Is America Growing Less Tolerant on L.G.B.T.Q. Rights?

When my sister came out, there was an accordion trio on hand to perform the music of Sly and the Family Stone.

Debutantes in white dresses and boys with matching cummberbunds and bowties drank from the waters of a gurgling champagne fountain. The entire affair, staged in my parents’ old house in Devon, Pa., was an anachronism, to be sure — but as wingdings go, it was tons of fun. It was 1975.

When I came out, in 2002, there wasn’t any party. There were tense meetings with the affirmative action/equal opportunity officer at my place of work; there was a carefully worded statement sent to my colleagues explaining exactly what “transgender” was; there was a series of conversations with my friends, and my mother, and the people whom I loved best, many of whom — in spite of their brave pledges to stand by me — ended those conversations in tears.

That was then.

People who “come out” at debutante parties have been off my radar for a long time now, although apparently they’re still going strong in some quarters. As for L.G.B.T.Q. people, “coming out” has gotten safer in fits and starts, not only in the wake of the Obergefell decision but also in other ways: L.G.B.T.Q. people are now visible in a way that was inconceivable half a generation ago. Most of the people that I thought I had lost after my 2002 unveiling have, miraculously, been returned to me, the intervening years having brought not only forgiveness but also understanding. Since my coming out, our family has thrived, and in the wake of that progress, I have believed that just as the Rev. Dr. Martin Luther King Jr. predicted, the arc of the moral universe does indeed bend toward justice.

Until now.

Last week, GLAAD — the media advocacy group for L.G.B.T.Q. people (of which I was a national co-chairwoman from 2013 to 2017) — released the results of its latest “Accelerating Acceptance” survey at the World Economic Forum in Davos, Switzerland. While the biggest headlines from the forum focused on the fact that the president of the United States managed to get through an event on the world stage without shoving any prime ministers or calling anyone’s country an outhouse, the results of the poll, conducted by Harris, deserve attention as well. They are shocking.

For the first time since the poll began, support for L.G.B.T.Q. people has dropped, in all seven areas that the survey measured. They include “having an L.G.B.T. person at my place of worship” (24 percent of Americans are “very” or “somewhat” uncomfortable), seeing a same-sex couple holding hands (31 percent are uncomfortable) and “learning my child has an L.G.B.T. teacher at school” (37 percent are uncomfortable).

New York Times – by Jennifer Finney Boylan, January 29, 2018

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Known Donor Family Law New York – Protecting Lesbian Mothers

Known Donor Family Law New York is changing. 

Many lesbian couples look to known donor family law New York prior to choosing known donors to help them have their families.  In my legal practice, I have seen this number increase steadily over the last 10 years.  Reasons for choosing a known donor include giving children a link to their biological heritage, having access to specific medical histories and providing male influences in the lives of children born into these progressive families.

The law appears to be coalescing in favor of intended mothers and a recent Appellate Division case moves known donor family law in New York further in that direction.  Before discussing the new case, let me give you a brief history of existing known donor family law in New York.known donor family law New York

Existing Family Law Treatment

Brooklyn Family Court Judicial Hearing Officer (JHO) Harold Ross, in a decision titled The Matter of L., et. al, held that as long as uncertainty exists for LGBT couples who create their families with assisted reproductive technology (ART), with both anonymous and known donors, then second parent adoptions are the best way to secure those families from this uncertainty.

In the Matter of Brooke S.B. v. Elizabeth A.  C.C., a landmark decision released in August of 2016, the New York’s highest court overturned previous New York precedent that had torn families apart for decades and ruled that non-biological and non-adoptive parents did have standing to sue for custody and visitation in the New York family court system.  While this case did not specifically address the issue of a known donor’s rights to a child he helped come to be, it brought New York family law in line with many other states which recognize “de facto” parents for the purpose of custody and visitation and prioritizes the best interests of the child in making these critical decisions.

New Case Law 

This new known donor case, entitled In the Matter of Christopher YY v. Jessica ZZ and Nicole ZZ, New York’s Appellate Division, Third Department (whose jurisdiction covers matters derived in South Central New York State to North Eastern and Central Eastern Counties in New York) addressed the issue of a known donor who sought to have a paternity test ordered by a family court.  The family court agreed with the donor and ordered the testing.  The mothers filed an appeal and the result of that appeal was to overturn the lower family court’s decision to order paternity testing for two reasons, thus codifying new known donor family law in New York.

The first reason was the marital status of the mothers.  They were married when they planned on having the child and they had an informal agreement (one drafted and executed without the benefit of legal counsel) with their donor, something that all intended mothers should have with their known donor prior to insemination.  The court stated that there existed a “presumption of legitimacy of a child born to a married woman.”  Even if this presumption exists, the court must conduct a “best interests of the child” analysis before any paternity testing can be ordered.

known sperm donorsThe key question is whether the paternity testing is in the best interests of a child.  The court determined that the presumption existed regardless of the gender of the parents, a huge statement of support for lesbian couples across New York.  However, that presumption can be “rebutted” by a donor in certain circumstances.  The court looked at the facts of this case, the existence of an agreement in which the donor stated that he would not seek paternity, and the lack of a significant relationship between the donor and the child after the child’s birth. 

To determine whether the presumption of parentage that the court established for the non-birth mother could be rebutted, they applied the concept of “equitable estoppel,” which bars a legal claim by a party if that claim is inconsistent with a prior position taken by them and relied upon by the other party.  In this case, the prior position was outlined in the known donor agreement he signed with the mothers, that he would not attempt to establish paternity,  and his lack of a relationship with the child after her birth.  Equitable estoppel prevented the known donor from proving to the court that the paternity testing was in the best interest of the child.

What does this case mean for Known Donor Family Law New York? 

This case is certainly a step in the right direction.  But these cases are fact specific and unless there is a legal instrument, such as a step or second parent adoption order, the possibility of taking a party to court will always be a financially and emotionally time-consuming specter over a family.  Another benefit of a step or second parent adoption is that is clearly and indisputably terminates the rights of a known donor, making a claim such as the one made by the donor in this case, a nullity.

Known Donor Family Law New York is moving in the right direction.  If you are considering a known donor, you must also consider how best to secure your family from unwanted paternity or visitation suits.  For answers to your questions, please contact Anthony M. Brown at anthony@timeforfamilies.com or visit www.timeforfamilies.com.

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Lesbian couple sues for son’s US citizenship

A same-sex couple is suing the US government alleging discrimination because one of their children was not granted American citizenship.

US citizen Allison Blixt and her Italian wife Stefania Zaccari had two babies in London, England.

The spouses each carried one child to term using their own eggs and an unknown sperm donor.citizenship

American citizenship was granted to Ms Blixt’s son, Massimiliano, but not to Ms Zaccari’s boy, says the lawsuit.

The US Department of State has not commented on the allegations.

According to the agency’s website, “at least one biological parent must have been a US citizen when the child was born” for a child to qualify for birthright citizenship.

Ms Blixt and Ms Zaccari are listed on both children’s birth certificates, and English law recognises them as the boys’ parents, according to their lawsuit filed in Washington DC.

The court filing says the US consulate denied citizenship to Ms Zaccari’s child, Lucas, now two years old, on the grounds that he was not a blood relation and that he was born “out of wedlock”.

However, lawyers for Ms Zaccari and Illinois-born Ms Blixt say they were legally married in their adopted home of England before their sons’ births.

The lawsuit says that at the US consulate “Stefania and Allison were asked a series of invasive and legally irrelevant questions about how their children were conceived and born”.

The decision violates the Immigration and Nationality Act establishing that “babies born abroad are US citizens at birth when one of the child’s parents is a married United States citizen”, says the court filing.

After a law against same-sex marriage was overturned in the US in 2013, same-sex couples were allowed – like heterosexual couples – to bring their foreign spouses into America.

But the same ruling did not cover the children of same-sex couples, and legal advocates say this is discriminatory.

Ms Blixt told the Washington Post that she declined the offer to become her son’s legal stepmother and bring him to the US as an immigrant.

BBC.com January 22,2018

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State Dept. sued for denying citizenship to same-sex couples’ children

Two binational same-sex couples on Monday filed federal lawsuits against the State Department after their children were denied U.S. citizenship.

Andrew Dvash-Banks, who was born in Santa Monica, Calif., and his husband, Elad Dvash-Banks, who was born in Israel, were married in Toronto in 2010. The two men decided to live in Canada because the Defense of Marriage Act that President Clinton signed in 1996 prevented Andrew Dvash-Banks from sponsoring Elad Dvash-Banks for immigration purposes.citizenship

A surrogate gave birth to the men’s twin boys — Aiden Dvash-Banks and Ethan Dvash-Banks — in Mississauga, Ontario, on Sept. 16, 2016.

Aiden Dvash-Banks was conceived with Andrew Dvash-Banks’ sperm, while Ethan Dvash-Banks was conceived with Elad Dvash-Banks’ sperm. Canada recognizes both men as their children’s parents.

The 2013 U.S. Supreme Court ruling in the Windsor case that struck down a portion of DOMA prompted the U.S. to legally recognize same-sex marriages performed outside the country. The U.S. Consulate in Toronto nevertheless denied the men’s request for a Consular Report of Birth Abroad — which certifies that a child who was born overseas was an American citizen at the time of their birth — and a U.S. passport for Ethan Dvash-Banks under Section 309 of the Immigration and Naturalization Act that specifically addresses “children born out of wedlock.”

“Focusing improperly on the biological relationship between each child and the parent who conceived him, the State Department then recognized Aiden’s citizenship and denied Ethan’s,” reads the lawsuit that Andrew Dvash-Banks filed in the U.S. District Court for the Central District of California.

The Dvash-Banks family moved to Los Angeles on June 24, 2017.

Andrew Dvash-Banks and Aiden Dvash-Banks are U.S. citizens, while Elad Dvash-Banks is a permanent resident. Ethan Dvash-Banks, who is also a plaintiff in the lawsuit, was able to enter the U.S. on a tourist visa that expired on Dec. 23, 2017.

“All of Andrew and Elad’s professional, personal and familial commitments are in constant jeopardy of being undone if the Department of Homeland Security deports Ethan,” reads the lawsuit.

Andrew Dvash-Banks and Elan Dvash-Banks have applied for a green card for Ethan Dvash-Banks in order “to minimize the risk of deportation proceedings and having to face the choice of staying together as a family or staying in this country.”

Washington Blade, by Michael Lavers, January 22, 2018

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Report Shows Massive Increase In Anti-LGBTQ Violence Since Trump Took Office

LGBTQ Violence – It’s incredibly scary to be LGBTQ in Trump’s America.

The New York City Anti-Violence Project’s annual Crisis of Hate report shows a remarkable upsurge of hate-based killings of LGBTQ people.anti-lgbt, chechnya

According to the report, an 86 percent increase in hate violence homicides in the U.S. last year makes 2017 the deadliest year yet for the LGBTQ community. The National Coalition of Anti-Violence Programs, a coalition of 40 community-based anti-violence groups, noted the escalation toward the end of the presidential election cycle, and it shows no signs of slowing, according to Beverly Tillery, executive director of the project.

President Donald “Trump won the election by saying it was time to take back America for people feeling pushed out by LGBTQ people, immigrants and people of color,” Tillery told HuffPost.

“It was a tactical move to attack those communities,” she added. “It worked, and there are more instances of violence because the climate in the country has changed. It has given an opening for people to feel like they can commit acts of hate-based violence without much repercussion.”

The National Coalition of Anti-Violence Programs recorded 52 LGTBQ hate-based homicides in 2017 ― an average of one each week. That’s a sharp increase from 28 single-incident anti-LGTBQ homicides in 2016. (The Pulse Nightclub massacre, which killed 49 people in 2016, is not included when calculating single-incident homicides.)

Those slain last year include: 

John Jolly, a 55-year-old black cisgender man, was stabbed to death in August in Manhattan. Nathaniel “The Kidd Creole” Glover Jr., a former member of the 1980s hip-hop group Grandmaster Flash and the Furious Five, was charged with second-degree murder. According to the Daily News, Glover may have suspected Jolly was hitting on him.

Juan Javier Cruz, a 22-year-old Latinx cisgender man, was fatally shot In August in Lake Worth, Florida. Cruz was reportedly defending a group of friends against homophobic slurs. Nelson Hernandez Mena has been charged in the killing.

Giovanni Melton, a 14-year-old black cisgender man, was fatally shot in October in Henderson, Nevada. Melton’s father, Wendell Melton, is charged. The elder Melton was allegedly upset about his son’s sexuality and the fact his son had a boyfriend.

Huffington Post, January 22, 2018 by David Lohr
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One Day Your Mind May Fade. At Least You’ll Have a Plan.

When Ann Vandervelde visited her primary care doctor in August, he had something new to show her.

Dr. Barak Gaster, an internist at the University of Washington School of Medicine, had spent three years working with specialists in geriatrics, neurology, palliative care and psychiatry to come up with a five-page document that he calls a dementia-specific advance directive.

In simple language, it maps out the effects of mild, moderate and severe dementia, and asks patients to specify which medical interventions they would want — and not want — at each phase of the illness.living will, health care proxy, medical power of attorney

“Patients stumble into the advanced stage of dementia before anyone identifies it and talks to them about what’s happening,” Dr. Gaster told me. “At what point, if ever, would they not want medical interventions to keep them alive longer? A lot of people have strong opinions about this, but it’s hard to figure out how to let them express them as the disease progresses.”

One of those with strong opinions, it happens, was Ms. Vandervelde, 71, an abstract painter in Seattle. Her father had died of dementia years before, in a nursing home after her mother could no longer care for him at home. Ms. Vandervelde had also spent time with dementia patients as a hospice volunteer.

Further, caring for her mother in her final year, Ms. Vandervelde had seen how family conflicts could flare over medical decisions. “I was not going to leave that choice to my children if I could spare them that,” she said.

So when Dr. Gaster explained his directive, “it just made so much sense,” Ms. Vandervelde said. “While I could make these decisions, why not make them? I filled it out right there.”

Like a growing number of Americans over age 60, she already had a standard advance directive, designating a decision-maker (her husband) to direct her medical care if she became incapacitated.

Not all experts are convinced another directive is needed. But as Dr. Gaster and his co-authors recently argued in the journal JAMA, the usual forms don’t provide much help with dementia.

“The standard advance directives tend to focus on things like a ‘permanent coma’ or a ‘persistent vegetative state,’” Dr. Gaster said. “Most of the time, they apply to a person with less than six months to live.”

Although it’s a terminal disease, dementia often intensifies slowly, over many years. The point at which dementia patients can no longer direct their own care isn’t predictable or obvious.

Moreover, patients’ goals and preferences might well change over time. In the early stage, life may remain enjoyable and rewarding despite memory problems or difficulties with daily tasks.

“They have potentially many years in which they wouldn’t want a directive that says ‘do not resuscitate,’” Dr. Gaster said. But if severe dementia leaves them bedridden, unresponsive and dependent, they might feel differently — yet no longer be able to say so.

New York Times – January 19, 2018 by Paula Span

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These Are the Worst Anti-LGBT Bills Planned for 2018

From state-level bans on municipalities passing LGBT protections to bills that allow for anti-LGBT discrimination in child services, this homophobia could soon be enshrined in law.

2015 was the year of Indiana’s anti-LGBT “religious freedom” law.

2016 was the year of North Carolina’s ill-fated “bathroom bill.”

2017 was the year when Mississippi’s extreme law HB 1523 took effect—a fitting capstone to an already challenging year for LGBT Americans.LGBT Trump

If history repeats itself, 2018 will see another major state-level attack on LGBT people. But after the overreaching and headline-generating legislation of the past three years, a new report from the Human Rights Campaign suggests that we can expect state-level anti-LGBT bills to get narrower in focus, while remaining just as pointed in their intent.

In particular, the HRC’s new State Equality Index report warns of a “flurry” of anti-LGBT bills in 2018 that are more “sector-specific” than the “sweeping” bills of years past, focusing on areas like adoption, education, and wedding services. That narrowing of focus is a strategic move, according to HRC State Legislative Director Kate Oakley.

“After the Indiana RFRA in 2015 and HB 2 in North Carolina in 2016, it became harder for states to justify the tremendous amount of blowback that came with these sweeping anti-LGBTQ bills,” Oakley told The Daily Beast, adding that those high-profile failures certainly “didn’t stop states from trying.”

As 2018 state legislative sessions officially get underway, it’s becoming clear that some states are still trying—and that some of their efforts could fly under the national radar.

“Iowa, Tennessee, West Virginia, Georgia, and Oklahoma are states that are particularly likely to entertain anti-equality legislation,” the HRC report notes.

Proposed anti-LGBT bills in these states ranges from the broadly cruel to the bizarrely specific—and, so far, these bills have primarily been highlighted by local advocacy groups and media outlets.

In Iowa, for example, the state-level LGBT rights organization One Iowa noted in a petition that they expect to see “more efforts to weaken the Iowa Civil Rights Act” during the 2018 legislative session. 

by Samantha Allen, The Daily Beast, January 17, 2018

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Justice for All Means LGBT Families Too, Says Attorney Anthony Brown

Ask Anthony Brown, and he will tell you that in many ways, he’s had a maverick life. As an actor, as a lawyer, as a husband and a father.

Today, Anthony Brown’s work as an attorney helps LGBT clients navigate the tricky nuances of estate planning, wills and other legalities that keep worried families up at night. But the path to his current career was anything but straight.best interests of the child

Being gay is the least of it. When he arrived in New York in 1984, it was to attend Julliard to study acting. Just as he was about to graduate, Brown met the man who would one day become his husband, Gary Spino.

And, while he met with enough success to work as an actor, he had both bills to pay and time on his hands between jobs. On the road with a touring production of Romeo and Juliet, Brown discovered a massage table stashed behind a Coke machine and decided to make it — and massage — his next passion.

Serendipity struck once again when one of his massage clients turned out to be Tom Stoddard, one of the founders and guiding lights behind Lambda Legal, an organization doing much of the heavy legal lifting during the peak years of the AIDS crisis. “I was lucky enough to work with him during the last seven years of his life,” Brown says now. “He wrote New York’s anti-discrimination law protecting gays and lesbians, and he was a huge influence on me.”

Metrosource.com, By Kevin Phinney – January 12, 2018

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European court advisor: Same-sex couples entitled to residency rights

A legal advisor to the European Union’s highest court on Thursday said gay couples should receive the same residency rights that married couples have in the European Union.

The Associated Press reported European Court of Justice Advocate General Melchior Wathelet issued an opinion that he said is not about whether European Union countries should extend marriage rights to same-sex couples. Wathelet did say, however, they should extend spousal benefits in a way that does not infringe “on the rights of citizens of the (European) Union and their family members to move and reside freely within the territory of the member states.”European high court

Wathelet issued his opinion in the case of Adrian Coman, a Romanian citizen, and his American husband, Clay Hamilton.

Coman and Hamilton, who currently live in New York, legally married in Belgium in 2010. The Associated Press reported the men since 2012 has been asking the Romanian government to recognize his marriage.

Romania currently bans gays and lesbians from legally marrying, but it does not prohibit civil partnerships between same-sex or heterosexual couples. Opponents of marriage rights for same-sex couples in 2015 collected 3 million signatures in support of a referendum on whether to amend the country’s constitution to define marriage as between a man and a woman.

Romania’s Constitutional Court asked the European Court of Justice to weigh in on the men’s case.

The European Court of Justice is expected to rule later this year. The Associated Press reported the judges often “follow the reasoning laid out by advocates general,” even though the judges are not legally bound to Wathelet’s opinion.

Same-sex couples can legally marry in Ireland, the U.K. outside of Northern Ireland, France, Spain, Portugal, Belgium, the Netherlands, Luxembourg, Norway, Denmark, Sweden, Finland, Germany and Malta.

The Washington Blade, by Michael Lavers, January 12, 2018

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Landmark ruling recognizes marriage, trans rights in the Americas

The Inter-American Court of Human Rights on Tuesday issued a landmark ruling that recognizes same-sex marriage and transgender rights in the Western Hemisphere – the Americas.

Americas – The seven judges who issued the ruling stated governments “must recognize and guarantee all the rights that are derived from a family bond between people of the same sex.” Six of the seven judges also agreed that it is necessary for governments “to guarantee access to all existing forms of domestic legal systems, including the right to marriage, in order to ensure the protection of all the rights of families formed by same-sex couples without discrimination.”marital trust

The court issued its ruling after the Costa Rican government in 2016 asked for an advisory opinion on whether it has an obligation to extend property rights to same-sex couples and allow transgender people to change their name and gender marker on identity documents.

The ruling says the Costa Rican government must allow trans people to legally change their name and gender marker on official documents.

It does not specifically say how Costa Rica should extend marriage rights to same-sex couples. Costa Rican Vice President Ana Helena Chacón on Tuesday nevertheless told reporters during a press conference in the Costa Rican capital of San José that her government will do so.

“The Executive Branch will focus on studying the resolution in depth,” she said as La Nación, a Costa Rican newspaper, reported.

The Organization of American States created the Costa Rica-based court in 1979 in order to enforce provisions of the American Convention on Human Rights. Tuesday’s ruling is legally binding in Costa Rica and 19 other countries throughout the Western Hemisphere that currently recognize the convention.

Margarita Salas, a Costa Rican LGBT rights advocate who is a candidate for the country’s National Assembly — described the ruling to the Washington Blade as an “enormous advance in human rights for Costa Rica.”

“Now more than ever it is imperative that the National Assembly pass bills that make access to marriage equality and the recognition of gender identity a reality,” she said.

The Washington Blade, by Michael Lavers – January 9, 2018

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