Feminist Law Professors

The Washington Post is reporting that the Department of Housing and Urban Development is going to undertake a national study of LGBT housing discrimination. The federal Fair Housing Act does not currently prohibit sexual orientation and gender identity discrimination; however, this study is viewed as a first step toward extending such protection.

As a past victim of housing discrimination on the basis of sexual orientation, I am encouraged to see the federal government taking an interest in this important issue. I am even more impressed by the fact that the government is reaching out to the LGBT communities in New York, Chicago, and San Francisco (with plans to obtain input from LGBT persons in other areas of the country through e-mail or the web) for input on how to design the study. In past studies testing for race discrimination, testers of different races were sent out to determine whether landlords and real estate agents treated them differently based on their race. The concern with this current study is in making sure that the sexual orientation or gender identity of the applicant is clear and that any difference in treatment can really be attributed to discrimination on the basis of sexual orientation or gender identity. That they have reached out to the LGBT community to consider how to do this demonstrates sensitivity to the LGBT community and evinces an intent to design a serious, meaningful study. It’ll be interesting to see the results that they obtain.

-Tony Infanti

A gay Oklahoma college student’s application for a vanity license plate that reads “IM GAY” was rejected by the Oklahoma Tax Commission last year, and that rejection was upheld by three tax commissioners after an administrative hearing. The student, Keith Kimmel, has now filed suit to get his application approved. (Click here for the news story.)

The reason for the rejection:

The  Oklahoma Tax Commission turned Kimmel down last year because of an internal rule against special license tags that “may be offensive to the general public.”

Apparently, however, it is not offensive to have a license plate that reads STR8FAN or STR8SXI. What’s next? Are they going to try to ban rainbow flag bumper stickers because they make a statement about the car owner’s (homo)sexual orientation and are “offensive”? As Kimmel’s lawyer argues, the tax commission’s decision smacks of viewpoint discrimination. Things are definitely not “OK” in Oklahoma.

-Tony Infanti

Yesterday, the Fifth Circuit issued its decision in Adar v. Smith. This case concerns Louisiana’s refusal to issue an amended birth certificate to an out-of-state same-sex couple who adopted a child born in Louisiana. The State of Louisiana had lost in the federal district court and had appealed to the Fifth Circuit. While the appeal was pending, the Louisiana House of Representatives thumbed its collective nose at the federal district court’s decision by  passing a bill that would prohibit birth certificates from being revised to show the names of two adoptive parents who are unmarried. That bill later died in the Louisiana Senate.

In its decision yesterday, the Fifth Circuit unanimously and resoundingly rejected every argument proffered by the state’s Registrar of Vital Statistics. Indeed, the attorney who argued the case for the state was quoted as saying that “the 36-page opinion written by Judge Jaques L. Wiener, Jr. ‘is a thorough rejection of the state’s position.'”  The court held that (1) the parents had standing to challenge the Registrar’s decision, (2) the Full Faith and Credit Clause applied and Louisiana must recognize the same-sex couple as the child’s adoptive parents, and (3) the Registrar must, under Louisiana law, issue an amended birth certificate that reflects the names of both of the child’s adoptive parents. The opinion leaves the distinct impression that the judges had little patience for some of the arguments that the Registrar proffered, including interpretations of the Full Faith and Credit Clause that flew in the face of precedent and an attempt at reading into state law an unconstitutional delegation of unfettered discretion to her to determine which out-of-state adoptive parents, if any, are entitled to an amended birth certificate. Amazingly, the state apparently plans to ask for a stay of the court’s decision and a rehearing in this case.

-Tony Infanti

Check out this video over at the New York Times. It’s both uplifting and a bit depressing, especially at the very end.

-Tony Infanti

A recent column in the San Francisco Chronicle begins with this paragraph:

The biggest open secret in the landmark trial over same-sex marriage being heard in San Francisco is that the federal judge who will decide the case, Chief U.S. District Judge  Vaughn Walker, is himself gay.

The columnists then go on at length to quote the many people who think the judge, who was appointed by George H.W. Bush in 1989, will not allow his sexual orientation to influence his decision in the case. To repeat the title of this post, why is this newsworthy? Obviously this question must have bothered the columnists themselves, because they quote a federal judge who is friends with Judge Walker at length on the topic of the newsworthiness of the judge’s sexual orientation:

Shortly after our conversation, we heard from a federal judge who counts himself as a friend and confidant of Walker’s. He said he had spoken with Walker and was concerned that “people will come to the conclusion that (Walker) wants to conceal his sexuality.”

“He has a private life and he doesn’t conceal it, but doesn’t think it is relevant to his decisions in any case, and he doesn’t bring it to bear in any decisions,” said the judge, who asked not to be identified because of the sensitive nature of the Prop. 8 trial.

“Is it newsworthy?” he said of Walker’s orientation, and laughed. “Yes.”

He said it was hard to ignore the irony that “in the beginning, when (Walker) sought to be a judge, a major obstacle he had to overcome was the perception that he was anti-gay.”

In short, the friend said, Walker’s background is relevant in the same way people would want to know that a judge hearing a discrimination case involving Latinos was Latino or a Jewish judge was ruling in a case involving the Anti-Defamation League.

Why is the fact of a judge’s sexual orientation (or ethnicity or religion) relevant to news reporting in such cases? Doesn’t it merely reinforce hierarchies and negatively influence perceptions about judicial impartiality among the public? For example, when LGBT issues are brought before straight judges, do you see similar news stories or columns talking about the open secret that the judges are straight and quoting a number of people who know them attesting to the fact that they will not allow their (hetero)sexual orientation to affect their decision? Of course not. Straight judges are presumed to be impartial in matters affecting the LGBT community—and LGBT judges are presumed to be biased and “promoting the homosexual agenda”—absent convincing evidence to the contrary. At the end of the day, a story such as this plants a seed of doubt about the judge’s impartiality that does not get planted when a straight, white, Christian, or male judge hears a case about discrimination based on sexual orientation, race or ethnicity, religion, or gender.

And let’s not forget that, in the case before Judge Walker, the backers of Prop. 8 purport to be defending the different-sex marriages of heterosexuals against some imagined assault by the LGBT community. So, straight judges arguably have just as much at stake in these cases as lesbian or gay judges would. Maybe I missed something, but I don’t recall seeing columns or stories “outing” all of the judges who upheld bans on same-sex marriage in Arizona, Indiana, Washington, Georgia, Louisiana, and Nebraska or “outing” all of the judges who interpreted ambiguous marriage statutes to prohibit same-sex marriage in the District of Columbia, New York, and New Jersey. If the sexual orientation of these many judges was not relevant to news reporting regarding their decisions, despite their arguable self-interest in those cases, then why is Judge Walker’s relevant to this case? Are we going to see similar reporting on the 9th Circuit judges and Supreme Court justices who hear the appeals in this case?

-Tony Infanti

The Washington Post reported the other day on a flier that was recently sent home with many high school students’ report cards in Montgomery County, Maryland:

Some Montgomery County high schools passed out fliers this week from an organization that contends gays can become heterosexual through therapy, and the schools say they cannot prevent the use of their distribution system by such groups.

The fliers, from the group Parents and Friends of Ex-Gays and Gays, were distributed Thursday alongside report cards by teachers at Winston Churchill High School in Potomac. The group says it delivered them to about half the county’s high schools this week and plans to do the same at the remaining high schools at the end of the school year.

The board of education claims that, under the terms of a settlement agreement from a 2006 lawsuit, it is required to distribute any literature that is not deemed hate speech and that is provided by a registered nonprofit organization.

Though this may not rise to the level of hate speech in the sense of being a slur or threat, it certainly seems inconsistent with the board of education’s  nondiscrimination policy, which “affirm[s] the Board of Education’s commitment to maintaining an environment where all students and staff members conduct themselves in a manner built on mutual respect.” Telling straight high school students that their lesbian and gay peers could be straight if they just tried hard enough will in no way build mutual respect in the school system. If anything, it contributes to an environment in which you will encounter hate speech and acts of violence targeted at students who just seem not to be trying hard enough to toe the heterosexual line.

It also raises some interesting questions about double standards. Do you think that the school system would distribute a flier with its report cards from a nonprofit that said that we could achieve world peace if only everyone embraced Jesus Christ as their personal savior? That certainly isn’t a slur or a threat either, but, like the flier from the ex-gay group, it would contribute to an atmosphere of intolerance–in this case, of religious minorities. Or, would the school distribute a flier from a nonprofit that flatly contradicts another area of the curriculum–say, a flier from a nonprofit organization that advocated the view that the Earth is flat or that espoused creationism? Neither of these messages are hate speech, but they would run counter to the educational mission of the school, just as the ex-gay group’s flier apparently runs counter to the school’s health law curriculum.

Also, the school’s standards for distributing materials seem unduly lax. Any organization with 501(c)(3) status or a notarized letter on the organization’s letterhead stating that it is a nonprofit can get access to this distribution system. The school system seems to be taking 501(c)(3) status as some type of government imprimatur of an organization’s message. This is a mistake. And the fact that an organization is a nonprofit (or says that it is a nonprofit) says nothing about the appropriateness or trustworthiness of its message–all it means is that the organization is not a commercial enterprise. These two criteria for giving unfettered access to young minds seem completely misguided. A school is an educational institution. All of these organizations certainly have the First Amendment right to espouse their views, but does that mean that they should have the right to disseminate those views through the school system? Shouldn’t the messages that a school sends out to its students–even with a disclaimer–be in keeping with its educational mission?

-Tony Infanti