Second Parent Adoption | Maine

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Can same-sex partners together adopt a child in Maine?

Yes, as the result of an appeal that GLAD made to the Maine Law Court concerning the refusal of a Maine Probate Court to assume jurisdiction of the joint adoption petition by a lesbian couple (In re Adoption of M.A.,—- A.2d——, 2007 WL 2446019 (Me. 2007)). In August 2007, the Maine Law Court ruled that the Probate Court did have jurisdiction and that state law allows for unmarried couples to adopt. This ruling makes it clear that joint or second parent adoptions by unmarried couples are permitted under Maine law. For more specific information on the process, see GLAD’s publication, Joint Adoption Practice and Procedure in Light of Adoption of M.A.: Second Parent Adoption.

What is the difference between joint, second-parent, and single-parent adoptions?

A joint adoption is when both partners adopt a child together at the same time. A second-parent adoption is when one partner adopts the other partner’s child. A single-parent adoption is where a single individual adopts a child.

What is the advantage of doing a second parent or joint adoption?

An adoption is a court judgment that the child has two legal parents for all purposes. In addition to providing legal security, an adoption decree mirrors the actual family situation and thereby provides emotional comfort and security as well.

Without an adoption, the non-legal parent needs special permission to seek medical care for the child, or to attend school meetings. With an adoption, the adopting parent is a legal parent entitled to make decisions for the child in day-to-day and emergency matters without special authorization.

With an adoption, if one parent dies, the other parent will automatically assume custody of the child. In addition, the child would have the automatic right to inherit from the deceased parent, even if there is no will. The child could also collect social security survivor benefits based on the deceased parent’s work record.

Finally, if the couple separates, then the adoption means that both parents have the right to seek parental rights and responsibilities, and any disputes will be decided based on what is in the best interests of the child.

Do we need to do a second-parent adoption if we are married?

When a child is born into a marriage, Maine law and the law of all states presumes that both spouses are the parents of the child and both names are listed on the child’s birth certificate. However, this is only a presumption and can be challenged in court, so in the past GLAD recommended that married couples do a second parent adoption to ensure the parentage of the non-biological parent because adoption is a court judgment creating a parent-child relationship and must be respected by other states.

Now Maine couples have a second way to protect the parentage of the non-biological partner by signing an Acknowledgement of Parentage.

If I am a parent who has signed an Acknowledgement of Parentage, do I also need to do a second parent adoption?

No. A parent who has signed an Acknowledgement of Parentage should not need to do a second parent adoption to establish parentage. An Acknowledgement of Parentage establishes legal parentage under state law, is the equivalent of a court judgment of parentage under state law and gives you all the rights and duties of a parent. Under federal law, an Acknowledgement of Parentage is the equivalent of a judicial decree of parentage and should be recognized in all states.

Since expanded access to Acknowledgements of parentage is an emerging development, some parents might feel more comfortable completing a second parent adoption in addition to or instead of an Acknowledgement of Parentage. To understand what is best for your family, individualized legal advice is recommended.

Short of joint adoption or second parent adoption, how can a family protect the interests of the child vis-à-vis his or her second parent?

There are a number of steps that can be taken, although none offer the security of a second parent adoption or marriage. Among these are:

Co-parenting agreement: An agreement setting out the parents’ expectations about each other’s roles, and their plans in the event of separation, disability or death. While these agreements may not be enforceable as a contract, they are important indicators of what the couple’s intent was when they formed their family and what they believed was in the best interests of the child, and thus may be influential on a court’s assessment of who the parents are and their respective parental rights and responsibilities.
Wills: The legal parent may nominate a guardian of the child upon the parent’s death. These “testamentary appointments” are given strong and respectful consideration by courts. Of course, if the child has another legal parent living, then that person would have priority over the nominated guardian (see 18-A Me. Rev. Stat. sec. 5-301 et seq).
Co-guardianship: This process allows a biological or adoptive parent to name his or her partner as a co-guardian so that the partner may secure medical attention and health insurance for the child and in most other ways act with the legal authority of a parent. The Probate Court may appoint the legal parent and his or her partner as co-guardians if the legal parent consents to the appointment and the court finds the appointment to be in the best interests of the child (see 18-A Me. Rev. Stat. sec. 5-204(b). GLAD’s case, In re Guardianship of I.H., 834 A.2d 922 (Me. 2003), clarified the law in this area. See also https://www.gladlaw.org/current/pr-detail/maine-high-court-affirms-lesbian-couples-right-to-petition-for-full-coguard/). This status is not permanent, and may be terminated by the court upon a legal petition if the guardianship is no longer in the best interests of the child. Additionally, co-guardianship status ceases to be recognized once the child reaches the age of eighteen (A Me. Rev. Stat. sec. 5-212(d). In addition, a court can order a “de facto” guardianship even if the parents do not consent where the child has lived with another person and the parents have consistently not participated in the child’s life. 18-A Me. Rev. Stat. sec. 5-101).
Power of Attorney Delegating Parent’s Rights: This document is signed by the parent and delegates to another adult all powers regarding that parent’s child, except the power to consent to the child’s adoption. It must be notarized, and it must be renewed every six months.

If same-sex parents raise a child together, but only one is the “legal” parent (because of birth or adoption), then what rights does the other parent have vis-à-vis the child?

This area of law is rapidly evolving in Maine. If the non-birth or non-adoptive parent is a “de facto parent,” then he or she is entitled to be considered for an award of full parental rights and responsibilities, which may include custody or visitation (see C.E.W. v. D.E.W., 845 A.2d 1146 (Me. 2004)). Although the Maine Law Court has not clearly defined who qualifies as a de facto parent, that Court has stated:

the de facto parent must have developed a parent-child relationship with the child;
the legal parent must have consented to and encouraged the development of this relationship;
the de facto parent must have performed a share of the care-taking functions at least a great as the legal parent (see Stitham v. Henderson, 768 A.2d 598, 605-06 (Me. 2001) (Saufley, J., concurring) (quoting E.N.O. v. L.M.M., 711 N.E.2d 886, 891 (Mass. 1999)).

The Law Court added that a de facto parent “must surely be limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed and responsible parental role in the child’s life” (see C.E.W. v. D.E.W., 845 A.2d 1146 (Me. 2004)). This area of law needs further clarification. For example, even though the Law Court has not required this, many judges and practitioners have imported a two year term of the child and de facto parent living together.

Regardless of the status of a person’s legal rights, it is critical to remember that children form strong attachments to their parental caregivers regardless of legal labels. Separating a child from a person who has acted as his or her parent can be a devastating loss for a child. Moreover, court proceedings to establish de facto parenthood will be painful and costly, so anything people can do outside of court to make decisions together about a child’s interests is strongly encouraged. See GLAD’s publication, Protecting Families: Standards for LGBT Families.

Intimate Partner Violence | Maine

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What is domestic violence?

Domestic violence may take many forms. Generally, domestic violence is a pattern of coercive behavior in which one person attempts to control another through threats or actual use of tactics, which may include any or all of the following: physical, sexual, verbal and psychological abuse.

Under the law, “abuse” means that any of the following have occurred between people who are “family, household members or dating partners”:

Attempting to cause or causing bodily injury or offensive physical contact;
Attempting to place or placing another in fear of bodily injury through any course of conduct, including, but not limited to, threatening, harassing or tormenting behavior;
Compelling, by force, threat of force, or intimidation, a person to engage in conduct, such as causing another to engage involuntarily in sexual relations by force, or to abstain from conduct in which they have a right to engage;
Restricting another person’s movement, by knowingly removing them from home, work or school, or moving them a substantial distance from where they were found, or confining the person;
Placing a person in reasonable fear that a crime will be committed by threatening them or another person that they will be committing a crime of violence against the person; or
Repeatedly and without reasonable cause following a person or being in the vicinity of their work, school or home (19-A Me. Rev. Stat. sec. 4002(1)).

Do the domestic violence laws apply to people in same-sex relationships?

Generally yes. The definition of “family, household members and dating partners” includes married couples, domestic partners or former domestic partners, people who are or have “liv[ed] together as spouses”, people who are sexual partners or are living together (or did so previously), as well as individuals currently or formerly dating each other, whether or not the individuals are or were sexual partners (19-A Me. Rev. Stat. sec 4002). The law applies equally to all people, but the application depends upon the nature of the relationship of the people involved.

How do I get a court order protecting me from an abusive partner?

To get protection, go to the District Court in the community where you live or where the abuser lives. The court clerk will have a packet of information for you to complete. There is no fee, and there is a means of keeping your address confidential from the public. You will have to allege abuse as defined above, and indicate where you think the abuser/defendant can be found so that he or she can be served with (given a copy of) the court papers. If the courts are closed, contact your local police who will locate a judge to help. On this basis, you may receive a temporary order of protection good for up to 21 days. In order for those orders to be enforceable, the police must serve a copy on the defendant/abuser, and a defendant cannot be arrested for violating orders if he or she has not been given a copy of them. The orders can restrain the defendant from coming near you or your children, keep the defendant away from your home, and/or place of employment or contacting you at all, and determine child custody issues on a short-term basis.

Violation of a protection order is a criminal offense (see generally 19-A Me. Rev. Stat. sec. 4001 et seq).

The temporary orders will indicate the date set for the court hearing at which you can try to extend your court orders. At this point, the defendant will tell his or her side of the story as well, and you can be called upon to answer questions. At this stage, both parties often have attorneys. If the Court determines the defendant has made a credible threat to the physical safety of you or a child in your household, the relief may be extended for up to two years.

If for some reason you decide not to go through with the order, it is important to show up in court on your assigned date and ask that the case be dismissed.

In addition, Maine’s harassment law described below may be useful for people who are experiencing harassment from a partner of the same sex. An order preventing harassment can be taken out against anyone (5 Me. Rev. Stat. sec. 4651. See also http://www.courts.state.me.us/publications_other/pa_ph-1207.pdf).

Where can I go to get help?

In Maine, local domestic violence projects across the state provide direct services to victims of domestic violence. The Maine Coalition to End Domestic Violence (MCEDV) is a coalition of the nine domestic violence projects in the state. There is a statewide domestic violence helpline at 866-834-HELP (4357). This number will direct victims to support centers in their county. These support centers also provide court advocacy. MCEDV maintains information for same-sex partners on their website at http://www.mcedv.org.

In addition to the local police, there are several other hotlines and on-line resources:

Sexual Assault Support Hotline, (800) 871-7741 (statewide, 24-hours), a complete listing of local member sexual assault centers can be found at http://www.mecasa.org/;
Office of the Maine Attorney General, 207-626-8800, http://www.maine.gov/ag/.

Does domestic violence play a role in parental rights and responsibilities decisions?

Yes. It is a factor the court must consider in allocating parental rights and responsibilities, and courts may provide conditions upon an abuser seeing his or her children (see generally 19-A Me. Rev. Stat. sec. 1653 (6)).

Marriage | Maine

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Can same-sex couples marry in Maine?

Yes! On November 6, 2012, Maine became the first state to obtain marriage rights for same-sex couples through an initiative process rather than a court case or vote by a legislature. Maine Question 1, An Act to Allow Marriage Licenses For Same-Sex Couples and Protect Religious Freedom,⁵⁰ was approved by the voters of Maine 53 to 47 percent.

Three years later, in Obergefell v. Hodges (135 S.Ct. 2584 (2015)), the U.S. Supreme Court made marriage equality a reality nationwide when it held that the U.S. Constitution guarantees same-sex couples the right to marry. GLAD’s own Mary Bonauto represented the plaintiffs during oral arguments. Post-Obergefell, all 50 states are required to issue marriage licenses to same-sex couples, and all states must respect the marriages of same-sex couples performed in other jurisdictions.

Can Maine same-sex couples get married anywhere else?

Yes. Thanks to Obergefell v. Hodges, all states are required to issue marriage licenses to same-sex couples.

Will Maine respect my marriage? Will other states?

Yes. Maine will respect the legal marriages of same-sex couples regardless of where the marriage was performed, just as all states will now respect the marriage of a same-sex couple married in Maine.

Will the federal government respect my marriage?

Yes. Thanks to the recent demise of the Defense of Marriage Act (DOMA) in Windsor v. United States (133. S.Ct. 2675 (2013)), the federal government will recognize and respect the legal marriages of same-sex couples.

DOMA, a federal statute which defined marriage exclusively as the union between one man and one woman, once prevented same-sex spouses from accessing the 1000+ federal laws pertaining to marriage, including taxes, Social Security (including SSDI and SSI), immigration, bankruptcy, FMLA, federal student financial aid, Medicaid, Medicare, veteran’s benefits, and TANF. Happily, in 2013 the U.S. Supreme Court struck down DOMA as unconstitutional. GLAD filed the first challenge to DOMA in 2009, Gill v. OPM (699 F.Supp.2d 374 (2010)), and the legal framework developed in that case was used in many subsequent cases, Windsor included. GLAD was also responsible for coordinating the Windsor amici briefs.

Unfortunately, one issue that has yet to be definitively resolved by Windsor and Obergefell concerns spousal benefits and self-insured health plans. While Massachusetts state law prohibits discrimination based on sexual orientation, self-insured health plans are governed by federal law. Title VII, the federal anti-discrimination statute, only prohibits discrimination based on race, color, religion, sex, or national origin—sexual orientation is not explicitly included. As a result, some self-insured employers claim they can legally deny benefits to same-sex spouses.

Luckily, this issue is far from settled. Recently, the U.S. Equal Employment Opportunity Commission (“EEOC”) took the position that Title VII’s prohibition against ‘sex discrimination’ encompasses discrimination based on sexual orientation (see Baldwin v. Foxx, Agency No. 2012-24738-FAA-3 (July 15, 2015)).

If your employer is discriminating against you in spousal healthcare benefits on the basis of sexual orientation, contact GLAD Answers.

Can I obtain Social Security survivor benefits if my spouse dies?

Yes, because as stated above, same-sex married couples are entitled to all the benefits provided to different-sex married couples.

However, until the Obergefell v. Hodges decision on June 26, 2015, many same-sex couples lived in states where unconstitutional marriage laws prevented same-sex couples from getting married. So when their spouse passed away, they were not able to meet the Social Security survivor benefit condition of having been married for 9 months.

To correct this unfairness, Lambda Legal filed two lawsuits, Ely v. Saul and Thornton v. Commissioner of Social Security and was successful in obtaining a way for same-sex couples to file for Social Security survivor benefits who either never married (Ely v. Saul) or were finally able to marry but were married less than 9 months when their spouse passed away (Thornton v. Commissioner of Social Security).

These two rulings allow same-sex couples, who were excluded from marriage because of discriminatory state laws and consequently were not eligible to apply for Social Security survivor benefits, to submit an application. However, the success of that application rests on providing enough documentation to prove to Social Security that the only reason they did not meet the 9 month requirement was because of the discriminatory state laws.

The following link gives more detailed information and has FAQs for each lawsuit and lists some of the ways you might be able to provide the documentation needed to qualify for the survivor benefit: Information for Surviving Same-Sex Partners and Spouses Previously Excluded from Social Security Survivor’s Benefits Because of Unconstitutional State Marriage Laws | Lambda Legal.

What steps can a couple take to safeguard their relationship in Maine?

Whether the couple is married or in a Maine registered domestic partnership or does not have an legal relationship, they can protect their relationship through the following:

Relationship Agreement or Contract: Agreements regarding property and finances should be respected and honored according to ordinary rules of contract law. The Maine Law Court has not yet specifically ruled on the subject, but that result comports with Maine contract law and the law of other states that have found such agreements to be enforceable.
Durable Power of Attorney: Any competent person may appoint another person as their “attorney-in-fact” for financial and/or other matters in the event they become incapacitated or disabled. If no such appointment is made, then a “family” member will be empowered to make decisions for the disabled or incapacitated individual.

A person may also nominate their guardian or conservator in the same document. This is a longer-term appointment that takes priority over the attorney-in-fact. This choice can only be rejected by a court for “good cause or disqualification.” The mere fact that a family member is not named as the guardian or conservator does not constitute good cause.

Durable Power of Attorney for Health Care: Medical care providers often look to next-of-kin to make health care decisions for an incapacitated individual. If an unmarried person wants someone other than their legal family to make these decisions, then a durable power of attorney for health care is a critical source of protection. In Maine, a person can appoint a health care agent to make decisions for him or her immediately, or upon incompetence. It must be signed by two witnesses (not including the person appointed as attorney-in-fact). It can only be revoked while they are still competent. Otherwise, it must be revoked in court.

While a written Durable Power of Attorney provides the most certainty that a person will be cared for by the person they want to make those decisions, Maine law also has a procedure by which “an adult who shares an emotional, physical and financial relationship with the patient similar to that of a spouse” can make health care decisions for an incapacitated person.

This provision might be cumbersome to enforce but provides a way for a partner to be involved in their incapacitated partner’s health care decisions absent documentation.

Within this Durable Power of Attorney for Health Care, or in a separate document called an “Advance Directive,” a person may address end of life issues like artificial nutrition and other life-sustaining treatments. The Attorney General’s Office has a model advance directive posted on their website, Advance Health-Care Directive Form | Maine.gov .

While a written Advance Directive provides the most certainty that a person’s wishes will be followed, Maine law also allows a procedure for a person to make end of life decisions for another if they can prove they are family members. Spouses are given first priority, followed by “an adult who shares an emotional, physical and financial relationship with the patient similar to that of a spouse. ”This provision might be cumbersome to enforce but provides a way for a partner to be involved in their partner’s end of life decision.

Will: Without a will and without having registered as a domestic partner, a deceased unmarried person’s property passes to: (1) their children; (2) their family; (3) if next-of-kin cannot be located, to the state. If the person wishes to provide for others, such as their partner, a will is essential. Even if a person has few possessions, they can name in the will who will administer their estate. If a person has children, they can nominate a guardian of the child which will become effective upon death. Such nominations are highly regarded by courts although they are not binding on the court.
Funeral Planning Documents: Upon death, a person’s next-of-kin is given control of the deceased’s body. This means that a person’s own partner has no automatic right to remove the body or make plans for a final resting place.

If a person has either (1) registered as a domestic partner under the state law; and/or (2) designated in writing that another person is to have custody and control of their remains (such as their partner or a friend), then that person will have control over the body as well as funeral arrangements and the selection of a final resting place.81 It is infinitely preferable to prepare funeral planning documents in advance than to leave instructions as part of a will since a will may not be found for days after death.

Does a person need an attorney to get these documents?

GLAD recommends working with an attorney on these documents.

Although some forms are available, the form may not be suited to your individual needs and wishes and may not conform to the specific requirements of Maine law, which would render them invalid and unenforceable.

Moreover, attorneys may be able to help effectuate your goals, for example, by drafting a will in a way which is more likely to deter a will contest by unhappy family members. In addition, many people find attorney assistance critical because same-sex couples are afforded different tax treatment from married heterosexual couples. Failure to consider tax consequences can lead to enormous difficulties upon death or separation.

What happens if we need to end our marriage?

After Obergefell v. Hodges, same-sex spouses everywhere should be able to dissolve their marriages on the same terms as different-sex spouses.

What standards should same-sex couples with children who are breaking up maintain?

Same-sex couples with children who are breaking up should:

Support the rights of LGBTQ+ parents;
Honor existing relationships regardless of legal labels;
Honor the children’s existing parental relationships after the break-up;
Maintain continuity for the children;
Seek a voluntary resolution;
Remember that breaking up is hard to do;
Investigate allegations of abuse;
Not allow the absence of agreements or legal relationships to determine outcomes;
Treat litigation as a last resort; and
Refuse to resort to homophobic/transphobic laws and sentiments to achieve a desired result.

For more detailed information about these standards see the publication Protecting Families: Standards for LGBTQ+ Families at: Protecting Families: Standards for LGBTQ+ Families | GLAD.

Navigating Police Interactions | Maine

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Is it legal for the police to tell me to “move along” from public areas?

Not necessarily. If the area is public and not posted as having particular hours, you generally have a right to be there as long as you are engaged in lawful activity. Public places belong to everyone. Even if police officers want to deter crime, or suspect some kind of unlawful intent, they have no general right to request people to move from one place to another unless there is unlawful conduct (Kent v. Dulles, 357 U.S. 116, 126 (1958); State v. Aucoin, 278 A.2d 395, 397 (Me. 1971)(striking down former version of Portland’s loitering ordinance)).

What are the general rules about interaction with police?

The presence of individuals who appear to be gay, lesbian, bisexual or transgender—whether because such individuals are displaying symbols such as a rainbow flag or pink triangle or for any other reason—should not trigger any special scrutiny by a police officer, other than a concern for the safety and well-being of those persons that the officer would have for any other park or rest area patron.

Police may of course approach a person, and make inquiries, but even if a person has been convicted of a past offense, or fails to respond, or responds in a way which does not satisfy the officer, that alone is not grounds for the person to be arrested.

Brief intrusions upon a person are permitted if an officer can say why he or she is concerned and that concern is reasonable. For example, if an officer is concerned about someone’s safety, or suspects the person may have committed a crime, or suspects the person has committed a traffic infraction, then a stop is reasonable (State v. Gulick, 759 A.2d 1085 (Me. 2007), *2; State v. Connors, 734 A.2d 195 (Me. 1999)(investigatory stop justified when officer has articulable suspicion of civil violation or criminal activity and such suspicion is objectively reasonable in the totality of circumstances)).

An arrest can only occur upon “probable cause” that a crime has been committed (State v. Boylan, 665 A.2d 1016 (Me. 1995)(probable cause to arrest where officer has reasonably trustworthy information that would warrant an ordinarily prudent and cautious officer to believe the subject did commit or was committing a crime). See also Terry v. Ohio, 392 U.S. 1, 16 (1968)).

What can I do if I believe I have been improperly treated by the police?

Complaints may be made to any individual police department for matters concerning its officers, and complaints to the Maine State Police may be made to the commanding officer of the alleged harasser. The contact person is the Director of Internal Affairs at (207) 624-7290. The State Police have a toll-free number at (800) 452-4664. The complaint should specify the name or badge number of the officer, and state whether the complaint is for actual misconduct, harassment or discrimination.

In some cases, an individual may decide to pursue a lawsuit—because of injuries, improper detainment, or for some other reason. These matters are highly specialized, and GLAD can provide you with attorney referrals. People can also register serious complaints with the Attorney General’s Office, Investigations Unit at (207) 626-8800.

Other HIV Laws | Maine

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Other questions and answers on HIV-Related Laws. Also see our pages on HIV/AIDS Discrimination and Testing and Privacy.

What does it mean that an employer may have to provide a “reasonable accommodation” for an employee with a disability?

Persons with disabilities, such as HIV/AIDS, may experience health-related problems that make it difficult to meet some job requirements or duties. For example, a person may be exhausted or fatigued and find it difficult to work a full-time schedule.

In certain circumstances, the employer has an obligation to modify or adjust job requirements or workplace policies in order to enable a person with a disability, such as HIV or AIDS, to perform the job duties. This is known as a “reasonable accommodation.”

Examples of reasonable accommodations include:

Modifying or changing job tasks or responsibilities;
Establishing a part-time or modified work schedule;
Permitting time off during regular work hours for medical appointments;
Reassigning an employee to a vacant job; or
Making modifications to the physical layout of a job site or acquiring devices such as a telephone amplifier to allow, for example, a person with a hearing impairment to do the job.

How can a person get a reasonable accommodation?

It is, with rare exception, the employee’s responsibility to initiate the request for an accommodation. In addition, an employer may request that an employee provide some information about the nature of the disability. Employees with concerns about disclosing HIV/AIDS status to a supervisor should contact GLAD Answers.

There is no fixed set of accommodations that an employee may request. The nature of a requested accommodation will depend on the particular needs of an individual employee’s circumstances.

Does an employer have to grant a request for a reasonable accommodation?

No, an employer is not obligated to grant each and every request for an accommodation. An employer does not have to grant a reasonable accommodation that will create an “undue burden” (i.e., significant difficulty or expense for the employer’s operation). In addition, the employer does not have to provide a reasonable accommodation if the employee cannot perform the job function even with the reasonable accommodation.

When is a “reasonable accommodation” for an employee an “undue burden” for an employer?

In determining whether a requested accommodation creates an undue burden or hardship for an employer, courts examine a number of factors, which include:

The employer’s size, budget and financial constraints;
The costs of implementing the requested accommodation; and
How the accommodation affects or disrupts the employer’s business.

Again, each situation is examined on a case-by-case basis.

An employer only has an obligation to grant the reasonable accommodation if, as a result of the accommodation, the employee is then qualified to perform the essential job duties. An employer does not have to hire or retain an employee who cannot perform the essential functions of the job, even with a reasonable accommodation.

Can a physician in Maine require an HIV test as a prerequisite for treatment?

No, a health care provider may not deny treatment or care based on the refusal to consent to HIV testing.

What are Maine laws regarding the purchase and possession of needles?

Under Maine law, a person who is 18 years of age or older may purchase a “hypodermic apparatus,” such as a hypodermic syringe and needle, from a pharmacist and other authorized sellers.

An individual, however, may not lawfully purchase or possess more than ten “hypodermic apparatuses” at any one time, unless otherwise authorized by law (such as a physician acting within the scope of employment).

Does Maine allow needle exchange programs?

Yes. Maine law authorizes the Maine Center for Disease Control and Prevention to certify needle exchange programs. There is no limit on the number of hypodermic needles participants in these programs may possess.

Does Maine allow access to PrEP and PEP without a prescription?

Yes, in June 18, 2021, Governor Janet Mills signed LD 1115, An Act to Improve Access to HIV Prevention Medications, which expands access to a simple, safe, and effective medication known as HIV pre-exposure Prophylaxis (PrEP) that reduces the risk of HIV transmission by close to 100%. The new law authorizes pharmacists to dispense PrEP, as well as HIV Post- exposure Prophylaxis (PEP), without a prescription on a short-term basis.

For more information, see: Maine Becomes a Leader in Pharmacy Access to Effective HIV Prevention Drug – GLAD

Does Maine have a law that prohibits insurance companies from discriminating against some who is taking PrEP?

Yes, in 2019 the Maine Insurance Code was amended to prohibit discrimination under a life, disability income or long-term care insurance policy due to the fact that the individual has been prescribed preexposure prophylaxis medication to prevent HIV infection. For more information, see Title 24-A, §2159: Unfair discrimination — life insurance, annuities and health insurance.

Housing | Discrimination | Maine

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Does Maine have an anti-discrimination law protecting LGBT individuals from discrimination in housing?

Yes. On November 8, 2005, Maine voters agreed to keep in place a law, LD 1196, “An Act to Extend Civil Rights Protections to All People Regardless of Sexual Orientation”, passed by the Legislature and signed by the Governor in the spring of 2005. The law went into effect December 28, 2005.

This marks the end of a long struggle in Maine to achieve legal protections for LGBT people. In November 1995, Maine voters rejected an attempt to limit the protected classes to those already included within the non-discrimination law. In May 1997, Maine approved an anti-discrimination law based on sexual orientation, but this law was repealed in a special election in February 1998. Then in November 2000, by the smallest of margins, Maine voters failed to ratify a second anti-discrimination law that had been approved by the legislature.

The law provides protection against discrimination based on sexual orientation which is defined as “… a person’s actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression” (5 Me. Rev. Stat. sec. 4553 (9-C)).

Does it also protect people perceived of as LGBT in housing?

Yes. The non-discrimination law specifically covers people who are perceived to be lesbian, gay, bisexual or transgender.

What is prohibited by the housing anti-discrimination law in Maine?

The fair housing laws apply to any person with the right to sell, rent, lease or manage residential housing. It covers any transaction related to housing—including advertising, inquiring, showing, selling, renting, leasing, pricing, evicting, misrepresenting availability or asking price, or failing to communicate an offer (5 Me. Rev. Stat. sec. 4582. See also “Panel backs 2 men in housing complaint,” Bangor Daily News, Sept. 18, 2007 (discusses first case where the Maine Human Rights Commission “found reasonable grounds to a housing discrimination claim based on sexual orientation”))

The law declares that every individual has a basic civil right to secure decent housing in accordance with the individual’s right to pay and without discrimination because of sexual orientation (5 Me. Rev. Stat. sec. 4581).

Those who finance housing — whether financing for the acquisition, construction, rehabilitation, repair or maintenance of residential housing — are barred from discriminating.

Are any landlords exempt from the housing anti-discrimination law?

The following landlords are exempt from the law:

an owner-occupied 2-family dwelling;
an owner-occupied single family dwelling that rents not more than 4 rooms; and
a dwelling owned, controlled, or operated for other than a commercial purpose by a religious corporation that rents to its membership (5 Me. Rev. Stat. sec. 4553 (6)).

How do I file a complaint of discrimination? What happens after I file?

You should contact the Maine Human Rights Commission (MHRC) at (207) 624-6050, or at State House Station #51, Augusta, ME 04333-0051, or on the web at http://www.state.me.us/mhrc/index.shtml. The Commission prefers for people to file complaints in writing. For an overview of this process refer to the MHRC regulations, available at http://www.maine.gov/mhrc/laws/index.html.

The complaint must be under oath, state the name and address of the individual making the complaint as well as the entity he or she is complaining against (called the “respondent”). The complaint must set out the particulars of the alleged unlawful acts and the times they occurred (5 Me. Rev. Stat. sec. 4611).

Once a complaint is timely filed, a Commissioner or investigator will seek to resolve the matter. If he or she cannot do so, the Commission will proceed with an investigation to determine if there are reasonable grounds to believe that unlawful discrimination has occurred. The Commission has extensive powers during the course of the investigation. Among other things, it can examine persons, places and documents, and require attendance at a factfinding hearing, and issue subpoenas for persons or documents.

If the Commissioner or investigator concludes:

there are no reasonable grounds, it will dismiss the case, and the complainant may file a new case in the Superior Court (See generally 5 Me. Rev. Stat. sec. 4612);
there are reasonable grounds, it will try to resolve the matter through settlement (5 Me. Rev. Stat. sec. 4612).

Once the Commission process is complete, and if settlement has failed, a person can file an action for relief in court. A person may also request a “right to sue” letter from the MHRC if there has been no court action filed and no conciliation agreement in place within 180 days of filing the complaint (5 Me. Rev. Stat. sec. 4612 (6)). The person may then file an action in the Superior Court (5 Me. Rev. Stat. sec. 4621). In some situations, the Commission may file an action in court on your behalf (See generally 5 Me. Rev. Stat. sec. 4612).

Do I need a lawyer?

Not necessarily. The process is designed to allow people to represent themselves. However, GLAD strongly encourages people to find a lawyer to represent them throughout the process. Not only are there many legal rules governing the MHRC process, but employers and other respondents will almost certainly have legal representation. Please call the GLAD Answers for help or for an attorney referral.

What are the deadlines for filing a complaint of discrimination?

A complaint must be filed with the MHRC within 300 days of the discriminatory act or acts (5 Me. Rev. Stat. sec. 4611). There are virtually no exceptions for lateness, and GLAD encourages people to move promptly in filing claims. Actions filed in Superior Court must generally be filed “not more than 2 years after the act of unlawful discrimination complained of” (5 Me. Rev. Stat. sec. 4613(2)(C)).

What are the legal remedies for discrimination?

This is a complicated area and depends on a variety of factors, including the type of discrimination and its intersection with federal laws.

As a general matter, the MHRC tries to resolve cases in which reasonable cause is found. It is not empowered to award emotional distress damages or attorney’s fees, but the parties may agree to whatever terms are mutually satisfactory for resolving the issue (94-348 Rules of Maine Human Rights Com’n secs. 2.07, 2.08. 2.09. Available at http://www.maine.gov/mhrc/laws/index.html).

As a general matter, if a person has filed with the MHRC, completed the process there, and later files his or her case in court, then a full range of compensatory and injunctive relief is available (5 Me. Rev. Stat. secs. 4613, 4614). If a discrimination complainant takes his or her case to court without first filing at the MHRC, then only injunctive relief is available in court, such as a cease and desist order, or an order to do training or post notices (5 Me. Rev. Stat. sec. 4622).

The relief ordered by a court may include: (a) hiring, reinstatement and back pay in employment cases; (b) an order to rent or sell a specified housing accommodation (or one that is substantially identical), along with damages of up to three times any excessive price demanded, and civil penal damages, to the victim in housing cases; and (c) in all cases, where the individual has exhausted the MHRC process, an order for attorney’s fees, civil penal damages, cease and desist orders, and other relief that would fulfill the purposes of the anti-discrimination laws (e.g. training programs, posting of notices).

Can I claim discrimination on a basis other than sexual orientation?

Yes, but only if you are treated differently because of a personal characteristic protected by Maine law.

In housing, the protected characteristics for public accommodations apply plus familial status (5 Me. Rev. Stat. sec. 4582).

Can I also file a complaint a discrimination complaint with a federal agency?

Yes, in many cases. Federal employment non-discrimination law, called Title VII, applies only to employers with at least 15 employees, and complaints must be filed within 180 days of the discriminatory act with the Equal Employment Opportunity Commission (EEOC). But if you initially institute your complaint with MHRC and indicate that you wish to have the complaint cross-filed with the EEOC, then the time limit is extended to the earlier of 300 days or 30 days after MHRC has terminated the case (United States Code 42 sec. 2000e-5(e)(1)). (People who work for federal agencies are beyond the scope of this publication.)

Someone who brings a claim of discrimination may sometimes pursue protections under both state and federal law. This is true because there may be overlapping provisions of state and federal law. For example, Title VII forbids employment discrimination based on race, sex, age, religion and disability (which includes HIV status), but does not expressly forbid discrimination based on “sexual orientation” or “gender identity.”

Because a growing number of courts and government agencies have recognized that the root of sexual orientation and gender identity discrimination is sex discrimination, the federal EEOC has recently indicated that it will accept both “gender identity” and “sexual orientation” discrimination complaints in order to investigate whether the complainant may have experienced prohibited “sex” discrimination. For more information go to: http://www.eeoc.gov/eeoc/publications/upload/GenderStereotyping-LGBT-brochure-OLC.pdf.

GLAD recommends that, where there may be overlapping state and federal jurisdiction, you explore filing with MHRC first but keep in mind the possibility of pursuing a federal claim as well. If you have a sexual orientation or gender identity complaint, you should check off “sex” as well as “sexual orientation” or “gender identity” as the bases for your claim and request that MHRC cross-file your complaint with the EEOC.

LGBT people who are discriminated against in housing may also be able to file a complaint with the federal Department of Housing and Urban Development (HUD) in addition to MHRC. For more information go to: http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equ al_opp/LGBT_Housing_Discrimination.

Are there other options for filing a complaint for discrimination?

Possibly yes, depending on the facts of your particular situation.

State or Federal Court: After filing with the MHRC or EEOC, a person may decide to remove his or her discrimination case from those agencies and file in court. There are rules about when and how this must be done.

In addition, a person may file a court case to address other claims that are not appropriately handled by discrimination agencies. For example:

If a person has a claim for a violation of constitutional rights, such as a teacher or other governmental employee who believes his or her free speech or equal protection rights were violated, then those matters must be heard in court.

What can I do to prepare myself before filing a complaint of discrimination?

In evaluating your potential claims, you have the right to request a complete copy of your personnel file at any time (5 Me. Rev. Stat. sec. 7071 (Employee right to request personnel file)). Personnel files are the official record of your employment and are an invaluable source of information (5 Me. Rev. Stat. sec. 7070 (Definition of personnel record)).

Whether you leave a job voluntarily or not, be cautious about signing any documents admitting to wrongdoing, or that waive your legal rights, or that are a supposed summary of what you said in an exit interview. Sometimes employees are upset or scared at the time they are terminating employment, but the documents will likely be enforceable against you later. Please be cautious.

As a general matter, people who are still working under discriminatory conditions have to evaluate how filing a case will affect their job or housing, and if they are willing to assume those possible consequences. Of course, even if a person has been fired, he or she may decide it is not worth it to pursue a discrimination claim. This is an individual choice which should be made after gathering enough information and advice to make an informed decision.

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful if you bring to your attorney an outline or diary of what happened on the job that you are complaining about. It is best if the information is organized by date and explains who the various players are (and how to get in touch with them), as well as what happened, who said what, and who was present for any important conversations or incidents. If you are concerned about a housing matter, bring a copy of your lease, along with any notices and letters you have received from your landlord.

Discriminatory Treatment | Maine

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Does Maine have an anti-discrimination law protecting LGBT individuals from discrimination?

Does it also protect people perceived of as LGBT?

Yes. The non-discrimination law specifically covers people who are perceived to be lesbian, gay, bisexual or transgender.

Is it legal for the police to tell me to “move along” from public areas?

What are the general rules about interaction with police?

What can I do if I believe I have been improperly treated by the police?

Domestic Partnerships & Civil Unions | Maine

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Can same-sex couples marry in Maine?

What is domestic partnership?

Domestic Partnership is a term used in many contexts. In Maine, there is a state sanctioned domestic partner registry. In addition, some Maine employers offer “domestic partnership” benefits of their own to unmarried couples.

What is the Maine Domestic Partnership Registry?

In 2004, the Maine legislature approved and former Governor John Baldacci signed a domestic partnership law titled “An Act to Promote the Financial Security of Maine’s Families and Children.” This law creates a domestic partnership registry in Maine and affords certain rights to registered domestic partners in the event of a partner’s death or incapacity. It defines “domestic partners” as “2 unmarried adults who are domiciled together under long-term arrangements that evidence a commitment to remain responsible indefinitely for each other’s welfare.” The specific requirements for registration are set out below.

What protections do I obtain by registering as a domestic partner under the state law?

Inheritance Rights: In the absence of a will, registered domestic partners in Maine are given the same inheritance rights as a legally recognized spouse (although unequal tax burdens remain).
Legal Priority: The law provides that a domestic partner:
- will be treated like a spouse when seeking to be a guardian of his or her partner in the event of that partner’s incapacity;
- will have the same priority as legal spouses in seeking a protective order concerning the partner’s estate or the welfare of the partner;
- is entitled to notice of hearings concerning the appointment of guardians in the event of the partner’s incapacity; and
- is entitled to notice of the issuance of protective orders in the event of death.
Survivorship Rights: In the event of one partner’s death, the law makes the surviving domestic partner the first of the next of kin when determining who has the right to make funeral and burial arrangements. (As with surviving spouses, if a surviving domestic partner is estranged from the partner at the time of death, the domestic partner may not have custody and control of the deceased’s remains.)

Note: It is important to remember that in these matters, a written will and advance directive will supersede this law. Thus, if your partner has a written will or directive giving someone else any of these rights, that person will be given priority over you in asserting those rights, regardless of your registration as Domestic Partners.

Who can register?

Couples may become registered domestic partners in the State of Maine if they are “one of two unmarried adults who are domiciled under long-term arrangements that evidence a commitment to remain responsible indefinitely for each other’s welfare,” (18-A Me. Rev. Stat. sec. 1-201 (10-A)) and they meet the following specific requirements:

each partner is a mentally competent adult and not closely related (e.g. close relatives);
the domestic partners have been living together in the state for at least 12 months before the filing;
neither domestic partner is married or in a registered domestic partnership with another person; AND
each domestic partner is the sole domestic partner of the other and expects to remain so (22 Me. Rev. Stat. sec. 2710(2)).

How do you register in a registered domestic partnership?

All Domestic Partner registrations are filed with the Office of Health Data and Program Management. To become registered domestic partners, the partners must jointly file a notarized form and pay the required filing fee of $35. Forms can be accessed at municipal offices, probate courts, Department of Health and Human Services offices and on the Office of Vital Records website.

Once completed and notarized, the form needs to be returned to the Office of Vital Records in Augusta with the required filing fee, either by mail or in person. Once received, the registry will file the declaration and return two certified copies of it to the domestic partners at the address provided as their common residence (22 Me. Rev. Stat. sec. 2710(3)).

How do you end a registered domestic partnership?

A registered domestic partnership is ended by:

the marriage of either registered partner;
the filing of a notice of termination indicating each partner’s consent to the termination, which must be signed by both registered domestic partners before a notary; OR
the filing of a notice under oath from either domestic partner that the other registered partner was directly given a notice of intent to terminate the partnership. If giving notice by hand is not feasible, then a different way of giving notice may be accomplished as provided by the Maine Rules of Civil Procedure for commencement of a civil action. Termination under this method is not effective until 60 days after the notice has been given (22 Me. Rev. Stat. sec. 3710(4)).

Note: Failure to give notice could result in having to pay any loss suffered by the opposing partner due to lack of notice.

What exists beyond the Statewide registry?

State law requires all insurers providing health coverage in the State of Maine to offer their policyholders the option of additional benefits for their “domestic partner” (24 Me. Rev. Stat. sec. 2319-A; 24-A Me. Rev. Stat. secs 2832-A & 4249 (2)).
Maine’s Family Medical Leave Law was amended in June 2007 (26 Me. Rev. Stat. sec. 843 (4)) to include the employee’s “domestic partner” and child of the employee’s “domestic partner.” The law allows up to 10 weeks unpaid leave to care for a sick partner or the child of either the employee or partner. Also, family medical leave provides leave if an employee is a “domestic partner” of a member of the armed services (“An Act to Assist Maine Military Families” LD 256, 2007 Leg., 123rd Leg. (Me. 2007). See also, 26 Me. Rev. Stat. sec 843 (4)).
In 2007, the Maine legislature passed an “Act Regarding Fairness for Families Regarding Worker’s Compensation Coverage” which added “domestic partners” of employers to the list of individuals who may waive worker’s compensation coverage in certain circumstances (39-A Me. Rev. Stat. sec. 102 (sub-§11) (A) & (B-1)).
Also in 2007, the law concerning absentee ballot procedures was amended to include “domestic partners” under the definition of “immediate family” for the purpose of requesting an absentee ballot (31-A Me. Rev. Stat. sec. 1 (20)).

To access the above benefits, registration in the statewide domestic partnership registry is not required and the definition of “domestic partner” for these benefits is slightly different. Generally, to access these benefits, you may be required to sign an affidavit before a notary stating that:

each partner is a mentally competent adult (not required for requesting an absentee ballot);
the domestic partners have been legally living together for at least 12 months;
neither domestic partner is legally married to or legally separated from another person;
each domestic partner is the sole domestic partner of the other and expects to remain so;
the domestic partners are jointly responsible for each other’s common welfare as evidenced by joint living arrangements, joint financial arrangements or joint ownership of real or personal property (26 Me. Rev. Stat sec. 843 (7); 21-A Me. Rev. Stat. sec. 1 (13-A); 24 Me. Rev. Stat. sec. 2319-A (1)).

Same-sex couples can also execute a variety of estate planning documents and designate a non-legally related adult to have certain rights and responsibilities (see “Legal Protections for Same-Sex Couples” below).

Does the State of Maine provide domestic partner benefits to state employees, such as health insurance for the employees’ partners?

Yes. State employees can receive health insurance for their domestic partners.

The value of the state paid portion of the domestic partner health insurance coverage is income and taxable wages to the employee participant at both the federal and state level, unless the partner is also a tax dependent.
Domestic partners of employees of the University of Maine System can receive health insurance, tuition waiver, access to university facilities, and all spousal benefits not restricted by federal law.

Can cities and towns in Maine provide domestic partner health insurance benefits to their own employees?

Yes. Many lawyers also believe this result is required by the non-discrimination law if the city or town provides benefits to heterosexual couples.

It is also possible that under Maine’s mini-COBRA law for companies with fewer than 20 employees (sexual orientation is not covered by the Federal COBRA law), employees with domestic partners will have the same right as heterosexual couples to maintain health insurance coverage after employment ends (24-A Me. Rev. Stat. secs. 2849-B & C).

Some employers provided these benefits before the non-discrimination law was amended to include sexual orientation. For example, the City of Portland extends domestic partner benefits, including health insurance, to qualified domestic partners of City and School Department employees. In order to qualify for such benefits, an employee must have his or her partnership registered by the City and must provide the City or School Department with two or more forms of proof exhibiting that they are jointly responsible for each other’s common welfare and share financial obligations. Examples of such proof include the joint mortgage or ownership of property; the designation as a beneficiary in the employee’s will, retirement contract or life insurance; a notarized partnership agreement or relationship contract; and any two of the following: a joint checking account, a joint credit account, a joint lease, or the joint ownership of a motor vehicle (Portland, Me. Code, sec. 13.6-21 (2001). Available at: http://ci.portland.me.us/citycode/chapter013_6.pdf).

Note that municipal domestic partner plans have withstood a court challenge. In 2004, GLAD, together with the Portland City Attorney and cooperating counsel, successfully represented the City of Portland in a challenge to the domestic partnership registry system and benefits offered there. The claim was that the domestic partnership law was superceded by the state anti-gay, anti-marriage law. See Pulsifer v. City of Portland, and GLAD’s press release Maine Trial Court Upholds Portland’s Domestic Partnership Ordinance.

In addition, the cities of Bar Harbor and Camden and the County of Cumberland provide domestic partner health insurance benefits to their employees. Portland also maintains a domestic partner registry which allows people to register their relationships and receive family memberships and rights in city-run facilities.

What kinds of domestic partner benefits may private employers provide?

Private employers can provide to domestic partners many benefits, such as health insurance, family medical or bereavement leave, equal pension benefits, relocation expenses, or access to company facilities. While it’s hard to identify all employers providing benefits in Maine, they include L.L. Bean, Care Development of Maine, Fairchild Semiconductor, Idexx Laboratories, Inc., Energy East Corp., The Gale Group, Hannaford, Maine Coast Memorial Hospital, Maine Medical Center, TD Banknorth Group, the University of Maine System, the University of New England, and Bowdoin, Bates, and Colby Colleges (see The Human Rights Campaign’s Employer Database, available at http://www.hrc.org/issues/workplace/equal_opportunity/search_employers.asp).

Even when employers provide these benefits, though, federal and state laws require different tax treatment of the benefits for domestic partners as compared to spouses. For example, an employee must pay federal and state income tax on the value of his or her partner’s health insurance benefits (unless the partner is a tax dependent), but a spouse does not (see e.g., Internal Revenue Code, Private Letter Ruling 9603011 (Jan. 19, 1996)).Partners do not qualify as spouses under federally-controlled Flexible Spending Accounts unless the partner is also a tax dependent.

As for pensions, under the Federal Pension Protection Act of 2006, employers may amend their 401(k) plans so that non-spouse beneficiaries may retain the asset as a retirement asset. If a plan is so amended, beneficiaries may “roll over” the 401(k) into an IRA depending upon the employee’s death whereas previous law required the beneficiary to take and pay income taxes on the 401(k) as a lump sum (see Human Rights Campaign, Pension Plans, available at http://www.hrc.org/issues/4821.htm).

However, other discriminatory aspects of federal law remain regarding pensions. A domestic partner has no right to sign off if his or her partner decides to name someone else as the beneficiary of a pension, although a spouse would have that right. In addition, a domestic partner has no right comparable to that of a spouse to sign off on his or her partner’s designation of another person for survivor benefits.

What steps can a couple take to safeguard their relationship in Maine?

Whether the couple is married or in a Maine registered domestic partnership or does not have an legal relationship, they can protect their relationship through the following:

Relationship Agreement or Contract: Agreements regarding property and finances should be respected and honored according to ordinary rules of contract law. The Maine Law Court has not yet specifically ruled on the subject, but that result comports with Maine contract law and the law of other states that have found such agreements to be enforceable.
Durable Power of Attorney: Any competent person may appoint another person as their “attorney-in-fact” for financial and/or other matters in the event they become incapacitated or disabled. If no such appointment is made, then a “family” member will be empowered to make decisions for the disabled or incapacitated individual.

Durable Power of Attorney for Health Care: Medical care providers often look to next-of-kin to make health care decisions for an incapacitated individual. If an unmarried person wants someone other than their legal family to make these decisions, then a durable power of attorney for health care is a critical source of protection. In Maine, a person can appoint a health care agent to make decisions for him or her immediately, or upon incompetence. It must be signed by two witnesses (not including the person appointed as attorney-in-fact). It can only be revoked while they are still competent. Otherwise, it must be revoked in court.

This provision might be cumbersome to enforce but provides a way for a partner to be involved in their incapacitated partner’s health care decisions absent documentation.

Will: Without a will and without having registered as a domestic partner, a deceased unmarried person’s property passes to: (1) their children; (2) their family; (3) if next-of-kin cannot be located, to the state. If the person wishes to provide for others, such as their partner, a will is essential. Even if a person has few possessions, they can name in the will who will administer their estate. If a person has children, they can nominate a guardian of the child which will become effective upon death. Such nominations are highly regarded by courts although they are not binding on the court.
Funeral Planning Documents: Upon death, a person’s next-of-kin is given control of the deceased’s body. This means that a person’s own partner has no automatic right to remove the body or make plans for a final resting place.

Does a person need an attorney to get these documents?

GLAD recommends working with an attorney on these documents.

If an unmarried couple separates, what is the legal status of a relationship or partnership agreement/contract?

Upon separation, the terms of a Relationship or Partnership Agreement/Contract will come into play if the couple has one.

Absent an agreement, generally applicable rules about jointly owned property and accounts come into play. Some couples can get involved in costly and protracted litigation about property and financial matters but without the predictable rules of the divorce system to help them sort through it. It is notable that the Law Court has respectfully handled the dissolution of a same-sex domestic partnership under equitable principles and the law of joint tenancy.

PLEASE NOTE: If a person has changed their mind about who should be their attorney-in-fact, or health care agent, or beneficiary or executor under a will, or funeral planner, then those documents should be revoked — with notice to all persons who were given copies of those documents, and new documents should be prepared which reflect the person’s present wishes.

What standards should same-sex couples with children who are breaking up maintain?

Same-sex couples with children who are breaking up should:

Support the rights of LGBTQ+ parents;
Honor existing relationships regardless of legal labels;
Honor the children’s existing parental relationships after the break-up;
Maintain continuity for the children;
Seek a voluntary resolution;
Remember that breaking up is hard to do;
Investigate allegations of abuse;
Not allow the absence of agreements or legal relationships to determine outcomes;
Treat litigation as a last resort; and
Refuse to resort to homophobic/transphobic laws and sentiments to achieve a desired result.

For more detailed information about these standards see the publication Protecting Families: Standards for LGBTQ+ Families at: Protecting Families: Standards for LGBTQ+ Families | GLAD.

Hate Crimes | Maine

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Does Maine have a hate crimes law?

Maine has a hate crimes law that permits consideration of the nature of the crime during the sentencing phase (17-A Me. Rev. Stat. sec. 1151 (8)(B)). If the defendant selected a person or his or her property for criminal activity because of, among other things, sexual orientation, then that fact can be taken into account. The law, however, does not include gender identity or expression among the factors to be taken into consideration upon sentencing.

Where can I call if I think I’ve been a victim of a hate crime?

In addition to the local police, you may contact the Attorney General’s Civil Rights Unit at (207) 626-8800, or online at http://www.maine.gov/ag/civil_rights/index.shtml.

What additional protections against hate crimes and harassment exist in Maine law?

General Criminal Laws: Hate crimes are prosecuted under existing criminal laws, such as assault and battery, assault and battery with a dangerous weapon, murder, and so on. These generic laws do nothing to address the fact that an assault was hate-motivated, but they provide for criminal accountability, and the selection of a person (or his or her property) because of sexual orientation can then be considered in the sentencing phase.
“Civil Rights Law”: On the civil side, Maine law provides for civil remedies when a person violates another person’s state or federal rights in certain circumstances (5 Me. Rev. Stat. sec. 4682). This provision, known as the “Maine Civil Rights Act” specifically states that a “person has the right to engage in lawful activities” without being subject to the infliction or threat of physical force or violence or the damage, destruction or trespass of property, motivated by reason of sexual orientation (5 Me. Rev. Stat. sec. 4684-A). Contact local law enforcement or the Attorney General’s office if you have been a victim under this law as the State is the primary enforcer of this statute. More specifically, the law allows a person to bring a private action against someone who uses or threatens physical force or violence, damages, destroys or trespasses on property, or threatens to damage, destroy or trespass on property in a manner that intentionally interferes or attempts to interfere with another person’s exercise or enjoyment of their rights under state or federal law (5 Me. Rev. Stat. sec. 4681). If those elements are met, then a person may bring an action for legal and equitable relief. Aside from the possibility of recovering money damages, equitable relief means that the person suing can obtain an order forbidding the attacker from coming near him or her, whether at home, at work, in school, or even from telephoning him or her. Actions must be brought within 6 years, although moving promptly is always an advantage (14 Me. Rev. Stat. sec. 752). In addition to whatever relief a restraining order may provide, it is also important that violation of a restraining order is a criminal offense that can be prosecuted. You should report any violations of a restraining order to local police, and keep careful records of any and all violations. The Attorney General’s Office also has the power to bring civil rights actions on behalf of people who are harassed or threatened (5 Me. Rev. Stat. sec. 4681). The contact information is listed above.
Harassment Law: Maine law permits people to petition the District or Superior Court for an order preventing harassment (5 Me. Rev. Stat. sec. 4652). “Harassment” is defined as “any repeated act of intimidation, harassment, physical force or threat of physical force directed against any person, family, or their property or advocate with the intention of causing fear or intimidation or to deter free exercise or enjoyment of any rights or privileges secured by” the Constitution or laws of Maine or the United States. Under this law, a person may seek emergency orders, and later seek temporary orders, and ultimately seek final orders of protection. In addition, with final orders, a successful plaintiff may be awarded damages for direct losses caused by the harassment (e.g., lost earnings, property repair or replacement), reasonable moving expenses and court costs and attorney’s fees (5 Me. Rev. Stat. sec. 4655). Violation of a court restraining order is a criminal offense (5 Me. Rev. Stat. sec. 4659).

In what ways might the federal hate crimes law help to investigate and prosecute hate crimes?

The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (visit H.R. 2647 at https://www.congress.gov/bill/111th-congress/senate-bill/909/text) was passed by Congress on October 22, 2009 and was signed into law by President Obama on October 28, 2009. It expands the 1969 United States federal hate crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity or disability.

First, and perhaps foremost, the Act allows local and state law enforcement agencies to apply for the following federal assistance from the U.S. Attorney General:

investigative, technical, forensic or prosecutorial support for criminal investigations and prosecutions,
grants for extraordinary expenses associated with the investigation and prosecution of hate crimes, and
grants to combat hate crimes committed by juveniles.

In providing assistance to local and state authorities, the priorities are hate crimes:

where the offender(s) has committed crimes in more than one state, or
that occur in rural areas which do not have the resources needed to prosecute such crimes.

Second, for hate crimes that in some way involve crossing state or national borders, or involve or affect interstate commerce, and where a state does not have jurisdiction or has requested federal assumption of jurisdiction, or where the federal government feels that justice has not been served or that U.S. prosecution is in the public interest, the Act authorizes the federal government to prosecute the case.

The Act also requires the Federal Bureau of Investigation to track statistics on hate crimes on the basis of gender and gender identity (statistics for the other groups are already tracked) and on crimes committed by and against juveniles. This is the first federal law to explicitly extend legal protections to transgender persons.

Discrimination | HIV/AIDS | Maine

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Questions and answers on HIV/AIDS Discrimination. Also see our pages on Testing and Privacy and Other HIV-Related Laws.

Does Maine have laws protecting people with HIV from discrimination?

Yes, Maine has enacted anti-discrimination laws protecting people with HIV from discrimination in employment, housing and public accommodations. In addition, there are a number of federal laws that protect people from discrimination based on their HIV status.

People with HIV are protected under laws that prohibit discrimination on the basis of disability. This includes the federal Americans with Disabilities Act (ADA), and Maine disability & anti-discrimination laws.

Who is protected under anti-discrimination laws?

The following people are protected under the Maine Human Rights Act (MHRA) and the Americans with Disabilities Act (ADA):

People with AIDS or who are HIV-positive, even if they are asymptomatic and have no outward or manifest signs of illness.
People who are regarded or perceived as having HIV.
A person who does not have HIV, but who has a “relationship” or “associates” with a person with HIV—such as friends, lovers, spouses, roommates, business associates, advocates, and caregivers of a person or persons with HIV.

What laws protect people with HIV from discrimination in employment?

People with HIV are protected from employment-related discrimination under the MHRA1 and the federal ADA. Both of these statutes, which are almost identical, prohibit discrimination in employment on the basis of a person’s disability. Maine law covers state and private employers with one or more persons. The ADA covers employers with 15 or more employees.

What do these anti-discrimination laws prohibit?

An employer may not take adverse action against an applicant or employee simply on the basis that the person has a disability such as HIV or AIDS. This means that an employer may not terminate, refuse to hire, rehire, or promote, or otherwise discriminate in the terms or conditions of employment, based on an individual’s HIV/AIDS status.

The focus here is whether a person with AIDS or HIV was treated differently than other applicants or employees in similar situations.

Can an employer in Maine ever require an applicant or employee to take an HIV test?

No, an employer may not require an applicant or an employee to submit to an HIV test or disclose HIV status as a condition of employment or to maintain employment.4

There is an exception, however, permitting an employer to require an HIV test when based on a “bona fide occupational qualification.” There are few, if any, employment settings in which an employer could prevail in its view that an HIV test is based on a “bona fide occupational qualification.”

Nevertheless, one recent legal development merits special attention here. Some courts have ruled that HIV-positive health care workers who perform invasive procedures can be terminated from employment because of the risk of HIV transmission posed to patients. The AIDS Law Project believes that these cases have been wrongly decided. In light of these cases, however, it is critical that a health care worker obtain legal advice or assistance if an employer requires an HIV test as a condition of employment.

What may an employer ask about an employee’s health during the application and interview process?

Under the ADA and Maine law, prior to employment, an employer cannot ask questions that are aimed at determining whether an employee has a disability. Examples of prohibited pre-employment questions are:

Have you ever been hospitalized or under the care of a physician?
Have you ever been on workers’ compensation or received disability benefits?
What medications do you take?

After an offer of employment, can an employer require a medical exam? What guidelines apply?

After a conditional offer of employment, the ADA and Maine Law permit an employer to require a physical examination or medical history. The job offer, however, may not be withdrawn unless the results demonstrate that the person cannot perform the essential functions of the job with or without reasonable accommodation. The same medical inquiries must be made of each person in the same job category. In addition, these physical examination and medical history records must be segregated from personnel records, and there are strict confidentiality protections. After employment has begun, the ADA and Maine Law permit an employer to require a physical examination, only if it is job-related and consistent with business necessity.

How have the courts addressed fears that health care employees who perform invasive procedures, such as surgeons, will transmit HIV to patients?

The risk of HIV transmission from a health care worker to a patient is considered so small that it approaches zero. Nevertheless, in cases where hospitals have sought to restrict or terminate the privileges of HIV-positive health care workers who perform invasive procedures, courts have reacted with tremendous fear and have insisted on an impossible “zero risk” standard. As a result, the small number of courts that have addressed this issue under the ADA have upheld such terminations.

The employment provisions in the ADA provide that an employee is not qualified to perform the job if he or she poses a “direct threat to the health or safety of others.” To determine whether an employee poses a “direct threat,” a court analyzes:

The nature, duration and severity of the risk;
The probability of the risk; and
Whether the risk can be eliminated by reasonable accommodation.

In the case of HIV-positive health care workers, courts have ignored the extremely remote probability of the risk and instead have focused on the nature, duration and severity of the risk. The following excerpt from a recent case is typical of courts’ approach:

“We hold that Dr. Doe does pose a significant risk to the health and safety of his patients that cannot be eliminated by reasonable accommodation. Although there may presently be no documented case of surgeon-to-patient transmission, such transmission clearly is possible. And, the risk of percutaneous injury can never be eliminated through reasonable accommodation … Thus, even if Dr. Doe takes extra precautions … some measure of risk will always exist …” (Doe v. University of Maryland Medical System Corporation, 50 F.3d 1261 (4^th Cir. 1995)).

It is important to note that only a small number of courts have addressed the rights of HIV-positive health care workers. The AIDS Law Project believes that these cases have been incorrectly decided and are inconsistent with the intent of Congress in passing the ADA. Because of the unsettled nature of the law in this area, a health care worker who is confronted with potential employment discrimination should consult a lawyer or public health advocate.

Assessing Discrimination by an Employer

While it may be useful to consult with a lawyer, the following steps can be helpful in beginning to consider and assess a potential employment discrimination problem.

1. Consider the difference between unfairness and illegal discrimination. The bottom line of employment law is that an employee can be fired for a good reason, a bad reason, or no reason at all. A person can be legally fired for a lot of reasons, including a bad “personality match.” What they cannot be fired for is a discriminatory reason specifically outlawed by a statute.

2. To prove a discrimination claim (i.e., that you were fired, demoted, etc. because of discrimination and not because of some legitimate reason), you must be able to show the following:

The employer knew or figured out that you are HIV-positive or have AIDS;
You were qualified to perform the essential functions of the job with or without reasonable accommodation; and
Adverse action was taken against you because of your HIV or AIDS status and the pretextual reason given by the employer for the adverse action is false.

3. If your employer knows that you have HIV or AIDS, identify exactly who knows, how they know, and when they found out. If you have not told your employer, is there any other way the employer would know or suspect your HIV status?

4. Consider the reasons why you believe that you are being treated differently because of HIV status, including the following areas: o Have other employees in similar situations been treated differently or the same?

Has your employer followed its personnel policies? o Did the adverse treatment begin shortly after the employer learned of your HIV status?
Have you been out of work due to illness for any period of time and did the adverse treatment begin upon your return to work?
What will your employer’s version of events be? How will you prove that the employer’s version is false?

5. Do you have any difficulty fulfilling the duties of your job because of any HIV-related health or medical issue? Does your condition prevent full-time work, or require time off for medical appointments, lighter duties or a less stressful position? You might want to brainstorm to create a reasonable accommodation that you can propose to your employer.

Here are some points to consider:

How does the company operate and how would the accommodation work in practice?
Put yourself in your supervisor’s shoes. What objections might be raised to the requested reasonable accommodation? For example, if you need to leave at a certain time for medical appointments, who would cover your duties?

What Maine laws prohibit discrimination in housing?

It is illegal under both Maine law14 and the National Fair Housing Amendments of 198815 to discriminate in the sale or rental of housing on the basis of HIV status. A person cannot be evicted from an apartment because of his or her HIV or AIDS status, or because he or she is regarded as having HIV or AIDS.

In addition, a person cannot be discriminated against in housing because of their “association” with a person with HIV. This means a person cannot be discriminated against because their roommate, lover, friend, relative, or business partner has HIV.

Are there any exceptions to these laws?

Yes, exceptions to Maine law exist for the rental of a room in an owner occupied building where not more than 4 rooms are rented; and for two family owner occupied buildings. In addition, the Fair Housing Act exempts, in some circumstances, ownership-occupied buildings with no more than four units, single-family housing sold or rented without the use of a broker and housing operated by organizations and private clubs that limit the occupancy to members.

Does Maine law protect against discrimination by health care providers, business, and other public places?

Under the ADA and MHRA, it is unlawful to exclude a person with HIV from a public place (what the law refers to as a “place of public accommodation”) or to provide unequal or restricted services to a person with HIV in a public place. Under both statutes, the term “public accommodation” includes any establishment or business that offers services to the public. In addition, the Federal Rehabilitation Act of 19738 prohibits discrimination on the basis of disability in any agency or program that receives federal funding, including hospitals, medical or dental offices, and educational institutions.

Therefore, people with HIV are protected from discrimination in virtually every public place or business, including bars, restaurants, hotels, schools, vocational or other educational programs, taxi cabs, buses, airplanes and other modes of transportation, health clubs, hospitals and medical and dental offices, as long as these facilities are generally open to the public.

In addition, Maine law specifically prohibits discrimination in education based on disability.

Is discrimination by health care professionals against people with HIV still a problem?

Believe it or not, yes, people with HIV still face discrimination by hospitals, doctors, dentists, and other health care providers. This discrimination can take the form of an outright refusal to provide medical services or an illegal referral because of a patient’s HIV status.

What types of arguments do doctors who discriminate against people with HIV make, and are they legitimate?

Doctors typically try to justify discrimination against people with HIV with one of two arguments:

“Treating People with HIV is Dangerous” (Some doctors refuse to treat people with HIV based on an irrational fear of HIV transmission); and
“Treating People with HIV Requires Special Expertise” (Some doctors refer patients to other medical providers based on an inaccurate belief that general practitioners are not qualified to provide care to patients with HIV).

Both an outright refusal to provide medical treatment and unnecessary referrals on the basis of a person’s disability are unlawful under the ADA and Maine law.

How have courts and medical experts responded to these arguments?

Courts and medical experts have responded to these arguments in the following ways:

1. “Treating People with HIV is Dangerous”

Doctors and dentists may claim that a refusal to treat a patient with HIV is legitimate because they fear they might contract HIV themselves through needle sticks or other exposures to blood. However, studies of health care workers have concluded that risk of contracting HIV from occupational exposure is minuscule, especially with the use of universal precautions.

For this reason, in 1998, the United States Supreme Court ruled in the case Bragdon v. Abbott that health care providers cannot refuse to treat people with HIV based on concerns or fears about HIV transmission (524 U.S. 624 (1998)).

In addition to the legal perspective, both the American Medical Association and the American Dental Association, and many other professional health care organizations, have issued policies that it is unethical to refuse treatment to a person with HIV.

2. “Treating People with HIV Requires Special Expertise”

In these cases, the merits of a discrimination claim depend upon whether, based on objective medical evidence, the services or treatment needed by the patient require a referral to a specialist or are within the scope of services and competence of the provider.

In United States v. Morvant, a federal trial court rejected a dentist’s claim that patients with HIV require a specialist for routine dental care (898 F. Supp. 1157 (E.D. La 1995)). The court agreed with the testimony of experts who said that no special training or expertise, other than that possessed by a general dentist, is required to provide dental treatment to people with HIV. The court specifically rejected the dentist’s arguments that he was unqualified because he had not kept up with the literature and training necessary to treat patients with HIV. While this case arose in the context of dental care, it is applicable to other medical settings as well.

What are the specific provisions of the ADA that prohibit discrimination by health care providers?

Under Title III of the ADA (42 U.S.C. §§ 12181-12188), it is illegal for a health care provider to:

Establish “eligibility criteria” for the privilege of receiving medical services, which tend to screen out patients who have tested positive for HIV.
Deny an HIV-positive patient the “full and equal enjoyment” of medical services or to deny an HIV-positive patient the “opportunity to benefit” from medical services in the same manner as other patients.
Provide “different or separate” services to patients who are HIV-positive or fail to provide services to patients in the “most integrated setting.”
Deny equal medical services to a person who is known to have a “relationship” or “association” to a person with HIV, such as a spouse, partner, child, or friend.

What specific health care practices constitute illegal discrimination against people with HIV?

Applying the specific provisions of the ADA above to the practice of health care, the following practices are illegal:

A health care provider cannot decline to treat a person with HIV based on a perceived risk of HIV transmission or because the physician simply does not feel comfortable treating a person with HIV.
A health care provider cannot agree to treat a patient only in a treatment setting outside the physician’s regular office, such as a special hospital clinic, simply because the person is HIV-positive.
A health care provider cannot refer an HIV-positive patient to another clinic or specialist, unless the required treatment is outside the scope of the physician’s usual practice or specialty. The ADA requires that referrals of HIV-positive patients be made on the same basis as referrals of other patients. It is, however, permissible to refer a patient to specialized care if the patient has HIV-related medical conditions which are outside the realm of competence or scope of services of the provider.
A health care provider cannot increase the cost of services to an HIV-positive patient in order to use additional precautions beyond the mandated OSHA and CDC infection control procedures. Under certain circumstances, it may even be an ADA violation to use unnecessary additional precautions which tend to stigmatize a patient simply on the basis of HIV status.
A health care provider cannot limit the scheduled times for treating HIV-positive patients, such as insisting that an HIV-positive patient come in at the end of the day.

What are some potential remedies for discrimination under federal law?

To pursue a claim under the Americans with Disabilities Act for employment discrimination, the employer must have at least 15 employees. A person must file a claim with the Equal Employment Opportunity Commission (EEOC) within 180 days of the date of the discriminatory act. A person may remove an ADA claim from the EEOC and file a lawsuit in state or federal court.

To pursue a claim under the Americans with Disabilities Act for discrimination in a place of public accommodation, a person may, without first going to an administrative agency, file a claim in state or federal court for injunctive relief only (i.e., seeking a court order that the discriminatory conduct cease). Money damages are not available for violation of Title III of the ADA unless they are sought by the United States Department of Justice. However, a person may recover money damages under the Federal Rehabilitation Act in cases against entities that receive federal funding.

To pursue a claim under the Rehabilitation Act, a person may file an administrative complaint with the regional office of the federal Department of Health and Human Services and/or file a lawsuit directly in court.

To pursue a claim under the National Fair Housing Act for discrimination in housing, a person may file a complaint with the United States Office of Housing and Urban Development within one year of the violation. A person may also bring a lawsuit within two years of the violation. A lawsuit may be filed whether or not a person has filed a complaint with HUD.