Lambda Legal files lawsuit against city of Houston over spousal benefits

Upton.Ken

Ken Upton

Lambda Legal filed a federal lawsuit Thursday against Houston Mayor Annise Parker and the city of Houston to ensure spouses of legally married same-sex couples will receive health benefits.

The lawsuit was filed in the U.S. District Court for the Southern District of Texas on behalf of three city employees after a challenge to the coverage forced them to withdraw and cancel the coverage.

Parker announced last month that the benefits would be extended in light of the U.S. Supreme Court ruling on the federal Defense of Marriage Act. But last week, state District Judge Lisa Millard signed a temporary restraining order prohibiting the city of Houston from offering benefits to same-sex couples after the Harris County GOP chairman filed a lawsuit.

“City employees who are married to same-sex spouses are doing the same work as coworkers who are married to different-sex spouses—at the end of the day this case is about equal pay for equal work,” Ken Upton, senior staff attorney at Lambda Legal’s South Central office in Dallas, said in a statement. “These employees, some who have worked for the City for many years, acted in good faith when notified the City was extending health coverage benefits to their legal spouses.”

Noel Freeman, the lead plaintiff in the lawsuit and a president of Houston GLBT Political Caucus, is an administrative coordinator with the City of Houston Public Works & Engineering Office who has worked for the city for nine years. He and his husband, Brad, have been together for more than 11 years and were married in Washington, D.C., in 2010.

“The notice from the City was like a punch in the stomach. Brad and I were so excited when we learned we could enroll him on my plan that we signed him up within an hour of finding out,” Freeman said. “And now, just a month later, they tell us they’re going to have to take it away, that once again I will be paid less than my married heterosexual colleagues for the same work. How is this fair?”

The other plaintiffs in the suit are Yadira Estrada, a Houston police officer who married her partner of seven and a half years, Jennifer Flores, in Maine in June, and Ron Reeser, a systems administrator who married his husband, Vince Olivier, in Canada in 2008 after they had been together for three years.

Upton said the city’s refusal to implement the health benefits change and offer the benefits to same-sex spouses after they signed up for coverage is unfair.

“By refusing to recognize the legal marriage of same-sex couples for the purpose of providing employment benefits, the City deprives some Houston families of a critical safety net and financial security,” Upton said. “By stripping legally married gay and lesbian city employees of spousal benefits, including health insurance coverage, the City not only inflicts severe hardship, but sends a signal that their families are less worthy than those of their coworkers. This the Constitution does not allow.”

—  Dallasvoice

Napolitano directs INS to process green card applications for gay couples

Homeland Security Chief Janet Napolitano

Homeland Security Chief Janet Napolitano

Binational couples may officially begin applying for green cards for the non-citizen spouse.

“After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly,” Secretary of Homeland Security Janet Napolitano said in a statement Monday.

“To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse,” she said.

—  David Taffet

AG Abbott says DP benefits are illegal in Texas, but that’s just his opinion

Texas AG Greg Abbott

Greg Abbott

Republican Texas Attorney General Greg Abbott issued an opinion Monday saying domestic partner benefits offered by local government entities in Texas violate the state’s constitutional amendment banning same-sex marriage.

Abbott’s opinion, which is nonbinding, was issued in a response to a request last year from Sen. Dan Patrick, R-Houston.

Patrick requested the opinion after the Pflugerville ISD became the first school district in the state to agree to offer DP benefits.

Pflugerville’s decision also prompted a Republican state lawmaker to introduce a bill that would cut funding for school districts that offer DP benefits. The bill — HB 1568 by Drew Springer of Muenster — is awaiting a vote in the House.

While Pflugerville was the first school district to offer DP benefits, several other local government entities do so, including the cities of Austin, Dallas, El Paso, Fort Worth and San Antonio; as well as Dallas County and Parkland hospital. Most offer DP benefits to both same-sex and opposite-sex domestic partners.

Ken Upton, Dallas-based senior staff attorney for the LGBT civil rights group Lambda Legal, said Abbott’s opinion is hardly surprising. Abbott has also used the marriage amendment to try to prevent same-sex couples legally married in other states from obtaining divorces in Texas.

“He didn’t do anything we didn’t expect,” Upton said. “The truth is, it’s just an opinion.”

Upton said if a local government that offers DP benefits decides to rescind them based on the AG’s opinion, employees losing benefits for their partners likely would sue. On the flip side, a disgruntled anti-gay taxpayer could try to sue if money is being used to offer DP benefits.

“Maybe the next step will be some litigation,” Upton said. “I’m sure some of these right-wing groups will be more than ready to sue. The sad thing is, it’s just going to make the state less competitive.

“It’s unfortunate, but it’s not surprising he did this,” Upton said.

Openly gay Fort Worth City Councilman Joel Burns agreed.

“I am disappointed in Greg Abbott,” Burns said in a statement. “However,  I am not surprised that once again he is more interested in dividing Texans for political gain than bringing them together to make Texas stronger and more prosperous.

“He continues to pursue faulty legal strategies and disrespect local control at the expense of taxpayers,” Burns said. “Here in Fort Worth we value every citizen which makes every family stronger.”

Rebecca L. Robertson, legal and policy director for the American Civil Liberties Union of Texas, emphasized that Abbott’s opinion is just that — an opinion — and said her group strongly disagrees with him.

“Contrary to the AG’s reasoning, giving an employee the ability to purchase insurance coverage for his or her family does not create a legal relationship even remotely similar to marriage,” Robertson said. “The good news is that AG opinions do not have the force the law, so unless a Texas court issues a ruling on the subject, there shouldn’t be any legal impediment to government employers continuing to do the right thing for their employees.”

Equality Texas issued a statement Tuesday saying it believes Abbott’s opinion would still allow DP benefits, but they must be restructured and cannot be called DP benefits.

“It means cities, counties, and school districts seeking to remain competitive with private business can offer employee benefit programs that provide health and other benefits to unmarried household members if the eligibility criteria are properly structured,” Equality Texas said. “However, eligibility should not use the term ‘domestic partner,’ or be based upon proving the existence of a ‘domestic partnership,’ or use criteria usually associated with marriage (like current marital status, or related by a certain degree of consanguinity). It means political subdivisions can offer employee benefit programs to unmarried household members if their eligibility criteria don’t look like marriage, or create something that resembles marriage.”

The full text of Abbott’s opinion is below.

—  John Wright

Anti-gay state senator wants to outlaw domestic partner benefits in Texas

Dan Patrick

Here’s why you need to get out and vote on Tuesday if you haven’t already.

In the same week that Dallas County voted to offer health insurance vouchers to the domestic partners of employees, a tea party-backed state senator from Houston is seeking an opinion from the Texas attorney general about whether such benefits are legal under the state’s 2005 constitutional amendment banning same-sex marriage.

Republican Sen. Dan Patrick’s office wrote in a press release on Friday:

In 2005, the Texas Constitution was amended to clearly define marriage as between one man and one woman. The “Marriage Amendment” went on to prohibit government entities from creating or recognizing anything identical or similar to marriage. The Marriage Amendment was passed by an overwhelming majority of the Texas legislature and ratified by more than 75 percent of Texas voters.

However, government entities across the state are gradually recognizing and extending benefits to domestic partners including the cities of El Paso, Austin and Fort Worth. Recently, Pflugerville I.S.D. became the first school district to extend benefits.

“I am submitting this request to the Attorney General in order to clarify whether or not these entities are violating the constitution and circumventing the will of the people,” said Senator Patrick.

Other entities in Texas that offer DP benefits include the city of Dallas, which has had them since 2004, and Dallas County, which as I mentioned added them this week.

Ken Upton, a senior staff attorney for the LGBT civil rights group Lambda Legal, told Instant Tea that Patrick’s letter seeking an opinion from the AG’s office doesn’t surprise him.

“I was wondering when someone would do that,” Upton said. “It was just a question of when. Texas is too big of a state, and there are too many people who hate us.”

Upton said there have been similar challenges to domestic partner benefits in other states with constitutional amendments banning same-sex marriage, including Ohio and Michigan, with mixed results. But he said the issue could be decided by the U.S. Supreme Court in an Arizona case that Lambda Legal is handling, Diaz v. Brewer. Both the district court and the 9th U.S. Circuit Court of Appeals have ruled in Lambda Legal’s favor, but Republican Arizona Gov. Jan Brewer, who wants to strip DP benefits from state employees, appealed.

“Our position is if you decide that a benefit of employment is insuring your spouse, and then you turn around and say as a gay person, you don’t get that benefit because you can’t have a spouse, then you violate equal protection,” Upton said.  “We’ll know in November whether [the Supreme Court is] going to take that case.”

Upton said any opinion Sen. Patrick receives from Republican Attorney General Greg Abbott’s office would be advisory in nature. However, Upton said he suspects that the AG’s office — which has intervened in recent years to block gay divorces — could find a way of bringing a legal challenge to DP benefits in Texas. Upton said he doesn’t like the LGBT community’s chances in front of the conservative Texas Supreme Court, which could ultimately be charged with interpreting whether the marriage amendment bans DP benefits. But Upton said that from a legal standpoint, he’s less worried about the issue than he once was.

“I think the [U.S.] Supreme Court in Diaz could decide it once and for all,” he said. “The bottom line is this whole thing is so much farther long than it was three or four or five years ago. Time is on our side.”

Read Patrick’s press release and his letter seeking an opinion from the AG’s office below.

—  John Wright

Advocating for LGBT youth in foster care will be topic of CLE panel discussion Wednesday

Mark Niermann

Dallas CASA and the Gay & Lesbian Fund for Dallas are collaborating with Lambda Legal to present a program for continuing legal education credit. “Legal and Ethical Issues Regarding Representation of Children in CPS Care Who Are Lesbian, Gay, Bisexual, Transgendered or Questioning” offers 1.5 CLE credits.

GLFD co-founder and board member Mark Niermann said his group has maintained a strong relationship with Dallas CASA since raising more than $50,000 for the group that advocates for more than 2,000 abused and neglected children that live in foster care in Dallas on any given day. CASA, which stands for Court Appointed Special Advocates, works with many LGBT children who’ve survived abusive family environments.

“There’s little support for people advocating for gay kids,” Niermann said.

Among the topics covered at the forum will be a general discussion of the importance of understanding LGBTQ youth issues, an overview of relevant statutory and other legal authority, and of available resources for additional guidance. A panel will discuss attorney ethical responsibilities.

Panelists include:

• David Chard, Ph.D., Dean, Annette Caldwell Simmons School of Education and Human Development, Southern Methodist University
• Carolyn Hill, J.D., Private Law Practice
• Julie Johnson, J.D., CASA Supervisor, Dallas CASA
• Edward J. (Ted) Keating, J.D., Former Managing Attorney, TDFPS
• Cheri Whiteside, J.D., CASA Supervisor, Dallas CASA
• Ken Upton, J.D., Supervising Senior Staff Attorney, Lambda Legal, South Central Regional Office

The CLE takes place on Wednesday at the Rees-Jones Training Center for Dallas CASA, 2715 Swiss Ave. from 4:30 to 7 p.m. The program is $20 but free for GLFD members and for attorneys who have represented a party within the last 12 months in a suit affecting the parent‐child relationship filed by Child Protective Services. Non-attorneys may attend.

—  David Taffet

Transgender woman ticketed for using women’s restroom at Parkland hospital has criminal record

Paula Witherspoon

A transgender woman who was ticketed for using a women’s restroom at Parkland hospital last week has a criminal background and is a registered sex offender, Instant Tea has learned.

On Tuesday, we reported that 56-year-old Paula Witherspoon, of Dallas, was cited for disorderly conduct on April 25 after using a women’s restroom at Parkland, Dallas County’s public hospital.

According to the Texas Department of Public Safety, Witherspoon was convicted of sexual assault of a child involving a 14-year-old girl in 1990 and sentenced to 16 years in prison. That same year, Witherspoon was also convicted of indecency with a child by sexual contact, involving a 15-year-old girl, and sentenced to six years in prison. According to DPS, Witherspoon remains on parole for the indecency conviction.

“Yes, I have a criminal record,” Witherspoon said Wednesday. “I can’t hide that. It’s public record. I made a mistake 22 years ago that has nothing to do with this.”

Ken Upton, supervising senior staff attorney in Lambda Legal’s Dallas office, agreed.

“That may be relevant in other settings,” Upton said, “and it paints a bad picture.”

But he said there’s no evidence that in this instance, Witherspoon did anything other than use a bathroom.

“Transgender people have a right to use a bathroom,” he said.

—  David Taffet

EXCLUSIVE: Transgender woman ticketed for using women’s restroom at Parkland hospital

Paula Witherspoon

Police cited a transgender woman for disorderly conduct on April 25 for using a women’s restroom at Parkland hospital.

An officer with the hospital’s police force wrote the citation for a class-C misdemeanor after a complaint was lodged by someone who saw the transgender woman, Paula Witherspoon, leaving the bathroom.

Witherspoon said she was at the hospital with her husband, who had a follow-up appointment after suffering a heart attack.

“I live full time as a woman,” Witherspoon said.

She said hospital police told her they weren’t there to decide whether she was guilty.

“Then they wrote me a ticket,” she said.

The ticket lists Witherspoon as a man and her name as Paul. But Witherspoon provided a copy of a letter from her clinical psychologist at the Dallas VA Medical Center, Gloria J. Emmert.

“As a frequent visitor to the Dallas VA Hospital, she is expected to use facilities consistent with her external presentation, which is female,” Emmert wrote. “Please assist this Veteran by supporting the application of this ethical approach in all Dallas settings.”

Ken Upton, a supervising attorney in the Dallas office of Lambda Legal, said lewd conduct is the closest thing he could find in Section 4201 of the Texas Penal Code, the statute listed on the ticket.

For that portion of the code to apply, Upton said, Witherspoon would have had to have acted “intentionally or knowingly for a lewd purpose.” But since she went into a private stall, that’s unlikely, he said.

Witherspoon said she didn’t even know whether there was anyone else in the restroom.

“I went in, did my business, washed my hands and left,” she said.

And the letter from the psychologist indicates she was following doctor’s orders rather than acting out of lewd intent. Upton said Parkland will have trouble defending the case.

“The officer doesn’t know if anyone else was in there,” Upton said, so his testimony would be hearsay. And if the complainant wasn’t in the restroom, that person was not a witness to any lewd behavior.

Upton said the officer probably figures Witherspoon will either pay the fine or it’ll be dismissed.

“And he doesn’t care,” Upton said, adding that the officer couldn’t have written a ticket for simply using the wrong bathroom.

“That’s not a crime in Dallas,” he said.

Officials at Parkland, Dallas County’s public hospital, are looking into the incident.

“We have verified that on April, 25, 2012, Parkland Police responded to a complaint from a concerned female patient regarding her allegation that there was a male in the female restroom,” Parkland spokeswoman Charise Thomason wrote. “Because of the complexity of the issue, the incident is currently under review. Parkland strives to treat patients, visitors and staff with dignity and respect, as well as provide a safe environment at all times.”

Roberto de la Cruz, an openly gay member of Parkland’s Board of Managers, said he plans to meet with Witherspoon on Wednesday at her home. He said his concern is that transgender people are welcome at Parkland and will be treated with dignity.

After the jump is a copy of the letter from Dr. Emmert, as well as Witherspoon’s ticket.

—  David Taffet

Ex-TCC professor’s anti-gay bias suit advances

Jacqueline “Jackie” Gill

Jacqueline “Jackie” Gill

FORT WORTH – In a preliminary victory for a lesbian former professor, the U.S. District Court for the Northern District of Texas denied a motion Monday by Tarrant County College administrators to dismiss her lawsuit alleging she was prevented from interviewing for a permanent teaching position based on her sexual orientation.

Jacqueline “Jackie” Gill filed a complaint in September 2011 stating she was unable to interview for a permanent position in the English department after her yearlong temporary position had expired.

The co-defendants, English Department Chair Eric Devlin and Dean of Humanities Antonia Howell, sought qualified immunity, which guards state officials from liability unless there is an established law. However, discrimination by public employees based on sexual orientation violates the U.S. Constitution, said Ken Upton, a senior staff attorney for Lambda Legal who is presenting Gill.

“The Supreme Court of the United States has said that that’s not a valid basis for discriminating,” Upton said. “What we wanted to show is that it is clearly established that you don’t get to judge someone’s job performance based on sexual orientation. … (The court) ruled that it was clearly established when they treated Jackie differently presumably based on the fact that they thought she’s a lesbian.”

—  Dallasvoice

High court denies appeal from gay couple seeking accurate birth certificate for adopted child

Ken Upton

Ken Upton

In a setback for same-sex parenting rights, the nation’s high court today refused to hear a challenge of a Louisiana policy barring gay couples from obtaining accurate birth certificates for their adopted children. Lambda Legal reports:

The U.S. Supreme Court today denied Lambda Legal’s petition for a writ of certiorari in the case of a same-sex couple seeking an accurate birth certificate for their Louisiana-born son whom they adopted in New York. The Louisiana state registrar has refused to recognize the adoption and issue a birth certificate listing both fathers as the boy’s parents.

“By denying this writ, the Supreme Court is leaving untouched a dangerous Fifth Circuit Court of Appeals ruling that carves out an exception to the Full Faith and Credit Clause of the U.S. Constitution and to the uniformly recognized respect for judgments that states have come to rely upon,” said Kenneth D. Upton, Supervising Senior Staff Attorney in Lambda Legal’s South Central Regional Office in Dallas. “This decision leaves adopted children and their parents vulnerable in their interactions with officials from other states.”

“More particularly, this decision leaves a child without an accurate birth certificate listing both his parents,” Upton added. “This issue now moves into the legislative arena. We need to push for a change in Louisiana state policy in order to stabilize and standardize respect for parent-child relationships for all adoptive children.”

Lambda Legal represents Oren Adar and Mickey Smith in their case against Louisiana State Registrar Darlene Smith. Adar and Smith are a gay couple who adopted their Louisiana-born son in 2006 in New York, where a judge issued an adoption decree. When the couple attempted to get a new birth certificate for their child, in part so Smith could add his son to his health insurance, the registrar’s office told him that Louisiana does not recognize adoption by unmarried parents and would not issue it with both adopted parents’ names.

Upton, who’s based in Dallas, has said he’s also interested in challenging Texas’ statute, which says the adoptive parents listed on an amended birth certificate must be a man and a woman. State Rep. Rafael Anchia, D-Dallas, introduced a bill this year that would have allowed same-sex couples to have both their names on adoptive birth certificates, but the bill didn’t make it out of committee.

“This case has direct implications for TX, which does not provide accurate birth certificates for adopted children with same-sex parents,” Equality Texas wrote this morning on Facebook in response to the Supreme Court’s denial of the couple’s appeal. “This must be corrected! … If you have legally adopted children who cannot get an accurate amended birth certificate in TX, please contact Info@EqualityTexas.org.”

—  John Wright

Professor files federal lawsuit accusing Tarrant County College of anti-gay discrimination

Jackie Gill, left, watches as Lambda Legal staff attorney Ken Upton speaks to a reporter Wednesday morning during a press conference announcing Gill’s employment discrimination lawsuit against Tarrant County College.

CLICK HERE TO READ THE COMPLAINT

Jacqueline “Jackie” Gill today filed suit against a professor and a dean at Northeast Campus of Tarrant County College in Hurst, claiming that after serving as a full-time temporary English professor for about a year, she was denied the opportunity to apply for permanent position with the school because of the department chair’s bias against what he perceived as her sexual orientation.

Gill is represented in the lawsuit by Lambda Legal South Central Region staff attorney Ken Uptown, joined by pro bono counsel Benjamin D. Williams from the law firm of Gibsonb, Dunn and Crutcher. The suit names as defendants chair of Northeast Campus’ English Department, Eric Devlin, and Northeast Campus Humanities Division Dean Antonio R. Howell.

Gill said although she is a lesbian and has never tried to hide that fact, she had never talked about her orientation with Devlin or anyone else at the school.

Gill said that in October a female “dual-enrollment” student — a high school student who was also taking college classes — in Gill’s distance learning class cheated by stealing an exam and skipped some classes. The student’s high school counselor told Gill that the student has a history of disruptive behavior, and when the student dropped the class, Gill was told the situation was closed.

—  admin