New Supreme Court Term Potentially Momentous for LGBT Rights

The Supreme Court begins its October 2018 Term, which runs through June 2019, on October 1.

During the week of September 24, the Supreme Court holds its “long conference,” during which the Justices consider the long list of petitions for review filed with the Court since last spring, and assembles its docket of cases for argument after those granted late last term are heard.  While there are several petitions involving LGBT-related issues pending before the Court, it is unlikely that there will be any announcement about these cases until late October or November at the earliest.Anthony Kennedy retirement

Three of the pending petitions raise one of the most hotly contested LGBT issues being litigated in the lower federal courts: Whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of an individual’s sex, can be interpreted to extend to claims of discrimination because of sexual orientation or gender identity. One of the three cases also raises the question whether an employer with religious objections gender transition has a defense under the Religious Freedom Restoration Act.  Another petition presents the question whether a judge who has religious objections to conducting same-sex marriages has a 1st Amendment right to refuse to do so.

Although many state civil rights laws ban such discrimination, a majority of states do not, so the question whether the federal law applies is particularly significant in the Southeast and Midwest, where state courts are generally unavailable to redress such discrimination.

With President Donald J. Trump’s nomination of Brett Kavanaugh to fill the seat vacated by Justice Anthony M. Kennedy, Jr.’s, retirement, which was effective on July 31, petitions pending at the Supreme Court took on heightened significance while the Senate confirmation process was taking place. The Senate Republican leadership had hoped to speed the process so that Trump’s appointee would be seated on the Court by the time the term began on October 1, but accusations of long-ago sexual misconduct by Kavanaugh have caused the Judiciary Committee’s vote to be delayed.  Meanwhile, the eight-member Court had to confront the question during their long conference of whether to grant review on cases as to which the justices were likely to be evenly divided, when they were unsure when the ninth seat would be filled and who would fill it.  As of the end of September, they had already scheduled oral arguments on cases granted last spring running through the first week of November.

ArtLeonardObservations.com. September 24, 2018, by Art Leonard

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The Queen’s Cousin Makes History with First Same-Sex Royal Wedding

The intimate ceremony quietly took place over the weekend.

Queen Elizabeth II’s cousin Lord Ivar Mountbatten made history over the weekend as the first royal to have a same-sex wedding when he wed his now-husband, James Coyle. The couple quietly tied the knot in Devon in front of family and friends, Cosmopolitan U.K. reports.

It’s unclear if familiar royals like Kate Middleton, Prince William, Prince Charles, or the sovereign herself were present. (The Cambridges were seen at a friend’s weddingon Saturday.)

Although Lord Ivar’s wedding to James took place out of the public eye (unlike Prince Harry and Meghan Markle’s highly publicized nuptials in May), he did share details and photos from the intimate ceremony on Instagram this morning.

“Well we did it finally!” he wrote in the caption. “It was an amazing day despite the miserable British weather.” The images show the grooms wearing velvet jackets for the occasion, with James in deep blue and Lord Ivar in emerald green.

The couple was married by Trish Harrogate, chief Registrar for Devon, “who set the perfect but lighthearted tone for what is a serious occasion,” Lord Ivar added. Music was provided by the Bristol’s Teachers Rock Choir.

Lord Ivar previously married Penelope “Penny” Vere Thompson in 1994, but they divorced on amicable terms in 2011. Five years later, he publicly came out as gay. They have three daughters together, ranging from ages 15 to 22, USA Today reports. The whole family was present at the wedding—and Penny was the one who walked Ivar down the aisle.

Harpers Bazaar by Erica Gonzales, September 24, 2018

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Compensation for Canadian Sperm And Egg Donors Will Help LGBTQ Couples Build Families

It’s currently illegal to pay, offer to pay or advertise payment for sperm, eggs, or surrogacy services in Canada.

The Canadian government is considering amendments to the Assisted Human Reproduction Act (AHRA) that will benefit the LGBTQ community.

On May 29, Member of Parliament Anthony Housefather introduced a private members bill to the House of Commons. He is seeking decriminalization of surrogacy services and consideration of reasonable compensation for egg and sperm donation in Canada.canada

It’s currently illegal to pay, offer to pay or advertise payment for sperm, eggs, or surrogacy services. Under the Assisted Human Reproduction Act of 2004, any compensation beyond reasonable expenditures is a criminal offence punishable by 10 years in prison and a $500,000 fine. What constitutes a legitimate expense has yet to be clearly defined by the government, leading to criticism of the Act by many doctors and legal experts.

Housefather’s proposed change will affect many Canadians who don’t have their own eggs or sperm to start a family: single women, sterile men, older women who no longer produce viable eggs and people who carry genetic diseases they do not want to pass on.

It will also be of significant importance to LGBTQ couples.

As a fertility doctor, I know that having children is important to LGBTQ couples. However, most require the help of a fertility clinic to obtain donor sperm or eggs.

The intention of sections 6 and 7 of the Act were to prevent commercialization of donors and surrogates in Canada. In reality, the criminalization of potential donors has led to a complete lack of egg and sperm donors willing to provide their reproductive material for free. Donor sperm and donor egg banks are virtually non-existent in Canada. Surrogacy services are only available through recruiting agencies that operate in a “grey area” of the Act.

The Masterpiece Cake Shop Decision – A Narrowly Decided Cautionary Tale

The Masterpiece Cake Shop Decision demonstrated the Supreme Court of the United States threading the religious needle.   

In Masterpiece Cake Shop, while making it a point to explain that no determinations were actually being made on whether people with religious convictions can openly discriminate against gay people, or, more alarmingly, whether gay people deserve protections against such discrimination at all, the Supreme Court went out of their way to emphasize the importance of respect for religion.

 

gay rightsDon’t get me wrong, I have great respect for most religious belief.  My family holds hands and says what we are thankful for before every meal. We acknowledge the need for divine intervention with friends and family who are dealing with health issues.  We have ingrained just such a respect in our son to be tolerant of others, even those who would mock and deride our family just because it has two dads.

 

However, most Americans do not take the time to parse Supreme Court decisions to get to what the Justices are actually saying and, with the Masterpiece Cake Shop Decision, the message most people will hear is that religious beliefs now trump the dignity and equality of the LGBTQ community.

 

I feel the need to explain what I interpreted as the main message of The Masterpiece Cake Shop decision. In the majority decision, Justice Kennedy, the author of almost every positive gay rights decision out of the high court, gave short shrift to a complete analysis of the freedom of speech and free exercise of religion claims which strike to the heart of this decision. He did, however, along with the majority of the court, focus on the treatment that the baker received from the Colorado Civil Rights Commission.

 

masterpiece cake shop decisionJustice Kennedy held that, “When the Colorado Civil Rights Commission considered the case, it did not do so with the religious neutrality that the Constitution requires.  In other words, because of the Commission’s original treatment of the baker’s claim, no matter whether the result of their analysis was correct, the process was tainted from the start and therefore the holdings of all subsequent courts agreeing that the baker violated the rights of the petitioning gay couple, who, as Justice Ginsburg stated in her dissent,  “simply requested a wedding cake: They mentioned no message or anything else distinguishing the cake they wanted to buy from any other wedding cake Phillips (the Respondent) would have sold.”  But because the process was tainted with anti-religious bias, the underlying discrimination was no longer relevant.  

 

Because the Colorado Civil Rights Commission “showed hostility” toward the baker and his beliefs, that in and of itself, “cast doubt on the fairness and impartiality of the Commission’s adjudication of the … claim.”  Even if the Commission was right in their determination that impermissible discrimination existed, they weren’t adequately respectful to religion.  Thus the message that religion is more important than discrimination may be misinterpreted.

 

I have been searching for a meaning behind this seemingly incorrect finding.  Many of the greatest LGBT legal minds have attempted to make the distinctions in this decision that would stave off its potential future anti-gay wake of behavior and court reaction to that behavior.  This quote is a bit long but captures the proverbial threaded needle. Mary Bonauto, the civil rights director of GLAD and who argued the Obergefell marriage case before the Supreme Court in 2015 said:

“… this limited ruling provides no basis for this Bakeshop or other entities covered by anti-discrimination laws to refuse goods and services in the name of free speech or religion.

The Court was mindful of how far adrift we could go if every individual could apply his or her religious beliefs to every commercial transaction.  The Court contrasted permission for a clergy person to refuse to marry a couple as an exercise of religious belief, on the one hand, with the unacceptable “community-wide stigma” that would befall gay people if there was a general constitutional right to refuse to provide goods and services.”

I fear that this distinction will not be made by those who are less invested in understanding how these cases actually affect the lives of LGBTQ individuals, couples and families. My concern is for the families out there who now are questioning the legal certainty of their families, or whether their families will receive equal treatment in courts of less gay friendly jurisdictions.  We are, after all, a portable nation and our families are everywhere. 

 

While this decision does not actually give license to shop owners to deny gay people services, it is important to note that employment discrimination based on sexual orientation is still legal in 28 states.

 

At the risk of sounding like a lawyer, full disclosure – I am a lawyer, this case should serve as a wake up call that nothing can be taken for granted.  If you have put off doing your estate planning, do it now.  If you are a religious person, please pray that Justices Kennedy, Breyer and Ginsburg live long and healthy lives because these decisions can turn on a dime once right wing conservatives attain an indisputable majority on the court.  If you have questioned about whether you should get a second or step parent adoption, do it now. If you have legal questions about your immigration status, or that of your partner or spouse, find out about it now.

 

While my sincere hope is that more cases like this, with better fact patterns, will ultimately force the court to answer the questions that we all thought would be addressed in the Masterpiece cake Shop decision, namely whether religious “free speech” trumps anti-discrimination protection for LGBTQ people, until that time, we cannot sit idly by while others find solace and fortitude in their own anti-gay beliefs, whether religiously held or not.  

 

Anthony M. Brown, Time For Families – June 5, 2018

My Family’s Story

My husband Gary and I were able to share our family’s story with Robin and Jaimie of the hit podcast, If These Ovaries Could Talk.

 We spoke about being a known donor, having our son with a known egg donor and gestational carrier, as well as our commitment to inviting others to get to know us through honest question and answer.  Anthony Brown

This podcast is really important.  Not only are Jaimie and Robin helping others to have their families, they are demysifying the process and helping others to know that our families are just like theirs.

Go to www.ovariestalk.com for information and you can download their podcast on all podcast platforms.

Click here to listen to our episode, “They Met at the Disco.”

Gay Couple Stabbed While Holding Hands Outside Denver Nightclub

“We were just holding hands minding our business,” one of the men said.

Two gay men were holding hands while walking home from a nightclub early Sunday morning in Denver when a man attacked the couple, stabbing them multiple times. 

“We were just walking and I guess he didn’t like what he saw … that we were holding hands,” Chris Huizar, 19, told local outlet 9News on Sunday. 

Huizar and his boyfriend, Gabriel Roman, 23, were walking home from a dance club called The Church just after midnight when the two said they heard a man yell “fuckin’ faggots” before he attacked the couple with a folding knife. Huizar was stabbed in the neck and Roman was stabbed in the hand and back before they were able to escape.

The couple called the police and were taken to the hospital immediately where, according to Gay Star News, Roman received 30 internal stitches and 52 stitches on his hand. The wounds were not life-threatening, Denver police spokesman Sgt. John White told The Denver Post.

By Alanna Vagianos Huffingtonpost.com, May 29, 2018

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Children of same-sex couples officially recognized in a first for Italy

Three gay couples in the northern city of Turin have been able to legally register their children to both parents, in a first for Italy.

“Today an important page of history has been written,” said the mother of one of the children, Turin councillor Chiara Foglietta.2nd parent adoption, second parent adoption, second parent adoptions, second parent adoption new york

Foglietta, who gave birth after undergoing artificial insemination in Denmark, said staff at the public records office had told her “no form exists” to recognize the child’s birth through the procedure, which is subject to strict rules in Italy.

Instead, the staff reportedly told Foglietta she should declare that she had had the baby with a man. On Monday, the councillor said she “cried with joy” after signing the documents in which both she and her partner, Micaela Ghisleni, were recognized as parents of their son.

The couple’s son Niccolò was one of four children who were officially registered to same-sex parents on Monday, with city mayor Chiara Appendino signing the birth certificates. The other families included two men who are fathers to twin boys, and another lesbian couple whose son was officially recognized.

Appendino, who had earlier vowed to “force the issue” after the registry’s initial refusal to acknowledge the LGBT families, said the recognition was “a strong gesture in a legal vacuum”.

Although the Five Star Movement mayor said that it was not yet possible to make a change at a legislative level, she said she hoped the recognition of these four children was a first step towards such a change.

On Twitter, Appendino wrote: “Today is one of the days when every drop of energy put into politics feels worth it.”

by Catherine Edwards, the local.it, April 23, 2018

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In a first, 2020 census to count same-sex couples

LGBTQ advocates say the 2020 census change is “a step in the right direction”

The U.S. Census Bureau recently submitted to Congress its planned questions for the 2020 census, and for the first time ever, the decennial survey is expected to allow respondents to specify that they are part of a same-sex couple.

“As our population and communities change, so do their needs,” a Census Bureau spokesperson told NBC News via email. “To better collect more detailed data about types of coupled households, the Census Bureau expanded the single response option of ‘husband or wife’ or ‘unmarried partner’ to the two response options of ‘opposite-sex husband/wife/spouse’ and ‘same-sex husband/wife/spouse,’ and ‘opposite-sex unmarried partner’ and ‘same-sex unmarried partner.’”2020 census

The spokesperson said the landmark 2015 Supreme Court decision Obergefell v. Hodges, which legalized same-sex marriage across the U.S., “furthered the need” to revise the survey to include same-sex couples.

“Step in the right direction”

The expansion of the relationship question is “a step in the right direction,” according to Meghan Maury, policy director at the National LGBTQ Task Force and a member of the Census Bureau’s National Advisory Committee on Racial, Ethnic and Other Populations, but “nowhere near what we’d love to have one day.”

Maury’s organization is among a number of advocacy groups, lawmakers and federal agencies that have been calling on the Census Bureau to include questions about sexual orientation and gender identity on the 2020 census. But while the survey will include same-sex couples, the Census Bureau announced last March it found “no federal data need” to ask individuals about their sexual orientation and gender identity.

While Maury expressed disappointment in the bureau’s decision not to ask individuals about their LGBTQ status, she said the revised relationship question will help “capture more nuanced data with a much lower error rate” regarding gay families.

In prior census surveys, researchers have counted same-sex couples by cross-referencing answers from the relationship question with the respondent’s gender, according to D’Vera Cohn, senior writer at Pew Research Center. However, she said analysts found some people would accidentally mismark the gender box, leading to an over reporting of same-sex couples.

Why the census matters

Census information is used to help allocate more than $400 billion in federal funding each year on everything from infrastructure to job training services, according to the Census Bureau’s website.

“Many people — policy-makers, businesses, the public — use our information to make far-reaching decisions. Our role is to give them timely, accurate, trustworthy information to make those decisions,” the Census Bureau spokesperson explained.”

The relationship data the decennial census collects can be used in a number of ways, the spokesperson added. This includes planning and funding government programs that provide services for families, ensuring available housing in a community meets the needs of residents and exploring whether existing programs are making a difference for families.

Cohn said the change to the relationship question will help to reduce errors in reporting, but she said it will not be able to accurately count the number of lesbian, gay, bisexual and transgender individuals in the U.S.

“This is not the universe of LGBT or even L and G,” she said. “Only people who are couples, and for that matter, couples in the same household, are counted.”

wsls.com, April 25, 2018

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Ga. governor signs LGBT ‘neutral’ adoption bill

Republican Gov. Nathan Deal of Georgia on Monday signed into law a comprehensive bill updating the state’s adoption law after he joined a bipartisan coalition of lawmakers in killing proposed changes that would have allowed adoptions by same-sex couples to be denied on religious grounds.

The Georgia General Assembly’s approval of the sweeping adoption reform bill, known as HB 159, which includes no restrictions against same-sex couple adoptions, appears to have been overshadowed by the passage by the Georgia Senate on Feb. 23 of a separate bill, the Keep Faith in Adoption and Foster Care Act, or SB 375.

That measure calls for allowing private adoption agencies receiving state funds to deny adoptions for certain couples or individual parents based on “sincerely held religious beliefs.” Legal experts say the bill’s language would allow faith-based adoption agencies to decline to approve an adoption for those with whom they disapprove, including single parents, unmarried couples and LGBT couples.

The bill would prohibit the state from defunding or penalizing a private adoption agency for making adoption decisions based on religious grounds.

Upon approval last month by the State Senate, SB 375 was sent to the House Judiciary Committee. A spokesperson for the committee’s chair, Rep. Wendell Willard (R-Sandy Springs), told the Washington Blade on Tuesday that Willard had yet to schedule a hearing for the bill due to the committee’s consideration of numerous other bills. The spokesperson said she didn’t know when or if Willard planned to call a hearing.

Under the Georgia General Assembly’s 2818 legislative session, any bill that isn’t fully approved by the state House and Senate by March 29 will be considered dead for the session.

Jen Ryan, a spokesperson for Deal, told the Blade in an email that the “governor’s office doesn’t comment on pending legislation.”

However, at least one source familiar with Deal and the Republican-controlled legislature said Deal and a number of prominent GOP lawmakers have made it known they oppose SB 375, among other things, because they believe its perception as a discriminatory law would hurt efforts to bring and retain large businesses in the state.

Deal made his views known on that score in 2016 when he vetoed a “religious liberties” bill that critics said would have given employers and landlords authority to discriminate against LGBT people on religious grounds.

Republican senators want to protect people with anti-gay beliefs with the First Amendment Defense Act

President Trump has promised to sign the First Amendment Defense Act into law

Twenty-two Republican U.S. senators have reintroduced the First Amendment Defense Act, a bill that would potentially allow people to discriminate against LGBTQ individuals or same-sex couples under the guise of “religious freedom,” reports The Hill.Discrimination

The bill would insulate any individual who holds “a sincerely held religious belief” opposing homosexuality, transgenderism, or same-sex marriage, or any business operated by an individual with such beliefs, from being penalized or punished by the government should they be found to have discriminated against such people.

As a result, it would prohibit the government from levying fines against people who discriminate, denying them government contracts, or taking away special tax breaks, so long as the person claims that their refusal to provide goods or services was motivated by their religious beliefs.

Critics have warned that the bill is so broadly written that it would not just condone discrimination against LGBTQ individuals and same-sex couples, but single mothers, divorcees, those who engage in premarital sex, or anyone else whose lifestyle does not comport with a person’s religious beliefs, no matter how radical or out-of-the-mainstream those beliefs may be.

The bill was sponsored and introduced by Sen. Mike Lee (R-Utah), and co-sponsored by several prominent conservative senators, including Marco Rubio (Fla.), Ted Cruz (Texas), Orrin Hatch (Utah), Ron Johnson (Wis.), and Rand Paul (Ky.).

A similar iteration of the bill was introduced in both the House and Senate in 2015, but only received a hearing in the House. The measure failed to gain traction, and was eventually set aside by leadership amid protests from Democrats, and the realization that then-President Obama would veto the measure if it managed to pass Congress.

Lee had previously promised to reintroduce FADA after Donald Trump was elected president. Lee’s House counterpart, U.S. Rep. Raul Labrador (R-Idaho), now running to be the next governor of Idaho, said last he would introduce similar legislation in the House during the current session, but never did, according to a search of filed bills in Congress.

By John Riley, metro weekly.com, March 8, 2018

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