Arkansas bans anti-discrimination laws; is Texas next?

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Arkansas Gov. Asa Hutchinson, right, allowed legislation prohibiting cities and counties from enacting anti-discrimination laws protecting LGBT people to pass into law without his signature. Texas Sen. Don Huffines, R-Dallas, left, has introduced a similar bill in the Texas Legislature.

Arkansas Gov. Asa Hutchinson on Monday allowed legislation prohibiting cities and counties in his state from passing statutes and ordinances protecting LGBT people from discrimination to become law without his signature. The law, SB 202, goes into effect 90 days after the legislative session ends this summer.

Hutchinson said earlier this month that he had “reservations” about the legislation, but not enough to actually veto it. He chose instead to demonstrate those reservations by letting the bill become law without his signature. He did so despite what The Washington Post called mounting pressure from civil rights advocates nationwide.

A press release issued by a coalition of groups including the National Center for Lesbian Rights, Lambda Legal and the ACLU declared, “There is nothing but discriminatory intent here. And no valid public interest can possibly be served by allowing private businesses to discriminate based on sexual orientation, gender identity or other characteristics that might be covered by local ordinances.” Even Cher skewered Hutchinson in a Tweet, accusing him of “hanging [the] LGBT community out the dry.”

But before all you Texans start looking down your noses at those ridiculous rednecks in Arkansas, be warned: The same kind of bill has been in the Texas Legislature this session. Sen. Don Huffines, R-Dallas.

According to Equality Texas, “SB 343 would restrict the ability of local elected officials to pass or enforce ordinances, rules or regulations that are not identical to state protections, restricting local governments to only protecting the attributes covered under state law: race, color, religion, sex, familial status, or national origin.”

That means that ordinances in Fort Worth and Dallas and Houston and even in Plano that protect LGBT people from discrimination would be, in effect, rendered useless. Of course, it also means that ordinances in Houston, San Antonio and, again, Plano that protect U.S. military veterans from discrimination in housing, employment and public accommodations would also be effectively overturned. But hey, the vets have already sacrificed for their country one time; surely they’ll be willing to sacrifice their right not to be discriminated against to make sure all us evil LGBTs don’t get any protections. I mean, we are a huge threat to the American way of life, after all.

As I said, Huffines’ bill, if it becomes law, would nullify the amendment adding LGBT protections to the Dallas city charter, an amendment approved last November by 76 percent of Dallas voters. I guess overturning measures overwhelmingly approved by voters — you know, like the amendment to the Texas Constitution banning legal recognition of same-sex marriage, approved by 76 percent of Texas voters in 2005 — is ok as long as you are only overturning things that Republicans don’t like.

—  Tammye Nash

Ask Lambda Legal: Discrimination As Religion

By Jennifer Pizer, national director

Lambda Legal’s Law and Policy Project

 

Q: I was reading about a bakery that didn’t want to make a wedding cake for a gay couple because it goes against the baker’s religion. Can’t the couple just go somewhere else?

Pizer.Jennifer

Jennifer Pizer

A: Private businesses, such as bakeries and grocery stores that offer goods to the public, are usually bound by public accommodation laws. These laws say that a business that is open to the public must be open to everyone, regardless of whether the business owner or employees approve of who each customer is.

This is an important protection against discrimination because the law treats bakeries, groceries and other stores — businesses operating to make profits — differently from churches and other organizations that exist for religious purposes. If a bakery, store or restaurant were allowed to turn away gay people, it would open the floodgates to all kinds of discrimination against many different groups in all kinds of business settings, not just gay people.

For example, medical clinics often are private businesses. What if a for-profit clinic decided for religious reasons not to care for a pregnant woman because she isn’t married? Or, if a landlord believes that men should be the head of the household and refuses to rent to single mothers?

Freedom of religion is already firmly protected by the state and federal constitutions. But that freedom does not give any of us the right to discriminate against others when operating a business.

And yet, that is exactly what many lawmakers across the country are attempting to allow. Last year saw numerous bills in state legislatures aiming to expand religious rights to ignore laws. Fortunately, in Arizona, Idaho, Kansas, South Dakota and Tennessee those efforts were dropped or stopped. However, the movement pushing these bills continues.

Indiana is currently considering this type of legislation, and it illustrates why we’re worried. The intention to facilitate discrimination against gay and transgender people is all too clear. But the bill also threatens to encourage a broad range of other harms because, in other states with this kind of law, individuals have argued that non-discrimination laws, child abuse laws and domestic violence laws don’t apply to them if they have a religious objection.

As Arizona lawmakers realized after hastily approving their similar bill last year, vastly expanding religious rights in business settings would interfere with employers’ ability to manage employees who misbehave in the name of religion while badly tarnishing the state’s reputation. Thankfully, then-Gov. Jan Brewer vetoed that bill.

But now, in Indiana and other states, “discrimination as religion” bills again are trying to provide a “freedom to discriminate,” using freedom of religion as a misleading excuse. And we must remain vigilant to ensure that these harmful bills do not become law.

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If you have questions or feel that you have been discriminated against based on your sexual orientation, gender identity or HIV status, please contact our Legal Help Desk.

—  Tammye Nash

Same-sex couples ask Granade to make probate judge issue licenses; Lambda Legal urges probate judges to ignore Moore

Alabama Chief Justice Roy Moore

Alabama Chief Justice Roy Moore

 

So, I have already told you about Alabama state Supreme Court Chief Justice Roy Moore’s temper tantrum over marriage equality and how he is just gonna hold his breath til he turns blue or the big bad gay people go away.

But the same-sex couples in Alabama who want state officials to abide by the U.S. Supreme Court’s 7-2 decision not to extend a stay on a lower court ruling overturning the state’s marriage equality ban aren’t going away and giving up.

In fact, the National Center for Lesbian Rights reported today (Tuesday, Feb. 10), that four same-sex couples in Mobile asked District Judge Ginny Granade — the judge who issued TWO rulings last month overturning the Alabama marriage ban — to instruct Mobile County Probate Judge Don Davis to issue them marriage licenses.

Davis has stopped issuing marriage licenses entirely rather than issue licenses to same-sex couples. Mobile County is one of 47 of the state’s 67 counties where the probate judges are following Moore’s orders and not issuing licenses to same-sex couples.

In their request to Judge Granade, the couples explained that each of them appeared at the Davis’s Mobile offices and were denied marriage licenses, and they say they are suffering serious harm each day that they continue to be excluded from marriage.

The Alabama couples — represented by NCLR, Birmingham attorney Heather Fann and the ACLU of Alabama —  include James Strawser and John Humphrey, who previously obtained a ruling from Judge Granade declaring that Alabama’s exclusion of same-sex couples from marriage is unconstitutional.

The other three couples are Meredith Miller and Anna Lisa Carmichael, Robert Povilat and Milton Persinger, and Kristy Simmons and Marshay Safford.

NCLR Legal Director Shannon P. Minter said, “We are hopeful that a ruling on this motion will provide clarity regarding the obligations of probate judges across the state and correct the misunderstanding generated by Alabama Chief Justice Roy Moore, who has erroneously instructed those judges not to comply with the requirements of the federal Constitution. We are confident that all Alabamians, regardless of where in the state they live, will soon enjoy the freedom to marry.”

Moore claims he is the one with the authority to tell probate judges who they can and can’t give marriage licenses to, and since he was not named as a defendant in either of the two cases Granade ruled in, then the ruling doesn’t apply to him. And he has issued an administrative order telling probate judges not to issues the licenses.

Lambda Legal urges probate judges to ignore Moore

Obviously not everyone agrees with Moore that he is The Man in Charge. In fact, Lambda Legal today sent a letter to the president of the Alabama Probate Judges Association and the probate judges in those 47 counties not issuing marriage licenses to same-sex couples, urging them to pay no attention to that bigot behind the curtain.

The letter included a lot of legal talk citing Alabama case law backing up Lambda Legal’s point that “Chief Justice Moore does not have the authority to issue the administrative order” telling the probate judges not to issue marriage licenses to same-sex couples.

Greg Nivens, counsel a Lambda Legal, said, “The law is clear — all Chief Justice Moore has done is create chaos and his order is clearly out of bounds.”

Read the full letter here.

 

—  Tammye Nash

Quasney loses battle to cancer

Nikki Quasney, pictured here with her wife, Sandler, died last Thursday, Feb. 5.

Nikki Quasney, left, pictured here with her wife, Amy Sandler, died last Thursday, Feb. 5. The two were plaintiffs in the lawsuit that successfully challenged Indiana’s marriage equality ban.

Niki Quasney, one of the plaintiffs in the marriage equality lawsuit in Indiana, died Thursday, Feb. 5, after battling ovarian cancer for more than five years. She was 38 years old.

In a press release issued Sunday, Feb. 8, a spokesperson for Lambda Legal said that Quasney died with her wife, Amy Sandler, her mother and five siblings at her side. Lambda Legal represented Quasney and Sandler in their successful challenge to Indiana’s marriage equality ban.

Lambda Legal Staff Attorney Paul Castillo said in the press release: “Niki and Amy and their daughters became Indiana’s first family when they bravely joined Lambda Legal’s marriage case, which meant openly sharing very personal and painful parts of their journey together as Niki battled cancer.  They brought this case and fought so hard because they loved each other and wanted their daughters to be treated with respect, just like any other family in Indiana.

“They also fought for all same-sex couples and their children in Indiana. They never wanted to be alone in recognition of their family. They knew that by coming forward they could help accelerate equality for all same-sex couples in Indiana by demonstrating the urgency of their need for equal dignity.”

Castillo also noted: “To date, this marriage case was the fastest, from filing to victory, through a federal circuit court. The courts were touched by Niki’s and Amy’s story, and accelerated not just Indiana’s marriage cases, but Wisconsin’s as well. The opinion from the Seventh Circuit Court of Appeals was one of the most scathing attacks on marriage bans from a court. Niki and Amy’s bravery made history.

“Niki told the court: ‘If my life is cut short because of ovarian cancer, I want our children to know that their parents were treated like other married couples in their home state, and to be proud of this. I want to know what it feels like to be a legally recognized family in our community, together with Amy and our daughters.’

“Niki spent the last year of her life on earth very publicly fighting for her family and doing everything she could to make sure that her wife and daughters were protected. Although our hearts are heavy, we celebrate Niki’s life and take comfort in knowing that Niki and her family were able to know — through their own efforts — what equality feels like. We thank Niki and Amy for their courage to stand up for their family and lead the fight for marriage in Indiana. We all owe them an enormous debt of gratitude.”

—  Tammye Nash

Ask Lambda Legal: Prison Rape Elimination Act

By Jael Humphrey

Staff Attorney for Lambda Legal

 

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Jael Humphrey, staff attorney with Lambda Legal

Q: My friend was recently incarcerated in prison in Florida and I’m worried about her safety because she’s transgender. Are there laws that can protect her?

A: Unfortunately, the situation your friend is in is all too common — prisons incarcerate a transgender woman in a male, rather than a female, facility where she is at constant risk of sexual abuse and other violence. When someone is incarcerated, their health and safety becomes the responsibility of the state. But not all prisons protect the people in their custody, tolerating a culture where staff threaten, beat or sexually assault some people in custody or permit other incarcerated people to do so, just because they are transgender.

If your friend is threatened or abused, it is important that she file as soon as possible an “administrative grievance,” or complaint, that puts the facility on notice that she believes her rights have been violated. Under the Prison Litigation Reform Act, a federal law passed in 1996, people in custody who wish to file a lawsuit in federal court must first exhaust all administrative remedies available to them, sometimes within very short deadlines.

This step is crucial, because correctional facilities use the failure to exhaust administrative remedies as a reason to ask courts to throw out cases filed by people in their custody.

If she first exhausts, she may be able to sue in federal court. In October of last year, Lambda Legal filed a federal lawsuit on behalf of Passion Star, a transgender woman currently in the custody of the Texas Department of Criminal Justice, arguing that TDCJ officials are deliberately indifferent to her safety.  Passion is in constant danger of sexual assault, but TDCJ officials have ignored or made her problems worse, even though she has filed dozens of grievances, complaints and requests to be placed in safekeeping.

The Prison Rape Elimination Act, a federal law to eliminate sexual abuse of people in custody, has provisions to protect incarcerated transgender people, if it is implemented fully. Among other things, the PREA standards instruct prison officials to screen and separate particularly vulnerable people — such as transgender women in male facilities — from likely aggressors and make individualized housing decisions prioritizing gender identity and safety, not merely genital characteristics.

While most states are working to implement PREA, some states — like Texas, Florida and Indiana, instead decided to pass up funding earmarked for the prevention of sexual assault. Perhaps not coincidentally, Texas is home to five of the 10 prisons with the highest rates of reported rapes in the country.

Sign our petition urging Texas to fully implement and abide by the Prison Rape Elimination Act. See more at here.

For more information about transgender prisoners in crisis, see here.

If you have questions, or feel you have been discriminated against because of your gender identity, sexual orientation, or HIV status, contact Lambda Legal’s Help Desk at 1-866-542-8336, or see here.

 

—  Tammye Nash

Louisiana case wraps up, Mississippi being heard

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Louisiana plaintiffs Jon Robicheaux and Derek Pinton

The plaintiffs in the Louisiana case that was heard at 9 a.m. by the 5th Circuit Court of Appeals. The Mississippi case is currently being heard.

Erin Moore reports from New Orleans that the cases are running late.

—  David Taffet

2014 Black Tie Dinner: The Night in Photos

The Sheraton Dallas hotel was wall-to-wall Saturday night for the 33rd annual Black Tie Dinner, which raised funds for local beneficiaries and the Human Rights Campaign.

The event featured the presentation of the Kuchling Humanitarian Award to Mike Anglin, the Black Tie Media Award to Dale Hansen and the Elizabeth Birch Equality Award to attorneys Ted Olson and David Boies, along with special appearances by NBA star Jason Collins and the Prop 8 plaintiffs.

Comedienne Dana Goldberg emcees the evening, which also featured entertainment by Alex Newell and Steve Grand.

Dallas Voice photographer Cassie Quinn captured the evening in photos:

—  Tammye Nash

BREAKING: Lambda Legal sues TDCJ on behalf of trans inmate

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Jael Humphrey

Lambda Legal filed a federal lawsuit today (Thursday, Oct. 23), on behalf of Passion Star, a trans woman being housed with male prisoners in the Texas prison system. The lawsuit claims that officials with the Texas Department of Criminal Justice have “displayed deliberate indifference to threats of sexual assault and violence against Ms. Star in TDCJ’s male facilities,” according to a statement released this afternoon.

“Ms. Star has been pleading for protection from rapes, beatings, knifings and threats to her life since she entered TDCJ custody as a teenager, but instead of separating her from aggressors, Texas prison officials have forced her to remain in the general population in male prisons, even though the risk that she would be seriously harmed was obvious,” said Lambda Legal staff attorney Jael Humphrey.

“It is absolutely appalling how TDCJ officials, following the clear lead of Gov. Rick Perry, callously ignore the desperate pleas of Ms. Star and other LGBT people in custody asking to be protected from sexual abuse,” Humphrey added.

Star, now 30, was still a teenager when she pled guilty to charges of aggravated kidnapping, charges that were based on allegations that Star’s boyfriend refused to return to the dealership a used car they were test driving, instead driving around for several hours with the car salesman as an unwilling passenger in the front seat. Star herself was in the back seat.

Star was sentenced to 20 years and transferred into TDCJ custody, and has been housed with male inmates since.

Humphrey said Star has been housed in six different male prison facilities, and that inmates at all six have identified her as feminine. She has been raped, forced to submit to unwanted sexual acts to avoid physical violence and threatened with sexual assault.

Attorneys say Star has filed numerous grievances, complaints and requests asking to be placed in safekeeping. But instead of taking measures to protect her, prison officials have instead told Star to “suck dick,” fight or “stop acting gay” if she wants to keep from being assaulted.

Lambda Legal alleges that on Nov. 19, 2013, Star asked TDCJ officials to protect her from a gang member who had told her that he “owned her.” But instead of protecting her, prison officials actually moved her closer to the person who was threatening her. The next morning, the gang member attacked Star, calling her a “snitching faggot” and slashing her face eight times with a razor.

Still, prison officials refused to move Star to protect her.

Humphrey noted that the Prison Rape Elimination Act, passed by a unanimous vote of Congress, requires states to take measures to eliminate sexual abuse of those in custody and provides guidelines on how to do that — including screening and separating particularly vulnerable people, like trans women, from the general population. Gov. Perry, however, has dismissed the PREA standards as “ill-conceived” and chose to pass up federal funds earmarked by the Department of Justice for the prevention of sexual abuse in detention facilities.

In a written statement released by Lambda Legal, Star said, “Somebody, somehow, needs to shed light on what is taking place here in Texas prisons. TDCJ officials get away with so much and disregard so many legitimate threats to people’s safety. It needs to stop somewhere. I fight for my life every day in here. Safety from rape and assault is not a privilege; it’s a right. I hope this lawsuit will help make sure this doesn’t happen to anyone else.”

The case has been filed in the U.S. District Court for the Southern District of Texas. Kenneth Upton and Paul Castillo are handling the case, joined by co-counsel Christina N. Goodrich, Christopher J. Kondon and Saman M. Rejali with K&L Gates LLP.

—  Tammye Nash

Texas lesbian widow is plaintiff in Lambda Legal suit against Social Security Administration

Murphy and Barker

Kathy Murphy and Sara Barker

Lambda Legal filed a lawsuit today (Wednesday, Oct. 22) against the Social Security Administration on behalf of Kathy Murphy of Austin and the National Committee to Preserve Social Security and Medicare, claiming that the SSA’s decision to deny spousal benefits to Murphy after the death of her wife violates the U.S. Constitution. Following the U.S. Supreme Court’s decision last year in United States v. Windsor, in which the court struck down portions of the federal Defense of Marriage Act that denied federal recognition to legally married same-sex couples, Lambda Legal attorneys argue that “SSA cannot perpetuate the same kind of discrimination now and leave lesbian and gay spouses without the financial protections of social security as they age,” according to a press statement the organization released this afternoon.

Murphy, 62, and Sara Barker had been together 30 years when they were legally married in Massachusetts in 2010, although they lived in Texas, a non-marriage-equality state. Barker died of cancer in March, 2012 at age 62. But because they lived in Texas, which does not legally recognize their marriage, SSA has refused to legally recognize their marriage, denying Murphy the spousal survivor benefits Barker had earned during her lifetime of work.

Following the SCOTUS ruling in the Windsor case last year, President Obama ordered the U.S. Attorney General’s office to work with other federal agencies and officials to implement the Windsor decision. In implementing that decision, the Department of Justice and most federal agencies depended on the law where a couple’s marriage took place — the “place of celebration” to determine whether the marriage was legal, rather then place where they lived. Under that standard, Murphy’s and Barker’s marriage should be legally recognized by the federal government.

Murphy applied to the SSA for surviving spouse benefits last year after the Windsor decision. But in June of this year, with Murphy’s application for benefits still pending, the Department of Justice announced that the SSA and the Department of Veterans Affairs viewed themselves as being prohibited by statute from using the “place of celebration” rule for certain programs, including the surviving spouse benefits program.

“SSA should not be telling widowed lesbians and gay men already grieving the loss of a spouse, ‘You live in the wrong state so you don’t get Social Security spousal benefits,’” said Susan Sommer, director of constitutional litigation for Lambda Legal. Sommer noted that the SSA is “relying on discriminatory state marriage bans declared unconstitutional by an avalanche of courts around the country” in denying spousal benefits to gay and lesbian widows and widowers.

Murphy noted that she and Barker “were blessed with nearly 32 years together,” and that they had taken care of each other “in all the ways any committed couple does — physically, emotionally and financially.”

“Sara wouldn’t have wanted me to be in a position like this. We promised to support each other as a couple and if one of us should pass away,” Murphy said. “We worked hard to close all the gaps before she died and now the federal government won’t do its part.”

The National Committee to Preserve Social Security and Medicare is a Washington, D.C.-based advocacy organization dedicated to protecting Social Security for all generations and communities. Murphy is a member.

Max Richtman, the National Committee’s president and CEO, said, “There is no rational reason why a couple living in Texas or any other state should continue to face this type of discrimination, including the denial of Social Security spousal benefits they have earned through their working lifetimes. It’s past time to right this wrong.”

—  Tammye Nash

National news notes

Here are just a few items from around the U.S.:

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U.S. Rep. Kyrsten Sinema

Organization calls for release of trans woman raped in ICE custody

PHOENIX, Az. — Trans and queer undocumented immigrants from the Arcoiris Liberation Team and the Arizona Queer Undocumented Immigrant Project are demanding that Arizona Congresswoman Kyrsten Sinema and the LGBT Equality Caucus to join in calls for the release of a trans woman who was raped more than a month ago while in the custody of the U.S. Immigrations and Customs Enforcement agency.

Marichuy Leal Gamino, whose legal name is Jesus Leal Gamino, 23, has been housed with male inmates for more than a year in the Eloy Detention Center in Eloy, Az. She was allegedly raped by her cellmate in late July. According to the Transgender Law Center, she experienced weeks of “bullying, lewd comments, and threats of rape” from her cellmate, all of which she reported to detention officers, who told her to “deal with it.” After she was raped, she was not only pressured to admit that she consented to it, but she “has still been offered no real recourse or assurance that her safety will be protected,” TLC reports.

Activists with the Arcoiris Liberation Team, AZQUIP, the National Day Laborer Organizing Network and Familia: Trans Queer Liberation Movement say that after being raped, Leal Gamino was put in solitary confinement and denied basic hygiene, and that she has gotten death threats from the man accused of raping her.

Although born a Mexican citizen, Leal Gamino grew up in Arizona and has spent most of her life there.

 

Lambda Legal HIV Project director appointed to Presidential Advisory Council on HIV/AIDS

Scott Schoettes, director of Lambda Legal’s HIV Project, has been appointed to serve on the Presidential Advisory Council on HIV/AIDS. The 25-member council provides advice, information and recommendations to the secretary of Health and Human Services regarding programs and policies to promote effective prevention of HIV disease and to advance research on HIV disease and AIDS.

Schoettes was sworn in for a three-year term on Thursday, Sept. 4.

“I am honored to have been selected to serve in this capacity, and I look forward to working with other members of the council to promote sound federal policies with respect to HIV,” Schoettes said.

 

Lambda Legal files emergency papers seeking accurate death certificate for gay man’s husband

Attorneys with Lambda Legal on Wednesday, Sept. 3, filed emergency papers asking a U.S. District Court in Arizona to order the state to provide an accurate death certificate to Fred McQuire for his husband, George Martinez, who died Aug. 28.

Without an accurate death certificate naming McQuire as Martinez’s surviving husband, McQuire could face difficulties in handling his late husband’s affairs and in filing for the benefits generally available to a surviving spouse, Lambda Legal attorneys said.

McQuire, 69, and Martinez, 62, lived in Green Valley, and both were U.S. military veterans. Martinez served in the U.S. Air Force in Vietnam, and McQuire served in both the Air Force and the Army, and was stationed in Guam. After leaving the military, Martinez joined the staff of Arizona’s Court of Appeals in Tucson, becoming the court’s first deputy clerk, holding that office for 30 years.

The two men first met in 1969 and were a couple for 45 years. In recent years, both men battled life-threatening illnesses. McQuire has pulmonary disease and Parkinson’s. Martinez was diagnosed three years ago with prostate cancer, a result of having been exposed to Agent Orange while he was in Vietnam. Although the prostate cancer was in remission, in June he was diagnosed with terminal pancreatic cancer.

—  Tammye Nash