At Mazzoni Center, we provide a continuum of health and wellness care for clients who identify as lesbian, gay, bisexual or transgender (LGBT). As the legal director at Mazzoni, I believe that part of that holistic healing naturally includes utilizing the legal system to address issues unique to the LGBT community.
In this day and age, it is inevitable that, regardless of the kind of law that you practice, you will also encounter a client who identifies as LGBT. In order to best represent them, I have provided some discussion of common misconceptions and misunderstandings about how the legal system addresses these ever-evolving and often complicated issues.
• “Since there is no state or federal law prohibiting discrimination on the basis of sexual orientation or gender identity, an LGBT employee cannot file a charge of discrimination in Pennsylvania.”
Not necessarily. There are presently 25 local ordinances within the state, including Philadelphia, which prohibit discrimination on the basis of these categories. Additionally, claims filed by LGBT employees have been brought on the basis of sex stereotyping or gender nonconformity. (See the 2009 3rd U.S. Circuit Court of Appeals case Prowell v. Business Systems .)
Of course, claims can be filed in response to a hostile work environment “because of sex,” for example, when comments of a sexual nature are directed at LGBT employees. Finally, when employees have complained of discrimination internally or externally, they can also file a separate complaint based on any retaliatory treatment to which they have been subjected.
• “My client cannot get a legal name change reflecting her new gender until she has completed gender reassignment surgery.”
Absolutely not. Pennsylvania law makes it clear that there is no requirement for any surgery or hormone therapy to have been undertaken in order to change an individual’s name. (See the state Supreme Court’s 1998 opinion in In re McIntyre .) The requirements for a name change are articulated at 54 Pa.C.S.§§701-5, which is the same process for all Pennsylvanians, regardless of the reason for the requested change.
However, the standards for changing gender markers on identity documents vary dramatically. For example, to change a designation on a driver’s license, the individual need only have a doctor, therapist or social worker attest that the individual has a particular gender identity and can reasonably be expected to continue as such in the future. By contrast, altering records with the Social Security Administration requires a physician to state that sex reassignment surgery has occurred.
• “Since Pennsylvania has a policy against same-sex marriage, it is easy to get my gay and lesbian clients divorced from marriages entered into in other states.”
While this would seem to make logical sense, the Pennsylvania courts have interpreted the state’s so-called Defense Of Marriage Act, 23 Pa.C.S. § 1704, to mean that since the out-of-state marriage was void, the courts have no jurisdiction to entertain a motion for divorce. (See Schlegelmilch v. Eckert , a Jan. 20, 2011, Philadelphia Common Pleas Court opinion.)
Because of the fact that many jurisdictions require residency for up to a year in order to file for a divorce, couples often find themselves in the “catch-22″ situation of being in a relationship that neither wants to be in but which the state will not dissolve. There has been some success in dissolving out-of-state civil unions (such as those from Vermont and New Jersey), which the courts have found to be outside the scope of the state DOMA’s jurisdiction. (See, e.g., Mangano v. Weigl , a Sept. 23, 2009, Philadelphia Common Pleas Court opinion; and Steffy v. Guerin , a Jan. 14, 2011, Philadelphia Common Pleas Court opinion.)
• “As long as a gay or lesbian couple buys a home together, there are no tax implications when one dies and leaves the property to the other.”
Unfortunately, no amount of planning or legal wrangling can get around the inequities of our present state inheritance tax system. Regardless of how the couple purchased the home or any estate plans or other state’s legal recognition of their relationship, the death of one triggers the inheritance tax of 15 percent assessed against the other, while no such tax attaches to heterosexual spouses. As long as the state DOMA remains in place, the couple is treated as having no legally recognized relationship, and therefore strangers under the law.
Pennsylvania House Bill 1828 was introduced by state Rep. Babette Josephs, D-Phila., on Sept. 13, to add “domestic partners” to the list of family members who are not subjected to the inheritance tax, but its likelihood of successful passage is questionable. Instead, many gay and lesbian couples are opting to take out life insurance policies to cover the surprise hit of inheritance tax in order to retain their home.
• “Pre-birth orders are the most effective way to ensure that a nonbiological parent establishes rights to the biological child of her female partner.”
Absolutely not. Since 2002, Pennsylvania has recognized second-parent adoptions, where a nonbiological parent adopts without the first mother terminating her parental rights. (See the 2002 state Supreme Court opinion in In re Adoption of R.B.F. & R.C.F. ) By contrast, pre-birth orders are mostly used by heterosexual couples that utilize a surrogate and wish to clarify their own parental rights prior to the birth of the child.
Since Pennsylvania presently has no statutory laws governing such assisted reproductive technology and does not recognize out-of-state marriages, there is no presumption that a child born of the lesbian union is the legal child of both mothers. It should also be noted that, as an added advantage to your client, all eligible costs associated with the second-parent adoption may be deducted using the adoption tax credit, an option that is not available to couples seeking a pre-birth order.
• “Gay and lesbian couples in states that recognize marriage and/or civil union can sponsor their spouses for immigration purposes consistent with the policy of family unification.”
Despite favorable language regarding family unification in federal immigration policies, the federal DOMA presently prohibits U.S. Immigration and Customs Enforcement from giving any legal recognition to same-sex couples, even if they are legally married or civilly united within their state. The Uniting American Families Act, H.R. 1537, S.821 (2011), aims to rectify this inequity by allowing U.S. citizens to sponsor their foreign born same-sex partners for citizenship.
In August 2011, consistent with the Obama administration’s assertion that DOMA is unconstitutional, ICE reiterated its enforcement priorities of deporting criminals and security threats and stated that it would triage all pending actions, taking into consideration factors that include family ties, expressly stating that their definition of family included LGBT families. For the first time since the institution of this policy, ICE on Nov. 30, 2011, closed the removal action of an Argentinean-born lesbian who married her U.S. citizen wife in Connecticut. (See In re Alcota, Joint Motion to Administratively Close Removal Proceedings .)
• “In order to apply for a civil union license in New Jersey, a same-sex Pennsylvania couple would need to establish residency there first.”
Not at all. Pursuant to the 2006 New Jersey Supreme Court decision of Lewis v. Harris , the same residency rules for heterosexual couples apply to same-sex civil unions. Accordingly, a couple seeking a marriage or civil union in New Jersey must only obtain a license in the municipality where the ceremony will occur 72 hours prior to the date of the ceremony, without consideration for residency.
It should be noted that while it is relatively easy to obtain a marriage or civil union license in New Jersey, dissolution actions are far more complicated. In order to file for a civil union dissolution, the moving party must be a New Jersey resident for the prior year.
While heterosexual couples can be divorced in their home state, Pennsylvania’s DOMA prohibits this from happening and places an added burden on same-sex couples. In the new civil union law that went into effect on Jan. 1, the state of Delaware expressly retains jurisdiction over such actions so couples that enter into such unions can seek dissolutions there without having to establish residency.
It is my hope that this has helped clarify some of the issues you should look for when dealing with members of the LGBT community to ensure that they receive the best representation that we in the legal profession can offer them. If we can be of any assistance as you maneuver through the unique issues that LGBT clients face, please feel free to contact Mazzoni Center Legal Services and we will do our best to help. •