The Year in LGBT Law: A Changed Landscape of Unexpected Developments -- and Waiting

Posted by Chris Geidner
December 30, 2011 12:15 PM |

On Jan. 1, 2011, most LGBT legal commentators were ready for a federal appellate court ruling on the constitutionality of Proposition 8 -- or at least a decision on whether the initiatives' proponents had a right to be there in the first place. Challenges to the Defense of Marriage Act were under way on the East Coast -- from Massachusetts to Connecticut to New York -- but the Proposition 8 challenge looked like it was on the fast track to the Supreme Court.

But, on Jan. 4, the U.S. Court of Appeals for the Ninth Circuit sent a certified question about the legal role of initiative proponents under California law to the California Supreme Court -- a move that delayed a Ninth Circuit decision and appears to be keeping people waiting into 2012.

The delay and disappointment of the Ninth Circuit decision might have put a damper on the mood of LGBT legal advocates in 2011 -- until Feb. 23.

holder.jpgOn Feb. 23, the Department of Justice -- in a letter from Attorney General Eric Holder sent to House Speaker John Boehner (R-Ohio) -- announced that DOJ, with the agreement of President Obama, had concluded that sexual orientation classifications should be subjected to heightened scrutiny in legal challenges claiming a violation of the Fourteenth and Fifth amendments' guarantee of equal protection of the laws. As such, Holder told Boehner, Section 3 of DOMA, which defines marriage at the federal level, is unconstitutional. Moreover, because they had made this determination, Holder said DOJ would no longer be defending DOMA's Section 3 in court challenges.

The change altered the legal landscape -- not just in the direct challenges to DOMA, but in cases across the country, on issues from bankruptcy to immigration -- and led the House Republican leadership to mount a defense of the 1996 law by hiring former George W. Bush administration solicitor general Paul Clement and his firm (first King & Spalding and, when they ended the representation, then his new firm, Bancroft PLLC) to do so.

Karen Golinski's attempt to secure equal health insurance benefits for her wife has taken center stage, as DOJ sent one of its senior lawyers to a court hearing in December to join Lambda Legal in arguing why Golinksi's claim should not be dismissed because DOMA is unconstitutional. In the U.S. Court of Appeals for the First Circuit, briefing is completed in the appeal of the 2010 trial court decision in Gill v. Office of Personnel Management, in which Judge Joseph Tauro found Section 3 of DOMA to be unconstitutional. Gay & Lesbian Advocates & Defenders, which brought the challenge, expects the oral arguments in the appeal to be held in February.

In the military, the challenge to "Don't Ask, Don't Tell" that was brought by Log Cabin Republicans had pushed Defense Secretary Robert Gates and others in 2010 to urge legislative action to end DADT, but the lawsuit, despite LCR's attempts to keep the lawsuit alive to help resolve ongoing issues, found its end in the weeks after the law's repeal occurred. Soon thereafter, though, Servicemembers Legal Defense Network raised a challenge to the post-DADT military provision of spousal benefits, which does not include same-sex couples -- a challenge to DOMA within the military.

In schools, like the military, questions about ongoing discrimination are plenty. In Minnesota, the National Center for Lesbian Rights brought a lawsuit against the Anoka-Hennepin School District to challenge what it called "a frightening and harmful toxic environment for [LGBT] students." In California, the sentencing of Lawrence King's killer, Brandon McInerney, to 21 years in prison put some closure on the sad tale of two young lives -- one ended, one altered forever -- by homophobia. The American Civil Liberties Union brought a lawsuit in Missouri, challenging one school district's use of web filtering software. In October, the ACLU sought a preliminary injunction to stop the Camdenton R-III School District from censoring web content geared toward LGBT people.

For prisons, ongoing questions about treatment of transgender prisoners were raised in multiple lawsuits. In September, the National Center for Lesbian Rights and GLAD announced that they had reached a settlement with the Federal Bureau of Prisons in the case of Vanessa Adams that would mean that "[t]reatment options [for trans inmates] will not be precluded solely due to level of services received, or lack of services, prior to incarceration." In the U.S. Court of Appeals for the Fourth Circuit, however, a case is ongoing about Virginia prison system.

Finally, in December, the U.S. Court of Appeals for the Eleventh Circuit, a generally conservative court, sided with Vandy Beth Glenn -- the trans woman, represented by Lambda Legal, who has testified before Congress about being fired from her job as an editor in the Georgia General Assembly's Office of Legislative Counsel because she was transgender -- in finding that discrimination on the basis of gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause.

As 2011 comes to a close, as when 2010 ended, LGBT legal advocates await action at any moment from the Ninth Circuit on the American Foundation for Equal Rights's challenge to Proposition 8. But, if 2011 is to serve as a guide, the key insight to preparing for the legal challenges that will be front and center in 2012 is to be prepared for the unexpected.

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