Appeals court rejects ‘homophobic panic’ claim

Lawyers for Robert Van Hook, convicted of murdering gay man in 1985, told court psychological reports could have supported his claims of mental disease

Van-Hook.Robert

Robert Van-Hook

LISA CORNWELL  |  Associated Press
editor@dallasvoice.com

CINCINNATI — A federal appeals court on Tuesday, Oct. 4 upheld an Ohio man’s death penalty for killing a man he met in a gay bar in 1985, rejecting claims that prosecutors violated his rights by not providing psychological reports showing he may have been motivated by “homophobic panic.”

A three-judge panel of the 6th U.S. Circuit Court of Appeals unanimously affirmed a lower court’s ruling upholding the death penalty for Robert Van Hook, 51. The panel also rejected claims of ineffective counsel.

Van Hook’s attorney, Keith Yeazel, said Tuesday that he will either appeal to the full 6th Circuit or the U.S. Supreme Court after he has a chance to review the ruling.

The Supreme Court in November 2009 reversed an earlier decision by the 6th Circuit panel that had found ineffective trial counsel, and the panel said Tuesday that it was bound by the high court’s decision.

Van Hook’s latest appeal argued that the psychological reports showing he may have been motivated by “homophobic panic,” or rejection of his homosexual urges, rather than robbery, could have been used to support his claim of mental disease. The reports also would have been used to counter the murder element of “specific intent to cause the death of another person” and the aggravated robbery factor contributing to the death penalty, the appeal stated.

Van Hook claimed temporary insanity, but never denied strangling and then stabbing David Self to death at his Cincinnati apartment.

Prosecutors said he lured Self to the apartment with the intention of robbing him. He then mutilated Self’s body with a kitchen knife, hiding the murder weapon in the corpse before fleeing to Florida, where he was arrested and confessed.

This article appeared in the Dallas Voice print edition October 7, 2011.

—  Kevin Thomas

U.S. prisons officials OK hormone treatments for trans inmates

Jennifer Levi

Memo says ‘current, accepted standards of care’ must be applied

LISA LEFF | Associated Press
editor@dallasvoice.com

SAN FRANCISCO — Transgender inmates who did not begin treatment prior to entering federal custody can now receive hormones, specialized mental health counseling and possibly gender reassignment surgery while they are in prison, according to new rules adopted by the U.S. Bureau of Prisons as part of a court settlement.

A May 31 memo issued to wardens at the nation’s 116 federal prisons and made public by gay rights groups in announcing the settlement on Sept. 30 states, “current, accepted standards of care” will be applied to inmates who believe they are the wrong gender.

Under the bureau’s previous policy, issued in 2005, only federal inmates with a pre-existing diagnosis were eligible for transgender-related care, which was limited to treatments that would maintain them “only at the level of change which existed when they were incarcerated.”

The new guidelines mean prisoners who were previously disqualified from treatment because they had not received any on the outside will now be eligible to begin hormone therapy to feminize or masculinize their features and to dress and live accordingly as part of individualized treatment plans.

“The treatment plan may include elements or services that were, or were not, provided prior to incarceration, including, but not limited to: those elements of real life experience consistent with the prison environment, hormone therapy and counseling,” the memo from bureau medical director Newton Kendig states.

The policy memo does not mention surgical intervention, but National Center for Lesbian Rights Legal Director Shannon Minter said the agreement would permit surgery as a treatment option if prison doctors agree it is necessary for individual inmates.

The May guidance specifically advises wardens that “treatment options will not be precluded solely due to level of services received, or lack of services, prior to incarceration.”

That language, as well as the reference to accepted standards of care is significant since the World Professional Association for Transgender Health, the professional organization that issues guidelines for treating gender identity disorders, considers genital reconstruction surgery “essential and medically necessary” for some patients suffering from “gender dysphoria.”

Jennifer Levi, director of the Transgender Rights Project at Gay & Lesbian Advocates and Defenders, said that because the memo does not prohibit surgery, “It leaves open the possibility that the full range of appropriate medical care must be considered in adopting an individual treatment plan.”

“There is no reason why an incarcerated person should be excluded from receiving surgery if it turned out to be medically necessary for that individual,” Levi said.

Bureau spokesman Ed Ross said there are currently 48 federal inmates who have been diagnosed with gender identity disorders. Ross did not respond to attempts by The Associated Press on Friday and Monday to clarify other aspects of the policy, including confirmation that inmates could be eligible for sex reassignment surgery that would necessitate their move to a new prison. All state and federal prisons in the United States assign inmates to men’s or women’s prisons based on their genitalia.

The policy shift resulted from a two-and-a-half-year-old lawsuit seeking hormone therapy for Vanessa Adams, who began serving a 20-year sentence as Nicholas Adams and was diagnosed with gender identity disorder in 2005 by doctors at the U.S. Medical Center for Federal Prisoners in Springfield, Mo.

After she was denied treatment because of the rule requiring previous care for gender identity disorder, Adams, 41, tried to castrate herself with a razor and attempted to and ultimately succeeded in amputating her penis, according to court papers.

Prison officials agreed to put Adams on a course of hormones in August 2009 after a federal judge in Massachusetts, where Adams briefly was imprisoned and her lawsuit was filed, agreed that her lawyers could retain an independent expert to evaluate her. The same judge refused almost a year later to dismiss Adams’ claim that the Bureau of Prisons’ policy on transgender health care constituted cruel and unusual punishment, a decision that paved the way for the settlement.

The agreement also calls for transgender inmates to be notified of the new policies and for prison doctors to be trained to identify and treat gender identity disorders.

Levi said prison officials have typically been hostile to transgender inmates and that she anticipates more legal action to ensure the bureau’s policy is put into practice.

“This should have a very significant effect on the lives of trans inmates. It means people will be receiving appropriate medical care,” Levi said.

Online: http://bit.ly/pAnaog

—  John Wright

Poll: Young people jaded by slurs online, including ‘fag,’ ‘that’s so gay’

Many report seeing language, but few realize it can be hurtful

CONNIE CASS and JENNIFER AGIESTA  |  Associated Press

WASHINGTON — Young people immersed in the online world are encountering racist and sexist slurs and other name-calling that probably would appall their parents and teachers. And most consider it no big deal, a new poll says.

Teens and twentysomethings say in an Associated Press-MTV poll that people feel freer to use hurtful language when texting on their cellphones or posting to sites like Facebook than they would face to face. Half the young people regularly see discriminatory slang — including racial taunts and words like “slut,” “fag” and “retard” — and the majority say they aren’t very offended by it.

Those surveyed are twice as likely to say biased slurs are used to be funny as they are to think that the user is expressing hateful feelings toward a group of people. Another popular reason: to sound cool.

“They might be really serious, but you take it as a joke,” said Kervin Browner II, 20, a junior at Oakland University in Rochester, Mich. He’s black but says the ugly words he sees are generally aimed at women, not minorities. And although Browner doesn’t like it, he doesn’t protest when his friends use those words on Twitter. “That’s just how it is,” he said. “People in their own minds, they think it’s cool.”

When the question is asked broadly, half of young people say using discriminatory words is wrong. But 54 percent think it’s OK to use them within their own circle of friends, because “I know we don’t mean it.” And they don’t worry much about whether the things they tap into their cellphones and laptops could reach a wider audience and get them into trouble.

Those who use slurs are probably offending more people than they realize, even within their own age range. The poll of 14- to 24-year-olds shows a significant minority are upset by some pejoratives they encounter online, especially when they identify with the group being targeted.

“It’s so derogatory to women and demeaning, it just makes you feel gross,” Lori Pletka, 22, says about “slut” and more vulgar words aimed at women. The Southeast Missouri State University senior said she regularly sees other offensive terms, too — for black people, Hispanics and gays.

But even the most inflammatory racist slur in the AP-MTV poll — the “N-word” — didn’t rouse a majority of young people. Only 44 percent said they’d be very or extremely offended if they saw someone using it online or in a text message. Thirty-five percent said it wouldn’t bother them much, including fully 26 percent who wouldn’t be offended at all.

Among African-American youth, however, 60 percent said they would be offended by seeing the N-word used against someone.

Four in 10 young people overall said they encounter that word being used against other people, with half of those seeing it often.

Other derogatory expressions are more common and accepted. Majorities see “slut” and “fag” used against others, and only about a third consider them seriously offensive.

But 41 percent of women deem “slut” deeply offensive (jumping to 65 percent if it’s used against them specifically), compared with only 28 percent of men. And 39 percent of those who are gay or know someone who is gay are seriously offended by the use of “fag,” compared with 23 percent of all others.

Demeaning something with “that’s so gay” is so common that two-thirds of young people see it used, and the majority aren’t offended at all, despite a public-service ad campaign that tried to stamp out the anti-gay slang.

A similar effort by the Special Olympics and others to persuade kids not to use “retard” hasn’t hit home with half of those surveyed, who don’t find the word even moderately bothersome. Twenty-seven percent are seriously offended, however.

Some teens just text the way they talk. Calling each other “gay” and “retarded” is routine in high school, says Robert Leader, 17, a senior in Voorhees, N.J. So teens text it, too.

But constantly seeing ugly words on their electronic screens may have a coarsening effect. “It’s caused people to loosen their boundaries on what’s not acceptable,” Leader said.

What group gets picked on the most? Those who are overweight. And slurs against the overweight are more likely to be considered intentionally hurtful than slights against others; 47 percent say these comments are meant to sting.

Muslims and gays also are seen as targets of mean-spiritedness.

In contrast, only a third say discriminatory words about blacks are most often intended as hurtful, while two-thirds think they are mostly jokes. And 75 percent think slurs against women are generally meant to be funny.

That blasé attitude could lead them in trouble.

Four out of 10 young people have given little or no thought to the ease with which their electronic messages could be passed to people they didn’t expect to see them; less than a quarter have thought about it a lot. Two-thirds haven’t considered that what they type could get them in trouble with their parents or their school. But it happens.

A 13-year-old Concord, N.H., girl was suspended from school for posting on Facebook that she wished Osama bin Laden had killed her math teacher. The University of Texas Longhorns dismissed a sophomore football player for his racial slam against Barack Obama on Facebook after the 2008 presidential election. And a Harvard law student’s email to friends, suggesting that blacks might be intellectually inferior, was forwarded across the Internet, prompting the law school dean to publicly denounce it.

“People have that false sense of security that they can say whatever they want online,” said Pletka of Cape Girardeau, Mo. “Anything that you put into print can be used.”

The AP-MTV poll was conducted Aug. 18-31 and involved online interviews with 1,355 people ages 14-24 nationwide. The margin of sampling error is plus or minus 3.8 percentage points.

The poll is part of an MTV campaign, “A Thin Line,” aiming to stop the spread of digital abuse.

The survey was conducted by Knowledge Networks, which used traditional telephone and mail sampling methods to randomly recruit respondents. People selected who had no Internet access were given it for free.

—  John Wright

Ready for the fight

Baldwin says she doesn’t believe anti-gay attacks against her in her U.S. Senate bid would work with Wisconsin voters

 

Baldwin.Polis
Openly gay members of Congress Rep. Tammy Baldwin, center, and Rep. Jared Polis, right, answer questions from Jonathan Capehart, left, at the International Gay Lesbian Leadership Conference in San Francisco in December 2009. Baldwin, a Democrat from Wisconsin, has announced she is seeking the seat in the U.S. Senate left vacant by the retirement of Democratic Sen. Herbert Kohl. If she wins the election, Baldwin will become the first openly LGBT person in the U.S. Senate. (Russel A. Daniels/Associated Press)

Lisa Keen  |  Keen News Service
lisakeen@me.com

U.S. Rep. Tammy Baldwin said last week that her campaign for a U.S. Senate seat from Wisconsin “will not be about me,” but she’s “prepared to respond to any number of likely attacks in this political age,” including ones based on her sexual orientation.

Baldwin, one of only four openly gay members of the U.S. House, announced Sept. 6 that she will seek the Democratic nomination to replace Sen. Herb Kohl, a Democrat who announced in May that he would not seek re-election in 2012.

Although Baldwin is not the first openly gay person to run for a U.S. Senate seat, her campaign has ignited considerable enthusiasm in the LGBT political community.

Chuck Wolfe, head of the Gay & Lesbian Victory Fund, which supports openly gay candidates for elective office, said in a telephone conference call with LGBT media Sept. 7 that the Victory Fund “believes this will be an important race for our community.”
He predicted the community would “rally around” Baldwin, whom he called a “stellar” representative of the community.

Baldwin, who participated in that call and took questions from the media, said she expects the campaign to be “hotly, hotly contested,” as are all Senate races in recent years.

The partisan balance has been closely divided for years. Democrats currently have 51 seats plus 2 Independents who caucus with them; Republicans have 47.

It takes a majority of 60 to break a filibuster staged by a minority party, and the Republican Party has made the filibuster an almost routine maneuver since 2008, in hopes of thwarting a second term for Democratic President Barack Obama.

Following Obama’s election in 2008, Democrats and Independents held 60 seats.

Baldwin said her first challenge will be to introduce herself to parts of Wisconsin outside her district of Madison, the state capital.

She said current polling suggests between 52 percent and 55 percent of voters in the state recognize her name. And given the potential for a hotly contested Senate race to include an anti-gay attack, said Baldwin, she’s eager to introduce herself to voters around the state before an attacker does.

Baldwin doesn’t necessarily believe an anti-gay attack will be particularly effective in Wisconsin. She noted that the western part of the state has also elected an openly gay member of Congress before: U.S. Rep. Steve Gunderson.

Gunderson ran for re-election twice after he was outed in 1991.

Baldwin noted that she has been openly gay “all my adult life” and she thinks the voters of Wisconsin “appreciate values of honesty and integrity.

“And I have a lifetime commitment to equality for all,” said Baldwin.

But “this campaign,” Baldwin added, “will not be about me. It will be about the middle class, the threats they’re facing, and which candidate is the best fighter for them.”

Meanwhile, two state representatives in Wisconsin announced Sept. 7 that they will seek the Democratic nomination to run for Baldwin’s seat.

One is openly gay Rep. Mark Pocan, who filled in Baldwin’s state assembly seat when she was elected to Congress.

The other is State Rep. Kelda Roys, the youngest member of the Wisconsin assembly and former head of the Wisconsin chapter of NARAL.

© 2011 by Keen News Service. All rights reserved.

This article appeared in the Dallas Voice print edition September 16, 2011.

 

—  Kevin Thomas

Calif. court mulls appeal rights of Prop 8 backers

LISA LEFF | Associated Press

SAN FRANCISCO — California’s same-sex marriage ban endured its latest legal test Tuesday as the state’s high court grilled attorneys on whether Proposition 8′s backers have legal authority to appeal a federal ruling that overturned the voter-approved measure.

The tenor of the justices’ questioning during the more than hour-long hearing often leaned in favor of arguments by backers of the ban, who argue that the state Constitution gives ballot initiative proponents legal authority to defend their measures in court.

On that critical question, several justices noted that the California Supreme Court always has, as a matter of practice if not written policy, allowed the sponsors of ballot questions to appear before it when their measures were challenged.

“Never in any recorded (case) have proponents been denied the right to advance their interests,” Associate Justice Kathryn Werdegar noted during the closely watched arguments. “The present state of California law is we allow liberal intervention.”

The Supreme Court is examining the scope of the power afforded the official backers of ballot initiatives at the request of a federal appeals court that is reviewing a federal judge’s year-old ruling that Proposition 8 violates the constitutional rights of same-sex couples.

The 9th U.S. Circuit Court of Appeals has expressed doubts about the ability of Proposition 8′s sponsors to challenge the lower court ruling absent the involvement of California’s governor or attorney general, both of whom agreed the ban was unconstitutional and refused to appeal.

But the 9th Circuit punted the question to the California Supreme Court earlier this year, saying it was a matter of state law. Although the appeals court still must decide for itself if Proposition 8′s supporters are eligible under federal court rules to appeal the ruling that struck down the ban, the state court’s input is likely to weigh heavily in its decision.

If the state Supreme Court says the ban’s proponents did not have standing to appeal, and if the 9th Circuit and ultimately the U.S. Supreme Court ultimately agree, it could clear the way for same-sex marriages to resume in California.

If the court holds the proponents were qualified to appeal and the 9th Circuit agrees, the appeals court would then weigh the broader civil rights implications of Proposition 8. A decision on the ban’s constitutionality is expected to be appealed to the U.S. Supreme Court.

While agreeing that the state Supreme Court has never refused to give initiative proponents a seat at the defense table, several justices quizzed Charles Cooper, an attorney for the coalition of religious and conservative groups that sponsored Proposition 8, on whether there was a difference between the court using its discretion to do so and issuing an opinion that would be binding on future courts.

Chief Justice Tani Cantil-Sakauye observed that in the vast majority of cases in which initiative backers have been allowed to defend their measures, they have been “standing shoulder-to-shoulder” with the attorney general’s office, not acting on their own.

Cooper agreed that he was seeking to remove some of the court’s discretion, but said the justices could draft their guidance so it would only apply to situations, such as with Proposition 8, where state officials have refused to defend laws already approved by voters.

Theodore Olson, the attorney representing the two same-sex couples who successfully sued in federal court to strike down Proposition 8, argued that permitting initiative sponsors to step in under such circumstances would infringe on the authority of elected state officials.

“There is nothing in the California Constitution or the statutes that give private citizens the right to take on the attorney general’s constitutional responsibility to represent the state in litigation in which the state or its officers are a party,” Olson said.

“Is there any authority for the attorney general and the governor to second-guess a majority of the population?” Associate Justice Ming Chin interrupted.

Olson answered yes, explaining that the attorney general is obligated not to defend laws he or she judges to be unconstitutional.

Associate Justice Goodwin Liu, who was sworn in on Thursday and serving his first day on the court Tuesday, picked up the line of questioning.

“It seems to me the 9th Circuit has set up a hoop the initiative proponents must jump through to get to appeal,” Liu said. “Given the fact that initiative proponents clearly would have standing to appeal if this litigation was in state court … why can’t we read (the U.S. Constitution) to give the initiative proponents what they need to jump through that hoop?”

Associate Justice Joyce Kennard, who along with Werdegar was in the 4-3 Supreme Court majority that briefly cleared the way for same-sex marriages in California before voters passed Proposition 8, also questioned how the court could deny initiative sponsors the right to appeal in cases where state officials have refused to defend a law.

“It would appear to me that to agree with you would nullify the great power the people have reserved for themselves pertaining to proposing and adopting state Constitutional amendments,” she said.

Werdegar suggested that the court could tell the appeals court that it ordinarily grants initiative proponents the right to defend their measures, but stop short of establishing a new legal precedent.

The court has 90 days in which to issue its opinion.

—  John Wright

Judge mulls unsealing videos from Prop 8 trial

Judge James Ware

After Monday’s hearing, Vaughn Walker’s successor says he’ll issue written ruling at later date

LISA LEFF | Associated Press

SAN FRANCISCO — The legal sparring over California’s same-sex marriage ban returned to a federal courtroom Monday with a judge hearing arguments on whether he should unseal video recordings of last year’s landmark trial on the constitutionality of the voter-approved measure.

Lawyers representing two same-sex couples, the city of San Francisco and a coalition of media groups that includes The Associated Press asked Chief U.S. District Judge James Ware to make the recordings public.

They maintained that allowing people to see the proceedings for themselves was necessary to demonstrate why Ware’s predecessor, former Chief Judge Vaughn Walker, ultimately struck down the ban, known as Proposition 8, and to counter any perceptions that Walker was biased against same-sex marriage opponents from the start.

“Releasing the video would allow everyone to review and make their own judgment about what happened,” Theodore Boutrous, the couples’ attorney, told the judge.

Ware did not rule at the end of Monday’s hearing but said he would issue a written ruling at a later date.

Attorneys for the ban’s backers want to keep the videos under wraps. They argued that disseminating oral and visual recordings of the 13-day trial would be a direct violation of the U.S. Supreme Court’s position on the issue.

As the trial got under way in January 2010, the high court, on a 5-4 vote, blocked cameras from covering the high-profile case so they could be streamed live to other federal courthouses and possibly posted on YouTube.

Walker, asked the court staff to keep shooting the proceedings, but sealed the videos with the understanding that they were being produced for his own review in reaching a verdict.

“We were entitled to rely on those unqualified assurances, and we did,” David Thompson, a lawyer for the religious and conservative groups that sponsored Proposition 8, said about the move by Walker.

In taking the matter under advisement, Ware said he was torn between the desire to preserve public access to court proceedings and upholding the integrity of the courts.

“The judicial process is affected when a judge takes the position of, “I will seal this and use it only for a limited purpose,’ and then that is changed by a different judge and unsealed and used for a different purpose,” the judge said.

Walker’s ruling from last August overturning Proposition 8 as an unconstitutional violation of the civil rights of gay Californians is currently on appeal. The recordings are part of the case record before the 9th U.S. Circuit Court of Appeals.

Also before the federal appeals court is the proponents’ challenge to Ware’s refusal in June to vacate Walker’s decision. The ban’s sponsors have argued that Walker should have revealed he was in a long-term gay relationship before he presided over the closely watched trial.

Boutrous said at Monday’s hearing that the move to challenge Walker’s impartiality made it more important for the public to see the videos first-hand.

“They tried to undermine the integrity of the court by attacking the proceeding,” he said.

Ware did not seem convinced. He noted that during his 24 years on the bench, “I’ve had lots of parties attack me” and that it was up to the appeals court, not the public, to decide if Walker had acted appropriately.

Gay rights supporters already have used the written transcripts to recreate the full 13-day trial for online audiences. Next month, Morgan Freeman, Marisa Tomei and other big-name actors are scheduled to perform a dramatic play about the trial that screenwriter Dustin Lance Black, who won an Academy Award for the film “Milk,” created from the written testimony.

To those who have not been following the Proposition 8 narrative closely, it therefore may not be immediately obvious why attorneys were spending their time and clients’ money fighting over the recordings as if they were the Nixon White House tapes.

Gay rights supporters claim the footage is their smoking gun, proof that arguments against same-sex marriage cannot hold up under rules of evidence sustained scrutiny and legal standards.

They want to use live segments, especially the cross-examinations to which the expert witnesses called by Proposition 8′s supporters were subjected, to nudge the American public further in its embrace of same-sex marriage, although it’s unclear what the vehicle for the snippets would be.

“There really is only one question–what do they have to hide?” said American Foundation for Equal Rights President Chad Griffin, whose group is funding the Proposition 8 case.

The Proposition 8 defense team, meanwhile, has argued that putting the trial recordings into the public realm could subject their witnesses to unwanted scrutiny in a way that written transcripts have not.

In persuading the Supreme Court to block the broadcasts, lawyers had argued that same-sex marriage opponents feared being harassed by gay rights supporters if their images were distributed widely.

—  John Wright

BREAKING: Rick Perry knows how to spell his name — AND, he’s running for president!!!

Austin’s KVUE-TV reports on Twitter that the station handed Texas Gov. Rick Perry the above printout of an AP News Alert saying his spokesman confirmed this afternoon he’s running for president. Perry, who was in KVUE’s studio for a previously scheduled interview, responded by signing and dating the printout. Now that his “announcement” is finally out of the way, can someone please run a handwriting analysis on Perry’s signature? Because, if you ask us, the “R” and “P” look just a little too pretty for such a tough-talking Republican from Texas.

—  John Wright

Judge to rule this week in Nikki Araguz case

Nikki Araguz

Transgender widow vows appeal if she loses case

JUAN A. LOZANO  |  Associated Press

WHARTON, Texas — The transgender widow of a Texas firefighter will likely learn next week whether his family’s request to nullify their marriage and strip her of any death benefits will be granted, a judge said Friday.

State District Judge Randy Clapp made the announcement after hearing arguments in a lawsuit filed by the family of firefighter Thomas Araguz III, who was killed while battling a blaze last year. The suit argues that his widow shouldn’t get any benefits because she was born a man and Texas doesn’t recognize same-sex marriage.

The widow, Nikki Araguz, said she had done everything medically and legally possible to show that she is female and was legally married under Texas law. She believes that she’s entitled to widow’s benefits.

“I believe the judge is going to rule in my favor,” Araguz said after the court hearing.

The lawsuit seeks control over death benefits and assets totaling more than $600,000, which the firefighter’s family wants to go to his two sons from a previous marriage. Voiding the marriage would prevent Nikki Araguz from receiving any insurance or death benefits or property the couple had together.

Thomas Araguz died while fighting a fire at an egg farm near Wharton, about 60 miles southwest of Houston, in July 2010. He was 30.

His mother, Simona Longoria, filed a lawsuit asking that her son’s marriage be voided. She and her family have said he learned of his wife’s gender history just prior to his death, and after he found out, he moved out of their home and planned to end the marriage.

But Nikki Araguz, 35, has insisted that her husband was aware she was born a man and that he fully supported her through the surgical process to become a woman. She underwent surgery two months after they were married in 2008.

Longoria’s attorney, Chad Ellis, argued that Texas law — specifically a 1999 appeals court ruling that stated chromosomes, not genitals, determine gender — supports his client’s efforts to void the marriage.

The ruling upheld a lower court’s decision that threw out a wrongful death lawsuit filed by a San Antonio woman, Christie Lee Cavazos Littleton, after her husband’s death. The court said that although Littleton had undergone a sex-change operation, she was actually a man, based on her original birth certificate, and therefore her marriage and wrongful death claim were invalid.

Ellis presented medical and school records that he said showed Nikki Araguz was born without female reproductive organs and that she presented herself as a male while growing up and going to school. He also said her birth certificate at the time of her marriage indicated she was a man.

“By law, two males cannot be married in this state,” Ellis told the judge.

Nikki Araguz, who was born in California, did not change her birth certificate to reflect she had become a female until after her husband’s death, said Edward Burwell, one of the attorneys for Thomas Araguz’s ex-wife, Heather Delgado, the mother of his two children.

But one of Nikki Araguz’s attorneys, Darrell Steidley, said that when his client got her marriage license, she presented the necessary legal documents to show she was a female. He also noted changes made in 2009 to the Texas Family Code that allowed people to present numerous alternatives to a birth certificate as the proof of identity needed to get a marriage license. That was an example, he argued, of the state trying to move away from the 1999 appeals court ruling.

The changes in 2009 allowed transgendered people to use proof of their sex change to get a marriage license. The Texas Legislature is currently considering a bill that would prohibit county and district clerks from using a court order recognizing a sex change as documentation to get married.

After the hearing, the firefighter’s family and attorneys for his ex-wife criticized plans by Nikki Araguz to star in a reality television dating show and implied she was only interested in money and fame that the case would bring her.

“That is absurd,” Nikki Araguz said in response. “I’m after my civil equality and the rights that I deserve as the wife of a fallen firefighter.”

If the judge rules against the firefighter’s family in their motion for a summary judgment, the case would then proceed to trial. Araguz said if the judge rules against her, she would appeal, all the way to the U.S. Supreme Court if necessary.

—  John Wright

Wisc. governor wants to stop defending gay rights

Gov. Scott Walker

Republican Scott Walker says he believes state’s partner registry is unconstitutional, seeks to withdraw from case

TODD RICHMOND | Associated Press

MADISON, Wis. — Gov. Scott Walker has told a judge he wants to stop defending Wisconsin’s domestic partner registry in court because he doesn’t believe it’s constitutional.

Members of the conservative group Wisconsin Family Action filed a lawsuit last summer arguing the registry violates the state’s constitutional ban on gay marriage. Former Gov. Jim Doyle, a Democrat who proposed the registry as a means of granting same-sex couples more legal rights, chose to defend the measure and had filed a motion asking Dane County Circuit Judge Daniel Moeser for summary judgment upholding it. Walker, a Republican, inherited the case from Doyle when he took office in January.

The governor filed a motion with Moeser late Friday asking to withdraw the defense because he believes the registry is unconstitutional. The governor pointed to a legal opinion Republican Attorney General J.B. Van Hollen issued two years ago that concluded the registry was indeed unconstitutional because it mimics marriage.

“If the governor determines that defending a law would be contrary to the state’s constitution, he cannot order the defense of the law because of his oath to support the Wisconsin Constitution,” Walker’s attorney, Brian Hagedorn, wrote in the motion. “To allow the previous administration’s analysis to bind a subsequent administration would be contrary to what justice requires.”

It was unclear when Moeser might rule on the motion. Even if he dismisses the state, the case will continue. The gay rights group Fair Wisconsin has joined the case as an intervener and will continue defending the registry, said Katie Belanger, the group’s executive director.

“It wasn’t unanticipated that Gov. Walker would be changing his position,” Belanger said. “It’s certainly disappointing that our governor is not working to continue to allow same-sex couples to have basic protections. We’re still very confident the registry is legal.”

Wisconsin Family Action pushed the constitutional ban, which voters added to the document in 2006. The Legislature, then controlled by Democrats, put the registry into effect in August 2009.

The listing grants same-sex couples legal rights such as the right to visit each other in hospitals, make end-of-life decisions and inherit each other’s property, although supporters insist the registry doesn’t come close to bestowing all the rights that come with marriage.

Reached after hours Monday evening, state Department of Health Services spokesman Seth Boffeli said he didn’t immediately have up-to-date figures on how many couples were on the registry. However, about 1,330 couples had signed up as of the end of 2009.

Wisconsin Family Action asked the state Supreme Court that same year to strike the registry down directly, bypassing the lower courts. Van Hollen refused to defend the registry, relying on his legal conclusion the list was clearly unconstitutional.

The Supreme Court refused to take the case, forcing Wisconsin Family Action to refile the action in circuit court.

Doyle hired attorney Lester Pines to defend the listing, but Walker fired him earlier this year. Pines said Walker’s withdrawal shows he cares more about pleasing his conservative base than defending state statutes.

“He represents gay and lesbian people, too. He may not like gay and lesbian people … but he’s still obligated to defend those rights,” Pines said.

Walker spokesman Chris Schrimpf didn’t immediately return an email message.

A message left at Wisconsin Family Action’s offices after hours Monday evening wasn’t immediately returned. The group’s executive director, Julaine Appling, declined to comment

—  John Wright

Bisexuals work for recognition in LGBT rainbow

LISA LEFF | Associated Press

SAN FRANCISCO — For the last 13 years, Lindasusan Ulrich has been in a committed relationship with the same woman. The couple have married three times, twice before it was legal in California and once while it briefly was. But if acquaintances were to assume Ulrich and her wife, Emily Drennen, are lesbians, they would be wrong. They identify as bisexuals and are proud of it.

This doesn’t mean their sexual orientation hasn’t presented challenges. Even in a do-as-you-like city such as San Francisco, the women have found bisexuals to be a misunderstood and often overlooked minority. During the state’s 2008 campaign to ban same-sex marriages, they forcefully reminded gay rights leaders — in the form of a cake decorated with the words “Having Our Cake and Eating It Too! Bisexuals Exist!” — that political advertising and fundraising appeals referring only to gay and lesbian couples did not encompass their imperiled union.

“It’s a unique identity as opposed to half one and half the other,” said Ulrich, a 41-year-old writer and musician who recently authored a report on “bisexual invisibility” for the San Francisco Human Rights Commission.

The commission unanimously adopted the report, and that could prove a significant step, said Denise Penn, director of the American Institute of Bisexuality.

Because San Francisco takes its commitment to gay and lesbian rights so seriously, shining a spotlight on the hostility bisexuals sometimes encounter from gay men and lesbians could help ease one of the most painful aspects of having a bisexual identity, Penn said.

“People don’t trust bisexuals, and I’ve heard some really, really nasty stuff,” Penn said. ” ‘Oh, you are going to just go back and hide in your straight world.’ Bisexuals are (seen as) tourists in the community, opportunists.”

As gay, lesbian and transgender people have succeeded in putting their fight for equality front and center in American politics, bisexuals — the often forgotten “B” in the LGBT rainbow — have been waging their own fight for recognition. From adopting a bisexual pride flag and commemorating Sept. 23 as bisexual pride day to urging researchers and government agencies to treat bisexuality as a distinct category, activists who acknowledge their attractions to both men and women say they want to assert their existence.

In promoting their not-insignificant ranks, activists point out that a UCLA demographer estimated last month that slightly more Americans self-identify as bisexual than as gay or lesbian. But the activist argue their task is complicated by stereotypes of bisexuals as fickle sex fiends, the difficulty in pinning down who counts as bisexual, and discrimination from both the straight and gay communities.

“Even people who would not feel comfortable saying bad things about gay or lesbian people still feel comfortable trashing bi people,” said Robyn Ochs, a veteran bisexual activist in Boston.

Johnny Fesenko, 42, a computer programmer in San Francisco, said that contrary to popular belief and jokes about male fantasies involving threesomes, living as a bisexual can sometimes feel like the worst of all worlds instead of the best of both. Gay friends and potential partners tell him his interest in women is just a phase. He’s had straight women refuse to date him because he’s not “a real man.” He once was punched in the face while walking with a boyfriend in Manhattan, he said.

“It’s almost like being called an atheist — you would rather call yourself agnostic because there is such a stigma associated with it,” Fesenko said.

Despite the inherent obstacles, activists point to signs of progress. The National Gay and Lesbian Task Force, one of the nation’s largest gay rights groups, a few years ago started holding bisexual-specific meetings and panels. Students at Ohio State University, the University of Michigan, the University of Minnesota have established groups for bisexuals. Out & Equal, a San Francisco-based organization that advocates for workplace rights for gays, last year sponsored an international survey aimed at uncovering on-the-job issues that bisexuals face.

“People really believe that bisexuality is covered by either gay issues or straight issues, so… you don’t need to worry about the whole middle thing,” said Heidi Green, a diversity trainer who co-conducted the survey. “Yet there are huge issues for bisexuals. When I ask people if they are out at work, the answer is almost universally ‘no.’ And because we don’t have really strong community, there is a tendency to believe the issues you have in your life are unique to you, there is something wrong with you.”

Chicago resident Adrienne Williams, a web content producer, launched the online Bisexual Social Network in late 2008 to fill what she considered a shameful absence of bisexual celebrities and entertainment in gay media. She still likes playing watchdog. One of her recent pet peeves is that gay publications celebrated the coming out of singer Ricky Martin, who was long rumored to be gay, but gave short shrift to Anna Paquin’s announcement, while she was engaged to a man, that she is bisexual.

Kate Kendall, executive director of the National Center for Lesbian Rights, acknowledges that gay and lesbian leaders have not always made their bisexual comrades feel appreciated. Within the LGBT movement, bridging internal divisions of race, class, gender and sexual orientation can take a back seat to combating bias on the outside, she said.

“What the movement must always be doing is looking around for whose issues are being ignored, whose issues are being left behind, who is not with us as we see gains being made,” Kendall said. “Certainly bisexual folks have a legitimate beef when they say that they have felt by turns disrespected and by turns ignored.”

Kendall’s advocacy organization last year sued the North American Gay Amateur Athletic Association on behalf of three bisexual men disqualified from playing in the 2008 Gay Softball World Series in Seattle. Their team’s eligibility had been challenged based on a rule limiting each squad to including no more than two straight players. During a hearing, the three players were asked whether they were predominantly attracted to men or women and other questions about their sexual orientations. A panel then voted on whether they were “gay” or “non-gay,” according to the still pending complaint.

“I thought we were going to get more resistance from lesbian and gay folks in the community, not only for representing these men, but suing a gay softball association,” Kendall said. “With a few exceptions, we have had overwhelming support, which I take as an indication that we as a movement overall have matured on this issue.”

—  John Wright