American Civil Liberties Union of Maryland, Equality Maryland, the Maryland Black Family Alliance, Lambda Legal and the National Center for Lesbian Rights today lauded the state Department of Budget and Management for its decision to make the Employee and Retiree Health and Welfare Benefits Program inclusive of same-sex couples who have valid marriages that were performed in other states. Beginning July 1, the program will now cover individuals who already possess a valid marriage certificate from a jurisdiction that authorizes marriages of same-sex couples.

“We applaud the State of Maryland for providing basic protections to its married lesbian and gay employees, in compliance with Maryland law , allowing them to offer their spouses and children greater security, stability and peace of mind,” said David Rocah, Staff Attorney for the ACLU of Maryland.

“This is fully consistent with longstanding Maryland legal principles and helps same-sex couples access important protections for their families,” said Susan Sommer, Director of Constitutional Litigation at Lambda Legal.

“This is a common-sense step toward equal treatment of Maryland State employees and their families,” said Liz Seaton, a managing attorney for the National Center for Lesbian Rights.

“The Maryland Black Family Alliance believes it is the right step forward for the state to be inclusive of married same-sex couples in providing important family benefits,” said Elbridge James, Director of the Maryland Black Family Alliance, adding, “It’s the right thing to do.”

“We are thrilled that so many couples are benefiting from equal treatment under the law in a wide range of areas including health insurance,” said Morgan Meneses-Sheets, Executive Director of Equality Maryland. “Progress is being made, however, many of the 400+ state-level legal protections of marriage still remain out of reach to thousands of committed couples. Only civil marriage here at home and an end to discrimination by the federal government will provide full and equal protection under the law,” said Meneses-Sheets.

To qualify for coverage, the couples have to submit a copy of their marriage certificate along with a newly developed Spouse Tax Affidavit which, going forward, will apply to all spouses, not just same-sex spouses. Same-sex spouses with a valid marriage certificate will not be required to complete the separate Domestic Partner Affidavit nor will they be required to submit proof of common residence and financial interdependency.

An initial open enrollment period is provided through June 2 for same-sex couples who are already married. After that, same-sex partners who get legally married can add the spouse under the state’s usual qualified family status change process. Unfortunately, due to the federal Defense of Marriage Act, same-sex couples will have to pay taxes on the value of health benefits provided under the Program, unlike opposite-sex couples for whom such benefits are exempt from taxation.

The ACLU of Maryland, the National Center for Lesbian Rights, and Lambda Legal continue to monitor how state agencies comply with the law following a legal opinion released in February by Attorney General Doug Gansler that concludes that Maryland law requires recognition of valid out-of-state marriages of same-sex couples. Last year, Maryland extended benefits to domestic partners who complete a Domestic Partner affidavit. This new policy for married same-sex couples does not affect the availability of benefits for eligible domestic partners.

Maryland follows New York State, which honors marriages between same-sex couples even though such marriages are not performed in that jurisdiction. Five states Massachusetts, Connecticut, Iowa, Vermont, and New Hampshire and the District of Columbia have marriage equality laws.