Inside Proposed Transgender Civil Rights Legislation, Massachusetts House Bill 1722

On January 10, 2007, legislative sponsors in the Massachusetts House of Representatives unveiled House Bill #1722, entitled: "An Act Relative to Gender-Based Discrimination and Hate Crimes". The Bill proposes specific statutory legal protections for transgender and gender non-conforming persons. While the Bill has a long way to go before it becomes law, it has received the support of a number of well-known state Reps, Massachusetts Attorney General Martha Coakley, and Representative Barney Frank.

The proposed Act, which can be read here, amends Massachusetts's existing discrimination laws, including the hate crimes law (M.G.L. c. 22C sec. 32), non-discrimination in education laws (M.G.L. c. 71 and 76), non-discrimination in employment and housing laws (M.G.L. c. 151B), and non-discrimination in public accommodations law (M.G.L. c. 272), to include a proscription of discrimination on the basis of "gender identity or expression".

The proposed Act defines "gender identity or expression" as "a gender-related identity, appearance, expression, or behavior of an individual, regardless of the individual's assigned sex at birth." Currently, there are no laws explicitly protecting transgender persons and other persons facing discrimination or violence either (i) because their gender identity differs from their assigned sex, or (ii) whose gender identity, behavior, or appearance clashes with society's stereotypical gender expectaions.

In the absence of specific statutory authority, some lower state court judges in Massachusetts have begun to use existing non-discrimination laws which prohibit discrimination on the basis of "gender" or "disability" to find needed protection for transgender persons. According to the Massachusetts Transgender Political Coalition (MTPC), "[t]ransgender people derive some protections from ... various MCAD and court rulings but they are not explicitly protected by our laws.

The inclusion of gender identity and expression in our non-discrimination and hate crime laws achieves three important goals:

• It makes a clear statement of statewide policy.
• It makes clear the scope of coverage to anyone who reads the laws or encounters materials related to them.
• It affirms the Commonwealth's commitment to fair treatment and freedom from discrimination, crime, and violence for all its citizens."

The Joint Committee on the Judiciary will hold a public hearing on the proposed Bill at the State House on March 4, 2008.

Civil Unions. What They Are; What They Aren't.

On January 1, 2008, New Hampshire became the fourth state in the nation to grant civil unions to same-sex couples. Currently, civil unions are recognized in Vermont, New Jersey, and Connecticut, while both California and Oregon offer Domestic Partnership Laws, which offer substantially similar rights and protections.

What is a Civil Union? Civil union laws attempt to create a legal status parallel to that of marriage. The New Hampshire legislation creating civil unions is entitled, "An Act Permitting Same Gender Couples to Enter Civil Unions and Have the Same Rights, Responsibilities, and Obligations as Married Couples". The idea is to provide separate-but-equal rights, protections, and obligations for both same and opposite-sex couples.

No Fixed Legal Definition. Marriage creates a familial relationship between two persons which is recognized across cultures, religions, and around the world. The institution of marriage is ubiquitous and needs little explanation. In contrast, civil unions exist in only a handful of places around the world, are not imbued with universal meaning, and have no fixed legal definition. In other words, the definition of a civil union is whatever the granting state's legislature decides it is: there is no guarantee that State A will grant the same rights and benefits to a same-sex civil union as State B. And while all states have a framework for marriage creation and dissolution, not all states have a framework in place for civil unions.

Civil Unions Provide Some Tangible Benefits. Civil union laws dramatically underestimate the social and cultural significance of the institution of marriage. Even a civil union law which provides all the economic and legal rights and benefits of a marriage still deprives same-sex couples of the rich social and cultural benefits, as well as dignity and security, attached to the word 'marriage'. For an eloquent discussion on the intangible benefits associated with marriage, read the Massachusetts Supreme Judicial Court's opinion in Goodridge v. Dep't of Public Health.

Civil Unions Provide only State Rights and Benefits. A civil union provides only some of the state rights and benefits granted to married persons, and do not confer over 1,000 rights and benefits conferred by the federal government. And while the 1996 Federal Defense of Marriage Act (DOMA) currently denies federal recognition of same-sex marriage, the likely repeal of DOMA will entitle same-sex married couples to the full spectrum of federal rights and privileges. As presently drafted, the civil union laws of Connecticut and Vermont grant only state-level rights, and do not contemplate the provision of any federal rights and privileges.

Civil Unions Invite Unequal Treatment. Same-sex marriages originating in Massachusetts are quickly spreading throughout the country. As same-sex marriages cross state lines, new states are being challenged to apply their existing marital structure to these couples, including laws relating to inheritance, divorce, adoption, spousal and child support, access to health and financial records, etc. Without a historical and legal tradition of recognition, state courts and legislatures may not be as compelled to extend reciprocal rights to civil unions. Same-sex married couples may be in a better position to challenge the federal government's unequal treatment of their marriage compared with opposite-sex marriages. Civil unions, as a separate legal institution, are susceptible to unequal treatment.

A Civil Union is Not Marriage. Although civil unions represent a momentous practical step forward for same-sex couples living in the states that grant them, a civil union is a political compromise. A civil union is not marriage.

(Given the current patchwork of various state and federal laws relative to the recognition of same-sex relationships, couples considering entering into a civil union or a marriage should consult with an attorney first, as a change in status could effect property ownership, inheritance, immigration status, adoption rights, military benefits, etc.)

Domestic Partnership Agreements

A Domestic Partnership Agreement (DPA) is a contract between two persons which describes how property and assets are owned, how finances are held and managed, and how any property should be divided in the event that it becomes necessary (much like a Prenuptial Agreement). A DPA can help prevent disagreements about property and finances before they arise by encouraging communication and understanding between the parties. In the event of break up or the death of a party, a DPA can greatly ease the division and distribution of property.

Same-sex couples who choose to become married in Massachusetts are automatically subject to the well-established laws and principals governing marriage, including dissolution, property ownership and division, spousal financial support, etc. But for those couples who either choose not to be married or are unable to marry in their state, these "default" set of marriage rules do not apply.

Couples should consider creating a DPA which sets out, in writing, the intentions and expectations of both parties regarding their relationship. An Agreement of some kind is most important for couples in long-term relationships who will likely mix their assets and property, and who share expenses and other responsibilities. Even couples who find themselves to be completely broke would benefit from a written DPA which sets out how property or income will be handled when it does arrive.

You should have an attorney draft these important Agreements, especially if significant assets are involved or if a disparity exists in income or assets between the parties. A court will not enforce an agreement where one party has taken advantage of the other party, or where one party hides property or assets from the other party. To increase the chances that a court will enforce your agreement, each party should have the DPA reviewed by his or her own attorney, and a full disclosure of assets and liabilities should be made.

Pets and Estate Planning?

A 2003 study conducted by GL Census Partners found that gays and lesbians are more likely to own a pet than their heterosexual counterparts. In fact, the study estimates that nearly 2 out of 3 GLBT people have a pet of some kind! And as anyone with a pet (or animal companion) will tell you, they are truly a part of your family. You vacation with them, you buy them fashionable sweaters, and care for their health and well-being.

So what does this have to do with estate planning? Well, you probably already have an estate plan in place to protect your property and your spouse or partner if something were to happen to you. But how will your loyal pets be cared for in the event that you are no longer able to look after them? Below is a brief list of options you might discuss with your attorney as you create or update your estate plan in the new year:

• If you already have a will, consider including a specific bequest of your animal to a trusted caretaker, together with a sum of money to provide for the care of the animal. This is a great option for smaller estates and where you have a trusted caretaker in mind.


• You might also consider creating a pet trust to provide for the care of your pet. More than 30 states have laws in place that recognize some variation of the pet trust. Although Massachusetts does not (yet) recognize trusts created for the benefit of an animal, it may be possible to create a trust for the benefit of the individual you have chosen to look after your pet or animal companion.


• For short-term care in the event that you are incapacitated, you might consider drafting a limited power of attorney, which gives another person the right to act on your behalf with respect to certain property (like your animal companion), and certain assets which may be used in the care, feeding, and shelter needs of your pet.


• It may also be possible to contract with an orgnization to provide a sum of money in exchange for providing shelter and medical care during the life of your pet, and/or to locate and arrange care by a foster family.


• A modest life insurance policy naming your intended animal caretaker as beneficiary, either individually or in connection with a trust, could effectively be used to provide funds for the medical care, shelter, and maintenance of your animal companion if you die.

This is a new and deveping area of estate planning law, and creative solutions and options do exist. Don't forget to talk about "Spot" or "Fi-Fi" with your attorney at your next 'legal checkup'.

What is a "Health Care Proxy"?

Massachusetts law allows every individual 18 years or older to appoint another person as her Health Care Agent. A Health Care Proxy is the legal instrument that appoints your trusted Health Care Agent and enables them to make and communicate important health care decisions on your behalf in the event you are unable to do so.

Whether you are unconscious for a period of hours or days as the result of an automobile accident, or incapacitated for longer periods of time as the result of a stroke or other debilitating illness, your doctors will turn to family members to make important medical decisions.

Without a Health Care Proxy, painful disagreements about your medical care can arise between family members and a spouse or partner. For example, who will be permitted to visit you in the hospital? In the event that you are in need of long-term care, should you be treated close to your same-sex partner, or close to your parents back in Connecticut? Would you want to be kept alive using 'heroic' measures such as artificial breathing and feeding, and for how long?

Even same-sex and opposite-sex married couples must prepare Health Care Proxies to prevent other family members, like parents, from attempting to take control of the medical care and medical decision-making process. (We all remember the tragic case of Terry Shiavo several years ago). Unfortunately, individuals in same-sex relationships will often have family members who are (or who may become) hostile to a spouse or partner, and who may refuse to acknowledge your relationship. This can have painful and tragic consequences during an already difficult time.

With a carefully prepared Health Care Proxy, you can ensure that your partner or spouse is legally entitled to make important and intimate medical care decisions in the event that you are no longer able.

When Should I Update My Health Care Proxy?

Assuming I have a current Health Care Proxy and Living Will in place, when or how often should I have these important health care instruments reviewed or updated?

The American Bar Association’s Commission on Law & Aging suggests updating your health care wishes whenever any of the “Five Ds” occur:

• DECADE – when you start each decade of your life;
• DEATH – whenever you experience the death of a loved one;
• DIVORCE – whenever you experience a divorce or other major family change;
• DIAGNOSIS – when you are diagnosed with a serious health condition; and
• DECLINE – when you experience a significant decline or deterioration of an existing health condition, especially when it impacts your ability to live independently.

In addition, I would recommend updating your health care wishes if you move to a new state, or if you are spending long periods vacationing in another state.

For same-sex couples, updates should be made whenever important changes occur in the law with respect to the legal recognition of your relationship, or if you spend substantial periods of time traveling in states that do not afford the same legal recognition or rights as Massachusetts.

Lastly, you should update your health care wishes in the event that your previous documents no longer reflect your current wishes or outlook.

Always speak with an attorney regarding the proper way to revoke or make any changes in a prior Health Care Proxy or Living Will.

Just Married? Time for a New Will!

If you are one of the many same-sex couples that took advantage of the legal recognition of same-sex marriage in Massachusetts, you probably think that you've done everything you can to protect your spouse, your children and your estate. Not so fast.

If you recently got married, those wills you and your partner created years ago to protect one another are no longer valid. That is because in Massachusetts a marriage automatically revokes any wills previously made, unless the will clearly indicates that it's being made in anticipation of an upcoming marriage. Have your current wills and estate plan reviewed and updated by an attorney today so that you and your family are protected in the event of the death or disability of either spouse.

Will Massachusetts Recognize my Same-Sex Marriage?

I was legally married in another country. Will Massachusetts recognize my marriage?

Yes, and congratulations! Canada, along with Spain, Belgium, the Netherlands, and South Africa all recognize the right of same-sex couples to be lawfully married. On May 17, 2004, Massachusetts became the first U.S. state to recognize same-sex marriage. Under the Supreme Judicial Court’s opinion in Goodridge v. Department of Public Health, Massachusetts must issue marriage licenses to otherwise qualified same-sex couples. The decision also means that Massachusetts must give equal treatment to same-sex couples who obtained a valid marriage license issued by another state or country, including those mentioned above.

One important caveat is worth mentioning. Due to the federal Defense of Marriage Act, often referred to as DOMA, the United States government may still discriminate against your valid marriage with respect to any of the more than 1,000 federal rights and privileges, including those relating to Social Security benefits, family and medical leave, taxation and spousal gift-giving, and many others.