|(C) ICTLEP, Inc., August
from the PROCEEDINGS
International Conference on
INSURANCE LAW PROJECT
By Phyllis Frye:
I've got a word or two to say and then I'm going to introduce Jim. I don't want this record that's going out on tape and going out on writing to misrepresent some facts. We have today and throughout this conference some very dear people, members of our community who have been kind of taking some pretty large doses of criticism. I want to make sure that they understand that we love them, and I want to make sure that they understand that whenever we are criticizing, and a lot of us are criticizing, either individuals, speakers, whatever, the Republican Party, I want them to understand that we are not criticizing Republicans. And we are not criticizing the historical Republican Party.
What we are criticizing is what is going on in America today and what we saw allowed last week at the Republic Convention when a bunch of people took over that convention. I have very many friends in the community and in other communities __ some where at the dinner last night __ who agree with what happened at the Republican National Convention when the Log Cabin Republicans, which is the Gay, Lesbian group, went on the air, on the media, on the news reports, on the Today Show, and others and said "we are Republicans, we're proud of being Republicans, we're not proud of what's going on right now and we are not going to endorse the current ticket."
So, I want to make sure that we are not bashing the Republican Party historically, we are not bashing Republicans historically, but we are extremely upset at what we heard and what was allowed to be said and was not repudiated.
Those two people that are here today I want you to know I also want this on record that one of them was an alternate delegate to the RNC. She went completely out of the closet. If you think when you hear tonight what it was like for me to walk into the bowels of the Houston Police Department to address the Vice Squad Captain in the days when the Cross Dressing Ordinance was illegal in Houston, I would have much preferred that than to go out of the closet as she did into the Republican National Convention as it was made up last week. I admire them both for what they did. They took our [page 151] brochures, about 200 of them, and just plastered them everywhere so I think they deserve a round of applause.
Jim Kuhn. Jim Kuhn is going to speak on Insurance Law. Jim was an original director, very first year that the Bar Association of Human Rights was formed. Jim and I have been friends since about 1978. We've marched together. We've been in people's faces. We've said things that people didn't want to hear. He has served on many boards and agencies in our community and currently is the chair of the Gay, Lesbian Switchboard of Houston. The Gay, Lesbian Switchboard of Houston does turn a lot of people onto the Gulf Coast Transgender Community. Jim, I hope that before you leave you encourage them to put transgender into the term, into the name of the switchboard.
I love this man, I truly do. I think you know that I love you. I trust this man and more than any other lawyer, he and I share in problem-solving and when one is out of town or out of pocket we cover each other and protect each other's interest with our clients. Jim has extensive knowledge in the area of Insurance Law. I trust that after today you will be better equipped to stand up to the people who want the premiums but don't want to pay up. Jim.
By Jim Kuhn:
Thank you Phyllis. I have to remember how I came to know Phyllis very well. She was doing an internship while still a law student in the District Attorney's office of Harris County, and I was trying a bar raid case in the County Criminal Court here and that's when we first got to know each other. Phyllis will have to tell you about her experiences sometimes with our Republican District Attorney, when she was there.
We're going to talk today about Insurance Law. What we decided to concentrate on in the discussion group that we've had for the last two days was the remedies that could be applied to existing insurance coverage in the order of the most common kinds of coverage. I will try to explain the coverage as we go along. I am not going to get into great detail about particular Texas Law because it's not relevant to many of you. I will in passing because we do have something here that California has but mostly we're going to talk about what basic reforms need to be made. It would benefit not only the transgenderal community but also the general public in terms of receiving medical care at a price that you can afford.
On the present health care system, there are several remedies for each type of insurance for which you can lobby right now. ERISA, that's Employees Retirement Income Security Act, is the most common form of insurance coverage that you're going to experience[page 153] today. It covers employer insurance programs for life, health, and disability. If the employer pays so much as $1 of the premium, you're under the risk of ERISA statutes. Whether it is labeled that way or not. It's suppose to be labeled. They're suppose to tell you, but I've had several lawsuits where they didn't tell the employee. It is a federal statute. It pre-empts all state laws. You sue in Federal Court.
The only remedy for wrongly withheld benefits is to sue for the amount that has been wrongfully withheld from you and for permissive, not mandatory, attorney's fees. You end up in Federal Court. The Federal Courts here are overwhelmed. They do not like seeing these cases. I've had one judge just look at me and say, "Settle this, I'm not going to try it." Perhaps your best remedy would be to go mediation. The remedy is obvious. Make the attorney's fees mandatory. Otherwise I don't have an incentive to take the case. If you are on disability or seriously ill you're not going to have the money to hire me otherwise.
Also, there ought to be some penalty for the insurance carrier who wrongfully withholds benefits __ some kind of monetary penalty that would be payable to the plaintiff because they have had to wait 2 to 5 years to get the coverage they were suppose to have in the first place.
Many companies are now also going to self insurance programs because they can no longer afford the insurance company's premiums. These are also going to be controlled by the ERISA statute because they are employer funded. The problem we have had is that self-insuring entity for the corporation or something else tend to place caps limits as to what they are going to pay out for certain types of medical illnesses.
The obvious one is AIDS. There's a case out of Houston, the H & H Music Company case. That has been decided by the 5th Circuit which said yes they can place a cap on AIDS coverage. The company in this case put a lifetime cap for AIDS patients of $5,000. That's all you get. It's on its way to the Supreme Court of the United States now. I cannot see any particular legal reason why it will not be upheld.
The remedy for that is to prevent, by legislation, companies from excluding any named medical condition and to require minimum standards of coverage for the self-insuring companies. Right now they don't have that. They can offer you a totally useless policy if they so choose and you buy into. If you work for them what choice have you got.
Lastly, you have individual policies. Those are gettingrather rare and prohibitively expensive. In Texas and California we have the bad faith doctrine which means when you have your benefits wrongfully withheld. You can not only sue for your contract benefits, you can sue them for mental anguish, you can sue them for trebeled damages under the Deceptive Trade Practices Act, and you can sue for mandatory attorney's fees. It's a particularly generous compensation against an insurance company who wrongfully withholds your benefits. In Texas it applies to all forms of insurance, not just health, but also to disability, life, automobile casualty loss, you name it. If it's insurance, it's covered. And as I said, it's particularly generous. I know of one other state that has it and it's California. We took it from them in 1987. This is not legislative law. This is law that was imposed by the Supreme Court of Texas, before they appointed more Republicans to it.
Other states, most states in fact, have the same remedies that the Federal ERISA Act does. You sue for the benefits and attorney's fees and that's all you get. The states need to be encouraged, where the attorney's fees are not mandatory, to make them so, and put some kind every penalty on these people.
Otherwise they will sit on your settlement check until it comes to trial, and if you have a terminal disease they'll try to wait until you're dead. Most people, when someone dies, the executor of your estate may not pursue the lawsuit even though they're entitled to. And if your testimony has not been recorded by deposition they can't really pursue the lawsuit successfully. I had a case like that. The gentleman passed away before we could get to trial and his surviving parents did not choose to pursue. I really wanted to hit this company over the head because they made the last year of his life absolute hell.
Specific to transgenderals, in the insurance community you need to be very careful when applying for any kind of insurance __ life, health, disability, primarily __ as to what the definition of pre-existing conditions are. You cannot expect to start the transgenderal process and change insurance coverage in mid stream. You're not going to be allowed to do that, you're going to get hit with a pre-existing condition. You need to read each individual policy. They stand and fall as their own individual contracts. You need to decide what the pre-existing condition is. Usually it is anything for which you have sought medical treatment, even a consultation, prior to applying for this policy.
I saw something on AIDS that came out in an American Express Insurance paper recently. It was the cleverest question I've ever seen. "Have you ever been advised about HIV or AIDS." Well, you can't turn on the TV or radio and see a public service having been advised about HIV or AIDS. It gives them, it's a weasel way to get out of paying your benefits. A nice company might refund your premiums, but that is about all you're going to get out of them.
If you have a pre-existing condition you really have to tell them about it. If you conceal it from them they're going to jerk your coverage the first time you ask for it. And you'll have wasted a lot of time and effort. You're going to end up with the medical bills any way.
As transgenderals you need to lobby to have the entire procedure from initial consultation all the way through SRS defined legislatively. I don't know of any other way to do it as a medically necessary condition. Other than that they're going to throw you out. "All this is cosmetic. This is elective surgery." And most policies don't cover either of the above.
The other reform that would be useful to the entire industry would be to permit insurance companies or require them to make their claims procedures uniform to relieve the health care providers from the bewildering forms and diagnostic evaluations which plague them now. I would guess that it adds 10 to 20 percent to the cost of medical care in this country just to shuffle the papers back and forth between the doctor's office and the insurance company. Most doctors I know have one person that they have hired full-time to do nothing but process claim forms. And each insurance company is different. Not to mention what you can get into with Medicare and Medicaid.
Separately, many policies, particularly health, have a conversion clause in them. If you are fired or you lose your job, you take disability. I'm not talking about COBRA here, we'll get to that in a minute. They will allow you to convert your policy from a group coverage to an individual coverage. So long as you pay the premiums your employer stops. There is a problem with conversion coverage. Usually the coverage you get is dramatically less than what you had before. If you have any kind of pre-existing condition, which means you cannot go to a new group or a new policy, you're going to find that your coverage is not what you thought it was.
I have experienced this personally. I went from a very nice policy to one that does not cover surgery or outpatient medication. My surgical benefits, $1200, and that's for a triple bypass. And they only pay 80 percent and there's a lower cap.
There needs to be, in this state particularly, because I've seen some policies, conversion policies that are worse than that, where they will pay you up to $40/day for hospitalization. You can't get in a charity ward for $40 a day in this town. There needs to be legislation providing for minimum standards on conversion policies below which the insurance company cannot go. Of course, if you do require them to do that they're going to raise the premium. You have to remember they're in this for profit. They have to pay their stockholder's a dividend.
One thing we did come up at the committee, we suggested to Phyllis and other persons who organized this, That is, in the future conference, you need to devote a section to Medicaid, Medicare, and Social Security. It is very relevant to many people here. We did not get into that because that really wasn't our brief. But a lot of people do end up on disability while going through the transition that you're going through, whether it is an emotional disability or a physical one or everybody has a potential problem with AIDS these days and you may very well end up on Medicaid and Social Security. The system actually does vary from region to region. It determines how well you're going to be received when you're applying for the disability and how many Appellate steps they're going to put you through before you finally get it.
While the particular problems of transgenderals and persons with AIDS or HIV are only going to be adequately dealt with in terms of a general insurance, particularly medical insurance reform, the cost of medical care for the corresponding insurance premiums are completely out of control. Adequate medical care paid for by insurance is becoming the prerogative of the rich and those employed by very large corporations or other organizations. The best local coverage I know of is through the University of Texas system, but they have a great deal of power with the insurance industry.
Small businesses are ones that you might not think particularly are small. I once was involved with a furniture chain that has 10 or a dozen stores in this area and they had to drop their insurance coverage. The employer couldn't pay for it, the employees didn't want to because they couldn't afford it. Your talking anywhere from $300 to $1,000 a month to cover a wife and kids as well as yourself. That's bigger than your car payment, bigger than your house payment.
The insurance industry was completely surprised of course by AIDS, by the epidemic, just like the general public was. And after 12 years they still have not found a way to cope with hundreds and thousands of men and women in their peek earning years becoming disabled and incurring medical expenses in the hundreds of thousands of dollars. I don't know how they're going to. This screwed up the actuarial tables beyond all relief.
The only solution that I have seen and there was some debate in the committee about this is a national system which guarantees basic medical care to everyone regardless of the income. Such a program was going to be expensive but is rather hard for me to believe that increased taxes would exceed the premiums you're already paying. You have to remember that if you want to object to paying taxes take a look at insurance premiums you're paying now. And if you spread that out on national basis they might even go down. A federal bureaucracy would be created. But now we have hundreds, thousands of insurance companies with their own individual bureaucracies and 51 state regulatory agencies. I doubt that a federal one would be that more difficult or complicated to deal with. They already make different judgments which harass and confuse caregivers, harass and confuse the insureds. You and I can't tell from one state to the next what kind of reception you're going to get.
When you go in on the transgenderal issue to an insurance company, to an insurance state board I don't know what they're going to do from State to State. Many people haven't tried quite frankly. A lot of people seem to pay out of their own pocket which is a same.
The very least they've got to go to uniform plain forms and procedures and definitions around here.
The present system of course does not address preventive medical care any meaningful manner. Medical intervention often comes only in situations which could have been prevented if the patient would have seen a doctor earlier. You don't have to let the flu develop into pneumonia before you go to the hospital but a lot of poor people do just that. They can't go to the doctor and get a flu shot. They end up down in Ben Taub gasping for breath waiting to be admitted to the pneumonia wing of the hospital.
A national health care system would at least eliminate 51 different systems of insurance regulations that we have now. It's sort of an art within each State. Don't ask me what they do in Louisiana. I couldn't begin to tell you of any other State, other than Texas. It's going to take away some rights as well as confer them. You'll lose the bad faith doctrine at least as it applies to medical insurance if you go to a national system. I can't imagine the national government allowing that kind of liability to be placed on it. But by God, if you're getting the basic coverage and you're guaranteed, I think it's worth the sacrifice.
There are only those remedies available now to the owners of individual policies. It's not going to help you if your part of a group.
The obvious things are in the imposition of national standards of medical care as if there would be priorities established by the government which might very well exclude coverage for medical minorities such as transgenderals. Sexual re-assignment surgery is not likely to be covered in such a system unless you convince the government of the need. It's very likely to refuse elective cosmetic surgery as we've discussed before which the insurance companies use now to try to get out of it. I don't know why the federal government would be any more enlightened unless you convince them of it. The issue is going to be to convince whoever is making the decisions, whether it's the legislators or the administrative body, that at least SRS, the medical procedure is listed.
The task is going to be rather daunting however, it might be rather easier in a national system to identify who those decision makers are opposed to the present system. We are dealing with hundreds of thousands of company and 51 State Government. I'm including the District of Columbia.
The National System is going to have priorities which will only cover basic medical care. The issue is what is and is not covered was going to be a source of political and administrative conflicts and litigation per decade no matter how you do it. We're already in the Courts. You're not going to decrease the amount oflitigation involving insurance if you go to a national plan, you're just going to change the forms and the people that you're suing.
And obvious questions, how long do you treat an AIDS person aggressively before stopping care except that which makes a person comfortable. Well that applies to cancer patients and cardiovascular patents as well. When do you stop trying to cure them and make them comfortable and turn them into a death watch. The Oregon plan deals with that somewhat. We have a proposal here in Texas to do something similar and the priorities put certain kinds of surgery and conditions, particularly experimental ones,[page 159] down at the bottom of the list. Basically say, we're not going to pay for it.
You got to remember the people who have a lot of money are always going to have better health care than the rest of us. We should be able to try to eliminate inequities and the prioritize the discriminatory priorities within the present system. The right to a healthy life should not depend upon having a healthy income. I'm going to close with that. Thank you.
By Phyllis Frye:
Well Jim that was really terrific and I want to thank you and I want to add a little postscript to what he has just said as he talked about all the jurisdictions and of course those are just within the United States. Then we have Canada. We have those even if that is its own jurisdiction. Other countries have their own setups and it's a very difficult process.
But as I said when I opened up, this problem is the people in the insurance companies want our premiums. They want our money, but they don't like to pay.
I got a call on Tuesday of this week, today is Saturday. A woman from Arizona __ she is post operative transsexual, and she's been for about two years. She had heard about me through the community. She says, I have got a problem. It's an insurance company. And I thought she was going to tell me she had problems on his collecting on her surgery or whatever. She had that a couple of years ago, but she developed recently, within the past month a tumor on her arm, and the insurance company is refusing to pay saying it's SRS related. She said it gets worse. She says, my nephew who is very homophobic, beat me up the other day and broke my nose. And the insurance company is refusing to pay on that because they say it is SRS related. I don't practice law in her State. I gave her someone in an adjoining State. Hopefully they can find her someone because that insurance company needs to be sued.
In general what is going to happen is
the best thing she is going to get after she has waited 2, 3, 4, 5 years and
sued through the courts to finally get her money is only the money that she
was due to begin with. The insurance company is sitting on those checks
collecting interest on that income because it hasn't been paid out. It
hasn't paid a crying dime to her all that time that she was without that
money that she had to reach in her pocket to pay for that broken nose and to
pay for that tumor.
PROBATE LAW & CIVIL COMMITMENT
David Elliott was a Charter Member of the Bar Association for Human Rights. He also is very helpful in formulating our inclusive by-laws and included in the list of the people that are included along with sexual orientation is gender identification. David has been giving many continuation education programs on Probate Law. I've asked him to head the committee and give you advice on how to protect yourself and your loved ones upon your death through probate strategies and how to be prepared for the threat of civil commitment. David.
By David Elliott
Thank you Phyllis. It's really an honor for me to be here and have Phyllis to have invited me to come to participate in this first conference. It's always fun to talk about probate because I enjoy it so much. A lot of my colleagues think it's deadly dull and they just don't want to have anything to do with it. They don't understand that helping people with what they want to do with their property, provide for their loved ones and look after their loved ones when they are no longer available to give that support and comfort is fun.
I think we all realize that there's a great necessity for leaving a will, whether we have a little property or even almost no property or have vast sums of estates totaling millions of dollars. We all want to be sure that our property goes to those persons or institutions that we support and feel and care for. There's some people that may not agree with me and those are probably Howard Hughes' heirs. You recall that there was a lot of litigation over Howard Hughes' estate when he died about 10 years ago or so. I think it may have been longer than that now, but in any event there were wills coming out of the woodwork. People were claiming they had a will that left his entire fortune to them. Medical centers were receiving copies of wills in the mail giving part to them and part to other people who drafted these purported wills. But at the final end it came down to the State of Texas, to determine who Howard Hughes' heirs were, and they all love to say where there's no Will, there's a way. Because without Howard Hughes dying without a Will none would have the great wealth they now have. But we don't know whether Howard intended it that way or not but we're not going to take Howard's approach to life or to death for that matter.
In all states that I am aware of, wills transfer property to the beneficiary. These are your probate assets as opposed to assets like your IRA account, your life insurance, your private retirement accounts. All of those things are what we call contract oriented. Those items, like life insurance products, have a beneficiary clause and that beneficiary clause determines where the proceeds of that life insurance will go. If your beneficiary clause says to my spouse or to my children, it's going to go there and whatever you write in your will is going to have no control whatsoever. However, if that clause should fail and there's not an alternative in your insurance policy or your IRA beneficiary designation then it will go into your estate and be governed either by your will or, if you don't have one, by the laws of the jurisdiction in which you live.
Obviously, I am most familiar with Texas probate laws and if you talk about having no will in Texas there are two classes of distributions that can be made with your property. If you are married in a traditional, for lack of a better term, government sanctioned marriage, and all the property is acquired during your marriage, then it's all going to be considered community property. In Texas, half the community property, and you look at it as a whole, is owned by both parties. Half of the community property goes to the surviving spouse. The other half of the community property falls to the children, if there are any. Hopefully, if you have children, that's where you want it to go if you don't have a will.
But in many cases where there is, what we are now looking at, a non-traditional marriages or marriages that are not government sanctioned, then community property does not exist. It's separate property which is the other classification under Texas law. Separate property does not provide much help to the surviving non-traditional spouse, if you had one. In Texas you would have no surviving spouse in a non-traditional life. I think for many people, whether it be gay or even heterosexual, such a non-typical living arrangement is just living together or having a long-term relationship where they continue to maintain their separate identities and don't put themselves off as husband and wife. Texas is one of those weird places that still has acommon law marriage, although we're trying to do away with it.
It's important to know that if you don't have a typical marriage you can plan for your spouse by doing a will. But as I said, Texas law does not provide for that person without a will. Everything would go to your heirs. Your heirs are going to be determined by State Law in Texas and in most other jurisdictions with which I am aware.
Texas law would give your estate to your children first or their descendants. If there aren't any children, it would give it to your parents. If your parents are deceased, your brothers and sisters, if any, would get it. If you don't have any brothers and sisters and you don't have any lineal descendants, i.e. your children and grandchildren, then it goes upward to your grandparents and great grandparents and then laterally at each level until they find a living heir. We've had numerous cases where an individual has died and was an only child of an only child. You go upward to a great grandparent and then laterally, and you can end up with literally hundreds of descendants because it falls to the level where there's the first surviving heir and then comes down again through their families. It's very complex and very difficult and you don't want to deal with that, or you don't want your heirs to have to deal with that so make a will; that's the simple solution.
There are alternatives to having wills during your lifetime if you feel that you want to be sure that it goes where you want it to go. I'll touch on these briefly as I go along. They include things like gifts and trusts and contracts.
One problem that you have to deal with or that many people have to deal with, and it's not limited to our community, is where an ancestor, a parent, or a grandparent has decided to disinherit us because of our lifestyle. These are difficult to deal with. They are painful, and it's, I think, important during our lives to try to overcome that if we can at all. That's as Judge Andel said the other day on his address this is where we get into bridge building. I think it's important to deal with these family matters in a different context.
One of the things that you do with a will is you transfer property, as I've said. You resolve the issues about certain properties going to certain places rather than having one person end up with your property or two different people ending up with the same piece of property __ with interest in the same piece of property. You can avoid that partitioning problem.
There are tax considerations if you have a taxable estate. Under current federal laws, $600,000 is exempt; the first $600,000 of your estate is exempt from federal tax. There are numerous state jurisdictions, however, who do impose inheritance taxes that are in addition to the amount that would be relieved by federal law.
Some of the issues that came up in our committee meeting are generally involving name changes and gender identification problems. I think the name change issue is the easiest issue to be dealt with. When you are in your alter ego and you are operating, perhaps living, as two individuals, and if you are in traditional marriage as many are, the name change issue I think is best handled by not causing any problem to your estate by not having any property in that alternate ego's name. If you have in fact changed your identity and you only live in your second ego, it's important to have all your property changed to that name, and this should be done during your lifetime of course. However, in will planning I would suggest that you confide in your attorney. You're going to build an attorney-client relationship there. If you are still maintaining a secret identity as to this, he or she can put this issue in your will by just stating simply that you were formerly known as another name. If he just stated that if you've been known formerly as Jack and you are now Jill, just stating that Jill's will leaves everything to her friends and family, the loved ones that she wants to protect and care for, property that may have been missed during Jill's lifetime and still remain in Jack's name is going to be out there. And it's going to be difficult to transfer without further litigation. You want to avoid that. Be sure you either transfer or have it in the will that Jill was also known as Jack and make some statement, and it can be a very benign statement so that you don't inflict a lot of pain on your family. We know that that's one of the issues that we have to deal with.
Texas law is unique I think. In the United States, we have a combination of Spanish civil law and English common law, and I like to think we picked the best of both. It gives us the community property rights which we enjoy as married couples, but it also protects our separate property rights from claims of others who are not involved in our families. But most jurisdictions don't work that way. No one knows what law Louisiana laws does because no one has the ability to comprehend their French laws. But, in dealing with Texas law you want to, or in dealing your own law from whatever jurisdiction you're in,you want to be sure of titling your property properly and planning your will and estate.
One of the problems that we have is the threat of a will contest to our estate after we've died. Perhaps we have had an untraditional family living arrangement. We have our own family, whether it be same sex or heterosexual, and we know that other family members __ siblings, parents or whoever __ may contest the will that we've left because we have not provided for them and they think we should have. Well, you want to plan for that kind of eventuality and there are ways to do that. One is what we call interim clauses which can be added to wills and say if you[page 165] contest the will, even if your successful in contesting the will, you won't get anything because there are other clauses that will take the property and give it to someone else. These are things you want to think about when you start planning your will with your attorney. And I say with your attorney because I think it's important to have these issues addressed by an attorney who is familiar with our problems. We want to give particular care to our loved ones and our organizations that we want to provide for. Structuring your will and structuring your plan can avoid a lot of the problems with the help of a competent attorney.
I think if you come from other jurisdictions other than Texas you probably get a lot more advertisements about in novo trust, lifetime trust, management trust. They are the same vehicle, they just have different names for it. These allow you to avoid probate in your jurisdiction. This is where you are transfer all your assets. You have to be careful about transferring all of your assets or as much of your property that is advised that you transfer. Some things you shouldn't transfer but those I think depend upon the various jurisdictions as you may reside in. Basically speaking, you want to put all your assets in this trust. The trust is in place for a number of years, or even a short period of time, in most jurisdictions. It's very difficult to overcome the dispositive provisions of that trust. The Trustee that you've appointed to take over after your death, because you'll probably be the Trustee during your lifetime, can only follow the terms of the trust. If the trust says, "Leave all my property to George," George is going to get all your property because the Trustee has no other authority other than to transfer that property to George. He owns the property and he must transfer it to George or any other person or entity that you have chosen to leave it to in your trust agreement. Whereas in a will if you've left everything to George and a parent or a sibling comes along and says, "George had undue influence over this person," and can show that but for George's influence this will would have never been drafted. It's a heavy burden for the contestant to overcome and there are numerous other ways to contest a will as well but generally undue influence is the most prevalent contest in this arena.
If the will is totally invalid and you've left no other will that can be brought in and proved up under certain circumstances, then the State's going to determine who get your property. That sibling may, in fact, inherit your estate and George or your other loved ones may get nothing. It's difficult to think about these things, but it's important for your well being during your lifetime and for those you love.
It's also important to select the proper fiduciary, the executor of your will, or the Trustee of your trust. These are persons that you need to be able to rely on to carry out your wishes in a independent executorship under a will in Texas. The independent executor steps literally, or figuratively, into the shoes of the decedent, carries forth his business as though he were the decedent. You move forward. The only difference is obviously he's just going to wind up the affairs for the decedent and pass that property as the decedent wished in his will. And that's why the selection is important because you don't want him or her tying up your property for any length of time. You want to be sure that he doesn't actually have pressure put on by other family members who didn't get what they call their share or didn't get anything. This selection is very important.
Phyllis asked me to talk about the guardianship issues in Texas. The jurisdiction of Texas really has a very progressive guardianship plan, I feel. Guardians can be appointed, after a hearing that shows that the person is incompetent. Incompetency, to my mind, is not getting caught for crossdressing. It's not getting caught for having activities of being involved in transgender activities. Those I believe do not rise to a level of incompetency in Texas.
In Texas you can be committed for behavior generally that is either dangerous to you physically or dangerous to someone else. I guess the most serious issue here would be considerations of suicide, but I think even here a short-term commitment is all that would be permitted. It's certainly not, I don't believe in Texas, illegal to try to commit suicide from the point of view of a jail term. In some jurisdictions I know that it is and we must keep these matters in the forefront, if this is a problem. We need to deal with it and the best place to do that is with professional care.
Guardianships in Texas allow you to designate who you want to be your guardian in the event of incompetency. If there is a fear of incompetency or being judged incompetent in Texas __ from the point of view from having a catastrophic illness or an injury that leaves you such that you are unable to look after yourself or your business __ during your planning with your attorney, have designated a guardian. A written designation, properly executed, can choose the person you want to be your guardian.
If you fail to do that, Texas has an agenda of persons that are first choices. The first choice is a spouse. The second choice would be parents. Then siblings. If these persons are not the persons you would feel comfortable as your personal guardian over[page 167] either you as an individual or your estate, then you must select and designate your guardian. While this is not absolutely bearing upon the courts in Texas, the judge takes it very seriously. Unless there is some reason that is not in the best interest of the Ward, he will appoint your selection as your guardian. I think it's important to do this with your attorney.
I briefly touched about will contest. One of the things you want to do, and I think we are more susceptible to that kind of challenge to our estate planning than any other, is to go through the things that are important to avoid. You want to draft the will as tightly as possible. You want to be sure that you have the proper number of witnesses. If there's any indication, because of an illness or something, that may leave you partially incompetent or occasionally incompetent, your attorney should be cognizance of the fact of having numerous witnesses that could testify to their belief that you are competent at the time you executed the will. It doesn't matter that you were incompetent 2 minutes ago. The question is, are you competent right at the instance you sign your will. Do you know the objects of your bounty? Do you know who you want to leave your property to? Do you know the extent of your property? Do you know the affect of what you're doing? These are the issues that they have to address right at the instance of will execution. This is what we call testamentary capacity.
I know of a case in Houston where there was a lawyer who had had severe bouts with depression was taking some medication. Occasionally or even frequently, he was not cognizant of what was going on around him. But in those recent moments he knew what he wanted to do. He had a lawyer in his law firm draft his will and this law firm of 15 partners all signed his will as witnesses. He had an unusual lifestyle. He left his will, he left his property to non typical or atypical beneficiaries, by that I mean not family members. He was fearful that there will be a contest over his estate. Well, if you have 15 witnesses who are going to be paraded up to that witness stand to testify that this person is competent, you're going to be deterred from having that will contested successfully on the basis of incompetency.
Another basis for contest is insane delusion. Well maybe this is an area where we might get caught. But in Texas the main thing they have to prove is that you're unaware of the effect of your actions. And it's up to the contestant to prove that you were unaware. Let's say the will was admitted to probate, it was done very quickly after death, and somebody now comes in within a period of time after the will has been probated and an executor is in place and says, "Well he was totally unaware of his actions, he didn't know what he was doing." Well, the contestant[page 168] has the burden to prove that you didn't know what you were doing. That's a tough burden to overcome because you have to get into all these other issues of competency and testimony capacity and proper execution and all those things.
I spoke earlier about undue influence. In Texas the undue influence is evidenced by the person who, or someone, who has control or access to the testator and could show that that access leaded to an action by the testator to leave his property in a matter which would otherwise have not been written. The testator leaves all of his estate to one charitable institution, for instance, it may not even be what we would call a charitable institution, but someone has gotten to him and has supported him and influenced him to draft a will leaving it this way. That's not to say that this happens very often. Or he leaves it all to one person because he befriended him late in life and said, "Well, John, you've got to leave your entire estate to me because I have taken care of you the last 2 months of your life and I've been good __ I've cared for you and you have to leave it all to me." He gets the lawyer in, and he tells the lawyer what to draw. This is undue influence. This doesn't happen very often that we catch, but I think it happens more than we would like to acknowledge. Now to general planning of your estate, you should plan to give your estate to your loved ones, to those institutions that you care about, and you want to support. I know you're all familiar with the well known ones. In addition to those there are foundations that support our own interests, including the Winslow Street foundation and others, and all these other institutions that are bona fide and need our support. But these are our own personal decisions that we have to make in planning our estate as well as what we want to give to our families.
Two other planning documents that we are using these days that you should discuss with your attorney are a general durable power of attorney. In the event of incompetency or even in your absence during your lifetime, the power holder under the general durable power of attorney can carry out your business affairs for you and in your best interest. Now a lot of people say, "Well I don't want to give anybody power over my estate or over my property." The alternative to giving someone that you trust power over your property is having an estate court managed guardianship. Sure, you've designated your guardian, but it's still burdensome to both the guardian and to the estate of the individual to have to go to the court every time you want to do something. Whereas with a general durable power you can usually avoid that kind of court supervised guardianship. Here again you have to be careful about who you select as your power holder.[page 169] Usually it's your spouse, your loved one, some family member that you have a great deal of trust or an advisor whom you trust.
The other is a power of attorney for health care. Recent legislation has mandated powers of attorney for health care on a federal level and most hospitals require you have to have one when you check in to make sure that if something happens to you that you are unable to direct your own medical care that you have appointed someone to make those decisions when you are unable to do so. So your will, your general durable power of attorney for health care, your general durable power of attorney, and your designation of guardian generally make up your estate planning package. Some of us also include what we call a directive to physicians. This directive to physicians is for those of us who have decided that we don't want any heroics to maintain our lives. This tells our physician, "Look, if you're fairly certain that it's going to take all this medical treatment to keep me alive and I'm not going to recover from this illness and it's only going to prolong my life unnecessarily, pull the plug." That's generally what we do with directive for physicians.
I recently had a client come to me who is very religious. She believes that some day, it could be tomorrow or it may be years from now, for whatever catastrophe she may suffer they'll find a cure for it. She wants the doctors to prolong her life for as long as possible. We don't see that very often because I think that's the standard __ the standard in the medical profession is keep trying to save them. This one was giving the doctor direction, "Please try to save my life as long as you can in the hopes that you could find a cure." That's an individual decision that each of us has to make.
So, generally to wrap up, I think, we want to make our gifts designate our beneficiaries properly under our wills and in our other assets, our insurance policies, our retirement accounts, our Keough plans, any of those things that we have, you want to be sure your designation is correct as to your beneficiaries so that you don't get caught by having someone contest it.
It's important that you also keep in mind, if you have children, that you designate a guardian in the event of your early demise. You don't want the Court awarding that guardianship of your minor child to someone who does not espouse your beliefs. You want your children to know that they're going to be cared for much the same way as you would care for them if you were alive.
If you're doing an estate planning and you have a large estate, then you make lifetime gifts, you set up trusts for yourself and for your children. You also make charitable gifts; you do all of these sorts of things; and you have a lot of fun picking out who you want and what organizations you want to benefit.
That basically gives you a view of probate. I know it's dull, and I know it's difficult for a lot of people to talk about and even think about because it talks about our mortality, but I tried in my practice to try to get my clients to look at it from a point of view that, "I have 2 estates." It's a little mind game I play. If I could give everything I own away today, but still be able to maintain my lifestyle the way I live now who, would I give everything to? What gifts would I make that would please not only me but the recipient? It's an easy way to make a decision and it makes you feel good. When you walk out of that lawyer's office having made that plan, you ought to feel good about it because you've taken care of yourself and you've taken care of your family and loved ones. Thank you.
David, you just did a wonderful job and I appreciate it. You know he talked a little bit about __ really talked quite a bit about will contest. As transgendered persons that's something that we should really be careful and protect ourselves against. As he said, get yourself an attorney.
The other thing that I want to emphasize that he said is be honest about your gender self with your attorney. You have attorneyclient privilege. Some people in our communities have very deep closets, that's their business. I'm not going to pass judgment, that's their business. But they have got to be open and up front and honest with their attorney. If it is a family attorney, and they don't want the family attorney to know because it's a family friend, then find another attorney to do your will and let the family attorney do everything else. But you've got to be up front about your gender self in case, after you are gone, some issue comes up. If it comes up and it's thrown into disarray, all of your wishes to protect all of your loved ones, could be thrown in such serious jeopardy that they'll all go down the toilet. Besides no matter how deep your closet, is when you're dead, you're dead. Give up the closet.
The Bible says you're going to give up the ghost, give up your closet when you give up the ghost.
As to will contest, one of the strategies that I use on a will contest is that, as an attorney I always have to suspect there's going to be a will challenge. In the remainder portion of the will, if there's a will challenge and it's successful, then I always direct that the remainder be given to a legal corporation for our community. I'm going to give you the Winslow Street Fund and their address because some family member may hate the fact that you've had SRS or you're going to have SRS or you wear your little panties when you are at home or whatever you do. I just loved what David said about being an independent executor stepping into the shoes of the other person. As a male independent executor for a female person, you can legally step into her shoes. If family is going to contest the will because they don't like who you were or who you left it to or whatever, and they're sitting down with their lawyer trying to come up with a way to do that, then the lawyer will say, "Well, I think we can do this, but you know what happens if we do this. All of that money, all of that property, all of those assets are going to XYZ[page 172] Corporation." In this case the Winslow Street Fund. In the case whenever I do lesbian/gay clients, it goes to the AIDS Foundation Metropolitan Community Church of the Resurrection or whatever the MCC church is in the neighborhood, or to gay/lesbian political caucus or the gay/lesbian switchboard. The point is there is no way to contest that. Well, there's always ways to contest it, there's no way to contest it successfully. It's going to be damn difficult.
So instruct your attorneys that in your will contest provisions that they put in the following. The Winslow, W_I_N_S_L_O_W Street Fund. And the Winslow Street Fund, as I said last night, is the transgender community personally endowed fund and is a cash sponsor of this conference. After they found out this conference was coming off, Winslow Street awarded to us, their very first grant. We not only received the first grant, we received the largest grant. The Winslow Street Fund, No. 6 Cushing, C_u_s_h_i_n_g, Street, Suite No. 200, Waltham, Massachusetts 02154, area code (617) 899_2212 and fax is (617) 899_5703. Make sure that whenever you do get your will made, and by the way they are 501 foundation, that a copy of that will is faxed or mailed to the Winslow Street Foundation. That is to protect your loved ones. And it wouldn't hurt if you gave them a little money as a primary beneficiaries.
The last thing David spoke of and I want to emphasize, in most jurisdictions it is very difficult to commit you civilly. Do not fall into that myth. Do not fall into a stereotype. Do not fall into that intimidation by your so_called loved ones. Do not fall into that trap that they're going to lock you into a locked room. I had an occasion where a member of our community was filing for a divorce and the female spouse prepared the proper affidavits and had my client picked up by constable. This person was taken to the mental health facility of our county, and I got a call the next day. In this jurisdiction you must be evaluated by two doctors. Within either 3 or 4 days I don't recall there had to be a hearing. By law there has to be a hearing on probable cause: essentially it was "had the law been followed." Not whether it had merits, but has the law been followed. That is important. It keeps any old law bubba from picking you up if the proper affidavits weren't filled out and the proper doctor's reports aren't done and everything is not just right. Know that you're going to see a judge at some time with an attorney or if you can't afford an attorney you will have an appointed attorney.
Then within 3 to 4 days after that there has to be a hearing on the facts. It can be a hearing and if you demand, it can be a jury trial. So the worse thing that can happen is that you may spend 7 days locked away but that's all. I've hoped that[page 173] empowers you to know that, that's the worst. Back to wills, usually unless they have spent a hell of a lot of money to contest it, everybody's going to follow your instructions. Usually what I tell my clients, especially if they're terminally ill and they kind of see the end coming, is to get copies of that will and to make sure that the hospital has them on file and to make sure that the funeral home has them on file. Be sure at that time the hospital knows who to call in the case of your death. Put in your will instructions as to how you're going to be buried and in your proper name. Otherwise, your so called loved ones might bury you in drab and have you be prayed over with the name that they gave you and it's not who you are. My way, if so called family wants to change the funeral, the hospital and funeral home says to them, "but we've got a copy of the will and you're going to have to get yourself a lawyer and you're going to have to go to court to get a temporary restraining order and other stuff." Usually by the time they get all their stuff together your body already left the hospital on the way to the funeral home and is being prepared the way you want. The next procedures they ain't going to do without a hearing. Usually by the time it's all done you're in the ground. Okay.
The only comment that I would have
in regard to what Phyllis said is put it in your will. Not only put it
in your will, do a separate document. Give it to the one you love the
most, who you know will follow your instructions. Take it, if you're
going to be hospitalized and there's catastrophe illness or something
like that, and give it to the hospital. And give it to the funeral home.
Make a separate document. Not only put it in your will, make a separate
document. It can be kept out because often that will is locked away in
your safety deposit box and it can't be retrieved until sometime, even
weeks after your death. Go ahead and get that separate document as well,
and that will help just in addition to what Phyllis said.
EMPLOYMENT LAW AND POLICY PROJECT
Executive Director, ICTLEP
It's time to start and we're going to talk about employment law and policy. But before we talk about employment law and policy I want to tell you a little bit about the person who should be here at this moment making this presentation. Her name is Laura Smiley. She is an attorney, a member of the transgender community, and she hails from Denver, Colorado. She's a member of the Board of the International Foundation for Gender Education. She is also on the Winslow Street Foundation which gave this conference a grant and covered almost all of our advertising budget. Laura could not come, but Laura was very helpful in helping me take the idea for this conference and making it happen.
There was actually two people who were very fundamental in the formulation of the early planning. One was Laura Smiley. The other one was Merissa Sherrill Lynn who is Executive Director, IFGE. Those two people helped me in August, early August of 1991 and in subsequent months to formulate and focus and bring about the early presentation of the words that attracted y'all to come here. Y'all, that's a Texas word, y'all.
There was an illness in the family, and Laura could not be here. But I do want you to know that the legal research she did, and it was extensive, is on the tables in the registration room. I am going to refer to them. I am not going to refer to them in detail because they're available will be part of the proceedings.[page 186] Also, Diana [C]icetello, Diana raise your hand, has been working very hard in Denver with Laura. She has prepared a draft of an employer's handbook and those are also on the desk in the registration room. She is using this conference, and she has used the employment law and policy committee, to refine her draft. She has told us that when she comes up with the final edition, it's going to say, as approved by the Employment Law and Policy Committee of the First International Conference on Transgender Law and Employment Policy. Diana, I want to thank you for being here and for all your hard work. Even though her publication is going to be copyrighted, she has said in front of many witnesses she is going to allow us to put her employer's handbook in the proceeding; isn't that right? See now we got some more witnesses. Say yes, 'cause the court reporters can't do a shake head.
By Diana [C]icetello:
Let the record so reflect.
Employment Law and Policy is very very important to us so let me give you an example of why. December of 1977 was an extremely bleak month for my spouse, Trish, and myself. I had been unemployed for 19 months since I was last fired for being a "dress-wearing freak." Trish's job was not generating quite what we needed because at that time when we were both employed we had accumulated much debt. And also because her profession just didn't pay back in the 70's. Several years later her profession enjoyed a substantial pay raise but that was later. We had used all of our savings which wasn't a lot learning how to downgrade our standard of living. When you lose your job, or if you lose your job, you will learn how to downgrade your standard of living. Someone was talking about that to me yesterday and we both got very indignant about some of the people in our community who are fearful of their standard of living being downgraded because if they take a risk to be who they are they might have to downgrade from a BMW down to an Oldsmobile. Well that's not what I'm talking, I'm talking about basic necessities.
To make matters worse I'd been unable to get unemployment compensation. My last employer did not fight it, but I had a very homophobic referee with the Texas Employment Commission who chose to write up my interview, even though it was unchallenged,[page 187] in such a way that I was blocked from benefits. Eventually, I won the appeal, and I did get the benefits, but that was later.
We felt very alone because neither of our families would have anything to do with us. Later, much later, her mother eventually came around and became one of our allies, but that was later and it remains weak.
The fight to change the ordinance was not making much headway. At the time Houston had a cross dressing ordinance. I had already been lobbying against it for about a year. Everyday I never knew when I went out if I'd be arrested. Everyday Trish never knew when she left for work if I'd be home from job hunting or lobbying or if she would find out that I was in jail. The ordinance was overturned in 1980, but that was later.
Christmas of 1977 was going to be meager. Yes, we had shoes. Things had not gotten that bad, but they were not winter shoes. We had some warm clothes, but they were becoming a bit tattered. It was depressing as hell. It was just depressing.
About the only things we did have were each other. We had and still have our faith in God, and at the time we had a very strong church family. Even though she and I loved each other, and we still do, and even though we were best friends, and we still are, those years of hardship bonded us together. She's talked about this time to many people and said, "you know I thought about leaving, but Phyllis didn't do anything wrong. All she was trying to be is who she is." Times like what we went through can either completely shatter a relationship or really forge a bond and those times bonded us together.
We felt that our faith was being tested much as in the story of Job. But no matter how bad it was, we always tithed and we still do, ten percent of our gross. Our church family helped to keep the loneliness and isolation at bay. At that time we were with the Metropolitan Community Church of the Resurrection in Houston, Texas. Many of you know the Universal Fellowship of Metropolitan Community Churches has many MCCs throughout the world. We sang in the choir at that time.
Just as a light point, back when I was a young man in Junior High and High School I sang tenor. When I went to college I sang bass. I remember particularly the Hallelluia Chorus, because I learned it in tenor, and I learned it in bass. At MCCR I sang soprano and once I even had to learn the alto line. So now when[page 188] I hear the Hallelluia Chorus I sing along, line to line. I just sing whatever bits and pieces I remember.
Each year at MCCR, as in most other churches, they have a White Christmas Offering where people bring canned and non-perishable goods each Sunday in December, wrap it up in white paper and place it at the alter. Poor families are given it the day before Christmas. And as I was key punching out this article and as I am saying it now I still get emotional and I start to cry again because they brought that food to us. We were the white Christmas family that year. It was quite wonderful.
We were brought eight boxes of food, all wrapped in white paper. We unwrapped it all. We put it in categories and we took out ten percent because we had a transgendered friend who had been living on the street, because she'd lost her job, and we gave that food to her. And the three of us cried a lot. And Joan, I don't know where you are right now, I haven't seen you in a couple of years, but I still remember then, and I hope you're making it. I know she's gotten a job since then in her engineering technology field. With the money that we'd saved from not having to buy food for the next several weeks we were able to buy warm shoes and we each got a warmer coat.
As you know my spouse and I did survive and now we're prosperous. The other transgendered person I referred to does have a job. I want you to know that I will never forget that day and that time. I do want you to know that if I can make it back then, you can make it today.
Now Employment Law and Policy. A job is radically important. We're going to be talking about health law, and we've talked about insurance law. People want our money for premiums, but don't want to help us out when we've got problems. We talked about probate law and the different ways people have tried to scare us about civil commitments. We're going to talk about criminal law and all the laws that make our life miserable. If some of us do get arrested for whatever reason, even if it was a driving-while-intoxicated, if we are cross dressed, we'll go through hell in jail before we're bonded out. We're going to talk about family law and custody of our children and divorce and things of that nature. Anti-discrimination in law in general will be discussed by Helen Cassidy, another kick-ass person, you're going to love her. Keith Stewart was tame. If we have our jobs we can survive the rest of it. We can somehow make due, we can buy time until the rest of it finally works out for us. And so it's drastically important that we are able to keep our jobs; that we are able to get some kind of job.
We are good people. The transgendered community is just like every other cross section of society. There are those of us who are college educated. They're are those of us who might have a 6th grade education. There are those of us who work real hard. There are those of us who don't. There are those of us who are physically impaired. There are those of us who are not. There are those of who are criminally inclined. There are those of us who are not. We're just like every other cross section because we really don't have a thing in common except for the fact that we are repressed for the same reason. That is, we're trying to be who we are.
When you really get down to the core of it, what are we doing? All we're doing is being who we are. You know there was a Broadway musical many years ago. The song was, "I've got to be me, I've got to be me." Everybody says I've got to be me. You see the free spirits, and you see __ as Ray Hill called them __ the mossbacks, you see the football players, you see the jocks, you see the country/westerns, you see everybody else. They want to be who they are, but they don't want us to be who we are. All we are doing, if we are not transsexuals or cross dressers in the transvestite area, all we are doing is occasionally cross dressing, putting on different clothing.
For that they do all the things that we know. And they take away our jobs, even if it's the job that we're trained to do, and they won't let us get another job. They won't let us keep another job. We are unable to contribute something back to society, and that goes to self worth and that goes to self esteem. Someone I am really coming to know better and better has been unemployed for a long time. I think it's due to the recession more than anything else, but she is one of us. She's been out of work for quite a while. Recently I was able to get her a job. It doesn't pay worth beans, and it's a part-time job, but it's a job. It's something for her to get up in the morning, to think about, to get dressed for, to go to, to meet other people, to interface. They know she's transgendered. And you know what? This charitable organization is just thrilled at what she's doing, and, her esteem is getting all these wonderful strokes. She knows she is contributing, she knows she's bringing in a little bit of money to offset her expenses and she's being told what a wonderful person she is. She's been told what a wonderful job she does and she's getting to interface and continue to practice her new presentation.
We've got to have our jobs. In Laura Smiley's paper called, "Transgendered Law and Employment Policy" she talks about the lead case. I am not going to give all the cases and I am not going to give all the cites because they are written down. But this one is called Eulane vs. Eastern Airlines and for those of[page 190] us in audio tape it's 742 Fed. 2nd 1081. It's the 7th Circuit Court of Appeals case in 1984 and essentially this dealt with an airline pilot who transitioned. These federal judges who were appointed by presidents who were very conservative are also conservative. I believe that they just didn't want to come up with a way to protect transsexuals. They got their law clerks to come up with some way that they can get out of this. The law clerks came up with a very interesting legal fiction. It is illegal under Title VII of the 1964 Civil Rights Act to discriminate on the basis of sex. Sex is a suspect classification as is religion, race, creed, others. So sex is a suspect classification. What does that mean? That means that if you file a lawsuit that says you've been discriminated against by sex, that the court will give it a very high standard of review and make the person charged with that discrimination really have to jump a high hurdle to screw you out of your remedy, your legal relief. The law clerks invented: this isn't discrimination based on sex, this is discrimination based on change of sex. It ain't covered. They came up with this junk: you cannot discriminate against men because they are men and you cannot discriminate against women because they are women but you can discriminate against transsexuals because they are transsexuals.
Well you can't crossdress on the job 'cause you can't wear women's clothes 'cause you're still a male. Or in the female to male, hey you can't wear men's clothes 'cause you're still a woman. And you can't get your names changed until you go to court and you can't get your birth certificate changed until you go to court. That's what I call in committee a "poof." Poof means legally you're a female woman then "poof", legally when the judge says so granted and signs the order, you're the other. And you're always legally either woman or a man. But this court says, hey if you're a transsexual, you ain't a woman, if you're transsexual you ain't a man, you're just a damn transsexual. Okay. That's where we are.
We don't have any legal rights as to our jobs, none.
What we talked about in our committee was that when you fill out a job application it may be advisable when it says what sex are you just to leave it blank. Let them fill it in. Because if you fill in a job application incorrectly and they want to get rid of you and they have no legal way to get rid of you, the first think they're going to do is check your job application. I see the attorney's in the audience are shaking their head yes. They're going to find something that you filled in wrong and you know what, you're going to get fired for one reason __ because you filled out a false job application. And you know how much that's[page 191] worth if you take it to court? It's not worth the paper it's written on. It's not worth anything so leave it blank and let them fill it in. Of course we joke about the fact that where it says sex you might put "O" for occasionally or "Y" for yes or "S" for seldom or "T" for terrific, "B" for boring. Any way, that's something you might consider.
There's a whole lot of other cases in here. She goes through them meticulously time after time after time. And court after court after court has said legislatively, as we read the history when the laws were created, it goes back to the Civil Rights Act. Sex means sex. We're going to give it its plain meaning. It doesn't cover you. You're out of court! You're out of court! Out of court! Out of court!
Interestingly, I do want to say this with respect with the suspect class. One of the reasons that I have pushed and prodded and yelled and screamed that whatever jurisdiction you're in, if you're in another country and you're lobbying, if you're in another state or you're in another city and you're lobbying to be in some type of legislation to protect you either in job or housing or anything else and you're trying to get yourself put into the laundry list, if you think you are protected under sex, read the definition of sex in that statute. Honey, if you ain't in there, you ain't in there.
If you think you're going to get in under the term gender, you better read the definition of gender in the statute. If it doesn't say transgendered, transsexual, cross dressing, you ain't in there.
And if it says sex orientation and it relates to gay and lesbian people, guess what, you're not in there.
You've got to lobby, you've go to do your work, you've got to do your networking and get the term put in "gender identification" "gender identification". Now as to lobbying and politics. I get so tired of people say, "well I'm not political, but damn, I'm sure tired of being repressed." Political can mean a lot of things. It can mean that you wear buttons, you wear t-shirts and you put on bumper stickers and all this other stuff and that's what I do. But political can mean a whole lot of other things. It can mean that you contribute money to organizations that you believe in that you may never attend one of their meetings, but you believe in[page 192] what they're doing. You might contribute to the National Organization for Women. You might contribute to your local gay/lesbian/transgender political caucus even if you've never attended their meeting just to get their newsletter. You may get active at the time of screening of judicial candidates. It might be with A Women's Political Caucus locally statewide. It might be with the Mexican_American Bar Association or some other organization. It might be with the NAACP.
I'm an Anglo and yet I'm a member of the Mexican-American Bar Association. And you know what, those are fine people, and I enjoy them, and they enjoy me. In the last judicial screening meeting, when they found out that a couple of judges had given my clients hell in court and reluctantly signed the order, they chose to endorse the other candidate on one race. They also chose, even though they were going to endorse this incumbent in the other race, to send four members of the group to talk to that judge and say don't do it again or we ain't going to endorse you again. They said if they discriminate against transgendered persons they discriminate against hispanic people. That's politics.
And we've got to rebuild our bridges. That's what Judge Andel was talking about. That's politics. And when you get an endorsement card from an organization that you believe in, you follow it or you follow most of it. Because that's where the downline ballots come. You already know who you're going to vote for, for president, you already know who you're going to vote for Senator, you already know a lot of people you're going to vote for. But who do you know that you're going to vote for J.P? J.P. is the one who is going to enforce that eviction notice. That family law judge, and if you live in a county that's smaller so that is just one of your civil judges, that's the one who's doing to give your spouse a temporary restraining order. Temporary restraining orders are ex parte, in other words, for a short period of time that temporary restraining order governs until you get a chance to present your case at a hearing. You aren't even heard for a temporary restraining order, did you know that? You ain't even heard. You don't even have to be served yet and the judge makes a decision. It's a temporary one but the point is all that stuff can go on, like take your kids away, all kinds of things. Unless those judges are sensitized in their screening meetings as to who you are. I've sat through a lot of screening meetings and judges have come and State Representatives come and State Senators have come, and members of the City Council have come and members for candidates for County Commissioner's Court have come, and they've met Phyllis Frye. I've said, "Hey, these are our issues and you know what, I'm a good person and all the people on the screening committee that are there with me know me, and they know I am a good person." We network. My organization supports their endorsement cards and their organization supports my endorsement cards. That's politics.
Everybody has asked me where I get all these neat speakers this week. Well, I work with these people. I lobby with these people. I network with these people. I know these people, and you can too. That's politics.
I don't care if you never join a party. What I am describing is politics.
Now, there are two very interesting cases that we don't have any follow up on. I want to tell the lawyers that are reading this and listening to this, and I want to tell the non-lawyers that are reading and listening to this, that if they got an employment problem to get this information to their lawyers. Two cases, one in 1985 and one in 1986, were both against federal government agencies. People sued, they were transgendered people, and it had to do with jobs. As usual, the company or the bureau or the department filed for summary judgment saying you don't have anything, toss this out before we all spend a lot of money. Both times it was the Federal District Court in Washington, D.C. In both cases the Court said this transgendered person has standing to proceed with this lawsuit. The reason why there is no more history on either one of them is, pure speculation, probably because they were settled. In other words, the person was either re_hired or kept on the job or got some good money in their pockets to leave.
The cases are Doe vs. USPS, United States Postal Service, 37 FEP cases 1867, and the other is Blackwell vs. the Treasury Department and that's in the Volume 41, year is 1986 and these were all fought out under the Rehabilitation Act of 1973.
I encourage the lawyers to glean these cases to find out what's going on. I encourage the none lawyers to get this to their lawyers to glean these cases and come up with strategies.
At least we can have standing.
At least in the Appeals Court if we win in the District Court and they appeal or if we lose in the District Court and we appeal, there's a good chance, if we do our politics right and we do our education right, that there are going to be some good judges. If we get a president whose going to appoint some different judges in the Federal Courts we might start getting some opinions that are going to help us out.
Now, Federal, we don't have anything. By the way that wasFederal United States.
The other part of federal is the EEOC, the Equal Employment Opportunity Commission, where again we have nothing. I remember in 1976 when I filed. They investigated it for a year and-a-half, and they said, "Ms. Frye, you have been discriminated against, make no doubt about it, but it's not illegal. I'm sorry. Go and get yourself an attorney and try it." In Canada I've been told by a participant in the committee, contingency contracts are illegal. I don't know for sure that's what I've been told. If they're illegal and you are poor or you are indigent or you cannot afford it, you go to a Canadian legal aid clinic. They determine whether it's something they want to fight or not. Essentially, their legal aid clinic is the same as the U.S. EEOC who decides whether you have something to fight or not. If you don't have anything to fight, which is what the U.S. EEOC told me, what do you do in Canada or any other jurisdiction that does not allow contingency contracts?
Alice Oliver-Parrot got up here yesterday and talked about the lawyer is the only thing that stands between you and the State and that you've got to cherish the legal profession. Sure there's jerks in the legal profession: there's jerks in any profession. But by large as a profession, we stand between you and the State. We are your mouthpiece.
The reason why we have contingency contracts for these issues and other issues is because the people that fired you, they've got all the money in the world. They've got corporate lawyers who are going to bill them; so, corporate lawyers don't care whether you settle any time soon or not. They've got staffs, and they've got fax machines, and they've got Lexis and Westlaw __ which are the computerized law search stuff. They've got their books, and they've got their cozy offices and all that other stuff. You who have just been fired don't have anything. Not only that, you don't have your income. You probably don't have any savings. If it's not a job discrimination, but it's a personal injury, how are you going to fight an insurance company? Most of the time you need a lawyer on contingencies because you can't afford it.
Some people ask, and I am going to put it on the record right now, "but aren't they being greedy?" Well let's look at it. Most contingency contracts are 40 percenters and if it goes to appeals, it's a 50 percent. At least that's what I do. What is the lawyer risking? The case that I spent the most time on is into its 5th year. I became so into it that I lost my objectivity and sold it to another lawyer. In the first three years I spent over 900 hours on that case and invested over $1,500 of my own personal money and we never even got to the point where I was deposing the other side. Now the lawyer who's[page 195] your mouthpiece, who's going to represent you, they are risking everything. They are putting up all the up-fronts. If you get a good contract, then some lawyers do up-fronts or they make you pay the up-fronts: that's fine if you want to negotiate that. The way I do it, all my clients pay the up-fronts because I'm just not rich enough to have a big plaintiff's firm. They're taking all the risks and they may or may not get paid down the road.
If you win and if there is some good money coming out of it, all the out-of-pockets are going to come out of the top whether you paid them or your lawyer paid them. Then you're going to divide it according to the contract. If you lose, your lawyer doesn't get anything. So that person has taken a financial risk.
That's what's going on in the federal level both of the United States and Canada. I got a lot of letters from other countries. They said, "Is this going to be a United States law conference", and I said, "Come to the law conference and participate in the committee because this conference is going to be what you want." So those of you who are reading and those of you who are listening, if you want more input from more countries you better come to the next conference. We'll put in anything that shows up in the committees.
State law. You're going to hear a lot about tonight from Charlie Baird, that's one of the reasons I asked him, about the new federalism. States are beginning to come up with their own laws to protect people.
And as we know, and you go back by your history, there was a time especially during the civil rights fights and especially during the days prior to feminist victories that the federal courts were where you got relief because the states were awful. It's beginning to change. And it's beginning to be where the federal floor for protection is getting pushed so far down that a lot of the states are stating, as Ray Hill would call it, bullstuff. I usually don't use that word but I've cursed enough on the record. Bullstuff! These States are going to protect their citizens and they're going to create a higher floor.
If you are a lawyer reading or listening to this or if you're going to go into a fight make sure your lawyer understands this. If your States gives you a good protection and your State's laws floor is higher than the federal floor do not plead anything that has to do with federal law. Do not plead the Federal Constitution. Do not plead Title VII. Don't plead any of that stuff but your State. Here's why. Because it'll go all the way up to appeal to your State's highest court. If it's ruled for your and money bags wants to appeal it they can take it to the federal system and suddenly the federal laws which have the lower floor begin to be applied so you lose all your protection. Therefore, plead State Law.
Jessica Sterns __ we had the privilege of meeting her recently __ lives in New Jersey. Jessica Sterns is an airline pilot. Jessica Sterns is a veteran of Viet Nam. She is, one year older than I, a very proud woman, a very strong woman, a very emotionally strong woman. Continental Airline said, "bye" and they tried to get rid of her. She said, "No, I am going to fight." She hired a New Jersey lawyer, and the New Jersey law has an interesting caveat.
I think the Washington State law does too. Roxanne, by the way, I hope I remember if you want me to put your card and address in the proceedings, do you want me to?
Roxanne is an investigator dealing with these areas for Washington State or the city of Seattle, I don't remember which but the point is she is on our side.
They have a suspect classification called perceived handicap and this follows handicap. Essentially it says, even if you aren't handicap, if the person discriminates against you because they think you're handicapped, because they treat you like you're handicapped, you fall under the statute and you're going to be protected. Well, they were treating Jessica as though she were handicapped. She sued Continental Airlines, who's based in Houston, Texas in New Jersey state court under New Jersey state law. Continental Airlines said, "Hey, that's easy. We're in another state. We'll remove it to federal court under federal diversity. We'll get one of those judges whose been appointed for life by the conservative presidents, and we'll just take care of this." The luck of the draw they got somebody else. And the federal judges applied that state law and ate Continental up.
Now a lot of this is conjecture because under the settlement Jessica couldn't tell me anything, but it has to be what happened. I don't know what her settlement was, but they settled, and she's flying airplanes. We met her. She came to Houston about a month ago. She was in flight training, and I got a hold of her. The committee that put this thing on for y'all had the privilege of buying her dinner that night and sitting with her and hearing her war stories although she did not reveal __ for anyone at Continental whose read this proceedings __ the terms of the settlement and she should receive an applause.
[Applause] That's state laws and other state laws.
Local discriminations, I'm not going to get into them. There's a bunch of them. Colorado has several good city non-discrimination laws and the bigots in that state are trying to get them removed by a state amendment to the State Constitution. That's all being argued.
I want to pose this question to the lawyers reading and listening to this as well as the non lawyers who get this, I want to make sure your lawyer thinks about this and you ask your lawyer this question. I seem to remember somewhere in law school, and I've never found the case since I read it in law school, but somewhere in the area of Social Security or some other endowment, the federal court said, "This is not a right. This isn't a right. But it was granted. It was endowed. It was given. Because it's given and it is a very large part of that person's being or very[page 198] large part of that person's life, it just cannot be arbitrarily taken away. Somebody was arguing that they moved the voting age up and down. They move the age for consent to drink alcohol up and down. But it's my feeling and I think it should be argued that when we're dealing with very fundamental things like our jobs and like our families, that if a municipality or if a state or if a federal government or agency grants us a right or makes us a top classification, then they should not be able to arbitrarily take it away. I would argue in a court or in an appeal that they gave it status.
In the states that are trying to get rid of this stuff what they're going to do is, by a simple majority vote, knock out all these other ordinances. I believe that the courts should say, "If you give a right and you later want to remove it, you're going to have to do it, not by a majority vote, but by a 2/3 vote or 3/5 vote, something higher than just the majority vote." That's just ranting and ravings of Phyllis Frye and you can take it for whatever it's worth.
Americans for Disabilities Act. The Americans for Disabilities Act hasn't done anything for us. I really don't want to be listed in there because I don't think I have a disability. I'm incensed, and I resent the fact that we were put in with pyromaniacs, kleptomaniacs, drug addicts, child molesters, pedophiles and all those other people. We ain't those people. We are good people. We are very good people.
We now go to the employer's handbook. We went through this in committee, and it goes into a tremendous amount of explanation. It has become a question/answer booklet. It's extremely well done. The committee chewed up a lot of paragraphs, spit them back out. I think the final edition is going to be great.
But, as some of the federal cases did, and as this does, and in my own situation when I got fired, and most calls that I get from people that I have to defend, and most of the employers that call me and say what in the world do we do with this person: it always revolves around the potty.
Every time I say that, Helen Cassidy cringes. It infuriates her and y'all will hear more about it when she talks. The restrooms is what drives them all nuts. They don't know what to do with us in the bathrooms.
I went through this in law school. Before I came they had a[page 199] bunch of one holers that had locks on the door. They had some one- holers and some multi-holers. They kind of alternated: some said "men" and the other "women" and visa versa. They decided to take all the one holers and put "restroom." Then anybody can use it and lock the door and that works fine. I agree to that.
The problem was is that none of those one holers were anywhere close to where my classes were, to anywhere close to the law library, anywhere close to my study carole. After a couple of weeks I was getting along relatively good. Nobody hit me yet. Nobody screamed at me yet. I got tired of walking half way across campus to go to the bathroom. I mean __ think about it. You're sitting here eating lunch. Somebody's talking, and you need to go to the restroom you just get up, quietly you just go a few doors down, use the restroom and come back. In the situation I was in, you would have to think about it at first urge and you would have to walk up a couple of flights or down a couple of flights of stairs or take an elevator and walk all the way across to find your assigned restroom or one of the few assigned restrooms. Well ladies and gentlemen, you're really going to have to think about it. You're going to have to go at first urge.
So they called me in, and I told them what I just told you. I asked how many people are complaining? Four people in five weeks have complained. I said, "tell those four people that I use this women's restroom because it's near where I study. I use this women's restroom because it's near where I take classes. I use this women's restroom because it's near the law library, and the other eight women's restrooms in the law school I don't use. Tell them to use the others." It sounded reasonable and that's what happened.
I also know in the committee that one of our persons works for a large company. They wanted to keep her so they said, "We have men's and women's. Everybody knows you because you've worked here before and you're working now. We want to keep you but there's some people that are uptight about it. We don't want to give you a special potty just for you because that's embarrassing. So if you have to go to the bathroom, you're pretty close to the elevator, you're only on the third floor, just go down to the main lobby where there's a general public men's restroom and a general public women's restroom and it's not specific for you and use whatever restroom you want to use." That really didn't call any attention to her. It didn't make her feel like she had her own special potty. It wasn't stupid. It made sense. She's coping quite well, and so is everybody else.
There's a million ways to handle the restroom other than fire somebody! Now, what are strategies for change? Well they're very simple __ education. Education. Education. Out of this law conference is going to come a proceedings. Send it to your employer, don't send it to the CEO of a big company. He isn't going to read it. Send it to the Personnel Manager if you have a big company. And put a little letter on there. If you're afraid they're going to read your handwriting, if you're afraid they're going to know whose typewriter it came off, go to a local print shop. Every print shop has a typewriter that you can rent or borrow, type it on their typewriter. And just say, "Hey I work for you. Some day I might transition, and I'd like for you to know a little bit about what's going on to think about it."
If you're afraid that they're going to find out who you are, then lie and say, "I used to work for you and I want you to know that I was here." Write them and say, "I'm thinking about applying for work with you some day soon I just wanted you to know." There are a million ways to take the light off yourself if you're scared about it. But make sure your employer knows.
And if you buy your own proceedings and you don't want to send the whole proceedings then copy the small section. We're not going to give an entire permission for everybody to Xerox the whole thing but go ahead and copy the pages of the law, go ahead and copy my presentation, send it to your employer with a little letter.
Also make up a little introductory letter if you are coming out of the closet, and tell them a little bit about yourself. I used an introductory letter with my neighbors when I transitioned. I just drafted a two-page letter, told them all about me. How many of your neighbors do you know? Do you know where they were born? Do you know whether or not they were Eagle Scouts? Do you know whether or not they hold four degrees? Do you know whether or not they're licensed in three states? Do you know whether or not they care? Do you know whether or not they're adopted? Do you know whether or not they have gay children or their children or sisters or brothers or mothers have died of AIDS or had been gay bashed or maybe they've been raped and they've been in the closet all their life about it. They might have some sensitivity as to who they are.
Well, you don't know that and they don't know that about you either. So, write them a letter and cover the whole block. Just make 50 copies and just go up and down and say, "this is who I am, and you're going to see me cross dressed and you're going to wonder what's going on. Well this is going on and some of you[page 201] aren't going to like it. And there's nothing this letter is going to do to change that and some of you aren't going to care and there's nothing this letter is going to change about that. But a lot of you probably didn't think about it or you're going to wonder about it and hopefully this will answer the questions." And that's what I did in my neighborhood and it didn't work for everybody but it worked for a lot and it's a good technique.
If none of that works, sue the bastards!
I'm a trial lawyer, and I'm going to tell you about suing. A lawsuit revolves around two things; one is the law and the other is evidence. I don't care how good the law is, if you don't have the evidence you're out. No jury is going to find in your favor if you don't have evidence.
You may not have the statutory law. You may not have the federal law. You may not have the local law, but you know what you might have? You might have their own policies and practices to hang them with. If they're a big company and they got standard hiring practices and they got standard firing practices and they violate their own practices in the United States, the Federal Constitution will come to your help because they've violated the due process clause. And you are in court. And they can't summary judgment you out.
So, if you are transgendered and you're in the closet or you think this might be an issue some day, you have right to go to your employment counselor, to your human resources professional and a lot of people are evaluated on a yearly basis. You were probably given, you probably have it stuck somewhere, and if you don't then get another copy, get a copy somehow of your company's hiring policies and your company's firing policies. And don't leave it in your desk at home 'cause when you're fired the guards are going to keep you off. They're going to give you a box that's got your pencils, and it's got your envelopes but it doesn't have anything else out of your desk.
You're entitled to some of it by discovery but that's tough to get. Take it home. Every 'atta girl, every 'atta boy you've gotten, take it home. Every commendation you've gotten, take it home. Every pay stub that you have, keep it. Show a length of time that you've worked for them. Show progressive pay raises, both in merit and inflationary. Show bonuses. If you're a school teacher and you get letters from the parents that are good letters, keep them. Keep all that stuff.
If you think something's starting to happen, if it's starting to rumble where you work or you fear it's going to start rumbling[page 202] where you work, go buy a tape recorder. Get a small tape recorder, rehearse using it at home. Don't rehearse when you're there trying to fiddle in your pocket or your purse so you can turn it on to record what the dumb idiot is saying. Practice it at home. Practice it at home. And be ready to be able to reach in your pocket and push the button or be ready to reach into your purse and push the button so that tape recorder goes on. When you're sitting in the trial and your attorney says to them, "didn't you say something or other that is totally completely illegal" they will say, "no, I never said that." It's your word against their word. You may not have been able to get that tape into evidence directly, but you can sure as hell get it into impeach that bastard.
Go to Radio Shack or some place else and get the little machine that hooks on your telephone, don't get the little rubber stick'em on the bottom, get the hard wire. And have it ready to go so that if there's any calls that you get from supportive co-workers or from bad co-workers or from your boss or anybody else you record them. Why do I say supportive co-workers? I don't care how much someone likes you, if you get fired and they know that their job's in jeopardy if they come forward, there's a good chance you lost that testimony. But you can squeeze it out of them in deposition. If they begin to lie or they get cold feet and you've got the tape. "But didn't you say this?" And you pick up the tape of such and such. You've got to have evidence.
Now, you also need to go to the drug store or grocery store or any place else that has little spiral books that you can carry in your pocket or your purse. At the end of the day, if someone's been rude to you, if someone's said something good about you, if some instances happen __ you need to go to the restroom, close the stall, sit down on the pot, and write down what happened. Write the date of what happened. Write exactly everything that went on. Write the names of people that were involved. What's going to happen two or three months now when this thing finally blows up and you're crying and you're sitting in your attorney's office and you're saying "but all these people did this" and "you know what the other day, somebody heard this." Who was it? "Well, it was Joe and Mary and Sue." Well, what day was it that Joe was there and what exactly did Joe hear? "Well, I know Joe heard something, but I don't remember exactly what Joe heard, but Mary might have heard it." You've got it all in the book.
If you've recorded something on tape, things could get misplaced on the tape. Your lawyer doesn't want to listen to eight hours of tape. Number your tapes, date your tapes, and if you've got a tape entry, put it into your memo book.
In Texas, and I think this is pretty well universal in most jurisdictions, in evidence when you're at trial three years later and you pull out that book you can use that book in one of two ways. Before you get on the witness stand or even if you're on the witness stand and you're a little confused, you can pull out that book and you can refresh your memory. And if that book is a book, not looseleaf pages, and is in your own handwriting and is meticulously kept as a diary is kept, you can testify. You can use that to refresh your memory on the stand. And if three years later you've forgotten what happened you can read from your diary as past memory recorded. So either way, you can get it in. If you've got the evidence, they're going to squirm.
Now, if you don't think I do this, let me tell you what happened. I've got a sweet person who is not only handicapped physically, she's got multiple sclerosis. She's in a wheel chair, her hands are kind of like this, and she has a terrible speech impediment. Not only is she non_white, which is not an impediment except our society makes it, but she's a lesbian on top of it. And she rides Metrolift in our city. And she was putting up with with all kinds of trash.
We had a couple of hearings and her testimony was just awful. The Judge wasn't giving us a whole lot of help. I taught her to do exactly what I told you to do. I'll tell you what, that woman can take out her pen and she can scrawl a date on a tape and she can change her tape and she can change her batteries and she can pull out that little booklet and she can scrawl the words of what's happening and who the driver was and what the van number was and what happened whether it was good or bad. I remember our first hearing after that, we started playing tapes and they went just absolutely crazy. So, it will work.
That's the nuts and bolts of how to keep your job. And if you can't keep your job, sue the bastards.
If you want to get a job do the same thing. Get hold of a policy handbook, get hold of the law. Get hold of the proceedings, send them to people. And have your tape recorder going during your interview and after the interview take good notes. And before the interview, take good notes.
How many of y'all saw the movie, "Norma Rae," with Sally Field? She was a union organizer. And they called her in and they were[page 204] going to chew her out about something and her lawyer instructed her well. The first thing she did was she whipped out a pad of paper, she started writing names of everybody who was in that room. And they freaked out and they said, "What are you doing?" "I'm writing down names of everybody in this room, I'm putting down the date, I'm putting down the time, so that I can recollect everything that was said so if we get into a hearing I'll know exactly who said what." That hearing ended. That meeting ended just then.
And you know what I tell my school teacher friends? I tell them the same thing. What happens if you get called in and it's all friendly and they say, "We don't want to fire you but we've heard such-and-such and such." I tell them, "Don't say a damn thing, don't admit to a damn thing." Start immediately asking for a piece of paper. Write the names of everybody that's in that room and tell them you're not going to say a anything until you get your lawyer. I assure you that meeting will end real quick, and they will not have gotten what they need to fire you. They'll have a whole lot of guesses but if they had them, they wouldn't have called you in, in the first place. Call their bluff. Write down the names, get the evidence and keep your job. Thank you.
An addendum to that presentation is that I practice law mostly in Texas, and in Texas in the penal code it is legal to tape a conversation and the other person doesn't have to know as long as you are a party to that conversation.
I was told after the presentation
that in some states and other jurisdictions that could be a felony
crime. So I suggest that you check your law in your location, and if it
is a felony crime obviously don't do it, but if it's not a felony crime
as long as you are a party to that conversation that I would suggest you
use that as a method of gathering evidence.
ANTI_DISCRIMINATION LAW PROJECT
Helen Cassidy, Atty.
Next we have Helen Cassidy and anti-discrimination law. Some of you heard me talk about the NAWBO organization and my introduction to the feminist community of Houston over the Nikki Van Hightower firing and a lot of other silly stuff. We used to have some real bozos running City Hall, didn't we? I mean some REAL BOZOS. They weren't just bubba, they were bozos. They were just incredible.
Anyway, that's when I met Helen. And we've known each other for a long time. She was a professor of mine in a very delightful course that I took at the University of Houston Law Center on discrimination against women. And that was when I was introduced to the writings of Eleanor Holmes Norton. Isn't that her name?
Eleanor Holmes Norton. She could easily have been, had Jimmy Carter won re-election, on the Supreme Court of the United States. Anyway, Helen Cassidy, she's a fighter. Not only is she a fighter, she's smart. My grades weren't good enough to know if when she went through law school if she did a magna cum ludi or a suma cum ludi. Maybe she just did a ludi cum lot of lotty. That was a joke. She's one smart woman, and she's currently the staff attorney for the 14th Court of Appeals of Texas located here in Houston. She's going to speak on anti-discrimination law in general. I wish to welcome Helen Cassidy.
By Helen Cassidy:
My button for today reads: "Get an attitude." That's really[page 277] my message for today too. I'm a loud mouth, opinionated, middle class, middle aged white female, who grew up in a little bitty piss-ant Texas town. And a lot of people think I'm crazy. Some of you who have heard me rant and rave may also think I'm crazy. But I never really stopped to wonder why I'm not like other people. What I spend a lot of time wondering is why more people are not like me. It's an attitude that I highly recommend. It's kept me sane for almost 52 years. And it's the attitude that brought me to this conference. And I'm so glad that it did.
It's been a real and sincere privilege to be here. This is an historic event and all of you, I promise, will look back on it with great pride and realize the privilege it's been. Let me tell you two little stories of my own.
Twenty years ago I met with a small group of women, and we had a dream. We wanted to start an organization to promote feminist candidates for political office. And out of that meeting in March of 1972 was the first convention of the Texas Women's Political Caucus. I was privileged to be elected the first chair of that caucus. And in the twenty years of its existence, it's had phenomenal success. We've elected many feminist people, male and female, to office in this city and in this state. I am so proud and so privileged to have been in that first small meeting, planning that first convention.
Nineteen years ago, four of us were sitting around in a motel room in San Antonio, Texas, because we were there for the State Democratic Convention. We were drinking beer and laughing and talking as folks will do in a slumber party situation. And suddenly one of the women in the room began to speak about her rape, that had occurred a few years prior. We were astounded not by the shame and degradation that she had experienced at the hands of the rapist, but we were astounded to hear her bitterly complain about how she had been treated by the police and medical technicians after her rape. She ended by saying, "it cost me a hundred dollars to get raped." Now we were all involved, concerned feminists, but we didn't know that in Texas at that time if you got raped you had to pay to gather your own evidence at your medical exam of that rape. A year later, we had a bill passed through the legislature of the State of Texas that required governmental units to pay for gathering of evidence with the medical exam after a rape. We also, a year after that, had developed a medical evidence kit for rape victims and began distributing it all over this state to hospital emergency rooms. I am so privileged to have been in that motel room in San Antonio some nineteen years ago on a hot August day.
So believe me, all of you are going to look back at this conference that way and realize what a rare privilege it is to be at the beginning of something that's really important. The intelligence, the commitment and the energy in this room can change the future. I believe it will change the future, and I believe it's going to be changed because all of you met together[page 278] in August of 1992 in Houston. Every revolution starts with an idea. But it's not going to be easy. There's a very very long way to go.
The committee I moderated was entitled anti-discrimination law, and here let me offer a disclaimer. We talked, we chatted, we shared experiences and probably because of my moderation it wasn't at all organized. So the opinions I express today I take full responsibility for. I don't think everyone in that meeting is as crazy as I am. Because it was the big tent committee a lot of things I have to say will be of necessity, repetitious. So please forgive me for that repetition.
Let me give you our condensed report, and I think all the committee members will agree on this. As to the anti-discrimination law affecting transgenderals, there ain't much there. With few exceptions people may discriminate with impunity against persons who are transgendered. And that's the way it is across the board in all areas applied.
Now the United States, other foreign countries and most states of the United States promise, nearly all of them in their Constitution, equal protection under the law. They promise it, but they don't deliver it __ not in the areas certainly of gender identification as well as in other areas, sexual orientation, and large measures to just the area of plain old sex, male/female discrimination. The United States Title VII promises freedom from employment discrimination but it excludes gender identification and sexual orientation from its coverage.
As some of you may know, sex is included in Title VII as a result of a joke. When it was being introduced in the Senate, in order to show how foolish it was to pass this piece of legislation, one Senator said, "well let's just add sex too, ha_ha_ha." Well fortunately we've been laughing all the way to the courts since 1964 when they passed that.
With 80% of our federal judges in this country now appointed by Presidents Reagan and Bush and with the Neanderthal Supreme Court, you're not going to get a court interpretation that says that sex also includes gender identification. Simply don't hold your breath for that. But we need to keep insisting that it should be that way.
The American with Disability Act, of course, as you know, in the most insulting way possible excluded transgenderals. My committee discussed whether indeed transgenderals had even cared that they're excluded except for the incredible insulting way in which they were.
You're going to be, because you're writing basically on a blank slate, spelling your own names and writing your own identity. And you need to ask yourself whether part of that identity includes disability, or perhaps you only want it to be perceived disability.[page 279] Perhaps you don't want the disability notion there at all. I think that's an issue that has to be thought through and discussed in the years to come. Is this perceived disabled to be part of the definition that you write because you've got to insist on spelling your own name and not letting anyone else do it for you?
Well let's look at the few bright spots in the lawn. You've heard about them from a number of other people so I'll go over them very quickly. My choice for personal best law is the city of Santa Cruz. It prohibits discrimination, not only on the basis of sex, gender and sexual orientation, but it also includes height, weight and personal appearance. And by golly, we shouldn't forget those last three when we're drafting laws. Gender is given the same definition of sex and the definition section and includes transgendered individuals. It's simply quite the best one around.
Now, Seattle has a fair employment practices ordinance and a housing practice ordinance. Both prohibit discrimination on the basis of sex or sexual orientation, and sexual orientation in the definition section includes transgenderism and transvestism. The government of Ontario prohibits discrimination on the basis of sex and sexual orientation and contains disability protection -- the strategy there of course is to attempt inclusion. Denver's non-discrimination ordinance lists gender as a protected class and is applied to transgenderals. Cities of Boulder and Afton also protect on the basis of sex and sexual orientation. New York City had an executive order promulgated by Mayor Koch that protected, as the city contractors could not discriminate on the basis of sexual orientation. The New York court held that that include transgender people. Now, obviously that's pretty much a wrap up along with the other things you've heard today in the area of non-discrimination. We have a very long long way to go, but some things are happening.
I want to share with you a cartoon that appeared this week in the "Houston Press", which is sort of our Maverick weekly tabloid newspaper here in Houston, Texas. It shows George Bush at the podium, obviously speaking to the throngs. And he says, "I come to you this evening as a candidate of change. I changed my position on abortion, taxes, Iraq and campaign sleeze. I'd change my sex if I thought it would help me get elected." The next frame shows a political analyst going, "pssss pssss pssss." The last frame shows George in full drag saying, "I come to you this evening as a candidate of change." Now let me tell you when you finally make it to the political cartoons, you are at least getting recognition and it's becoming. Take it where you can get it. They're beginning to learn there's a transgendered community out there.
Now, how do we get to where we want to go? Well I got another button. It has an equals mark and underneath it, it says, "me too." Now I suggest to you that every time you see an equal sign, you think, "me too." Insist and never abandon the argument that transgenderals are covered under the equal protection clauses of various Constitutions. Simply never abandon that philosophy.[page 280] Always insist, "me too."
Secondly, continue to insist that transgenderals are already covered under anti-discrimination laws under sex, gender, or sexual orientation. Argue all of them. Try to make those laws extend to cover you under those definitions.
Third, attempt to amend existing laws to include gender identification. Preferably, list it right up front, but if it won't work, work it in under the definition as Marla was talking about. Where there are not yet laws in place, and that's virtually everywhere, draft and present them in your city, your state, your nation. Ask to be included. Plead to be included and then kick and scream and demand to be included if that's what it takes.
Last I would say, keep your eyes on the target. It's so hard to do in every civil rights movement. You get off into so many side issues. We all know in this movement, like the feminist movement, they want to talk about are clothing and bathrooms. Always. Some twenty something years ago when I started speaking out on Women's Rights, it was considered a real novelty to see that a female was talking about rights. And invariably when I went out to speak they wanted to know about my underwear. "Do you burn your bra?" I would always say, "no, it's the only support I have." Then the next thing they wanted to know was about the bathroom. Answer that chump, come up with something quick and get on to what we're really concerned about. Those are nothing but side issues designed to get you off talking about underwear. I use to say, "every time I want to talk about basic human rights, you people want to talk about underwear. Who's got a problem here?" And just say it and get on with it, and insist on talking about what you want to talk about.
Now, how do you implement these strategies? Educate others. First of all I like to think that I'm an open-minded, fair-minded individual. I said that to one of my best friends this morning, and he said, "Helen, you are open minded to the most weird philosophies in the world, but you are the most closed minded human being in the world about ignorance." I said, "well ignorance is one thing: willful ignorance is a by-God sin." That's so true. But in 1971 I went down to the City Council, the City of Houston, and proposed a Human Rights Ordinance, the first one that was ever proposed. And I proudly included a whole checklist of covered areas. I included sex of course, I included sexual orientation, but it never occurred to me to include gender identification. That was simple ignorance. We have to understand that ignorance is not malice, it's willful ignorance that amounts to malice and you just don't put up with it.
Secondly, you need to reach out. Judge Andel talked the other day about building bridges __ the sense of bright people going ahead and smoothing the path for people who follow behind. Well, I call the same thing "kicking down doors." I'm simply not as kind and gentle as Judge Andel. But you can't kick down those doors all[page 281] alone. So when I talk about building bridges, I'm talking about building them to other groups of people who can share and understand your concerns, and then they can help you knock those doors off the hinges. Now some groups, I think, are naturals. I, of course, believe that feminist groups are natural.
Join those groups, participate in those groups. All of you, whether male to female or female to male, have a vested interest in ridding our culture of sexism. Sexism is a serious social disease. It hurts every one of us and we've got to erradicate it.
You can succeed in getting feminist support for your efforts. I'm a staunch feminist and I confess I really do not understand gender dysphoria. But, you know, that simply doesn't matter. I do not have to understand it. The only thing I need to understand is that people are discriminated and oppressed because they suffer from that. And discrimination is wrong, and I've always understood that and that's a message anyone with any kind of heart and concern should be able to understand. And I think if you take that message out you can get support.
Reach out to these feminists groups in your community. You may not be welcomed at first. Too bad! Crash the party. Go on anyway. I'll say the same thing about gay and lesbian groups and minority groups in your community. You won't necessarily be welcomed there either, but go. Most good activists know that bigotry always wears the same mask. They may dress a little bit differently but the face behind bigotry is always the same. Some wear designer clothes like these people we saw these past two weeks in Houston's Republican Convention, and others wear plain white sheets. But I assure you the bigotry there is the same. Gays, lesbians, feminists, racial, ethnic minority groups need to be sensitized and educated to your needs and to the oppression that you suffer in this culture. Offer to speak to those groups. Join and participate in your political party. Make your few voices seem like many.
Listen, politics is all smoke and mirrors anyway. Look at the religious right in this country, for instance. They've managed to appear like a vast Army instead of the small rag tag band a bible toting bigots that they really really are. Use those same smoking mirrors that they use.
At one point in the city we had 50 members in the National Organization for Women. I was President of that organization back in 1970 and '71 and into '72. I just wouldn't leave. We only had 50 members and politicians in this city thought there were jillions of us. I got phone calls from Fred Hofheinz when he first ran for Mayor and said how he had made a really sexist comment on local TV. Someone had said, "how does your wife feel about your running for Mayor?" Well who cares how his wife feels about it, quite frankly. But Fred responded by grabbing the microphone from his wife and saying, "my wife supports me and stands behind me in all that I do." Within a week he received 200 barefoot and pregnant awards[page 282] which the National Organization for Women had sold. We only had 50 members, but we'd sold a lot of awards. And his phones were ringing off the hinges so he calls me and says, "could you please stop your members from sending these barefoot and pregnant awards." To me. And I said, "God, it's a large organization. They are all very independent people, and I simply can't control them." No way in hell did I say, "we only have 50 members __ what are you talking here?" I was so excited to find out there were 200.
It doesn't hurt to exaggerate either. I always used to say how many members do you have in Houston now? I say 500, when we had 50. Soon we had 500. So, here I'd say, don't make me a liar, pay your dues, let's get more people. It doesn't hurt to use those little smoking mirrors.
Now education. The other thing you need to do, you need to educate yourself. You need to research your local, your state and your national laws. You need to go out and learn who your political representatives are. You need to raise your issues with those representatives. You need to vote. You need to cast informed votes. Find out how those candidates are going to address your issues. Inform yourself on the issues affecting other oppressed groups. And read the history of other civil rights struggles. Learn from their mistakes, learn from their successes, because there are so many parallels in every group that is organized to demand rights for that group.
Now, I say it again. You have a very very long way to go. And it won't be easy. Back in 1848, a group of feminists meeting in Seneca Falls recognized the difficulties they would face. Listen to part of their declaration of women's rights. "In entering upon the great work before us we anticipate no small amount of misconception, misrepresentation and ridicule. But we shall use every instrumentality within our power to affect our rights."
I say in conclusion, keep your heads high, keep your chins up, but don't ever let down your guard. Failure is not only impossible, as Susan B. Anthony said, but it's unthinkable. Victor Hugo once said, "more powerful than a thousand armies is an idea whose time has come."
The idea of equality under the law
is plain old pregnant and overdue. Those of us who believe in human
dignity, in human equality simply should intend to deliver. And that's
the attitude I hope all of you can leave here with. Thanks.
FAMILY LAW PROJECT
Connie Moore, Attorney
Connie Moore is another member of the Bar Association for Human Rights. She and her significant other law partner, Debra Hunt, do a very good job in the area of Family Law. I've known Connie for a very long time. And I can tell you many many stories. But if I do, I'll have to get into the recent win in Brazoria County, just south of here, and I know she wants to talk about it. And I know if she doesn't talk about it, I'm going to talk about it. So without further ado, I want to introduce Connie Moore, Attorney, from Houston.
By Connie Moore:
Good afternoon. May I say evening? It's getting pretty close. We're going to wrap up today's sessions of the reports from the committees, and I'm going to tell you what we discussed in the Family Law committee and present that to you. We have passed out[page 296] for you a report which was done this afternoon to kind of summarize some of the cases that we discussed. It also highlights some of the progressive areas for change, where I will get on my soap box just a little bit. I know that Phyllis won't mind. It's nice to be invited, to get on my soap box. Sometimes, when I'm invited to speak, they say, "okay, talk to us, but can you stay down just a little bit off that soap box?"
First of all, our family law situations within the transgenderal community very often revolve around definitions. Labels. Is this person a transsexual, a transgenderist, post_operative, pre_operative? What is the legal status of the sex of a transgenderist? What does the birth certificate say? Can the birth certificate be changed? If so and if not, what kind of implications does this have in the family law arena and how are significant?
So we're going to try to take these a little systematically and first of all tell you the current status of the law as well as just a little bit of history. Where did these laws came from, and then hopefully, some guidance on where we can go with them.
The first change that is often addressed in a transgender community is the change of name. In most jurisdictions this is a court order change that can be accomplished and determined on a case by case basis. I find it surprising that I still hear stories of persons having difficulty having name changes. As a matter of fact, we heard very recently from a woman in New York who has been required by a local judge in New York to have her sexual reassignment surgery before he will permit her name change. She's having a very difficult time with this.
In addition to name changes, very often it is desirable to have gender change designation as well as a sex change designation. We categorize these in two different categories for obvious reasons, and also because even though the sex change designation is not possible in some jurisdictions, sometimes the gender change can be accomplished, which can at least ease the day-to-day living anxieties of the transgender community.
I'd like to point out to you for those of you who are not aware of some of the work that Phyllis has done in the transgender community, specifically here in Texas. She has developed and created her own progressive strategy. When she petitions a court for a change of name, a change of gender and a change of sex, she often obtains a change of name, a court order requiring public authority such as the Texas Drivers License, Department of Public Safety to change the designation of gender on identification documents, and a further order that is prospective, that essentially says when this order is coupled with a doctor's affidavit the two documents together can be presented to the State of Texas to allow a change on a birth certificate. We're going to talk about this just a little more in our progressive strategies for change as well.
Changing the sex designation on birth records is specifically authorized in some jurisdictions and specifically allowed in others: this is done in two different fashions. One is legislatively and one is simply by court order, judicial changes. In fact, that is the way it is decided in a majority of the jurisdictions that we have examined within our committee. A variety of methods has been used throughout the world to make a determination that sex will be changed, won't be changed, or what the sexual identity of a specific person is. And we'll talk about this in some of the cases.
It is interesting to note that the court, some of the courts, have looked at as many as seven different factors, which influence or determine, gender status and sex status.
This includes unchangeable as well as changeable factors. That is critical for many of the courts. Unchangeable factors are such as chromosome make-up, or the ability to bear children after the sexual reassignment surgery. Changeable factors are such as the psychological, the physiological, gonads, the genitals, other things that can be changed. They contrast so with things that cannot be changed. I think that you'll find that we're getting to the point where the things that are changeable are beginning to have a little more weight in the worldwide jurisprudence. They're beginning to not look quite so much at things that are just not changeable.
Within the name, gender and sex identification definitions, I looked first to Europe and the European Convention of Human Rights. This is a convention that was enacted, I believe, back in the '50's and two articles have bearing on the transgender community. Article VII guarantees the right of respect for private and family life. Article XII guarantees the right to marry. The European Commission of Human Rights is a governing body that reviews what's going on throughout the states that have signed the commission and it has issued an opinion regarding violation of Article VIII by the United Kingdom by their refusal to amend a birth certificate to show the new sex. This opinion thought very strongly that a birth certificate should be changed. It did find that the failure to change it did not violate Article XII interestingly enough because it reasons that any obstacle to marrying would be removed once the birth certificate was changed.
Unfortunately, the European Commission on Human Rights does not have the final say in this area. This decision was appealed by the U.K. to the European Court of Human Rights. This appeal essentially undid what the European Commission on Human Rights did. It said that, because of the way that the U.K. had set up its procedure for changing birth certificates, in order for them to accommodate and accomplish this objective, they would have to redo their entire national procedure which was just too burdensome for the goal of affecting a few. Although that was bleak, the appeal went on to say in a rider to the case, that it felt very strongly[page 298] that the U.K. laws needed to be changed to accommodate the needs of the transgender community.
It talked specifically about the fact that some were allowing this change and others weren't, and their place was not to regulate what the different states and countries could do. But their place was to monitor. They indicated that they would be monitoring the situation in hopes that progress would take place __ that the laws would continue to meet the changing needs of society. I felt like there was some room to move there. I believe that the current status of this issue in the U.K. is not decided right now. I think there is very clearly an avenue of change in the U.K.
In the United States, specifically Oregon has denied an application for change of sex on birth and school records. Many states have felt this way: that the birth record is a historical document, it is to be changed only if there is an error and this is not considered an error. This is considered an amendment. This case also went on to say that many states have legislated that the birth certificate should be changed post-operatively, and if the legislature in Oregon wanted to do that, so be it. But this court wasn't.
There was an incredibly bad decision out of New York. I'm starting with the bad stuff so that we can get past that and go to the more positive things and end on a happy note here. But I have to tell you that New York has thrown us several obstacles. New York started out in 1966 essentially with a position so strongly said that even though changing sex on a birth certificate may have some benefit to the transsexual, the certificate should not be changed to "help psychologically ill persons in their social adaptation." Essentially New York was saying, we are not going to enable this.
I was really appalled at this decision. Another thing that I was appalled at is some of the decisions that we found in our jurisprudence and in our search. Some of these decisions are very old. It is incredible the amount of change that has come from some of the courts recently, but some of these bad laws continue to sit because no good laws, no good cases, are being presented now. And we're going to talk about this a little more too.
There are many foreign jurisdictions that allow legislative sex change by law. These include, but please don't consider this list exhaustive, Sweden, Czechoslovakia, Greece, Italy, Holland, Switzerland, Finland and the former laws of West Germany. United States jurisdictions which allow legislative sex change, again please don't consider this list exhaustive, but include Alabama, California, Hawaii, Illinois, Maryland, New Jersey, North Carolina, Virginia and Texas. These states specifically have statutes which allow a birth certificate to be amended.
I've contrasted three. I guess I should say that Tennessee does have a statute about birth certificates but we'll talk about[page 299] that when you'll see what that statute says. In Texas, the birth certificate can be amended for sex, color or race without restriction as to the cause of the change. You do need to present evidence that the change is accurate. In California, the amended birth certificate is allowed and in California they go so far to say that the amended birth certificate takes the place of the original for all purposes. It is issued as if it were an original birth certificate. In Tennessee, it's very interesting to know that the amendment of the sex on the birth certificate is prohibited if the change is due to a sex change surgery. So if you were born in Tennessee about the only thing I have for you as far as having your sex changed on your birth certificate is bad news. I haven't found anything in my research that would permit the change in Tennessee because of the statute that specifically prohibits it.
The reasons why we went into so much detail as to what the birth certificate says is, because we found in our discussions of the law of different jurisdictions, that often what is on the birth certificate is determinative as to a person's, quote unquote, true sex.
We next investigated and discussed the validity of marriage in general. One of the things that I would like for you to distinguish is that the courts did distinguish in most of the cases a change of gender, versus a change of sex. Some jurisdictions will even allow a valid marriage for a transgenderist, and I would like to also have you distinguish the ability to enter a valid marriage after your transition as opposed to remaining in a valid marriage. Did I say that right? Entering into a valid marriage after transition as opposed to remaining in a marriage that you're already in when you transitioned.
I'd like to go back to the U.K. to start my discussion here. For many years the leading case and the only case on the validity of a transsexual marriage was the Corbett vs. Corbett case, a 1970 case out of the United Kingdom. This was a case for maintenance. The post-operative male-to-female transsexual had been married to a male. At the time of the divorce she filed a motion and requested maintenance. The husband's defense was no valid marriage because the wife was biologically a male. This was one of the most restrictive tests that has been used in the jurisprudence and fortunately it has been criticized widely through many jurisdictions from Australia throughout the United States. Many articles, many other courts have criticized this decision. Essentially, this court used a five element test, as opposed to the seven that I mentioned earlier, for deciding what the sexual identity of the person before them was. They used the chromosomes, the gonads, genitals, psychological aspects, and hormonal factors and secondary sexual characteristics. The Court held, with no explanation, that they were going to look at the first three, that those were the important ones, and they all had to be congruent or alike before sex could be determined for purposes of marriage in England. What this meant was that the chromosomes, the internal[page 300] sex organs and external sex organs all had to match. If they didn't match, then this person couldn't get married. This caused an incredible stir throughout jurisprudence because when you interpret it to other fact situations, other than the one that was specifically in front of them, it made some of the other possibilities that would be subjected to this test pretty ludicrous.
I'm going to mention to you a criminal law case specifically for the reason of imparting unto everyone in the different areas of law that you need to understand that the courts look at this sexual identity issue in one area and sometimes want to carry it over to another area. For example, Regina V. Tan was a case that ended up with an incredibly unjust result. Again it was in the U.K., because the U.K. refused to deviate at all from this bad law of Corbett. Corbett is clearly bad law yet the court went on to continue to create bad law based on Corbett. In this criminal case what happened was we had a fully transitioned male to female, married to a biological man, charged as a male with making money from prostitution. I understand that it is illegal for a male to live off the earnings from prostitution in the U.K. while it is not illegal for a female to do so. So we have a situation where we have a female, a male to female transsexual, who was living her life as a female married to a man, apparently living off some earnings from prostitution. She was convicted and the court found in Regina V. Tan that she was a man. Simply because of Corbett and because the birth certificate, and the chromosomes and that, had never changed. These unchanging things __ unchangeable things __ things that may never change regardless of what an individual does. They said that the conviction was upheld on the basis that they just must be consistent with Corbett. Even though Corbett was a family law case, and this was a criminal law case, it really didn't matter. We were going to have them consistent.
So I need for you to really understand that it's not okay to let something slide by in the area of criminal law because you're not worried about that. Or let something slide by in the area of family law because your main important of your progressive change for strategy is within the military. You need to understand that these things can be related to one another.
This was also the case in Australia. The first case that was bad law creating more bad law was the case where the Corbett reasoning was relied on. There was an awful case where we had h[e]rm[a]phrodites. The court said that this person is neither man nor woman so there was no marriage ever for this person to anybody. Fortunately it didn't take too long before that position was eased just a bit.
In 1988, in Australia, what has been called a landmark case in this area, two defendants were accused of, again a criminal case. This is not a family law case but it has wide implications in the family law arena specifically in Australia but elsewhere[page 301] also. Two men, excuse me, two defendants were accused of solicitation of two males. Now these defendants were two transgenderals, one was a pre-operative transsexual, the other was clearly transitioned, had been for years. I believe the case said that she began transitioning at age 14 and had been living as a fully transitioned post-op transsexual for years. Both of these were accused and convicted of solicitation of two males. The court affirmed the conviction of the pre-op transgenderal and said that this person has not sexually reassigned and has not made the full transition. The Court of Appeals in the case of R. vs. Harris & McGinnis held that the transsexual who had completed the sexual reassignment surgery was a female and this conviction could not stand. On the other hand, the transgenderist who had not completed sexual reassignment surgery was still biologically a male for purposes of this conviction, so the conviction stood. This was the first published case in Australia where the court had reached that transsexual who had completed the sexual reassignment surgery was allowed to have the sex, the new sex, and was not held to be of the former sex.
There's another case that comes to mind, but not to mind enough for me to explain it here, but it was subsequent to this Harris & McGinnis case, also out of Australia -- I can get the cite if anybody would like to have it -- where the court continued this thinking. So Australia has paved the way to come in with one of the validity of the marriage cases. The validity of a marriage in Australia has not been tested, but we are hoping that with the trend toward the new way of thinking in Australia that this will be the next place that this area of jurisprudence goes.
Let's come back to the United States just a little bit to analyze the validity of transsexual marriages. In New York, and I mentioned earlier that New York is causing us some of the most awful problems and giving us some of the worst cases. A female-to -male transsexual was post-operative as to having all of the female genitals removed. He had not had any surgical phalloplasty and this court held that without the ability to perform as a male, there was no valid marriage. So, it seems that in New York there is greater hope at this point for the male-to-female transsexual to enter into a valid marriage as opposed to the female-to-male transsexual at least under these facts.
In anonymous vs. anonymous, this case was really a joy to read. This was a pre-operative male-to-female transgenderal. The facts of the case, as I recall, the biological male met the pre-operative male-to-female transgenderal and only visited, only got to know one another, spoke, talked, were separated for a few months. The transgenderal met up with the male later at Fort Hood, Texas, and they married. The biological male __ woke up about 2:00 o'clock and reached over to touch his new bride and realized, according to the facts of the case, that he had married a male. Again according to the transcript, he jumped out, got drunker again, drank some more, went to the bus stop, found out that no buses were running, came back and slept on the couch. The facts[page 302] of the case were that they never consummated their marriage, they never had sex, they never lived together. He went to new York. He filed for this petition to have this marriage declared void.
The facts of the case did say that the next morning the transgenderal told him that he was __ that she was __ undergoing this transition and would be having surgery. In fact, between the time of the marriage and the time of the declaration that the marriage was void, she did in fact have her sexual reassignment surgery. The court in New York held that that really didn't matter. The transsexual was a male at the time of the marriage and that was going to be the date that they were going to look at. We had two biological males at the time of the marriage and that marriage was not going to stand. The New York Domestic Relations Code, I guess they got a little nervous that more people would try to do that so they took it one step further, said a person's sex at the time of the marriage determines the ability to marry. Among other things, the statute says subsequent operative procedures to change sex following this ceremony does not validate in otherwise invalid marriage.
In New Jersey, we have had one of the most positive cases on the validity of a marriage to date. This is our landmark case here in the United States. M.T. vs. J.T. is a New Jersey case. The complaint was filed by the wife for support and maintenance from the husband. The husband's defense that the wife was a male -to-female transsexual, the marriage was void. The court held that that wasn't going to work in this case. The facts of the case went so far as they knew one another before the surgery, and they had a sexual relationship before the surgery. The transsexual went ahead and had a sexual reassignment surgery, the husband paid for the surgery. After the surgery they got married and now husband is saying, "no wait a minute. We really don't mean to do this. This is a male." And the court said, "I don't think so." And the Court held him to the standard of, "you have married, this is a valid marriage, and you are going to support and pay maintenance to your wife." The Court did talk about them performing the sexual act. That did seem to be important to the New Jersey court that they were having a practicing sexual life in the transsexual life and was able to perform in the manner with her newly acquired sex. They specifically rejected Corbett, that case out of the U.K. that we talked about earlier.
Ohio is another interesting place where you might want to go sometime. In Ohio, a case was appealed when a marriage license was denied. This was a post-operative male to female transsexual and she wanted to marry a biological male. Ohio would not allow her to get a marriage license because Ohio does not permit a change on the birth certificate and Ohio says, "the birth certificate is what controls and these birth certificates here say that we have two biological males." It was very easy to read between the lines which I liked to do a lot. It left a lot of room for persons who can change their birth certificates in the states of their birth to come to Ohio and get a valid marriage license. That's one of[page 303] my progressive strategies for change. Move to Ohio. Especially if you can get your birth certificate amended in the state of your birth, it appears that you can get a valid marriage license in Ohio.
The next state we're going to move to is right back here to Texas. This is the case that Phyllis was referring to when she introduced us. The case is Baker vs. Baker. It is not an appellate case. This case was not appealed from the trial court. We like that. We like to win at the trial court level and not have to appeal them. Unfortunately, that doesn't always leave us with final precedent in the book, but nevertheless.
We have a fact situation here in Texas where we had a female-to- male transsexual. He married a female. He obtained a valid marriage license in Brazoria County to do this. They lived together as husband and wife for 12 years. She filed __ the wife filed a petition for divorce __ and later amended it to have the marriage declared void based on the grounds that the marriage must be invalid as this is a marriage between two women.
We never reached in the case the sexual identity of the husband in this case. Was this person a male or a female, for purposes of declaring a marriage void in Texas? And that was because we have an oddball statute in our family code that I haven't found in any other jurisdiction yet. Section 2.02 of the Texas Family Code states that the validity of the marriage is not effective by any fraud, mistake, or illegality that occurred in obtaining the marriage license. We have other parts of our Texas Family Code that talks about the states great responsibility in making the marriage a very sanctimonious union, and the marriage will not be set aside for any reasons other than as declared in the family code which is bigamy and consanguinity. That's it. That's the only reasons in Texas that a marriage can be declared void.
Now, it can be voidable and it can be annulled for other grounds such as fraud, impotency, a prior divorce that was unrevealed, other things. You still have to cross the fraud threshold. You can't defraud someone into marrying you and then hope you can have it upheld. But the lesson in here is, if you get a marriage license in Texas and you enter into a ceremonial marriage based upon that marriage license, then you have a valid marriage. Period. And we were pretty thrilled by this ruling.
Let's take this just a little further now, from the validity of the marriage into custody, possession and access to children. These issues -- as opposed to a lot of the case laws that I've been telling you and a lot of the statute where this state says you can change your birth certificate, this one says you can't -- of custody and access are very much determined on a case by case basis. Very, very much a factual determination. This is not a kind of category where you can line up different facts __ like the sexual identity where you can come up with some kind of definition or make hopefully some black or white law. The custody cases are[page 304] very, very fact specific. And this is a classic case where good facts can make good law, and bad facts can make really bad law.
I've got some examples of these here. The thing that I want you to distinguish when you're dealing with your clients, or with others, is that the transvestite has a very different approach to the custody cases or the visitation cases, than does the transsexual. With different strategies, different options, sometimes different burdens -- it all depends on what your facts are, what you want to do, and how you feel about that. Essentially, there have been several cases that were reported that custody and or visitation was awarded to a transvestite on the condition that he or she not crossdress in the presence of the children. For some persons this is an acceptable solution or alternative. Obviously, for others it leaves a lot to be desired.
The worst cases that we found in our committee and studying the jurisprudence in other jurisdictions usually involve factors other than the transgender identity in the refusal of a court to grant custody. Let me give you an example. An Oregon case, the parental rights of the biological non-transsexual mother were terminated at the request of juvenile authorities. This was not a custody fight between Mom and Dad. This is where the juvenile authorities come in. And they terminated the rights of the biological mother. One of the factors that the court looked at was her continued relationship with her former spouse, who was a transsexual, whose rights had already been terminated. And the thing that I need to point out to you in this case is I can't consider it a lose, lose case simply because there was so many, so many reasons for the court not to like these people that didn't have anything to do with transsexualism. In the record the court held that there were findings against the mother of perjury, drug use, failure to provide the child with adequate environment, unfitness for court supervision. She wouldn't follow the court's orders when she was asked not to take the child out of state. She would, for months at a time. And failure to discontinue her association with the former spouse, the transsexual. And so you need to understand that when you take cases like this forward that when you look and you read, "gosh, I really understand why they felt like they needed to take that child away from that mother. And you need to look for the reasons other than the transsexualism and not let these cases be heard as precedents that this person who is associated with the transsexual was unfit to raise her child.
Examine the cases very closely. A Nevada case, this was the Daily vs. Daily case -- a case of custody between Mom and Dad. And there is a positive thing to this case. There is a very, very well written and well analyzed dissent. I keep referring to the writer of The Dissent as a she in my conversations, and I'm really not sure why. I have no knowledge of the sex of that person, but it just seems to me it was so human and so humanitarian, that maybe. I just keep putting that pronoun with it. I'm sorry.
Nevada. The fact in this situation showed a child who seemed to not want to spend time with the transsexual father and was having some very, very high levels of stress involved with this. She was ten, she wasn't quite sure where she was coming from and where she was going, and she needed some adjusting time. The transsexual father was not visiting the child while this case was going on. So she was allowing her to have this adjusting time. The Court went so far as to terminate the parental rights instead of just limiting visitation. That's what The Dissent was so upset about; that there was a much less restrictive way to cover the majority's concerns; that there could be some harm for this child. The author of The Dissent made a very humanitarian statement that I've noted, and I would like to read and become part of the record in this case because I think it is really very __ it is very important for our youth as we go forward. The writer says, "While Mary may no longer have a father figure, she still has a second parent who desires to contribute to her financial support, and who might some day in the future provide her with needed comfort, affection and help." And The Dissent found that there was no reason in the world why they should take this second parent away from the child.
In Ohio is my worst of the bad case cases. The only positive that I can say about this Ohio case is it's unpublished: it has no precedental value, and no other court can use it to hang their hat on. Essentially, it was a very negative opinion. It was the atypical "visitation was suspended". The visitation was not suspended by the Trial Court. ut the Appellate Court overruled the Trial Court, which can be unusual in custody and visitation matters, and wrote a very negative opinion. It was very biased. It was very negative and was fraught, in my opinion, with myths.
In Minnesota is again an unpublished opinion, but at least this one was favorable. This is one of the cases that I was talking about earlier where good facts can make good law. The father in this case is a non-transitioned transgenderal. He has decided at this time to deal with his transsexuality as a male. He is a very stable person and is caring for the child in a very stable environment. The mother, on the other hand, was unable to maintain either stable housing or stable employment. The Court simply found that there was no evidence whatsoever to support that the child was being harmed in any way at all by the father's transsexuality and so did not take the child away from the father.
One of my favorite cases now comes from Colorado. This is published precedent and should be used and used widely and repeatedly. This is a post-divorced case. This is a case where earlier the parents got divorced. They had already decided on custody. Afterwards, the mother, who had had custody of the four children, transitioned from female to male. "He" changed "his" name, married a woman and went through setbacks financially, and went through many changes. In most states, a reason to change custody arrangements is if there have been changes in circumstances. This record was replete with good facts about [page 306] goals. The children were all honor students. Much testimony was offered from neighbors and principals that they were exemplary students, very well adjusted, that they had gone through all of the mothers adjustment period without any stress, any cost or any problems whatsoever. The court held that without some kind of evidence that something that a parent is doing is having an effect on a child, it's just not relevant. And this Court found that the transsexuality was not relevant for custody purposes. I was impressed.
Okay, let's talk about what we're going to do with this stuff. Do I have just a little more time for that Phyllis?
Okay. First of all I need to stress that of the cases that we studied and we looked at, especially some of the bad ones, it is time, especially in New York and England, to get in there with some good facts and try to start making some good law out of these bad cases. These bad cases are found very often on bad facts, where you have just bad facts, and the Court sometimes has no way to get through it.
I have seen, and our committee looked at, different cases that reach the end result that we wanted simply because it just seemed fair. I think that, faced with the fairness of it and human relations part of it, the Court felt like they couldn't do anything else.
There's one case, and it was the one that I was trying to recall for you from Australia that came out after the R. vs. McGinnis case that we've cited from Australia. It's Harris & McGinnis. It was a case where a transsexual woman had been raped. And the rapist was trying to get off of the conviction saying, "I didn't rape a woman, I only raped a man, and that's not illegal under this statue." And the Court said, "Bullshit." So very often the Courts are willing to go along and continue to make this law progressive when they have facts that any other decision just could not stand. So, take your good facts and take them to the Courts and let's get some of the old cases struck down.
The other strategy for change is to work for legislative action, to remove the obstacles to changing the sex designation on birth certificates. It seems that the birth certificate issue is going to be one that will continue to sway some courts. And you will be able to get much further in your strategies for planning out your life, if your birth certificate can be changed. So, work for legislation in those areas. We need to all pack up and go to Tennessee. That is the only state in my research that actually had a specific designation that it would not be allowed in the event of sexual reassignment surgery.
The next strategy for change that we talked about a little bit in our committee is using the existing laws and opinions to our advantage. I subtitle this one as, "Cramming their laws down their throat."
There are many cases where they say, "this male-to-female transsexual is still a biological male on the birth certificate so that's the way we're going to leave it. And you can only get a marriage license if we have a biological male and a biological female." It's my understanding that there are many post-operative transsexuals, male-to-female, who choose as their significant life partner a female. So, take your two birth certificates and go get a marriage license. You have a biological male __ so go to New York and do it there please. Have a biological male and a biological female stand there in two dresses and get a marriage license, and then let them do something about it. Let's take their laws and do exactly what they don't want us to do.
Use the opportunity to change your name, your gender, and your sex when possible. If you live in a state where your legislature is silent, where it doesn't say you can, and it doesn't say you can't, then get a court order that says, "change it on the driving license, on anything that is identification purposes". Get it changed for purposes of your birth certificate if you are post surgical. Talk with Phyllis, she knows how to do this. Spread this back to the individual states. She's doing it here in Texas, and it's the only one that I've heard of. She may know more, but we need to send this out and spread it out. Don't go into a driving license place without some kind of documentation to say, "You're not going to do this because you want to, you're going to do this because you're ordered by a court."
As I said, get married or divorced in jurisdictions where marriage laws don't specifically limit marriage between males and females." Come to Texas. Texas does not require a birth certificate to get a marriage license. If you live in Tennessee and you can't, like our very dear client did who got married in Brazoria County who can never have his birth certificate changed to designate that he is a man. He did not need that birth certificate to get a marriage license. In Texas you can get a marriage license by showing proof of identification like a drivers license or a passport. So, use your court order to have your gender changed on your passport and your drivers license, and take that drivers license that says you in your new gender and go get a marriage license in Texas. Because if you get a marriage license and you enter into a valid ceremony with a valid marriage license and your spouse knows what you're doing, that's real important, then you have a valid marriage. Now, I'm not saying that New York is going to declare that it's valid if you decide to get divorced later on in New York. Okay?
I'm not going that far, but I'm saying that I know that the decisions that are made within this community are not decisions that are made over night. I know that the planning that goes on to get what you want for your life is something that is very ongoing. It's something that is planned out for many years sometimes and is a continuing source of making changes to make your life your own. You know that there are some jurisdictions where[page 308] you can accomplish things that you can't in others. Once you decide what your objectives are, what's right for you, then you can start investigating in making decisions about how you're going to accomplish that.
So you were born in Tennessee and you can't get your birth certificate changed but you really want to get married. And you either want to marry someone who looks like you or someone who looks the opposite from you, one of those two things. And there's a state where you can do either one. So, if that's what your objective is, is to enter into a valid marriage, then go to a state and live there. And enter into that valid marriage. And then continue to press the courts in the states where they aren't accepting these, use their laws to do what they don't want you to do, and they are going to look at these cases and start realizing how stupid some of them sound.
You read through these cases what we have provided you today, and you start trying to fit other fact situations into the cases. The New York case, it did not use the word procreate, but it came so close to saying it that it was almost as though if you could not biologically have a child then you couldn't marry. So you need to look at the facts and try to apply these cases to other facts and take their laws and ram them down their throats.
The other thing, very briefly. Become better litigators, especially in this area of custody. Plan cases where the best interest of the children are paramount. There were some cases that we examined where they said the father essentially gave up his rights to the children when he chose not to look like a father any more. Essentially, that was his choice. He made this change. He gave up his children. The Court called it a self issue. It just wants to make sure those actions of the litigant can't be concluded as self issue.
Another thing that you need to do is to not underestimate. Do not underestimate the need for experts in this area. This leads right on into the last strategy for change. We need to start educating the judges, the juries, the social workers who come out and do home studies and the psychologist, everyone involved in the decision about where these children are going to be or whose making these decisions. We must begin programs to educate these persons and we must also not underestimate the need for experts to come in at the trial and let a judge know what an adverse ruling what kind of impact that will have on this person's life.
The one thing that this family law expert wanted to leave this group with is that the strategies for change are extremely important. In the family law area, there is a lot of hope. There is a lot of reason to believe that the jurisprudence is changing. We are still being penalized with old laws that need to be amended and updated, and we need to do that. Do not give up hope. Quit giving up. Fight back! Fight back! Fight back! Thank you.
That was fantastic. I've got a few postscripts. As you could see, Connie and I kind of affect each other, as do Helen and I, and as do Clyde and I affect each other. We are just radical people. What can I say?
In preparation for this, Connie and I talked a lot about it, and there was one thing that we discussed and you failed to mention so I'm going to add a postscript if you don't mind. And that is in this area where they require the gonads and the chromosomes and the genitals and all this other stuff to match or any other such lunacy that they run us through.
In the area of a pre-operative female-to-male transsexual who has been on hormones for a long time, has body and facial hair, is bulked out in the muscles, has lived as a man for a good while, has had a hysterectomy, has had breast reduction surgery, etc., etc., anatomically, if you continue to think about that person as a female, you will see an enlarged clitoris. However, if you see that person as the man that he is, you do not see an enlarged clitoris. What you see is an underdeveloped penis.
Think about that in law. Think about that in deposition whenever you're suing on a divorce or you're fighting over whether or not you can go to a restroom or whether or not you're going to be fired because you're using the wrong restroom. If, and I know this is true because I'm a member of the community, you're going through transition, and let's assume for this first part of the conversation you are female-to-male, then you are not going to view or talk about or think about or have anything to do with a vagina and a clitoris. All you're thinking about is the future phalloplasty and the fact that you should have been born with a penis and that God, for some reason, left that out but it's coming and it's in the future and it's in the goal. It is a goal. And if phalloplasty were better it would already have happened. So he never talks about his vagina, he talks about his penis. And he never talks about his clitoris, he talks about his penis. You already have mentally and emotionally a completed, completely transitioned male.
How does that affect the male-to-female? And this goes again into persuasion. This goes into oral argument, this goes into the good jurisdictions, this goes into ramming it down their throat in bad jurisdictions. And this goes into deposition prior to trial. If you have a pre-operative male-to-female who has lived for a long time as a woman, has gone through hormone therapy and has breasts and all the other muscle mass and fat distribution changes so that they do have a derriere and the biceps and triceps are sleeked down, and if they've lived as a woman for a long time and they do have their name changed and they have gone to court and they have had their gender changed so that the court recognizes that they are now living the female gender of woman, that is they are in this case female gender of woman, and if there is a legal battle over[page 310] losing your job because you're using the wrong restroom or divorce or some way trying to keep you from getting married and everything else, this is the thing that you have to consider. All pre-operatives that I know of, that I've talked to -- and I'm not the medical expert, males-to-females -- don't talk about their penises. Okay? Because they want surgery. They want to have that reformed. So what do they have? Well, they have a closed vagina and an over-stimulated clitoris.
Think about it. That could be some very persuasive argument if necessary. Now, this is an ongoing law conference. This conference is going to go on and it will happen again next year. We've got a whole year to think about these things, not just what I just said but a lot of things that Connie said, and that Clyde said -- a whole bunch. This is evolving. And I want you all to be back here, and I want all the people that are listening to this and reading this to be back here next year.
Tonight we're going to finish up health law and I'm going to tell you a story about how I got rid of the ordinance in Houston. Okay. We're going to have the report, and we're going to have the Judge and we're going to have the entertainment.
Yes ma'am? This is Alice Webb. She's going to educate us a little bit. Go ahead.
By Alice Webb:
Okay. That's not the only surgery that females-to-males can have. As far as their genitals are concerned, and there is some surgery to freeze the clitoris up and they lower the labia and it forms the scrotum. That's actually the preferred surgery, as far as I'm concerned now because they can divert the urethra and they can stand up to urinate. They have sensation. It's not as disfiguring, you know. So I don't recommend the phalloplasty actually. A lot of females-to-males elect not to have surgery at all as far as their genitals are concerned because their partners like what they have. As you said, the clitoris enlarges quite a bit. They don't need to have it. They are fully male as far as their partner is concerned. So, the phalloplasty is not a good example for you to use.
Well I'm glad you said that. Because you've just reinforced essentially what my argument was, and that is that they are full and complete. Period. Even without the phalloplasty. Lawyers listening to this need do not make their female-to-male clients wait for phalloplasty, but go ahead and take it to the courts. That was the point I was trying to make and you just enforced it, Alice. Thank you for that.
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