News

Gay & Lesbian Advocates & Defenders (GLAD) is gearing up for an historic year in which one of its two challenges to the Defense of Marriage Act (DOMA), Gill v. Office of Personnel Management or Pedersen v. Office of Personnel Management will likely be heard at the United States Supreme Court. Legal observers have called Gill a “blockbuster”, “game-changer”, and the “the case to watch” in the drive to knock out DOMA.

To support the effort, GLAD has launched the Supreme Court Showdown campaign, pledging to Knock Out DOMA. GLAD will raise funds to support legal preparations for the groundbreaking cases, as well as to educate the public about the harms caused by DOMA.

“We have been preparing since May 17, 2004, the day that marriage became a reality for same-sex couples in the United States,” said Lee Swislow, Executive Director of GLAD. “Right then and there we began crafting our legal challenge to DOMA. We have a smart strategy, the best possible legal team, inspiring and committed plaintiffs, and the right case at the right time.”

GLAD filed Gill in March 2009. Two federal courts – the Massachusetts District Court and the U.S. Court of Appeals for the First Circuit – have ruled that DOMA is unconstitutional and that Gill plaintiffs deserve to be treated equally under the law and have their marriage respected by the federal government. GLAD filed Pedersen in November 2009, and on July 31, 2012, Judge Vanessa Bryant of the U.S. District Court of Connecticut also ruled in those plaintiffs’ favor finding DOMA unconstitutional. GLAD has now petitioned the Supreme Court for certiorari before judgment in Pedersen.

The First Circuit called Supreme Court review of GLAD’s Gill DOMA case “highly likely” in its unanimous ruling against the law. The Supreme Court will likely decide by the end of October whether it will review either case. To sign up for text alerts about this and other case developments, visit www.gladlaw.org/text-alerts.

The plaintiffs in Gill and Pedersen are legally married same-sex couples and widowers, all of whom have been denied a federal marriage-related right or benefit because of DOMA. “Our plaintiffs have shared the details of their lives and their relationships with judges, with the media, and with total strangers. They’ve waited patiently and courageously,“ said Swislow. “It’s time they were treated the same as their married friends and neighbors.”

GLAD’s victory in Goodridge v. Department of Public Health in 2003 made Massachusetts the first state in which same-sex couples could marry. Goodridge opened the door to marriage equality in other subsequent states, and positioned GLAD as a strategic leader in the marriage equality movement. GLAD also won the Kerrigan v. Department of Public Health case in 2008, which brought marriage to Connecticut, and co-counseled in the Baker v. Vermont case which brought civil unions to that state in 1999.

Developments in Gill and Pedersen can be followed at www.gladlaw.org/DOMA.

News

Home » National/Federal » Page 58

Gay & Lesbian Advocates & Defenders is pleased to announce a new publication aimed at helping married same-sex couples preserve their rights under Social Security while the organization continues its efforts to overturn Section 3 of the federal Defense of Marriage Act (DOMA), which prevents federal recognition of same-sex marriages.

“DOMA prevents married same-sex couples who have paid into the system their entire working lives from accessing vital Social Security benefits that other married couples receive without question,” said Senior Staff Attorney Vickie Henry. “We think that’s unconstitutional, and we’re suing to overturn this discriminatory law. But for now we’ve outlined steps eligible couples can take to preserve their rights and possibly receive benefits retroactively when DOMA is either struck down in court or repealed by Congress.”

Because DOMA Section 3 prevents their marriages from being recognized by the federal government, legally married same-sex couples cannot access federal programs that help other couples and families. In the context of Social Security, DOMA prevents a spouse in a same-sex marriage from claiming the Social Security benefit that would otherwise be available to a spouse, including:

• the spousal benefit
• the spousal disability benefit
• the lump-sum death benefit
• the survivor benefit

For instance, after Randy Lewis-Kendall, a plaintiff in GLAD’s Gill v. Office of Personnel Managementlawsuit, lost his spouse Rob, he was denied the lump-sum death benefit that would have helped him pay for Rob’s funeral. Herb Burtis, another Gill plaintiff, was also denied the lump-sum benefit when his spouse John Ferris passed away, in addition to being denied the survivor benefit that would have boosted his monthly fixed income by $700.00.

GLAD’s new publication, Social Security Benefits and the Defense of Marriage Act: Can I Do Anything Now to Preserve My Rights? Yes!, details the various benefits that same-sex couples are denied under DOMA, how to file for those benefits now, how to appeal the denial of benefits based on DOMA, and how to keep your appeal alive to preserve your rights while the legal challenges are pending.

In addition to Gill v. Office of Personnel Management, which may be heard by the U.S. Supreme Court as early as next year, GLAD is also litigating Pedersen v. Office of Personnel Management, our second challenge to Section 3 of DOMA. Ruling in Pedersen last month, federal district court Judge Vanessa L. Bryant became the latest judge to declare DOMA unconstitutional.

News

Home » National/Federal » Page 58

BOSTON- Gay & Lesbian Advocates & Defenders (GLAD) is pleased to announce that two of its outstanding attorneys are being honored with prestigious awards in the coming weeks. GLAD’s Transgender Rights Project Director, Jennifer Levi, is receiving the National LGBT Bar’s highest honor, the Dan Bradley award. GLAD Senior Staff Attorney Vickie L. Henry is being honored by Massachusetts Lawyers Weekly as one of their 2012 Top Women of the Law.

“We are so lucky to have such incredible attorneys here at GLAD,” says GLAD Executive Director Lee Swislow. “These awards provide well-deserved recognition for both Vickie and Jennifer’s outstanding work.”

Jennifer L. Levi is the director of GLAD’s Transgender Rights Project and a nationally recognized expert on transgender legal issues. She co-edited Transgender Family Law: A Guide to Effective Advocacy, the first book to address legal issues facing transgender people in the family law context and provide practitioners the tools to effectively represent transgender clients.

The Dan Bradley award recognizes the efforts of a member of the lesbian, gay, bisexual and transgender legal community whose work has led the way in our struggle for equality under the law. Levi will receive her award this Friday at the National LGBT Bar Association’s 2012 Lavender Law Conference in Washington, D.C.

Vickie L. Henry is GLAD’s Youth Initiative Coordinator and has been visiting students across the Commonwealth to promote the Got Rights? Campaign – a collaboration between GLAD and BAGLY (The Boston Alliance of GLBT Youth) – meant to educate LGBTQ youth about their legal rights. Henry advocates for LGBTQ students, homeless youth, and children in the foster care system.

The Massachusetts Lawyer’s Weekly award celebrates legal educators, trailblazers and role models who have demonstrated outstanding accomplishments in their chosen fields. More than 100 nominations were submitted for consideration of the award. The Honorees will be celebrated at a luncheon on Friday, October 12, 2012. The event will be held at the Hynes Convention Center in Boston and will feature State Auditor Suzanne M. Bump as the keynote speaker.

News

Home » National/Federal » Page 58

Today, Gay & Lesbian Advocates & Defenders (GLAD) asked the Supreme Court to review Pedersen v. Office of Personnel Management, a lawsuit challenging Section 3 of the Defense of Marriage Act (DOMA), which prohibits federal recognition of the marriages of same-sex couples. GLAD is representing six married couples and a widower, from Connecticut, Vermont, and New Hampshire, who have all been denied critical federal benefits because of DOMA.

“With each passing day, DOMA denies ordinary marital protections and heaps disrespect on our plaintiffs’ families, and thousands of married same-sex couples across the country,” says GLAD’s Mary L. Bonauto, co-lead counsel in Pedersen.

“Joanne Pedersen still cannot enroll her wife on her health insurance plan like other retirees from federal service. Lynda DeForge, like other workers whose spouses have serious medical conditions, still can’t take Family and Medical Leave Act leave to care for Raquel Ardin. Jerry Passaro continues to struggle without access to his late husband’s pension. The Artis, Kleinerman-Gehre and Savoy-Weiss families are each raising three children, but under DOMA pay extra federal income taxes or health insurance costs. DOMA even intrudes into the New Hampshire State Retirement System in denying a retired school teacher a health insurance subsidy for her spouse,” Bonauto adds. “These plaintiffs need to hear definitively from the Supreme Court whether or not the federal government will ultimately respect their love, commitment and legal bonds.”

In a decision issued July 31, Judge Vanessa L. Bryant of the U.S. District Court of Connecticut ruled in Pedersen that DOMA Section 3 unconstitutionally discriminates against our plaintiffs. GLAD filed what is known as a petition for “certiorari before judgment”— giving the Supreme Court an opportunity to immediately review the district court decision.

Read the petition

Among the arguments GLAD makes in petitioning the Supreme Court for immediate review in Pedersenare:
• the case raises a question of national importance;
• continued delay exacerbates the stigma and economic burdens on plaintiffs’ families and children;
• Congress has no legitimate interest in overriding state marriage policies where states license marriages and not the federal government;
• there is a practical need for a Supreme Court decision as there are conflicting decisions on DOMA’s constitutionality in various federal courts and additional challenges are pending;
• the Obama Administration is not defending the law in court but is still enforcing it, resulting in ever more lawsuits against DOMA; and
• Pedersen is an exceptionally good case for the Court’s review because it demonstrates DOMA’s impact on a range of important federal programs like federal income tax, Social Security, federal employee and retiree benefits, and federal statutes (e.g. the Family & Medical Leave Act (FMLA) and the Employment Retirement Income Security Act (ERISA).

GLAD’s petition for certiorari in Pedersen comes after the Bipartisan Legal Advisory Group (BLAG), the congressional leadership body that is defending DOMA, and the Department of Justice each requested certiorari in our First Circuit Court DOMA challenge, Gill v. Office of Personnel Management. DOJ also filed a petition for certiorari before judgment in Golinski v. Office of Personnel Management, a DOMA challenge from the Ninth Circuit Court. Plaintiff Edith Schain Windsor also filed a petition for certioraribefore judgment in her DOMA challenge, Windsor v. United States, currently pending in the Second Circuit Court.

NOM v. McKee

Home » National/Federal » Page 58

On January 31, 2012, the U.S. First Circuit Court of Appeals rejected all claims by the National Organization for Marriage (NOM) that the state’s “ballot question committee” law is unconstitutional. That law requires certain individuals and donors who raise or spend money to influence a campaign to register with the state and make periodic reports about its contributors and expenditures.

GLAD filed an amicus brief, in conjunction with Pierce Atwood LLP, in support of the State of Maine arguing that disclosure serves the public interest in transparency and an informed electorate.

Adams v. Bureau of Prisons

Home » National/Federal » Page 58

Update: September 30, 2011

A settlement was announced September 30, 2011 in the case of Vanessa Adams, a Federal Bureau of Prisons (BOP) inmate at FMC Butner in North Carolina who has gender identity disorder (GID). Ms. Adams sued BOP in order to receive appropriate treatment for her GID.

Ms. Adam’s challenge to BOP’s treatment of transgender prisoners resulted in BOP ending its so-called “freeze frame” policy in which treatment for any person with GID is kept frozen at the level provided at the time he or she entered the federal prison system. In Ms. Adams’ case, this meant that because she had not received treatment for GID before being incarcerated, BOP refused to provide her with medically necessary care even though its own doctors diagnosed her with GID, told her about treatments available for GID, and knew about the seriousness of her medical condition.

“BOP’s freeze frame policy trapped transgender prisoners in despair, leading often to depression, suicide attempts, and in many cases, serious self-harm, as was the case with Vanessa,” said Jennifer L. Levi, Transgender Rights Project Director for Gay & Lesbian Advocates & Defenders (GLAD).

The change in policy was promulgated via two memoranda, dated May 31, 2011 and June 15, 2010, from BOP’s Medical Director to all BOP’s chief executive officers. The May 2011 memorandum ends:

In summary, inmates in the custody of the Bureau with a possible diagnosis of GID will receive a current individualized assessment and evaluation. Treatment options will not be precluded solely due to level of services received, or lack of services, prior to incarceration.

The memo also states that “current, accepted standards of care will be used as a reference for developing the treatment plan.”

The memos have been distributed to all individuals in the prison system who have been diagnosed with GID, as well as to the medical staff treating these prisoners.

Background

GLAD, in conjunction with the National Center for LGBTQ Rights, Florida Institutional Legal Services, and Bingham McCutchen LLP, challenged the federal Bureau of Prisons (“BOP”) policy that prohibited medical care for transgender inmates who came into the BOP without a treatment plan for transition. When the case began, our client, Vanessa Adams, was being denied medically necessary hormone therapy and prevented from otherwise expressing a female gender identity because she was diagnosed with GID post incarceration. In an initial victory, Vanessa was allowed to begin hormone therapy. GLAD and co-counsel opposed the BOP’s motion to dismiss the case, however, in order to ensure continued proper treatment for our client as well as challenge the Bureau’s other denials of transition-related medical care and the policy itself.

In a June 7, 2010 ruling, Federal District Court Judge Joseph L. Tauro rejected the BOP’s argument that Vanessa’s claim is invalid because they started her on hormone therapy after she filed her case. Citing the BOP’s initial denial of Vanessa’s treatment, and the fact that BOP does not disavow the policy, the court ruled that the policy’s constitutionality and BOP’s practice remain in question. The court also rejected the BOP’s efforts to have the case transferred to Missouri where Vanessa was, until recently, incarcerated, finding that enough significant events occurred while she was in Massachusetts to make the Massachusetts venue appropriate.

The case has been ordered to mediation as the discovery and pre-trial process proceeds.

Press Release on the June 7, 2010 denial of the BOP’s motion to dismiss

Pedersen et al. v. Office of Personnel Management et al.

Home » National/Federal » Page 58

June 26, 2013 U.S. Supreme Court rules DOMA Section 3 unconstitutional in Windsor v. United States

July 31, 2012 – Connecticut Federal District Court Judge Bryant rules that DOMA is unconstitutional.

Judge Bryant issued an order denying BLAG’s Motion to Stay Proceedings on July 4, 2012.

House Leadership via the Bipartisan Legal Advisory Group (BLAG) filed a Motion to Stay Proceedings on June 20, 2012. Plaintiffs filed their Opposition to Motion to Stay on June 22, 2012

July 15, 2011 Update: GLAD files motion for summary judgment on behalf of plaintiffs

February 23, 2011 Update: DOJ Announces it won’t defend constitutionality of DOMA in Pedersen

On November 9, 2010, GLAD filed Pedersen v. O.P.M., a second major, multi-plaintiff lawsuit challenging the constitutionality of the federal Defense of Marriage Act (DOMA) Section 3 and the government’s denial of protections and responsibilities to married gay and lesbian couples.

Pedersen v. O.P.M. specifically addresses married couples in Connecticut, Vermont, and New Hampshire.

Doe v. Reed

Home » National/Federal » Page 58

In June, 2010 the U. S. Supreme Court handed a defeat to anti-gay groups in the State of Washington with an 8-1 decision in Doe v. Reed. Doe addressed the efforts of anti-marriage equality groups to prevent the release of the names of ballot petition signers (R-71), contrary to the terms of the state’s open government laws. GLAD and other gay legal organizations had filed an amicus brief, refuting the claims that those who supported the repeal of Washington’s new “everything-but-marriage” law should have their names protected from disclosure because of fear of systematic intimidation by the LGBT community.

The decision sent the case back to the trial court where marriage equality opponents resumed their legal challenge on the narrower ground that a real probability of harm should prevent disclosure of petitioners’ names. On October 17, 2011, the U.S. Ninth District Court of Appeals denied the plaintiffs’ motion for summary judgment, ruled in favor of equality supporters, and lifted the injunction preventing disclosure of R-71 petition signers, concluding that “The facts before the Court in this case…do not rise to the level of demonstrating that a reasonable probability of threats, harassment, or reprisals exists as to the signers of R-71, now nearly two years after R-71 was submitted to the voters in Washington State.”

Background and GLAD’s involvement:

In a friend-of-the-court brief filed with the U.S. Supreme Court GLAD, Lambda Legal, and the National Center for LGBTQ Rights (NCLR) – together with the Human Rights Campaign and the National Gay and Lesbian Task Force – joined the State of Washington and others in defending open government laws requiring public disclosure of the names of voters who sign petitions supporting state ballot initiatives. In particular, this brief refutes the false claims presented to the Supreme Court in this and other cases that individuals who support anti-gay initiatives have been subjected to “systematic intimidation” by the lesbian, gay, bisexual and transgender (LGBT) community.

In Doe v. Reed, anti-gay groups asked the Supreme Court to overturn a decision of the Ninth Circuit Court of Appeals ordering the release of the names of 138,000 people who signed petitions supporting a ballot initiative to repeal basic protections for same-sex couples in Washington State. In November 2009, Washington voters rejected this attempt – Referendum 71—and preserved the state’s domestic partnership law. Under Washington’s Public Records Act, the signatures on referendum petitions are public in order to prevent fraud and protect the integrity of the lawmaking process. The anti-gay groups sought to strike down Washington’s law, claiming that supporters of anti-gay ballot campaigns would be exposed to harassment and intimidation by the LGBT community if their names were made public.

O’Donnabhain v. Commissioner of Internal Revenue

Home » National/Federal » Page 58

Victory! On February 2, 2010, the U.S. Tax Court issued an important decision in O’Donnabhain v. Commissioner of Internal Revenue, ruling for the first time that treatment for gender identity disorder qualifies as medical care under the Internal Revenue Code, and is therefore deductible.

Read the Tax Court’s Decision

Ms. O’Donnabhain deducted costs related to her sex reassignment when submitting her federal tax forms in April 2002. She received her tax refund in June 2002, but six months later she was audited.

Ms. O’Donnabhain contacted GLAD, whose attorneys assisted her in appealing the tax examiner’s decision. After an initial indication by an Appeals Officer to allow the deduction, the local IRS office decided to seek a decision from Washington. The IRS Chief Counsel issued an Advice Letter on October 14, 2005, once again denying the deduction and the matter progressed to US Tax Court, where trial took place July 24 – August 23, 2007.

Both sides completed filing proposed findings of fact, conclusions of law, and responses to those submissions in February, 2008.

Kadri v. Mukasey

Home » National/Federal » Page 58

GLAD joined an amicus brief in this immigration/asylum case at the US Court of Appeals for the First Circuit. The case involved an Indonesian doctor, Zulkifly Kadri, who was fired from his position at a clinic and ostracized at a hospital where he worked when rumors spread that he is gay. He sought asylum in the United States based on past persecution in his home country, as well as his fear of future persecution should he be required to return to Indonesia. Kadri’s application for asylum was initially granted in 2005, but that finding was subsequently overturned by the Board of Immigration Appeals (BIA), partially on the grounds that “closeted homosexuality” is tolerated in Indonesia and, therefore, that Kadri could avoid persecution by hiding the fact that he is gay. GLAD worked with Attorney Ilana Greenstein on a portion of the amicus brief demonstrating that the BIA’s assertion that a person must hide something fundamental to his or her nature – such as sexual orientation – as a valid alternative to refugee protection violates both domestic and international law.

In a positive decision, the US Court of Appeals for the First Circuit remanded the asylum claim for the BIA to articulate the standard for economic persecution. Read the decision on the Immigration Equality website.