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| Gay & Lesbian Advocates & Defenders | ||
These are hypothetical examples of real-life questions that come into GLAD's Legal InfoLineQ: We are Rhode Island residents and want to get married in Massachusetts. Can we do that?A: Yes. In May of 2004, as a result of a landmark victory by GLAD, Massachusetts became the first state to allow same-sex couples to legally marry. The Governor of Massachusetts initially instructed municipal clerks to deny marriage licenses to all out-of-state same-sex couples, based on a Massachusetts marriage law -- enacted in 1913 but not enforced for at least several decades -- stating that an out-of-state couple may not marry in Massachusetts if their marriage is “prohibited” in their home state. Believing that the Governor’s actions were discriminatory, GLAD filed a lawsuit, Cote-Whitacre v. Dept. of Public Health, on behalf of 8 out-of-state same-sex couples who either had married or wanted to marry in Massachusetts. After the Massachusetts Supreme Judicial Court (SJC) agreed with GLAD that Massachusetts’s interpretation of this law was overbroad and clarified that those who can show that their home states’ laws (including their statutes, constitutional provisions, and controlling appellate decisions) do not expressly prohibit them from marrying at home are eligible to marry in Massachusetts, a trial court ruled that Rhode Islanders can meet that test. Rhode Island same-sex couples can now legally marry in Massachusetts. For information, see GLAD’s publication, Marriage Guide for Rhode Island Couples.
Q: I recently got married and changed my last name. I sent in an application for a passport in my new name to the Passport Services Office together with my marriage license as proof, but received a letter back from them stating that they would not recognize my marriage license. I was able to change all my other forms of ID, even my social security card, so why won't the Passport Office recognize my marriage license?A: Citing the 1996 federal Defense of Marriage Act, currently the Passport Services Office will not accept a marriage license of a same-sex couple as evidence of a legal name change. The Passport Agency is requiring a name change order from a court or proof that the new married name has been used for 5 years continuously. GLAD has been exploring ways to resolve this at the state and federal level. In the meantime, couples have several alternatives: You can go to probate court and ask the court to formalize your name change by court decree and request that the court waive the usual publication requirement and filing fee. The probate court form for filing for a name change in your county can be found at http://www.lawlib.state.ma.us/formsm-z.html#name. If you need to travel out of the country right away, if it is possible for the name on the airline ticket to match the name on the passport, that may reduce the amount of hassle you receive as you go through the various airport checkpoints. Otherwise you should carry your new ID, the rejection letter from the Passport Agency, and your old passport. Another possible solution is to request a "known as" passport. A passport agent's decision to issue a "known as" passport is discretionary and will require you to submit evidence that you are in fact known by your new name (driver's license, social security, marriage certificate etc). Using a “known as” passport for five years will enable you to get a passport in your new name after 5 years’ time. Q: My friends and I want to start a Gay-Straight Alliance at our public high school, but our principal has told us that parents won’t approve of it and so we can’t. Is she right? Can the principal stop us from forming a GSA?A: Probably not. According to both the First Amendment and the Equal Access Act (EAA), a federal law enacted in 1984, public school administrators must respond consistently to all requests for the formation and funding of extracurricular clubs, even if they don’t agree personally with the content of the club or think the community isn’t ready for it. Secondary schools that receive federal funding and have at least one other extracurricular group must allow students to form other extracurricular groups without discriminating based on the religious, philosophical, political or other content of the speech at meetings. GLAD helped ensure the rights of students at West High in Manchester, New Hampshire to establish a GSA on this very basis. Schools have sometimes tried to use manuevers like abolishing all clubs, redefining existing clubs as curricular, or claiming that a club’s proposed mission is contrary to certain school policies (like abstinence-only education policies) to prevent a GSA from forming, but courts have largely recognized these tactics as smoke screens for discrimination against the GSA. In addition, schools have sometimes tried to force students to change the name or the mission of the GSA, preferring a general diversity club over a specific LGBT mission, but the discomfort of an administrator, parent, or school board does not trump the students' rights under the EAA or the First Amendment to define their own mission and association. Even if schools grant a GSA’s permission to form, they often try to treat GSA’s differently from other student clubs, either by imposing requirements on the GSA that are not imposed on other groups or by withholding benefits from the GSA that other groups can access. But as a matter of law, it’s not enough for a school merely to allow a GSA to meet at the school. A school must treat the GSA the same as other student groups. A school may not require parental permission for participation in the GSA or approval by the principal for speakers if all other groups are not subject to the same requirements. Nor may a school deny any of the privileges of official recognition to the GSA that are accorded other groups, such as access to school facilities or resources (meeting space, bulletin boards, photocopying), advertising in the school newspaper, use of the public address system, a photo in the yearbook, or participation in other student activity events. Public schools in every state must abide by the Equal Access Act, as well as the First Amendment, and there may be additional protections in your own state as well, including statutes and Department of Education regulations. GLAD stands ready to help students advocate with their school administrators! If you need information, resources, or assistance, call GLAD’s Legal InfoLine at 1-800-455-GLAD, or email us at . Q: I am concerned about being denied a job because I am transgender. What are my rights?A: Three New England states, Rhode Island, Maine, and Vermont, currently have explicit statutes prohibiting discrimination based on gender identity or expression. In Connecticut, Massachusetts, and New Hampshire, transgender people are also protected from discrimination through an interpretation of existing sex or disability antidiscrimination laws. Both the Connecticut Commission on Human Rights and Opportunities and the Vermont Attorney General have ruled that transgender people are protected from discrimination under state laws prohibiting sex discrimination. The New Hampshire Human Rights Commission has concluded that disability antidiscrimination laws can cover transgender persons. And the Massachusetts Commission Against Discrimination has ruled that both sex and disability antidiscrimination laws apply to transgender people. Many federal courts have also ruled that Title VII, the federal law prohibiting sex discrimination, covers transgender people. For a full understanding of why sex and disability discrimination laws protect people who are fired because they are transgender, take a look at GLAD’s publication "Transgender Legal Issues". Q: We are a married lesbian couple in Massachusetts who recently gave birth to a child and both of our names are recorded on the birth certificate. Some of our friends tell us that the non-birth parent should also do a second-parent adoption. Do you think that this is necessary?A: Congratulations on the birth of your child! Even though you are both listed on the birth certificate and are presumed under Massachusetts law to both be the child's parents, that presumption could be challenged in court, and your marriage may not be respected outside Massachusetts. Therefore, we do strongly recommend that the non-birth parent obtain a second-parent adoption to give maximum legal protection both to the child and the non-birth parent. If you have legal questions call the GLAD Legal InfoLineat 1-800-455-GLAD. Q: I'm thinking about getting a new job, but I heard my employer's health insurance plan might not have to cover me because I have AIDS. Is that true?A: In any state, health insurance plans cannot refuse to cover pre-existing conditions such as HIV or AIDS except for short periods of time. That period can last 12 months. For example, an insurer in Massachusetts can only impose such a "pre-existing condition" exclusion for a maximum of six months. The period is often further reduced or eliminated because the duration of any health insurance you've had recently can count as credit against six months. In addition, Massachusetts law requires certain insurers to make health insurance available to individuals (people not on group plans at work) without regard to medical history. For a detailed explanation of how these laws work, call the GLAD Legal InfoLine at 1-800-455-GLAD. |
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