Paxton offers his 2 cents on N.C. bathroom bill

Texas Attorney General Ken Paxton

Texas AG Ken Paxton

Texas Attorney General Ken Paxton — that shining beacon of integrity and knowledge of the law who last year told Texas county clerks they did not have to abide by the U.S. Supreme Court’s ruling on marriage equality and who last month was sued for securities fraud in civil court by the U.S. Securities and Exchange Commission (he is already facing state criminal fraud charges — today issued a statement in support of North Carolina Gov. Pat McCrory.

Paxton released his statement after McCrory announced he is suing the U.S. Department of Justice so he can keep his discriminatory bathroom bill. The DoJ had given McCrory until the close of business today to explain his plan for flushing the bathroom bill or risk losing billions in federal funding for his state.

U.S. Attorney General Loretta Lynch is expected to hold a press conference any minute now to announce what enforcement action the federal government will take against North Carolina.

Here’s what AG Paxton had to say:

“The people of the United States, through their representatives in Congress, enacted the Civil Rights Act of 1964 to ensure, in part, that men and women are treated equally. Congress has not changed this law to mean that individuals may choose whether they want to be male or female for the purpose of public accommodations. One’s sex is a biological fact, not a state of mind, and this threat to North Carolina is the latest in a long series of efforts by an unaccountable federal executive branch. My office stands with Governor McCrory and the people of North Carolina regarding this unconstitutional form of federal overreach.”

May we suggest that AG Paxton crawl into the 21st century and come to terms with the fact that GENDER is not binary and neither is it necessarily defined by biological genitalia.

—  Tammye Nash

Remembering John Lawrence, the man behind Lawrence v. Texas


John Lawrence and Tyrone Gardner

Metro Weekly reports that one-time Houstonian John Geddes Lawrence, the “Lawrence” in Lawrence v. Texas, passed away last month at the age of 68:

“In the facts underlying the Supreme Court case, Lawrence v. Texas, Lawrence and Tyron Garner were arrested under Texas’s Homosexual Conduct Law after police entered Lawrence’s home on Sept. 17, 1998, and saw them “engaging in a sexual act.” The couple challenged the law as unconstitutional”

I was 22 and living in Dallas in 2003 when the Supreme Court issued its opinion in Lawrence declaring Texas’ law against “homosexual conduct” unconstitutional. A group of over 100 people gathered in the parking lot of the Resource Center of Dallas as Dennis Coleman, then with Lambda Legal, read excerpts of the decision. I remember the exuberant electricity in the air, the crowd bubbling with joy and the relief of centuries of official oppression finally coming to an end. Similar get-togethers took place across the state, as an entire community breathing a collective sigh of relief.

That relief has turn to frustration over the years. Although the Supreme Court decision rendered Penal Code Section 21.06 unconstitutional, the law remains on the books, and efforts to remove it have met with significant resistance. During a hearing this spring on finally removing the unconstitutional law, Rep. Jose Aliseda, R – Pleasanton, lamented that repeal of the law would entail removing portions of the Health Code requiring that HIV education efforts include information that “homosexual conduct is not an acceptable lifestyle and is a criminal offense under Section 21.06, Penal Code.”

Before Lawrence several attempts were made to remove the law against “homosexual conduct.” The Texas legislature voted to remove it from the penal code as part of a complete rewrite of the code in 1971, but the measure was vetoed by Gov. Preston Smith. In 1973 the Legislature again undertook a rewrite of the code, keeping “homosexual conduct” a crime but making it a class C misdemeanor. In 1981 a U.S. District Court ruled in Baker v. Wade that the law was unconstitutional, but as that case was winding its way through an unusually torturous appeals process the Supreme Court ruled in Bowers v. Hardwick that a similar law in Georgia was constitutional, making the questions in Baker moot. Similarly, in the 90’s there was hope that Texas v. Morales might finally prevail in defeating the “homosexual conduct” prohibition, but the Texas Supreme Court decided that since, in their opinion, the law was rarely enforced, there was no reason for them to rule in the matter.

Lawrence’s legacy lives on in a scholarship named after him and Garner administered by the Houston GLBT Community Center. The scholarship “recognizes outstanding leadership shown by gay, lesbian, bisexual, and transgender Texas high school seniors and college
students by contributing to the cost of their continuing education. Selection is based upon character and need.” Tim Brookover, president of the community center, expressed sorrow at Lawrence’s passing “John was a hero, the community owes a great debt of gratitude to John and Tyrone for taking the case all the way to the Supreme Court,” said Brookover. “They could have easily allowed it to slip away, but they decided to stay and fight and that makes them heroes and role models.”

The application deadline for the John Lawrence/Tyrone Gardner Scholarship is March 2, 2012.

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Iconic LGBT activist Ray Hill files for Texas House seat

Ray Hill

Ray Hill

Long time Houston LGBT activist Ray Hill filed paperwork this week to run for the 147th Texas House seat against incumbent Garnet Coleman, D – Houston. The iconic (and iconoclastic) Hill said that he and Coleman agree on many issues but that he had “some issues  that aren’t on the table in Austin.”

Specifically Hill has concerns with the legislature’s approach to criminal justice issues. “The Texas legislature is a serial world class red-necking competition,” says Hill. “What they are doing on criminal justice is wrong and it doesn’t work… we need a serious rethink.”

Coleman has a strong history of supporting LGBT legislation. For the last three sessions he has attempted to pass anti-bullying legislation that would require school districts to report instances of bullying using an enumerated list of motivating characteristics that include both sexual orientation and gender identity and expression, he has also filed legislation to remove the the crime of “homosexual conduct” from the Texas penal code (a law that has been declared unconstitutional by the Supreme Court), to equalize age of consent laws in Texas and to add gender identity and expression to the state’s hate crime law. In the 82nd legislature earlier this year Coleman authored seven pieces of legislation designed to create greater equality for LGBT people, including the first ever filing of legislation to standardize change of gender marker procedures for the transgender community and the first effort to repeal the state’s constitutional prohibition against marriage equality.

Hill recognizes Coleman’s historic contributions, “The incumbent and I agree on a lot of issues,” says Hill, “but we don’t tell young gay people ‘if you work real hard and go to school and do your best you can grow up to have straight friends in Austin who like you.’ No, we tell them ‘if you work hard they can grow up to be Mayor of Houston, or City Supervisor of San Francisco.'”

When asked why the community would be better served by him than Coleman, a 20 year legislative veteran, Hill replies “I understand how government works. A freshman legislator can’t do anything more than irritate, but that’s about all any member of the minority party can do. On that level the incumbent and I are on the same level… I think we need somebody obnoxious [in the legislature] who’s going to purposefully rub the cat hair the wrong direction.”

Since being elected to the legislature for the first time in 1992 Coleman has been unopposed in 5 of his 9 primary reelection bids. No primary challenger to Coleman has pulled more than 21% of the vote.

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Putting our children at risk

David Webb
The Rare Reporter

Child sexual abuse a concern for everyone, especially LGBT parents

Most people would probably agree there is no resource that a society cherishes more than its children. So it is hard to fathom how sexual predators manage with such apparent ease to carry out horrendous, undetected assaults on children practically under the noses of their families and others who are charged with their protection.

As horrific as the crime of child sexual abuse is, there are no firm estimates of its prevalence because it often goes undetected and is seriously underreported, according to agencies that study child abuse.

Less than 100,000 crimes of sexual abuse are reported each year because children fear telling anyone, and adults who become aware of the activity are often reluctant to contact law enforcement agencies, even though there is usually a legal requirement to do so.

With so many LGBT households now raising children, it is obviously vital that all parents be aware of the tactics used by sexual predators to seduce children without arousing the suspicion of their families, and aware of the symptoms victims of child sexual abuse exhibit.

The critical need for sustained intervention into child sexual abuse recently gained national attention following a grand jury’s indictment of retired Penn State assistant football coach Jerry Sandusky on 40 counts of child sex abuse involving eight victims over a 15-year period. The victims reportedly came into contact with the now 67-year-old, married Sandusky in connection with the Second Mile, a children’s charity the former football coach founded.

Although Sandusky denied, this week in an NBC interview, engaging in any type of sexual activity with the pre-pubescent boys, he acknowledged showering and “horsing around” with them after exercise. He also admitted hugging young boys and putting his hand on their legs when they sat next to him.

His admissions shocked viewers and confirmed in many minds what was already suspected — Sandusky is most likely a pedophile that has taken advantage of young boys with the unwitting complicity of their families.

It is a devastating scandal that will likely rival the one that rocked the Catholic Church a decade ago when it became known that untold numbers of Catholic Church priests sexually abused young boys and violated the trust of their families.

If the charges against Sandusky are true, the accounts by the victims portray a classic pattern of enticement and betrayal practiced by the former football coach in his pursuit of the young boys. Likewise, the lack of action by those who knew about Sandusky’s alleged criminal activity parallel what often happens when the abuser commands power and respect in a community.

Much of the difficulty in combating child sexual abuse can be attributed to its relative youth in terms of public awareness about the crime. The first studies on the molestation of children began in the 1920s, and the first estimate of the prevalence of the crime was reported in 1948.

In 1974 the National Center for Child Abuse and Neglect was founded, and the Child Abuse and Treatment Act was created. Since then, awareness about the problem has grown dramatically, and much more is known about deterring the crime and assisting victims of it.

Children’s advocates have identified “red flags” to help parents and others protect children from sexual predators. They warn parents to be wary of someone who wants to spend more time with their children than they do, who attempts to be alone with a child, who frequently seeks physical closeness to a child such as hugging or touching, who is overly interested in the sexuality of a child, who seems to prefer the company of children to people their own age, who lacks boundaries, who regularly offers to babysit,who often gives presents or  money to children, who frequently walks in on children in bathrooms or locker rooms, who frequents parks where children gather, who makes inappropriate comments about a child’s appearance or who likes to photograph children.

Signs of possible sexual abuse in children include a fear of people, places or activities, reluctance to undress, disturbed sleep, mood swings, excessive crying, fear of being touched, loss of appetite, a drastic change in school performance, bizarre themes in drawing, sexually acting out on other children, advanced sexual knowledge, use of new words for private body parts and a reversion to old behavior such as bedwetting or thumb sucking.

Aside from the moral responsibility to protect children and other weaker members of society that all people share, it is essential to intervene in child sexual abuse because of the long-lasting psychological damage it usually causes. The problems can include feelings of worthlessness, depression, anxiety, suicidal thoughts and distorted views of sexuality.

Also, victims of child sexual abuse tend to become sexual predators as adults, making it a crime that begets more crime.

The Sandusky scandal will undoubtedly lead to devastating repercussions for Penn State, for the Second Mile charity with which the former football coach is no longer affiliated and for law enforcement and university officials who became aware of concerns about the former football coach’s activities and failed to act on them.

But the real tragedy — if the allegations are true — will be the lasting impact upon the victims.

David Webb is a veteran journalist who has covered LGBT issues for the mainstream and alternative media for three decades. E-mail him at        

This article appeared in the Dallas Voice print edition November 18, 2011.

—  Michael Stephens

Too juicy: Audience Member AT CPAC Yells To Cheney ‘You’re A War Criminal’

As a Blender on Facebook said, “whoops… they can’t even screen CPAC-goers for non-Kool-aid-drinkers anymore.”


The annual convention has attracted about 11,000 conservatives to the nation’s capital, many of them young supporters of libertarian icon Ron Paul. They were ready this afternoon to show their opposition to the Bush administration when former Defense Secretary Donald Rumsfeld was presented with the conference’s “Defenders of the Constitution” award.

Loud boos resounded through the convention hall as Rumsfeld’s name was announced on stage. The numerous young attendees got up from their seats and filed out of the room in protest.

The commotion only grew when former Vice President Dick Cheney surprised the audience by showing up to honor his longtime friend and White House colleague.

The crowd was on its feet, some cheering “Cheney for president!” The boos from CPAC’s libertarian contigent continued and at times interrupted Cheney’s remarks. “America is stronger and more secure” because of Rumsfeld’s service, Cheney said, prompting one person to loudly shout, “Where’s bin Laden at!”

Pam’s House Blend – Front Page

—  David Taffet

“War Criminal” Cheney Heckled At CPAC

CPAC attendees are tweeting that it was a group of “Ron Paul crazies” that booed former Vice President Dick Cheney this afternoon as he approached the CPAC podium. The crowd drowned out the booing with chants of “USA! USA!” but that died down just in time for one unseen man to scream “WAR CRIMINAL!” before being hustled out by security. Cheney appeared to find the entire thing quite amusing.

Joe. My. God.

—  David Taffet

Lohan Suspected of Criminal Battery

Lindsay Lohan OUTSIDE COURT X390 (GETTY) | ADVOCATE.COMLindsay Lohan is being investigated as a suspect in a criminal battery
case near the Betty Ford Center, where the troubled bisexual starlet is undergoing court-ordered rehabilitation treatment. The alleged victim speaks out. Daily News

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The Criminal Closet


Guestblogger Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His areas of expertise are criminal law, criminal procedure, LGBT law and law and economics. Ari will be writing biweekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

Plea Bargaining How far would you go to keep a secret?

The classic — albeit staid and stereotypical — storyline that has popped up in Law & Order, CSI and other crime dramas involves the individual who commits murder to keep his or her sexual orientation a secret. From a legal theory standpoint, that is an uninteresting case. Granted, it happens, but preventing such stories from happening again has more to do with making being gay more acceptable in society than anything the criminal law can do.

However, the gay closet factors into the criminal justice system in more subtle and insidious ways. Most of us remain blissfully unaware of these cases, but they are arguably no less an affront to our liberty. Take, for example, the case of Jessica M. (a pseudonym), a young woman who was pressed into accepting a plea bargain in a criminal case of dubious merit to prevent evidence of her homosexuality from being public at trial.

Should prosecutors be allowed to leverage a defendant's sexuality and his knowledge that the defendant wants to keep that sexuality a secret in order to get a plea bargain? If yes, are there any limits on prosecutorial conduct in pleas? A real-life hypothetical (with slightly altered facts to protect identities) and some questions for you AFTER THE JUMP.

Continue reading "The Criminal Closet" AFTER THE JUMP

Jessica M. was a college-aged woman who was having a secret love affair with another young woman (Amy S.) at school. Amy was an out lesbian, but respected Jessica's desire to keep their affair a secret. For her part, Jessica stayed in the closet for three reasons: (1) Her parents were conservative Catholics and had disowned an older son who came out as gay 4 years earlier; (2) She was a star pupil that everyone knew; and (3) she was concerned about her job prospects in the entertainment industry if people knew she was gay. We may believe that these reasons lacked reason or merit, but that misses the point. Suffice it to say, these reasons were powerful in Jessica's mind.

As a prerequisite for graduation in her major, Jessica had to complete an original paper in astrophysics. Due to her many commitments, she did not have time, so she plagiarized the experiment and other parts of the paper. Here's where the facts get a bit sticky. According to the prosecution, the victim — a peer who worked in Jessica's lab — discovered Jessica's plagiarized work. He threatened to expose her. She killed him with a scalpel that, panicked, she threw in her purse. Later that day, at the home of her lesbian lover, Jessica was distraught and retreated to the bathroom for a few moments to compose herself, during which time Jessica's purse was accidentally tipped over, revealing the murder weapon, still stained with blood. Amy saw this, but replaced the scalpel and the purse before Jessica returned from the restroom. Later that evening, Jessica apparently threw away the scalpel into the nearby river. It has never been recovered.

The police conducted their investigation into the death. There were hundreds of fingerprints through the lab and no signs of a struggle on the body. No DNA could be retrieved from the dead body, other than his own. Due to temperature in the lab, the coroner could estimate that the murder took place sometime within a 28 hour window. That was a problem – few people have alibis for all 28 hours. The deceased had friends, no known enemies, but was considered a bit of a loner, studious and highly competitive. A search of his computer found a copy of Jessica's paper with a notation on it: "See DeWitt [the professor], re copy." The deceased's girlfriend testified that he had spoken with her about a girl in his class whom he didn't like for some reason. She knew nothing more. Class enrollment showed only one girl in class: Jessica. 

While investigating Jessica's motive and alibi, the police and Assistant District Attorney Thomas interviewed her many friends, a few of whom hinted at how close Jessica and Amy were. "If anyone would know anything," one said, "it would be Amy."

The ADA questioned Amy who, after weeks of claiming not to know much, for unclear reasons volunteered that she saw a bloody scalpel in Jessica's purse.

The case against Jessica is weak. There is no murder weapon, only a cryptic message about Jessica's paper for motive and, like Jessica, the five others suspects — the details about them aren't important — could not account for the entire 28 hour period, either. Amy's testimony would have made Jessica the top suspect, but the case was still floundering.

The prosecution was prepared to call Amy as a witness, but one person's uncorroborated testimony that she saw a bloody scalpel in her friend's purse while her friend was in the bathroom was of limited help to the prosecution. ADA Thomas knew he needed a plea or he risked losing the entire case. He probed into the relationship between Amy and Jessica and found various young women who knew of rumors of their love affair. ADA Thomas used that information and called a plea conference. He offered Jessica a lower manslaughter charge (rather than intentional homicide). Her lawyer declined, knowing how weak the case was. ADA Thomas said that if she did not accept the plea, he would call Amy to the witness stand and raise their relationship as evidence that Amy had no reason to lie and as evidence of a pattern of behavior in which Jessica lied and kept secrets. He would ask about arguments they had about keeping their affair a secret and threats Jessica had made to Amy before, all of which Amy would be forced to testify to, even as hostile.

Jessica's lawyer advised against the plea. "They have no case." Jessica asked if ADA Thomas could do what he threatened and Jessica's lawyer said that he would object and argue against it, but evidence of a pattern of conduct can be admissible if not overly prejudicial. "It's no slam dunk for him, but depending on the judge, it's more likely he'd get in at least some questions about it."

Jessica took the plea.

Notice the difference between Jessica's case and the first hypothetical (killing to stay in the closet) — Jessica probably would have been found not guilty of the crime with which she was charged; the evidence was weak, circumstantial and there was no murder weapon. She pleaded guilty not because she weighed the uncertain risk of conviction and its high sentence with the certain risk of a lower sentence, but because regardless of the result of her trial, evidence of her sexual orientation was going to come out at trial. The prosecutor used his knowledge of her secret as leverage to get her to plea, saving him the trouble of trying to win a case with long odds.

Should that kind of personal information, arguably constitutionally protected as private under Lawrence, be permitted as leverage in a prosecutor's attempt to get a defendant to plead guilty?The few cases on prosecutorial power in plea bargaining — Bordenkircher v. Hayes, for example — leaves the prosecutor wide latitude. He can threaten greater punishment; he can threaten charges that are, in reality, weak and baseless; he can do pretty much anything within the boundaries of egregious behavior. He can, at times, even misstate the truth or tell half truths. What do you think?

Cases like Jessica's raise questions about the powers of prosecutors, the leeway we give them to leverage whatever they can to reach plea deals and what, if any, boundaries limit prosecutorial conduct. In a criminal justice system that encourages pleas, but has become ever more draconian over the years, tensions arise between our conception of due process rights and our need to put criminals behind bars.

[Ari's NOTE: This is one in a series of posts under the umbrella, "The Curious Case of the Gay Criminal." In the coming months, I will temper our discussions of hot-button legal and political issues with criminal law issues that face the LGBT community about which many of us are not readily aware. Your thoughts on these topics — or suggestions — are welcome.]

Towleroad News #gay

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Dallas could elect 1st gay judge

Judicial candidates John Loza, Tonya Parker among 4 LGBTs running in local races in 2010

By John Wright | News Editor
IN THE RUNNING | Dallas County District Clerk Gary Fitzsimmons, clockwise from top left, County Judge Jim Foster, attorney Tonya Parker and former Councilman John Loza are LGBT candidates who plan to run in Dallas County elections in 2010. The filing period ends Jan. 4.

Dallas County has had its share of openly gay elected officials, from Sheriff Lupe Valdez to District Clerk Gary Fitzsimmons to County Judge Jim Foster.
But while Foster, who chairs the Commissioners Court, is called a “judge,” he’s not a member of the judiciary, to which the county’s voters have never elected an out LGBT person.

Two Democrats running in 2010 — John Loza and Tonya Parker — are hoping to change that.

“This is the first election cycle that I can remember where we’ve had openly gay candidates for the judiciary,” said Loza, a former Dallas City Councilman who’s been involved in local LGBT politics for decades. “It’s probably long overdue, to be honest with you.”

Dallas County’s Jerry Birdwell became the first openly gay judge in Texas when he was appointed by Gov. Ann Richards in 1992. But after coming under attack for his sexual orientation by the local Republican Party, Birdwell, a Democrat, lost his bid for re-election later that year.

Also in the November 1992 election, Democrat Barbara Rosenberg defeated anti-gay Republican Judge Jack Hampton.

But Rosenberg, who’s a lesbian, wasn’t out at the time and didn’t run as an openly LGBT candidate.

Loza, who’s been practicing criminal law in Dallas for the last 20 years, is running for the County Criminal Court No. 5 seat. Incumbent Tom Fuller is retiring. Loza said he expects to face three other Democrats in the March primary, meaning a runoff is likely. In addition to groups like Stonewall Democrats of Dallas, he said he’ll seek an endorsement from the Washington, D.C.-based Gay and Lesbian Victory Fund, which provides financial backing to LGBT candidates nationwide.

Parker, who’s running for the 116th Civil District Court seat, declined to be interviewed for this story. Incumbent Bruce Priddy isn’t expected to seek re-election, and Parker appears to be the favorite for the Democratic nomination.

If she wins in November, Parker would become the first LGBT African-American elected official in Dallas County.

Loza and Parker are among four known local LGBT candidates in 2010.
They join fellow Democrats Fitzsimmons and Foster, who are each seeking a second four-year term.

While Foster is vulnerable and faces two strong challengers in the primary, Fitzsimmons is extremely popular and said he’s confident he’ll be re-elected.

“I think pretty much everybody knows that the District Clerk’s Office is probably the best-run office in Dallas County government,” Fitzsimmons said. “I think this county is a Democratic County, and I think I’ve proved myself to be an outstanding county administrator, and I think the people will see that.”

Randall Terrell, political director for Equality Texas, said this week he wasn’t aware of any openly LGBT candidates who’ve filed to run in state races in 2010.

Although Texas made headlines recently for electing the nation’s first gay big-city mayor, the state remains one of 20 that lack an out legislator.

Denis Dison, a spokesman for the Victory Fund, said he’s hoping Annise Parker’s victory in Houston last week will inspire more qualified LGBT people to run for office.

“It gives other people permission really to think of themselves as leaders,” Dison said.

The filing period for March primaries ends Jan. 4.

This article appeared in the Dallas Voice print edition December 18, 2009.
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