Waldlaw Blog

Friday, April 28, 2006

An Interesting Role for the Indian Nations

Twice in the last couple of weeks, news items involving the role of the Indian Nations in creating change have caught my eye. The first, which I already mentioned in my April 20 blog about the South Dakota abortion fight, was the promise by "the leader of the largest Indian reservation in South Dakota" that his tribe would open an abortion clinic on tribal land if the South Dakota abortion ban stands. So you have the prospect of South Dakota banning all abortions -- and women from all over the state going onto the Indian reservation to get the reproductive health services they need. The second happened in conjunction with the annual gala dinner of the National Center for Lesbian Rights (www.nclrights.org). Honored at the dinner were Dawn McKinley and Kathy Reynolds, both Oklahoma residents and members of the Cherokee Nation. Dawn and Kathy discovered in 2004 that Cherokee law did not exclude same-sex couples from marrying, and on May 18, 2004, they were married on Cherokee land in Tulsa Park, Oklahoma. So you have the prospect of states banning same-sex marriage -- and same-sex couples turning to the Indian Nation to allow them to marry. I see some amazing alliances here, and an opportunity for Indian Nations to play a significant and valuable role in larger movements for social change. And to do well by doing good. Think about the infusion of funding for Indian health care services that could accompany the opening of clean, professional reproductive health centers on Indian land. Think about the honeymoon industry! How profitable could it be if Indian Nations began offering wedding packages to same-sex couples?? A healthy alternative to casinos, maybe? I love it when the opportunity to "think outside the box" pops up in unexpected places. And maybe there's nothing to this, but it certainly seems like there's opportunity here....

Tuesday, April 25, 2006

Conspiracy Theory, Anyone?

I saw a headline this morning indicating that George W. Bush (remember him?) is moving to relax environmental regulations on gas production in response to the outcry against rising gas prices -- and I instantly found myself thrown into a full-fledged conspiracy theory moment. You know -- the kind where it all makes sense all of a sudden in a sick "they planned this all along" kind of way.... I admit that I come from a family of conspiracy theorists. My beloved father adamantly and sincerely believed that the Trilateral Commission was running the world and that they chose our Presidents for us (and who knows, he may have been right). But I try to temper my natural tendencies toward seeing conspiracies behind every Bush.... Now indulge me here for a moment: The Bush family wealth originates from the oil and gas industry. These folks are his family, his community, his colleagues. He has deep allegiances there. George W. Bush, in his presidency, has been more inimical to the environmental movement than any U.S. President in my lifetime. Faced with dropping poll numbers and rising gas prices, he has to do something. So -- instead of acting to curb profits by the oil and gas companies (remember -- "his family, his community, his colleagues"?), what does he do? He relaxes environmental protections on gas production!! Talk about killing two birds with one stone!! If Bush gets away with this, he can lower prices at the pumps and at the same time make life easier for his buddies in the oil and gas industry -- and, as a fringe benefit, he can undermine the impetus to find new environmentally-friendly ways of producing gas and cars, which threaten in the long run to undermine the profits of his friends and family. Maybe I am having a paranoid flight. Maybe there isn't really a master plan here. Maybe this is all innocent and spur-of-the-moment. Or maybe, just maybe, these folks are being frighteningly smart and are using the current crisis around gas prices to further an anti-environment agenda and set the stage to reap even greater profits in the long run to the detriment of the rest of us and the air we breath. Conspiracy theory, anyone??

Thursday, April 20, 2006

South Dakota Planned Parenthood Gets Smart

For those of you who may not have been following the story, on February 9, 2006, the South Dakota Legislature overwhelmingly approved legislation that would ban all abortions not necessary to save the mother's life. The bill, South Dakota House Bill 1215 -- titled the "Women's Health and Human Life Protection Act" -- was specifically intended to instigate a court fight and, it's proponents hoped, to provide the Supreme Court with a vehicle for overturning Roe v. Wade. (For more on the bill itself and the politics surrounding its passage, see http://newstandardnews.net/content/index.cfm/items/2801.) Everyone expected Planned Parenthood of South Dakota -- the only clinic in the state of South Dakota still offering abortion services (which, incidentally, has to fly doctors in from Minnesota because it is too difficult to find South Dakota doctors to perform the abortions) -- to immediately file a lawsuit seeking to have House Bill 1215 declared unconstitutional. Because Roe v. Wade is still the law of the land -- and because it and subsequent cases require that any bill outlawing abortions at a minimum allow for an exception where the abortion is necessary for the health of the mother, and not just to preserve her life -- any lower court would have had to declare the bill unconstitutional. And then South Dakota would have appealed, and the case would have been on its way to the United States Supreme Court as newly constituted, with Justices Roberts and Alito taking the places of O'Connor and Rehnquist and anti-choice activists feeling confident of the outcome. But Planned Parenthood of South Dakota took a long look at the situation and decided to rewrite the play book. Instead of filing suit, they have launched a state-wide petition drive -- calling themselves the "South Dakota Campaign for Healthy Families" -- relying on an 1898 state provision that allows the state's voters to reconsider any law passed by the Legislature if enough signatures are gathered. If the Campaign can collect at least 16,728 signatures from registered voters by June 19, it will prevent the bill from going into effect until the voters have had an opportunity to vote. This is an extremely smart and courageous decision by Planned Parenthood. Rather than giving the anti-abortion extremists the court fight they were eagerly anticipating, they are taking the issue to the people. If they can win at the ballot box, it will send a profound message to legislatures around the country -- and to the Supreme Court -- that the people of the United States do still, fundamentally, believe that the decision whether or not to get an abortion is a private decision that should rest with the pregnant woman, her family, and her doctor, and not with the government. And if they lose at the ballot box.... Well, then will file a federal lawsuit to block the abortion ban, and the anti-abortion folks will get the lawsuit they had hoped for. In the meantime, in an interesting aside, the New York Times reported on Sunday that the leader of the largest Indian reservation in South Dakota has promised to open an abortion clinic on tribal land if the state ban stands. (For the full NYT article, go to http://www.nytimes.com/2006/04/16/us/16dakota.html?ex=1145419200&en=3f6660ea3165001c&ei=5087%0A.) So there you have it: a face-off between the voters and the Legislature over abortion rights; a potential state/federal show-down involving the autonomy of Indian reservations; the first direct challenge to Roe v. Wade facing our new Supreme Court. And all coming from South Dakota, one of the least populated states in the country, known nationally for little more than Mount Rushmore (although I have to tell you I spent about 5 days in South Dakota several summers ago, on vacation with my in-laws, and found it to be a fascinating state with lots of things to see, including terrific natural caverns and a large mammoth excavation still in progress). June 19 is just around the corner, so we'll know soon whether the abortion ban is headed for the ballot box. It certainly will be interesting to see what happens next....

Sunday, April 16, 2006

Transgender Family Law -- The New Frontier?

One thing I love about my law practice is that every time I think I've figured out the answers to all the many questions that come up in my work representing contemporary families, someone asks me a question I never even thought of. Like: "I am a straight single man, and I want to have children. My best friend is a happily married woman, but her husband doesn't want any more kids. We want to have a child together, but we want me to be the legal father instead of her husband. Can you help us?" (I was asked this one this fall.) Or: "My partner and I have created embryos using my partner's eggs, fertilized with donor sperm, and we had some of the embryos implanted in each of us. We now are each pregnant, and the babies we are carrying will be genetic fraternal twins. How do we make sure that both of us are legal parents to both babies." (I actually have been asked this one 4 separate times, by 4 separate couples.) In each of these situations, I have been able to figure out the answers by simply applying established law to a new set of facts -- or, to put it differently, using logic to stretch existing knowledge in a new direction. But in the area of transgender family law, we are still encountering questions that honestly don't have answers. Like: In California, heterosexual couples can get married but they can't register as domestic partners. Same-sex couples can register with the state as domestic partners, but can't get married. So if a same-sex couple is registered as domestic partners, then one of them transitions to a different gender (making them a different-sex couple), does this invalidate their domestic partnership? Should they dissolve their partnership and get married instead? Or is the partnership valid because it was valid when it was entered into? Since I primarily work in the area of parentage, I see the befuddlement of the system most in figuring out how to adjudicate parentage for transgender parents. Many transgender folks are comfortable living with a level of ambiguity about their genders. Increasingly, some transgender folks are choosing not to identify either as "male" or "female," instead prefering to identify as "transgender." But the court system doesn't work well with such ambiguity: when it establishes or confirms a parental relationship, it wants to know: "is this a mother or a father??" The answer "This is a parent" doesn't necessarily work in court. In the parentage arena, I have been asked to think about transgender issues in three different contexts: in the context of a dissolution of the parents' relationship, where the usual custody issues are impacted and complicated by the gender transition of one of the parents; in the context of a couple having children together, where one of the parents-to-be is transgender or transitioning and we need to figure out how best to establish legal parentage; and in the context of parents dealing with their confusion and concerns around gender identity issues in their minor children. Because I am one of the few attorneys who has any expertise at all handling transgender family law cases, I have actually done several trainings on transgender issues for family court personnel and other attorneys -- and my experience is that these issues push people's buttons in a way few other things do. Transgender parentage is the issue that still leaves people saying ... "but think about the children!!" And of course, we should think about the children. There is no doubt that having a parent transition is likely to be stressful for kids. But having a parent live with the severe depression and profound identity issues that generally precede gender reassignment surgery is not good for children either. If transitioning leads to a happier, better-functioning parent, that is likely to be better for children in the long run. Transgender issues are coming up increasingly in the family courts, and we are all going to have to figure out how to address them with intelligence and compassion. It's a good thing we have organizations like NCLR (www.nclrights.org) and the Transgender Law Center (http://www.transgenderlawcenter.org/) to help us think all of this through!

Saturday, April 08, 2006

Congratulations Bevan and Rebecca!

A client of mine -- a gay man who is, himself, in the process of trying to conceive a child with a single woman friend -- sent me an article from the Bay Area Reporter a couple of days ago. Titled "Dufty enters new arena -- parenthood," the article described how out gay San Francisco Supervisor Bevan Dufty has teamed up with his close lesbian friend Rebecca Goldfader to have -- and parent -- a child together. Goldfader is now pregnant, after a year and a half of trying, and she and Dufty are planning on using the time between now and the baby's arrival "to introduce their plans and explain their process to the community and also advocate for the legitimacy of LGBT families." (For the whole article, go to http://ebar.com/news/article.php?sec=news&article=719.) Advocating for the legitimacy of LGBT families.... Hmmm, that sounds familiar..... So, first of all, CONGRATULATIONS BEVAN AND REBECCA!! Second, welcome to San Francisco's thriving LGBT parenting community. You do not have to re-make the wheel. Lesbians and gay men have been parenting together for much longer than the 10+ years that I've been representing them -- in my law practice, right now, I have at least four "couples" like Bevan and Rebecca -- lesbians and gay men who have "teamed up" not just for purposes of conception but with the intention to actually parent together. Each "couple" is different. Some plan to live together, like Bevan and Rebecca. Some plan to remain in different cities, but share in the joys and responsibilities of parenting through frequent visits and regular phone calls and e-mails. Some are still figuring it out. What matters to me about the "couples" in my practice -- what I see as my role, as their lawyer -- is two-fold. First, I carefully explain the laws around parentage to them, and make sure that their vision for how they will share parental rights and responsibilities becomes a legal reality to the full extent possible. Second, I guide them through the process of reaching a genuine co-parenting agreement, taking into consideration the changing needs and challenges of parenting a baby, a toddler, a child, an adolescent.... I have written upwards of 25 of these agreements, and no two of them have been the same. But each time I see a "couple" such as Bevan and Rebecca through the process of openly and honestly discussing their fears and visions; of arriving at a place of agreement on how rights and responsibilities will be shared between them; and, finally, of enacting a plan for matching the legal realities as closely as possible to their visions, I feel like I too have given birth to something: a family with a solid foundation under it, regardless of how unusual it may appear from the outside.