The Supreme Court Dismisses California’s Prop. 8

images-1On June 26, 2013, the U.S. Supreme Court issued their much anticipated decisions regarding the constitutionality of DOMA and Prop. 8. The Windsor decision, regarding DOMA, is addressed in the previous blog post. The Hollingsworth decision, regarding Prop. 8, is addressed below.

Hollingsworth v. Perry, Prop. 8

After the two couples challenging the constitutionality of Prop. 8 won in District Court, the State of California declined to appeal the ruling.  The proponents of Prop. 8 responsible for getting it on the ballot through the initiative process stepped in to appeal. When the Supreme Court granted certiorari, it specifically asked the parties to address whether the proponents of Prop. 8 had standing to bring the appeal.  In general terms, standing requires the party to have a specific legal or tangible harm that the court can remedy.

In a 5-4 decision written by Chief Justice Roberts, the Supreme Court dismissed the case based on its finding that the proponents of Prop. 8 did not have proper legal standing to appeal the lower court ruling. Proponents had argued that their participation in California’s initiative process in getting Prop. 8 on the ballot gave them a unique interest.  However, the Court disagreed, explaining that once Prop. 8 was approved, those who were involved in getting it on the ballot did not have any specialized interest in the law that was distinguishable beyond that of any other California citizen. “No matter how deeply committed petitioners may be to upholding Proposition 8 or how zealous their advocacy, that is not a ‘particularized interest’ sufficient to create [a basis for legal standing] … We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to do so. We decline to do so for the first time here.”

Based on this ruling, the Ninth Circuit opinion is vacated and the district court ruling remains in place. The practical effect of this decision is that Prop. 8 is history, mostly.  The truth is that technically, a district court can only make rulings that apply to the parties before it, rather than statewide.  Thus, the district court ruling could only apply to the two couples who challenged Prop 8 in court.  However, following the Supreme Court’s ruling, California Governor Jerry Brown directed state officials to begin issuing same-sex marriage licenses as soon as the Ninth Circuit lifts the previous stay on those marriages. Though it’s impossible to say for sure how long it will take, same-sex marriages will likely begin again in California in approximately thirty days from the date of the Supreme Court’s ruling.

Read the opinion in its entirety here.

Refusing to Allow a Transgender Student to Use the Gender-Segregated Restroom that is Consistent with Their Gender Identity is Unlawful Discrimination

On June 17, 2013, the Colorado Civil Rights Division (“CCRD”) issued a Determination in the Charge of Discrimination filed by Coy Mathis (Ms. Mathis), by and through her parents, Jeremy and Kathryn Mathis, against Fountain-Fort Carson School District 8 (“School”).   CCRD found that the School had engaged in unlawful discrimination when they refused to allow Ms. Mathis, a transgender student, use of the girls’ restroom, which was consistent with her sex and gender identity.  This is a finding that is likely to impact not only schools, but also other public accommodation facilities.

On February 7, 2013, the parents of Coy Mathis, a Colorado first-grader, (normally we would not identify a minor by name; however, this individual has been identified by her parents in numerous media forums as well as in the ruling that is attached), filed a complaint with the CCRD.  The complaint alleged that Ms. Mathis’ school had “denied her equal terms and conditions of service of goods, services, benefits, or privileges; equal treatment based upon harassment; and the full and equal enjoyment of goods, services, facilities, privileges advantages or accommodations of a place of public accommodation due to her sex (female) and sexual orientation (transgender).” (see Determination, attached below).  The allegations were that Ms. Mathis was allowed to use the girls’ restroom during her kindergarten year and then again during the first part of her first-grade year; however, in December of 2012, Ms. Mathis’ parents were notified that Ms. Mathis would no longer be allowed to use the girls’ restroom and would instead need to use either the boys’ restroom or one of two single-user restrooms – the adult staff restroom or the health office restroom.  Ms. Mathis’ parents attempted to resolve the issue with the school, but the school refused to reconsider their decision.  As a result, the Mathis family filed their complaint with the CCRD, and that filing led to the June 17th determination.

The Colorado Anti-Discrimination Act (“CADA”) provides that discrimination in the areas of employment, housing, and public accommodations because of an individual’s or group’s protected class/characteristic is unlawful.  Sexual Orientation, whether actual or perceived, is a protected class/characteristic under Colorado law.  Furthermore, sexual orientation is defined as heterosexuality, homosexuality (lesbian or gay), bisexuality, and transgender status (transgender status means a gender identity or gender expression that differ from societal expectations based upon gender assigned at birth).  CADA also grants the Colorado Civil Rights Commission with authority to adopt regulations to interpret, implement, and aid in the enforcement of CADA.  As part of those efforts, the Commission has previously addressed restroom usage for transgender people by adopting Rule 81.11, which provides, in part:

  • (A) Nothing in the Act prohibits segregation of facilities on the basis of gender.
  • (B) All covered entities shall allow individuals the use of gender-segregated facilities that are consistent with their gender identity.  Gender-segregated facilities include, but are not limited to, restrooms, locker rooms, dressing roos, and dormitories.

In applying the provisions of CADA, as well as the regulations adopted by the Colorado Civil Rights Commission, the CCRD found that the actions of the School were discriminatory.  The CCRD noted that Ms. Mathis’ birth certificate identified her as “male,” but found that the “Division must weigh the totality of the evidence and rely on the most current legal documents to determine the Charging Party’s sex and gender.”  As such, the CCRD found that the weight of the evidence supported finding Ms. Mathis’ sex as female.  The CCRD then found that by not permitting Ms. Mathis to use the restroom with which she identified, the School was treating her less favorably than other students seeking the same service.  That finding established a case of discriminatory terms and conditions of services prohibited by the CADA.  The CCRD also found that a case of discriminatory harassment was established, noting that by telling Ms. Mathis “she must disregard her identity while performing one of the most essential human functions constitutes severe and pervasive treatment, and creates an environment that is objectively and subjectively hostile, intimidating or offensive.”  Finally, the CCRD also found that a case of discriminatory denial of services had been established.  For this claim the School’s argument was that they had provided an alternate restroom to Ms. Mathis by providing the use of one of two single-use restrooms.  The CCRD rejected that argument citing the “separate but equal” philosophy and noting that, “at least in terms of protected classes, [] separate is very rarely, if ever, equal.”  The CCRD found that offering alternate restrooms such as the School did in this case, does not constitute “services” sufficient to meet Ms. Mathis’ needs.

Now that the CCRD has reached a determination, the matter is referred to the CCRD’s mandatory conciliation program to see if an amicable resolution can be reached.  If there is an agreed resolution it is possible that the agreement will not be released to the public.  If no agreement is reached, the matter may head to the courts for a resolution. Either way, the CCRD’s Determination letter is likely to be extremely helpful in other cases of alleged discrimination based upon sexual orientation by public accommodations.

You can review the complete Determination letter here.

Parental Rights for Same-Sex Couples

The Colorado Civil Union Act went into effect on May 1, 2013 (with the exception of certain provisions related to insurance).  Briefly addressed below are parental rights and options available to same-sex couples with relation to children, including children that have been in the family and children that are new to the family.

I.  STANDARD ADOPTION:

With the passage of the Civil Unions Act, same-sex couples can now jointly adopt children.  In order to do so, the couple must be parties to a civil union.  The process can be lengthy, and will include a home study and a parenting class.

Of note, one party to a Civil Union can not adopt a child on their own.  A party to a Civil Union is required to jointly adopt with the other party to the Civil Union, unless the parties are legally separated.

II. SECOND-PARENT ADOPTION:

This is a tool that was available to same-sex couples prior to the Civil Union Act, and continues to be available to same-sex couples where appropriate.

Second-parent adoptions encompass a variety of family circumstances in addition to same-sex couples.  For a second-parent adoption the sole legal parent must consent in writing to the adoption and must confirm that the child only has one legal parent.

The second-parent adoption process requires a home study and will also include a background check through three separate agencies.  Additionally, the adopting parent is now being required to also attend a parenting class.

III.  STEP-PARENT ADOPTION:

The step-parent adoption process has been available to opposite-sex couples for quite some time, but one requirement was that the parties be married.  The marriage requirement meant that this process was not available to same-sex couples.  However, with the passage of the Civil Union Act, this process became available to same-sex couples.  This process is generally less expensive and less invasive than the second-parent adoption process.

For a step-parent adoption, a legal parent (natural or adoptive) must be in a marriage or civil union with the potential adoptive parent, that same legal parent must consent to the adoption, and the child must be available for a step-parent adoption.

Available for adoption includes, but is not limited to:

  1. Other biological or adoptive parent is deceased;
  2. Other biological or adoptive parent’s parental rights have been relinquished or terminated;
  3. Other biological or adoptive parent consents to the termination of their rights and the adoption by the step-parent;
  4. Other biological or adoptive parent’s parental rights are being terminated as part of the adoption proceeding, but certain conditions must be met;
  5. The child was conceived and born out of wedlock (this includes when a child is conceived through assisted reproductive services).

Unlike the second-parent adoption process, a home study and parenting class are NOT generally required.  The process does require a background check through three agencies.

IV.  CHILDREN CONCEIVED BY ONE PARTNER:

If the child was conceived prior to the parties entering into a civil union, you will need to use the step-parent or second parent adoption process in order for both parties to have parental rights.

If the child was conceived after the parties entered into a civil union, then that child will be presumed to be the child of both parties to the civil union.  As such, no adoption is legally required in the State of Colorado.

In both situations, the parties are advised to consider obtaining a special Medical Power of Attorney in an effort to ensure the protection of the child and the non-birth parent in case the birth parent is unable or unavailable for medical decisions related to the birth parent or the child.

ADDITIONAL GENERAL ADOPTION INFORMATION

You will be required to file a specific Petition and other attendant legal documents for each adoption.  The Court will then schedule a hearing.  In step-parent adoptions, the hearing will be scheduled as soon as possible.  In other types of adoptions, the hearing will be scheduled for a date after the child has been in the adoptive home for at least 182 days.

Additionally, if the adoptive child is 12 years of age or older, their consent to the adoption will be required.

 

Disclaimer:   This post only offers general information and is not intended to provide legal advice regarding any person’s specific situation and does not create an attorney-client relationship of any kind.  The area of law discussed in this post is new to Colorado and is an area of the law that is constantly evolving on a state and national level, as such there is bound to be uncertainty regarding this area.   If you have specific questions, encounter difficulties with your own relationship, or need other legal advice, you are encouraged to contact an attorney that practices in this area. 

 

Supreme Court Prop 8 Oral Arguments – Extensive Analysis

The dust has settled on the Prop 8 oral arguments and many have written and rewritten their predictions.  Using oral arguments to predict a ruling from the United States Supreme Court is questionable, at best.  Among other things, Justices tend to play devil’s advocate during oral arguments and therefore, the questions they pose do not necessarily reflect their own conclusions.  However, it is a game everyone, in and out of the legal field, tends to play. The game is made even more difficult to navigate here where there are so many possible rulings.

I. Standing

The initial question in the Prop 8 case is standing.  Generally, in order to have ‘standing’ to bring an action, a party must have a specific legal injury.  Following the initial trial, where the District Court ruled that Prop. 8 was unconstitutional as a violation of the equal protection and due process rights of gay and lesbian Californians, the State of California declined to appeal the ruling.  Afterward, a portion of the individuals who were responsible for getting Prop 8 on the ballot through the initiative process stepped in to appeal. The Ninth Circuit certified a question to the Supreme Court of California asking if the parties had standing to do so and the California Supreme Court answered in the affirmative.  The Ninth Circuit then ruled that Prop 8 was unconstitutional as a violation of due process rights.

The proponents of Prop 8 maintain that because the State of California has standing to defend the law, it also has the authority to delegate defending it to a third-party.  They also argue, in accordance with the California Supreme Court ruling, that failing to recognize standing of the people who placed the initiative on the ballot would thwart the entire initiative process. Justice Alito seemed to go along with this argument, noting the whole point of an initiative process was to allow people to circumvent public officials of whom they were suspicious.  If the only people who could defend laws passed by initiative were public officials, then the whole purpose would be defeated.  Justice Sotomayor voiced a similar concern.

Justices Ginsburg and Kagan were skeptical of the proponents’ standing. Ginsburg noted she understood their roles in getting an issue on the ballot, but questioned whether once the law passed, they held any more interest than any other member of the citizenry.  Kagan asked whether the State of California could just delegate the authority to anyone to defend a law. When proponents’ counsel answered in the affirmative, Chief Justice Roberts interrupted, stating that such a scenario would make the standing requirement basically meaningless.

Justice Sotomayor noted the distinction between a State official, who inherently has a fiduciary duty to the State, defending a law and a general member of the citizenry who does not owe such a duty. Justice Scalia seemed to dismiss this concern, stating that the Attorney General does not have a ‘proprietary’ interest in a particular law but can generally defend it because the law provides him that authority. Presumably, Scalia was implying that proponents could do the same if the Court recognized California’s right to delegate such authority, but that implication is mere speculation and I would never deign to presume too much where Justice Scalia is concerned.

Chief Justice Roberts questioned the Court’s approach in assuming the State of California or the current Prop 8 proponents were the only two options for parties with standing. He specifically noted there may be people in California who are actually injured by the striking down of Prop 8 who could properly challenge it, perhaps people who perform marriages but who do not want to perform them for same-sex couples.

Justice Breyer’s inquiries were split.  He described a strong argument in the briefing that proponents did not have any special interest beyond the rest of the citizenry and that they’re really nothing more than a few citizens who feel ‘really strongly’ the law should be enforced. He also noted that allowing the proponents to defend the law would introduce a ‘public action’ into the federal system, and there is nothing in the federal law providing for that.  However, he questioned why, if the Court were inclined to find the State of California could delegate the authority to defend its laws, it couldn’t delegate said authority to the proponents.  Justice Kennedy indicated that going through the initiative process to get an issue on the ballot may be sufficient to set proponents apart from the general citizenry and allow them standing.  On a similar note, Scalia questioned the effectiveness of State officials, who did not want to defend a law, choosing those who would defend it.

II.  Merits

The proponents’ primary arguments in favor of Prop 8 are two-fold. First, marriage is a gendered institution and the primary purpose of marriage is procreation.  Second, same-sex marriage is too new to know the societal harms it may inflict. Their use of these two propositions is illustrated below.

Justice Kennedy asked proponents’ counsel whether the question could be treated as one of gender classification, indicating it was a question with which he had wrestled.  Justice Sotomayor asked proponents’ counsel whether the government was ever justified in denying gays and lesbians other benefits, such as employment, or imposing burdens on them. When proponents’ counsel basically answered no, she asked why then shouldn’t they be treated as a class so that government had to meet certain standards in order to discriminate against them, and what made marriage different.

Proponents’ counsel answered that gays and lesbians do not meet the traditional tests for being treated as a class.  He also argued that the question of whether the government can discriminate against them in other contexts, such as employment, is distinguishable from the Prop 8 case because in that situation, the government would be discriminating between similarly situated individuals as employees and probably based upon arbitrary and capricious reasons.  In the context of marriage, however, gay couples and heterosexual couples are not similarly situated because heterosexual couples can procreate, while gay couples cannot.  Proponents contend the State has an interest in regulating marriage and the purpose of marriage is procreation.

Justice Kagan then noted that might be a reason to not include them in marriage, but questioned a reason to exclude them.  She explained that perhaps same-sex couple’s do not serve the State’s interest in procreation but asked if they somehow harm a State’s interest?  This brought proponents’ counsel to his second primary argument, same-sex marriage is too new to know what societal effects may result and they propose that such effects could be adverse.  When he failed to come up with a specific harm, but refused to concede there wasn’t one, Justice Scalia offered him an allegedly concrete harm, stating that there was “considerable disagreement among sociologists about whether” it was harmful to raise children in same-sex households.  (Because this is so egregious, I will make an exception to my usual restraint from adding personal commentary to note, Justice Scalia’s statement is an absolute falsehood.  Every national, professional psychological and medical association has expressly found, including the American Academy of Pediatrics as early as 2002, that there is no link between parents’ sexual orientation and a child’s emotional well-being).

On this note, Justice Ginsburg stated that the idea of societal harm resulting from same-sex couples raising children was irrelevant to proponents’ argument because California allows adoption by same-sex couples.  Scalia countered that the opponents of Prop 8 were seeking a nation-wide ruling as well.

Justices Kagan and Breyer asked proponents’ counsel to explain why it did not violate the Constitution to prohibit gay people from getting married but it would be a violation to prevent infertile couples or people over the age of 55 from getting married.  On the latter, Proponents’ counsel stated that it was rare for a male to outlive his fertility and that the societal norm of marriage imposes fidelity and monogamy upon a couple and therefore, would prevent irresponsible procreation by the male party in that marriage.  As to the former, proponents’ counsel stated that allowing marriage to be a genderless institution shifts the focus away from procreation.

Chief Justice Roberts noted that through civil unions California gays and lesbians have every other state right heterosexual couples have so why should the State be required to change the definition as it’s just a label.  Counsel for the opponents of Prop 8 countered that certain labels matter, such as “citizen.” He also argued that in cases such as Lawrence and Skinner, among others, the Court had held that marriage was a fundamental right based on privacy, intimacy, status and recognition, not just procreation, and all those things apply to same-sex couples.

Justice Scalia made it abundantly clear that he would not rule in favor of recognizing a constitutional right to marriage for same-sex couples, not that this was a surprise.

Kennedy, who most see as the possible swing vote, stated that he thought the Ninth Circuit’s ruling was based on an odd rationale.  In all likelihood, opponents of Prop 8 found this statement more discouraging than any other because the 9th Circuit’s decision was based almost entirely on the rationale of Justice Kennedy’s opinion in Romer v. Evans, wherein the Court struck down a Constitutional amendment in Colorado that prohibited anti-discrimination protection of gay citizens in both the public and private sphere.  In the Prop 8 arguments, though, Kennedy stated that applying that rationale would mean penalizing a State that had been generous in the rights it granted to gay couples.

Sotomayor brought up the slippery slope argument, asking whether it would be permissible then for a State to prohibit polygamy or set a minimum age at which one could get married.  Prop 8 opponents responded that those regulations would pertain to conduct, while prohibiting same-sex marriage denies rights to people based on status, which is not constitutional.

Kennedy stated that he thought the opponents of Prop 8 were asking the court to enter into uncharted water with very little sociological evidence. Though he did not note that there was an immediate injury to the approximately 40,000 children in California who were being raised by same-sex couples and who wanted their parents to have full legal status.  But he returned again to the ‘newness’ of gay marriage and questioned whether they should have granted certiorari in the case, especially given the standing issue and also noting that interracial marriage had been present for 100 years in common law countries before they decided Loving v. Virginia.  Justice Alito stated that gay marriage was newer than cell phones and the internet.  Justice Sotomayor joined this thinking, asking if there was any reason they had to decide this issue now when they let segregation percolate for over 50 years before they decided Brown v. Board of Education.

The Solicitor General also argued on behalf of President Obama’s administration that Prop 8 was a violation of equal protection because California gave all of the rights of marriage to same-sex couples, but denied them actual marriage.  This would mean that the nine states that do not allow same-sex marriage but allow gay and lesbian couples all of the other benefits of marriage must open marriage to them as a matter of equality.  The Justices sharply criticized this argument.

III.  Possible Rulings

a.  Dismissing as Improvidently Granted.  There has been some discussion regarding whether the Court could dismiss the case as improvidently granted, saying, in effect that the Court should not have accepted the case.  In that situation, the case is simply treated as if the Court had never granted certiorari and the appellate court decision stands. While not common, the Court did issue such a ruling just last year in First American Financial Corp. v. Edwards, No. 10-708, a case based entirely on standing, wherein the Court heard oral arguments in November 2011 but did not dismiss it as improvidently granted until the last week of June 2012.

b.  No standing.  If a majority of Justices were to find that the proponents of Prop 8 did not have standing, then the ruling of the Ninth Circuit would be vacated and, in all likelihood, the district court ruling would be considered reinstated, meaning Prop 8 would be stricken as unconstitutional.  Though, a party with possible standing could challenge that ruling in the future.

c.  Standing, nation-wide ruling.  If the Court ruled Prop 8 proponents do have standing, the Court could issue a nation-wide ruling that same-sex marriage is a fundamental constitutional right and must be available to all United States citizens.  This ruling seems unlikely.

d.  Standing, CA only.  If the Court ruled Prop 8 proponents have standing, the Court could follow the Ninth Circuit’s ruling, which is limited to California, based on the Romer rationale discussed above.

e.  Standing, 9-State rule.  If the Court ruled Prop 8 proponents have standing, the Court could rule that once a state has provided by law that same-sex couples will have the same rights as heterosexual couples, as California did (as well as 8 other states), there is no legitimate justification for denying those couples the status of “marriage” itself.   Based on this reasoning, such a conferral of second-class status must be designed merely to stigmatize some couples on the basis of sexual orientation, something the Constitution forbids. This ruling also seems unlikely.

f.  Standing, Uphold Prop 8.  The Court could rule to reverse the 9th Circuit decision and uphold Prop 8 as a reasonable exercise of a State’s power to regulate marriage and protect it as a focus of procreation.  Such a ruling would not mean that same-sex marriage was prohibited anywhere else in the nation, but it would mean that bans on such marriages were constitutional.

g.  No majority ruling.  If the Court issues a ruling, but does not have a 5 vote majority on any one ruling, then the 9th Circuit’s California only decision would become final.  That court would remove the temporary order blocking marriages and same-sex couples could resume getting married in the state.

As a disclaimer, my own prediction may admittedly be swayed by my personal preference because these arguments did not fill me with confidence with regard to any ruling on the merits.  Without even addressing standing at this point, I feel confident this Court is not going to issue a ruling that proclaims the fundamental right of marriage extends to same-sex couples. I think certain conservative Justices want to rule on the merits of this case because they want to uphold Prop 8.  However, I don’t think either side is going to reach a majority without Justice Kennedy.  Justice Kennedy has always been a strident defender of the preservation of state’s rights.  It is upon this basis I believe he will rule in favor of striking down Section 3 of DOMA, but that creates an interesting conflict for this case.  Still, I find it difficult to conclude Justice Kennedy wants to uphold Prop 8 but he seemed relatively clear he would not strike it based upon the reasoning of the Ninth Circuit, and that leaves him with few options as he seemed even more unlikely to rule in favor of a nation-wide ruling (and there would not be a majority for that ruling, regardless).  I think the Court will either find that the proponents of Prop 8 do not have standing and therefore never reach the merits, or they will do exactly what they did last year in the First American case and dismiss as improvidently granted.  In either situation, Prop 8 would be considered unconstitutional for the time being.

– Jenny Evans

Colorado Civil Unions Presentations – On Video

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© jalcaraz – Fotolia.com

The Colorado Civil Union Act goes into effect (mostly) on May 1, 2013.  In fact, some of the Colorado County Clerks have announced that their offices will be open at 12:01 a.m. on May 1st to begin issuing Civil Union licenses to couples.  Both Denver and Boulder County Clerks have advised that they will be open at 12:01 a.m..

In advance of May 1st, we at Martin Law believe it is important for Colorado citizens to understand more about Civil Unions, i.e. what they are and are not, the process for obtaining a civil union, what rights, protections and responsibilities come with a Civil Union and what do not, etc.  As a result we joined with Out Boulder to present a program on March 27, 2013 titled Colorado Gets Civil-ized, which was a panel presentation from Martin Law attorney Jodi S. Martin and fellow Boulder attorney, Larry Hoyt.

If you missed the program, and would like to learn more about Colorado’s Civil Union Act, you can watch the webcast recording of the program right now.  The video is below.  Additionally, the slides used in the presentation can be viewed here, and the handouts distributed are available here.

If you have a group or business that is interested in coordinating a presentation on the Colorado Civil Union Act or any of its implications for same-sex couples, please feel free to contact Jodi S. Martin for information on scheduling.

Disclaimer:   This blog post and any attachments or links only offer general information and are not intended to provide legal advice regarding any person’s specific situation and do not create an attorney-client relationship of any kind.  The area of law discussed in this blog post and any attachments or links is new to Colorado and is an area of the law that is constantly evolving on a state and national level, as such there is bound to be uncertainty regarding this area.   If you have specific questions, encounter difficulties with your own relationship, or need other legal advice, you are encouraged to contact an attorney that practices in this area.

Answers to Frequently Asked Questions about the New Colorado Civil Unions Act

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© jalcaraz – Fotolia.com

Colorado’s legislature passed the Colorado Civil Unions Act (SB 2013-11) today, March 12,  2013.  Governor Hickenlooper will be signing the bill on Thursday, March 21, 2013 at the Colorado History Museum at 3 p.m. The law will be effective May 1, 2013.

With the passage of the Colorado Civil Unions Act many questions arise. To help answer some of the frequently asked questions, we put together the attached FAQ Sheet.

Questions answered in the attached FAQ Sheet include:

  • What is a civil union?
  • When can I get a civil union?
  • Who can enter into a civil union?
  • How do I get a civil union?
  • What impact does the Colorado Civil Union Act have on a domestic partnership agreement or civil contract that I previously entered into?
  • What if I have entered into a marriage, civil union, or registered domestic partnership elsewhere, do I have to enter into a civil union in Colorado?
  • Can I change my name after entering into a civil union?
  • How does a civil union impact my parent-child relationship with non-biological children I have with my partner?
  • What rights and responsibilities do I have as a result of my civil union?
  • What rights and responsibilities are withheld under civil unions that are granted under marriage?
  • How do I end a civil union, or obtain a divorce from a marriage to a same-sex spouse obtained in another state?
  • Are there any reasons why parties should not enter into a civil union?
  • Do we still need to do estate planning, such as medical powers of attorney and wills, to protect our rights now that we have civil unions?

To read the Act in its entirety, go here.

We will continue to update the FAQ sheet as the new law progresses.

U.S. State Department releases an LGBT Travel Advisory with detailed advice for safe international travel

The U.S. Department of State (“State Dept.”) recently held a roundtable discussion regarding the safety of U.S. LGBT citizens during global travel.  Notably, various studies indicate that U.S. LGBT travelers have an estimated $50 to $65 billion impact on the global economy.  “It is important for our LGBT citizens to travel safe and smart,” said Janice L. Jacobs, assistant secretary of state for consular affairs.  As part of the State Dept.’s effort to protect its LGBT citizens abroad, it recently issued its first LGBT travel advisory that addresses such issues as what documents LGBT individuals and families should carry when traveling abroad, the State Department’s policy regarding the passport identity of transgender travelers, and the HIV entry requirements of foreign countries.

In its advisory, the State Dept. noted that the LGBT community’s safety varies widely from country to country. Some countries offer specific legal protections, some countries’ laws are silent and some criminalize such relationships as punishable by fines, prison, flogging and/or death. As a result, it is imperative that all LGBT persons educate themselves on the local laws and customs before they depart for international travel. It noted several sources from which they can gain information about international regions.

1). Current guide books specializing in advice to LGBT travelers will usually include information about laws, customs and safety;

2). LGBT activist groups often have information on their websites or at their offices;

3). LGBT groups local to the destination city often have the same;

4). The State Department offers a Smart Traveler Enrollment Program (“STEP”), a free service to U.S. citizens living or traveling abroad that allows the enrollee to enter information about an upcoming trip or foreign domicile so that the State Dept. can provide current Travel Warnings, Alerts and Country Specific Information. STEP also provides U.S. citizens abroad with emergency and security messages from the nearest U.S. embassy or consulate. There is also a Smart Traveler app available for free download.;

5). On the Bureau of Consular Affairs’ website, the State Dept. publishes Country Specific Information for every country, which includes a section entitled “Special Circumstances” that may contain information about attitudes, harassment or arrest of LGBT travelers, depending on the country; and

6). The State Department publishes an annual Human Rights Report that includes a section specifically regarding sexual orientation and gender identity in each country.

The State Dept. also advises that when travelling, LGBT individuals or families should carry legal/health documents that facilitate authorization for medical treatment or access in the event of a medical emergency while abroad. LGBT parents should carry documents regarding parentage and/or custody for accompanying minor children. They should carry contact information for people in the United States, both legal and familial, who also have their travel itinerary. Finally, prior to travel, they should program the contact information for the U.S. embassy or consulate in each destination country and contact that country’s embassy or consulate in the U.S. to learn about any special documentation requirements.

Additionally, the State Department also issued some general suggestions to LGBT persons to keep in mind. While traveling, they should consider they are subject to the local laws and judicial process of the country they are visiting. They should avoid any excessive public displays of affection, particularly in conservative countries or regions. They should also avoid internet chat rooms as some local authorities are known for monitoring such rooms to carry out entrapment schemes. LGBT travelers are more likely to experience problems in rural areas and some hotels won’t accept bookings from same-sex couples so they should check before travelling. If a LGBT traveler runs into problems, they can contact the American Citizens Services (ACS) section of the U.S. embassy or consulate. The current State Department ensures that the consular officers will not make generalizations, assumptions or pass judgment.

Finally, the State Dept.’s Country Specific Information page also includes HIV/AIDS entry restrictions, or lack of restrictions, in the section entitled Entry/Exit Requirements for U.S. Citizens.  In some instances, it refers travelers to that country’s embassy or consulate for additional information.

For additional review of information pertaining to international travel for LGBT persons, below is a list of various sources of interest:

To read the State Dept.’s LGBT travel advisory in its entirety, go here.

The Bureau of Consular Affairs’ website contains extensive information regarding Tips for Traveling Abroad

International Lesbian and Gay Association – Provides information on gay rights around the world, and contains a map which highlights potentially dangerous regions and countries

For a review of the State Dept.’s efforts in protecting and promoting LGBT rights internationally, go here.

For a similar review of President Obama’s overall efforts to do the same, go here.

Proposed federal sex education bill includes requirement to avoid gender stereotypes

The federal Real Education for Healthy Youth Act (the “Act”), introduced on February 15, 2013, is a comprehensive and inclusive sex education bill, intended to replace what many studies indicate are ineffective and medically inaccurate abstinence-only programs.  If passed, the Act would provide five-year grants for comprehensive sex education to state and local education agencies, nonprofit organizations and nonprofit or public universities to fund sex-ed programs.  Funding would also be provided for teacher training on sex education.  Additionally, federal funding would be prohibited for any programs that withhold information about HIV, are medically inaccurate or proven ineffective, promote gender stereotypes, are insensitive and unresponsive to the needs of LGBT youth, or are inconsistent with ethical imperatives of medicine and public health.  Priority would go to programs serving communities with high rates of unintended pregnancy, sexually transmitted diseases or sexual assault.  Similar bills have been introduced in the past several years but have not passed.

Recent data shows that the United States still has the highest rate of teen pregnancy in the industrialized world, and recent reports have shown that teen birth rates are on the rise.  In 2009, there were approximately 19 million new cases of Sexually Transmitted Infections, almost half of them occurring in young people between 15 to 24 years old, and young people accounted for 39% of all new HIV infections in the same year.

The bill requires any programs funded under the Act to emphasize emotional skills and the development of “healthy attitudes and values” about issues like body image, gender identity and sexual orientation.  All teaching would be “age and developmentally appropriate.”  However, several provisions are likely to remain controversial, including a section requiring that curricula refer interested students to local clinics for more information about sexual and reproductive health.  In practice, those clinics could include Planned Parenthood centers as in many areas those are the only clinics available to young people looking for that type of information.

Additionally, the Act also requires that programs report certain gathered information from their students to federal health officials in order to evaluate programs and consider any additions/changes that need to be made in the future.  The requested information would include age of first intercourse, number of sexual partners and contraceptive use.

Congresswoman Barbara Lee (D-CA), one of the sponsors of the Act, explained that research has shown programs that teach abstinence along with contraception “effectively delay the onset of sexual intercourse, reduce the number of sexual partners, and increase contraceptive use among teens.  These programs also reduce unintended pregnancy and the transmission of sexually transmitted infections, including HIV.”

Updated: Remedies for Colorado Workplace Discrimination Claims Will Increase Effective January 2015

The Colorado Anti-Discrimination Act (“CADA”), originally passed in 1959 and expanded in 2007, currently prohibits discrimination in the workplace and in public accommodations based on age, race, disability, gender, sexual orientation, religion, creed, national origin, or ancestry.  The CADA is comparable to federal law, namely Title VII of the Civil Rights Act of 1964 (“CRA”), however, the CADA offers broader protections against discrimination, but also provides significantly less meaningful remedies.

The CADA’s scope of protection exceeds that of its federal counterpart in that the CRA only applies to employers with 15 or more employees, while the CADA applies to employers of any size.  Additionally, the CADA’s prohibition against discrimination based on sexual orientation is not included in the CRA.  This means that the LGBT community’s only protection from discrimination in employment and public accommodation is found under the CADA state law.

However, the CADA is also more limited than the CRA in two significant ways. First, the CADA only allows successful plaintiffs to recover equitable damages, including reinstatement and lost wages.   It does not allow for the recovery of compensatory damages nor punitive damages and it does not allow a successful plaintiff to recover attorney fees.  Second, the CADA only prohibits age discrimination up to the age of 70. After an employee turns 70, they are essentially fair game under Colorado law.

House Bill 13-1136, which has now passed both branches of the State legislature, expands the remedies and protections available under the CADA with regard to employment discrimination. House Bill 13-1136 provides that if a plaintiff in a civil lawsuit proves that he or she was the victim of intentional discrimination in their workplace, then they are entitled to compensatory damages. Additionally, the Bill provides the plaintiff may recover punitive damages if they prove by clear and convincing evidence that the discriminatory or unfair employment practice was done with “malice or reckless indifference to the rights of the plaintiff.”  The Bill also dictates that in awarding any punitive damages, the court must take into consideration the size and assets of the defendant as well as the egregiousness of the intentional discriminatory act or practice.  Additionally, with regard to compensatory and punitive damages, the Bill provides that if the employer has between 1 and 4 employees, then the total of those damages cannot exceed $10,000.  It also provides that if the employer has between 5 and 14 employees, the total of those damages cannot exceed $25,000.  Finally, the Bill limits the maximum damages available to the amounts specified in the CRA.

The Bill also provides for the awarding of attorney fees to either the plaintiff or the defendant in certain specified circumstances.  The Bill authorizes a court to award a prevailing plaintiff-employee reasonable attorney fees and costs.  Conversely, if the court finds that the action was frivolous, groundless or vexatious, the court may award attorney fees and costs to the defendant-employer.

As noted above, age discrimination is only prohibited under the CADA until the age of 70.  House Bill 1136 removes this age limit, allowing for persons over the age of 70 to pursue a claim based on age discrimination.

Finally, the Bill also authorizes the already existing Colorado Civil Rights Commission to appoint a volunteer working group that will assist in education and outreach efforts to foster compliance with the CADA and thereby, reduce the instances of discriminatory or unfair employment practices. If passed, the amendments to the CADA through House Bill 1136 would not take effect until January 1, 2015.

Status: HB 13-1136 passed the House of Representatives on April 19, 2013 and passed the Senate on April 26, 2013.  Governor Hickenlooper signed the bill into law on May 6, 2013.

To read House Bill 13-1136 in its entirety, go here.

Kansas’ Attempt to Force Sperm Donor to Pay Child Support Raises Questions for Some CO Families

Several people have voiced concern recently after a case in Kansas began garnering media attention. A lesbian couple in Kansas conceived a child through the use of artificial insemination. Rather than use a physician, the couple chose their donor through private means. The parties entered into a formal agreement in which the donor waived any parental rights and the couple agreed to hold the donor harmless for any child support payments demanded of him by any other person or entity, public or private. The artificial insemination was done at home with the donor’s sperm and the couple conceived a baby girl.

Later, the couple broke up but continued to co-parent the child. Subsequently, one of the women became ill and could not work. At that point, the biological mother applied for state health insurance with the State of Kansas. The Kansas Department of Children and Families demanded that a father be listed on the application in order to provide the requested health insurance. At that point, the State of Kansas filed a claim against the sperm donor, requiring him to pay child support, though both of the child’s moms were, and remain, opposed.

Under Kansas law, a donor who provides semen to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman. Kan. Stat. Ann. § 23-2208(f).  Because there is no such provision for artificial insemination done through private means, the State of Kansas has refused to treat the donor as anything but the biological father of the child, regardless of the contract between the parties. The non-biological mother has offered to pay the child support that would be applicable if she were treated as the parent of the child. However, Kansas has refused because to do so would essentially recognize the couple as the legal parents and that Kansas will not do.

Questions have been raised as to whether the situation currently playing out in Kansas could happen here. Though Colorado law does offer more protection to couples similar to the Kansas couple, its law in this area does contain a measure of ambiguity.

Colorado has a statute similar to that of Kansas providing: “If, under the supervision of a licensed physician or advanced practice nurse and with the consent of her husband, a wife consents to assisted reproduction with sperm donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. … Both the husband’s and the wife’s consent must be in writing and signed by each of them. …” Colo. Rev. Stat. Ann. § 19-4-106(1). However, unlike Kansas, the Colorado statute also includes an additional provision: “A donor is not a parent of a child conceived by means of assisted reproduction….” Colo. Rev. Stat. Ann. § 19-4-106(2).

In interpreting this statute, Colorado courts have found that “[t]he primary purpose of section 19-4-106 is to provide a legal mechanism for married and unmarried women to obtain a supply of semen for use in artificial insemination and, in the case of married recipients, to make clear that legal rights and duties of fatherhood are borne by the recipient’s husband rather than the donor.” In the Interest of R.C., 775 P.2d 27, 30 (Colo. 1989) (emphasis provided). The court held that while subsection (2) precludes a finding of paternity toward the donor if the donor is anonymous, there is no per se finding if the recipient uses a known donor. Id. at 33. In the situation of a known donor, evidence regarding any pre-insemination agreement between the parties is relevant to determine whether the donor should be considered a legal parent of the conceived child. Id. at 35.

In the R.C. case, unlike the facts in Kansas, the donor brought suit attempting to establish his parental rights to the conceived child. Still, based on the reasoning in R.C., it would appear that if the same facts as the Kansas case occurred in Colorado, the parties would be able to assert their pre-insemination agreement as a defense to any finding that the donor was a legal parent and/or was under any parental financial obligations. What remains unclear, however, is whether and to what extent physician assistance/supervision is required in order for § 106(2) to apply. See id. at 37.

Significantly, Colorado law also allows for second parent adoptions, an option not available in Kansas. Using second parent adoption, when a child is born to a sole legal parent, the non-biological parent can be added to the child’s birth certificate, regardless of gender or relation, as the second legal parent. Colo. Rev. Stat. Ann. § 19-5-203. Those two individuals are then considered the legal parents of the child. Id.

It is clear that Colorado law certainly provides some protections to individuals and families considering assisted reproduction services. It is also equally clear that individuals and families must take advantage of those options in order to protect their own legal interests and ultimately, those of their conceived children.

For more information on the Kansas case, check out this article in Slate.