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Youth | Schools | Rhode Island

What are my rights as an LGBTQ+ student?

All Rhode Island public school students have the right:

  • To be safe in school without being bullied,
  • To be protected from discrimination or harassment based on sexual orientation,
    gender identity or HIV status.
  • To access information about LGBTQ subjects including educational websites,
    To dress and present yourself in a manner consistent with your gender identity,
  • To free speech and expression. This means you have the right to express ideas
    that may offend other people and you have the right to disagree with others, as
    long as you express those ideas in a respectful way.

All Rhode Island public and many private school students have the right:

  • To form a Gay/Straight Alliance (GSA) that gets treated the same as every
    other non-curricular group. This means equal funding, access to facilities, and
    the ability to choose your group’s name.

Outside of school, you have the right:

  • To be protected from discrimination based on your actual or perceived sexual
    orientation, HIV status, or gender identity in employment, housing, and public
    accommodations (like restaurants or stores).
  • To give your own consent to get tested for HIV without your parents’
    permission. For more specific information, see the “HIV/AIDS” Issue Area.
  • To report to the police anyone in or out of school who physically harms you,
    threatens you, or vandalizes your property.

Are there any laws protecting LGBT students in Rhode Island?

Yes. In 2011, Rhode Island passed the “Safe Schools Act” that applies to all school districts, charter schools, career and technical schools and approved private day or residential schools in Rhode Island.

It defines “bullying” as written, verbal or electronic expression or a physical act or gesture or any combination thereof directed at a student by one or more students that:

  • causes or places the student in reasonable fear of physical or emotional harm or damage to the student’s property,
  • creates an intimidating, threatening, hostile or abusive educational environment,
  • infringes on the rights of the student to participate in school activities, or
  • disrupts the educational process or orderly operation of the school (R.I. Gen. Laws § 16-21-33(a)(1)).

The law identifies characteristics that may be reasonably perceived to have motivated the act of “bullying” as including race, color, religion, ancestry, national origin, gender, disability, sexual orientation and gender identity and expression (R.I. Gen. Laws § 16-21-33(a)(1)(v)).

The law goes on to define “cyber-bullying” as bullying through the use of technology or electronic communication (R.I. Gen. Laws § 16-21-33(a)(2)).

The law charges the Rhode Island Department of Elementary and Secondary Education (RIDE) to prescribe a statewide bullying policy that must be adopted by all the schools by June 30, 2012.  The policy must include:

  • procedures for students, staff, parents and others to report bullying,
  • procedures for promptly responding to and investigating reports of bullying or retaliation,
  • the range of disciplinary actions that may be taken,
  • a parental engagement strategy,
  • procedures for restoring a sense of safety for the student,
  • strategies for protecting a person who reports bullying or assists in the investigation,
  • procedures for promptly notifying the parents of both the perpetrator and victim,

procedures for providing appropriate counseling for the victim, perpetrator and others affected by the bullying (R.I. Gen. Laws § 16-21-34).

Are there other laws in Rhode Island that protect students from discrimination and harassment?

Yes.  First, state law says that students, staff members and teachers all have the right to attend or work at a safe school, whether elementary, secondary or post-secondary (R.I. Gen. Laws § 16-2-17 and § 16-81-1).  These provisions empower schools to suspend or expel disruptive students.

The Rhode Island Department of Education’s guidance and model policies on bullying, teen dating violence and sexual violence explicitly acknowledge the role that sexual orientation, sex, disability, appearance, and clothing may play in bullying, and make clear the applicability of provisions relating to dating and sexual violence to students regardless of sexual orientation (see Guidance on Developing Required Policies Against Bullying, available at http://www.ripin.org/pdfs/ride_bully_policy_for_schools.pdf ; Guide to Preventing Bullying, Teen Dating Violence, and Sexual Violence, available at www.ricdsv.org/images/GuidePreventingBullyingTDVSVRhodeIslandSchools_4-1-2008.pdf).

Are there other sources of protection for LGBT students in Rhode Island?

Yes. A Board of Regents Policy adopted in 1997 and revised in 2010 provides in part as follows:

. . .all students, without exception, have the right to attend a school in which they feel safe and able to express their identity without fear.  . . .certain students, because of their actual or perceived sexual orientation or gender identity/expression, have been subject to discrimination through abuse, harassment, bullying and/or exclusion from full participation in educational activities.

Therefore, it is the Policy of the Board of Regents that no student shall be excluded from any educational program or activity or discriminated against, bullied, or harassed in any public educational setting based upon actual or perceived sexual orientation or gender identity/expression. . .  This policy shall include but is not limited to admissions, guidance services, co-curricular and extra-curricular activities.

Each local school district is urged to review programs, services and activities to assure that such offerings are conducted in a manner that is free of inadvertent or intentional bias based upon sexual orientation and/or gender identity/expression.  Each local school district is required by law to address harassment and bullying based on sexual orientation and/or gender identity/expression through the development and enforcement of appropriate student and staff behavior and disciplinary policies. . .

The Board of Regents policy can be found at: http://www.thriveri.org/documents/RIDE%20Policy%20Statement%

What kinds of conduct does the law and policy cover?

Technically, the policy covers exclusion from a public school or discrimination in taking advantage of school programs.  A school may not be so bold as to say, “Don’t come here,” or “You can’t take track,” but if they fail to redress pervasive harassment against you at school or in a particular class or activity, they may have said so in effect.  It does not provide any mechanism for court or administrative enforcement of the policy.

Are there federal laws that protect students?

Yes, Title IX prohibits discrimination against students based on sex in any school or college that receives federal funds. In light of the Supreme Court ruling in Bostock v. Clayton County, which determined that sexual orientation and gender identity discrimination are forms of sex discrimination, the federal Department of Education, which enforces Title IX, has stated that it will interpret any sexual orientation or gender
identity discrimination as sex discrimination.

To file a complaint with the federal Department of Education Office of Civil Rights, see:
How to File a Discrimination Complaint with the Office for Civil Rights.

Complaints can be made to your school Title IX coordinator, as well as to:

Office of Civil Rights
The U.S. Department of Education
John W. McCormack Post Office & Courthouse, Room 222
Post Office Square
Boston, MA 02109

Additionally, some kinds of discrimination and harassment may violate a student’s constitutional rights.

What can I do if I’m being discriminated against at school?

There are many ways to approach the issue.  One is to ask for support from a friend, teacher or counselor and talk to the people who are bothering you.  That is not an option, however, if you don’t feel safe doing so.

Take a look at your school’s policies and notify whoever is supposed to be notified — usually a vice principal or Title IX coordinator.  You should document any incidents of harassment or discrimination in writing.  Once you meet with the right officials, make a note of what you told them and on what date and ask when they will be getting back to you with a response.  If they don’t help you or don’t follow through, you may wish to write to the principal and superintendent and ask for them to end the discrimination.

If all of these steps fail, you may also wish to consider legal action. Contact GLAD Answers for attorney referrals.

What can I do if I’m being discriminated against or bullied at school?

There are many ways to approach the issue. One is to ask for support from a friend, teacher, or counselor and talk to the people who are bothering you. That is not an option, however, if you don’t feel safe doing so.

Take a look at your school policies and notify whoever is supposed to be notified—usually a vice principal or Title IX coordinator. You should document any incidents of harassment or discrimination in writing with at least the date and time. Once you meet with the right officials, write yourself notes about what you told them and on what date and ask when they will be getting back to you with a response. If they don’t help you or don’t follow through, you may wish to write to the principal and superintendent and ask for them to end the discrimination.

If this fails, you may also wish to consider legal action against the town by contacting the federal Department of Education Office of Civil Rights.

This is a complicated area of law as well as being emotionally challenging. Contact GLAD Answers by filling out the email form at GLAD Answers to discuss options.

Youth | GSAs/LGBTQ+ clubs | Maine

Do students have the right to form Gay Straight Alliances (GSAs)/LGBTQ+ clubs in their schools even if the principal or community opposes it?

Most student-initiated groups should be allowed to form. A federal law known as the Equal Access Act provides that secondary school students in schools that 1)receive federal funding, and 2)have extra-curricular groups, must allow students to form other extra-curricular groups without discriminating based on the religious, philosophical, political or other content of the speech at meetings. GLAD brought and won a case for students seeking to form a Gay Straight Alliance at West High in Manchester, New Hampshire on this very basis (available at: https://www.glad.org/work/cases/west-high-gsa-v-manchester-school-district). PFLAG estimates that over 20 Southern Maine high schools have GSAs.

In addition to GSAs, over 200 schools (including elementary schools) have “Civil Rights Teams” that work to reduce bias language and the behaviors that lead to threats and violence. These collaborations of students, faculty, and community advisors teach intervention strategies and peer education to reduce intolerance of all types and build an understanding of the Maine Civil Rights Act (discussed earlier in this publication). Additional information is available from the Attorney General’s office (available at: http://www.maine.gov/ag/crime/crimes_we_prosecute/civil_rights/in_schools/civil_rights_teams.shtml).

If your school is preventing you from forming a GSA or LGBTQ+ club, contact GLAD Answers.

Youth Employment | New Hampshire

Does New Hampshire have an anti-discrimination law protecting gay, lesbian, and bisexual individuals from discrimination in employment?

Yes. New Hampshire’s law banning sexual orientation discrimination in employment, public accommodations and housing has been in effect since January 1, 1998 (see Norma Love, “Senate Passes Gay Civil Rights; Shaheen to Sign it,” Foster’s Daily Democrat, May 7, 1997).

Does the law protect transgender people in employment?

Yes.

https://www.glad.org/post/new-hampshire-governor-signs-legislation-protecting-transgender-people-from-discrimination/

Also, some non-statutory protections do exist: in June 2016, New Hampshire Governor Maggie Hassan issued an Executive Order prohibiting discrimination based on gender identity or gender expression in state employment, state-run programs, and government contracts (NH Exec. Order No. 2016-04 (June 30, 2016), http://governor.nh.gov/media/orders/documents/eo-2016-04.pdf). GLAD continues to work with organizations such as Freedom New Hampshire to ensure a future where all transgender Granite Staters receive full and equal protection under the law. For more information about the campaign, see http://www.freedomnewhampshire.org/.

Does the law protect people perceived as being gay, lesbian, and bisexual in employment?

Yes. New Hampshire non-discrimination law defines “sexual orientation” as “having or being perceived as having an orientation for heterosexuality, bisexuality or homosexuality” (NH RSA 354-A:2, XIV-c). While the courts have not ruled on the meaning of the “perceived” language, it should mean that if a person is fired because they are perceived to be gay, they may invoke the protection of the anti-discrimination law regardless of their actual orientation.

What does employment anti-discrimination law forbid? To whom does the law apply?

New Hampshire’s employment anti-discrimination law applies to public or private employers who have at least 6 employees. It forbids employers from refusing to hire a person, or discharging them, or discriminating against them “in compensation, or in terms, conditions or privileges of employment” because of sexual orientation (NH RSA 354-A:7, I). This covers most significant job actions, such as hiring, firing, failure to promote, demotion, excessive discipline, harassment, and different treatment of the employee and similarly-situated co-workers. The law also applies to labor organizations (e.g. unions) and employment agencies (NH RSA 354-A:7, II, III).

New Hampshire State Division of Personnel also has an equal employment opportunity program which ensures that the state employs qualified people regardless of sexual orientation (NH RSA 21-I:42, XVI). Moreover, the State is forbidden from discriminating in the classified service with respect to sexual orientation (NH RSA 21-I:52, I).

As broad as the law is, there are several exemptions:

  • The law does not apply to employers with fewer than 6 employees. An employer’s spouse, parent, or child do not count as employees (NH RSA 354-A:2, VI, VII).
  • The law does not apply to a non-profit exclusively social club or a non-profit fraternal or religious association or corporations (NH RSA 354-A:2, VII).
  • Any employer, agency, or labor organization may defend against a discrimination claim by arguing that it is a “bona fide occupational qualification” of the job in question to have a non-LGBT employee fill it (NH RSA 354-A:7, I, II, III). Luckily, although this defense is allowed by law, it is strictly applied and very rarely successful (See, e.g., Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611, 447 N.E.2d 1228 (1983)).

Does New Hampshire law forbid sexual harassment?

Yes, New Hampshire law expressly forbids sexual harassment. The law defines sexual harassment as:

Unwelcome sexual advances, requests for sexual favors, and other verbal, non-verbal or physical conduct of a sexual nature constitutes sexual harassment when:

  1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
  2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
  3. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, or offensive working environment (NH RSA 354-A:7, V).

Does this law protect LGBT individuals?

Yes. It is just as unlawful to sexually harass an LGBT individual as it is to harass anyone else. Some harassment is specifically anti-gay, and may be more fairly characterized as harassment on the basis of sexual orientation. Other harassment is sexual in nature and more appropriately categorized as “sexual harassment.” Both types of harassment can happen to the same person, and both are forbidden.

The United States Supreme Court and other federal courts have found same-sex sexual harassment to violate sexual harassment laws (Compare Oncale v. Sundowner Offshore Services, 523 U.S. 75, 118 S.Ct. 998 (1998) (man can sue for sexual harassment by other men under federal sexual harassment laws); Drew v. First Sav. of N.H., 968 F. Supp. 762 (D.N.H. 1997) (acknowledging claim under federal law which failed on the facts presented); King v. Town of Hanover, 959 F.Supp. 62 (D.N.H. 1996) (acknowledging claim under federal law)). Several state courts have reached the same result under their state non-discrimination laws (Melnychenko v. 84 Lumber Co., 424 Mass. 285, 676 N.E.2d 45 (1997)).

Second Parent Adoption | Vermont

Can a single gay individual adopt a child in Vermont?

Yes.  Vermont law provides that any person may adopt or be adopted by another person for the purpose of creating the relationship of parent and child between them (15A V.S.A. § 1-102(a)).

Can same-sex partners together adopt a child in Vermont?

Yes. The Vermont Supreme Court allowed a lesbian couple to adopt the biological children of one of the women in 1993 (In re B.L.V.B., 160 Vt. 368 (1993)). Subsequently, the Vermont legislature amended the adoption statute and now it provides, “If a family unit consists of a parent and the parent’s partner, and adoption is in the best interest of the child, the partner of a parent may adopt a child of the parent” (15A V.S.A. § 1-102).

What is the difference between joint, second-parent (also known as co-parent), and single-parent adoptions?

A joint adoption is when both partners adopt a child together at the same time. A second-parent adoption is when one partner adopts the other partner’s child. Single-parent adoption is when a single individual adopts a child. All three of these are legal in Vermont.

What is the advantage of doing a second parent or joint adoption?

Both joint adoptions and second parent adoptions ensure your child has two legal parents, which often provides greater comfort and security to everyone involved. Depending on your particular family situation, the law may not recognize both partners as legal parents without an adoption. In these cases, the non-legal parent needs special permission to make medical decisions for the child or attend school meetings, and is at risk of losing custody if the couple splits up.

Adoption allows a non-legal parent to become a legal parent, entitled to make decisions for the child without special authorization. It also permits the adoptive parent to automatically assume custody of the child if their partner dies. Likewise, if the adoptive parent dies, the child will have the right to inherit from them even absent a will, and may be able to collect social security survivor benefits.

Finally, if the couple separates, adoption ensures that both parents have the right to custody and visitation, and that any disputes will be decided based on what is in the best interests of the child rather than on who is the legal parent.

Do we need to do a second-parent adoption if we have a marriage or civil union?

Yes. A child born to a couple with a marriage or civil union is presumed to be the child of both members of the couple (Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951, para. 45-46 (the non-birth parent has standing as a step-parent); para. 47 (as a step-parent by virtue of the civil union); para. 48-56 (based on the circumstances of undertaking to be a family together)). While that is good news, it is still extremely important to adopt because another state might not respect the presumption if the couple moves. Adoption is a court judgment creating a parent-child relationship and is very likely to be respected by other states, even if these states are otherwise hostile to same-sex couples or parenting.

Miller-Jenkins Sidebar

Relying on a partner’s good will, or even on the fact that a child was born into a marriage or civil union, is not the best way to ensure ongoing parental rights of both parents if a couple later separates.  A case in point is Miller-Jenkins v. Miller-Jenkins. This case has been in litigation since 2004, has involved two state Supreme Courts (Vermont and Virginia), and has already made several trips to the U.S. Supreme Court. Proceedings are ongoing. In that case, Janet and Lisa had a child, Isabella, while they were in a civil union. Janet did not adopt. After the couple separated, Lisa moved to Virginia and used both the lack of an adoption, and Virginia’s laws hostile to same-sex relationships to thwart Janet’s contact with their daughter.

In November, 2009, the Vermont Family Court issued an order granting Janet responsibility for the day-to-day care of Isabella while granting Lisa liberal visitation rights. The transfer of custody was to have taken place on January 1, 2010.  However, Lisa failed to appear at the appointed time, and an arrest warrant has been issued.

On March 8, 2010, Liberty Counsel filed on Lisa’s behalf an appeal of the custody order with the Vermont Supreme Court, and GLAD has filed a response on behalf of Janet.  GLAD and local counsel represent Janet in the Vermont proceedings. For more information about the case, go to https://www.glad.org/work/cases/miller-jenkins-v-miller-jenkins.

If same-sex parents raise a child together, but only one is the “legal” parent (because of birth or adoption), then what rights does the other parent have vis-à-vis the child?

In 2006, in the case of Miller-Jenkins v. Miller-Jenkins, the Vermont Supreme Court rejected an attack on the parentage of the non-birth parent by that parent’s civil union spouse in the context of a dissolution action.  The couple had not adopted, and that gave an opening to the birth parent to argue the issue.  The Vermont court ruled that the civil union, as well as the fact that they had undertaken to form a family together with the assistance of artificial insemination, meant that the child was the legal child of both civil union spouses.

While the result in Miller-Jenkins is a good one, it came only after years of litigation, uncertainty and one parent’s separation from the child that could have been avoided if the couple had adopted in the first place.  Moreover, the circumstances of the Miller-Jenkins case will not apply to everyone:  when one party in a couple relocates, things can change for the worse.  Please call GLAD’s Legal InfoLine for information on these issues.

In Miller-Jenkins, the Vermont Supreme Court did not discuss its former opinion in Titchenal v. Dexter (693 A.2d 682 (Vt. 1997)). In that case, the Vermont Supreme Court ruled that the Superior Court had no jurisdiction to entertain the visitation claim of a lesbian parent who had not adopted the child in a conflict between former lesbian partners. That case did not address the jurisdictional power of the Family Court to decide such cases.

With Miller-Jenkins in place, it now seems likely that the Vermont Family Court, (rather than the Superior Court whose jurisdiction was at issue in Titchenal) determines custody, visitation and support issues upon the dissolution of a civil union or marriage, as confirmed in Miller-Jenkins.  The reasoning in the Miller-Jenkinsopinion might also support the possibility of the Family Court having jurisdiction to hear a de facto parenting case in circumstances where a couple has jointly decided to and in fact has parented a child together even though they did not adopt (15 V.S.A. § 1206; Miller-Jenkins, 912 A.2d at para. 55-56). This is a developing area of law and you should contact GLAD and Vermont-based practitioners.

Regardless of the status of a person’s legal rights, it is critical to remember that children form strong attachments to their parental caregivers regardless of legal labels. Separating a child from a person who has acted as their parent can be a devastating loss. Moreover, court proceedings to establish visitation will be painful and costly, so anything people can do outside of court to make decisions together about a child’s interests is strongly encouraged. See GLAD’s publication: Protecting Families: Standards for LGBT Families.

Short of joint adoption or second parent adoption, how can a family protect the interests of the child vis-à-vis his or her second parent?

There are a number of steps that can be taken, although none offers the security of an adoption decree.

  • Co-parenting Agreement: A co-parenting agreement is an agreement setting out the parents’ expectations about each other’s roles and their plans in the event of separation, disability, or death. While these agreements may not always be given full effect by courts, which are bound to make custody and visitation decisions based on the child’s best interests, they are important indicators of what the couple believed was in the best interests of the child and may influence a court’s ultimate decision.
  • Wills: A legal parent may, by last will, nominate a guardian of the child upon the parent’s death (14 V.S.A. § 2656). These wishes are given strong preferences by courts.  Of course, if the child has another legal parent living, then that person would have priority over the nominated guardian.
  • Power of Attorney:  A legal parent may choose to grant the non-legal parent power of attorney over the child, which allows the non-legal to make medical or financial decisions. Power of attorney documents should be updated regularly.

Where can I go if I need help resolving a parentage issue?

As with any family law issue, individualized legal advice is recommended. GLAD Answers can provide information as well as referrals to local practitioners. If you have questions about how to protect your family, contact GLAD Answers by completing the form at GLAD Answers or calling 800.455.4523 (GLAD).

Students | Transgender Rights | Maine

What are my rights as an LGBTQ+ student?

All Maine public school students have the right:

  • To be safe in school without being bullied,
  • To access information about LGBTQ subjects including educational websites,
  • To dress and present yourself in a manner consistent with your gender identity,
  • To free speech and expression. This means you have the right to express ideas that may offend other people and you have the right to disagree with others, as long as you express those ideas in a respectful way.

All Maine public and many private school students have the right:

  • To be protected from discrimination or harassment based on sexual orientation, gender identity or expression, or HIV status,
  • To form a Genders/Sexualities or Gay/Straight Alliance (GSA) that gets treated the same as every other non-curricular group.  This means equal funding, access to facilities, and the ability to choose your group’s name.

Outside of school you have the right:

  • To be protected from discrimination based on your actual or perceived sexual orientation, HIV status, or gender identity in employment, housing, and public accommodations (like restaurants or stores).
  • To give your own consent to get tested for HIV without your parents’ permission. For more specific information, see the “HIV/AIDS” Issue Area.
  • To report to the police anyone in or out of school who physically harms you, threatens you, or vandalizes your property.

Does Maine have guidance schools should follow to protect transgender students?

There is no statewide guidance, but numerous school districts have created policies on the rights, responsibilities, and best educational practices for transgender and gender non-conforming students.

Here is the policy of the Portland Maine schools for transgender and gender-expansive students:  1) foster a learning environment that is safe, affirming, and free from discrimination, harassment, and bullying for all students; and 2) assist in the educational and social integration and development of transgender and gender expansive students in our schools.

How does the Maine anti-discrimination law apply to education?

Maine law applies to both public and private schools and makes the following discrimination on the basis of sexual orientation unlawful:

  • to exclude a person from, deny a person the benefits of, or subject a person to discrimination in any academic, extracurricular, research, occupational training or other program or activity;
  • to deny a person equal opportunity in athletic programs;
  • to deny admission to the institution or program or fail to provide equal access to any information about an institution or program;
  • to deny financial assistance availability and opportunity (5 Me. Rev. Stat. sec. 4602).

Are any educational institutions exempt from the law?

Yes. Any educational facility owned, controlled or operated by “a bona fide religious corporation, association or society” is exempt (5 Me. Rev. Stat. sec. 4602).

What protections exist for transgender people under the discrimination laws?

The definition of sexual orientation in the law includes a person’s “actual or perceived … gender identity or expression.”  This is explicit protection for transgender persons in Maine (5 Me. Rev. Stat. sec. 4553 (9-C)).

The Maine Human Rights Commission has also set out its view that employers must “reasonably accommodate” employees with respect to gender identity and gender expression issues in the workplace. The only legitimate reason for failure to do so is if doing so “would impose an undue hardship on the conduct of the business” (94-348 Me. Hum Rights Comm’n Reg. Ch. 3, § 3.12 (F) (1). Available at: http://www.maine.gov/mhrc/index.html).

In some situations a transgender person may also have a claim of sex or disability discrimination if he or she is adversely treated at work, in housing, in a place of public accommodation, in a credit transaction or at an educational institution. If the adverse action is triggered by the sense that the individual does not meet the expectations of or act like a “real man” or “real woman,” then this can be the basis for a sex stereotyping claim as well. See Price Waterhouse v. Hopkins (490 U.S. 228, 251 (1989)) and Rosa v. Park West Bank (214 F.3d 213 (1st Cir. 2000)).

In September 2007, the Maine Human Rights Commission (MHRC) adopted amendments to its employment and housing rules to add “sexual orientation” to the protected classifications under the Maine Human Rights Act. As part of these amendments,” the MHRC defined both “gender identity” and “gender expression” as protected under the definition of “sexual orientation.”

The Commission defined “gender identity” as an “individual’s gender-related identity, whether or not the identity is different from that traditionally associated with that individual’s assigned sex at birth, including, but not limited to, a gender identity that is transgender or androgynous” (94-348 Me. Hum Rights Comm’n Reg. Ch. 3, § 3.02(D) (2). Available at: http://www.maine.gov/mhrc/laws/index.html).

It has also defined “gender expression” as “the manner in which an individual’s gender identity is expressed, including, but not limited to, through dress, appearance, manner, speech, or lifestyle” (94-348 Me. Hum Rights Comm’n Reg. Ch. 3, § 3.02(D) (3). Available at: http://www.maine.gov/mhrc/laws/index.html).

For more information, see GLAD’s publication, Transgender Legal Issues in New England.

Are there any laws protecting transgender public school students in Maine?

Yes. The state anti-discrimination law specifically protects students from discrimination based on sexual orientation, including gender identity and expression, in any academic, extracurricular, athletic, research, occupational training or other program or activity. It also protects students during the admissions process and in obtaining financial aid. The law defines “educational institution” as:

any public school or educational program, any public post-secondary institution, any private school or educational program approved for tuition purposes if both male and female students are admitted and the governing body of each such school or program. For purposes related to disability-related discrimination, ‘educational institution’ also means any private school or educational program approved for tuition purposes (5 Me. Rev. Stat. sec. 4553 (2) (A) (definition of “educational institution”)).

The complainant must file a complaint with the MHRC within 6 months. The MHRC will conduct the same type of investigation as it does in other types of discrimination cases (5 Me. Rev. Stat. sec. 4611).

Are there federal laws that protect students?

Yes, Title IX prohibits discrimination against students based on sex in any school or college that receives federal funds. In light of the Supreme Court ruling in Bostock v. Clayton County, which determined that sexual orientation and gender identity discrimination are forms of sex discrimination, the federal Department of Education, which enforces Title IX, has stated that it will interpret any sexual orientation or gender identity discrimination as sex discrimination.

To file a complaint with the federal Department of Education Office of Civil Rights, see:  https://www2.ed.gov/about/offices/list/ocr/docs/howto.html.

Complaints can be made to your school Title IX coordinator, as well as to:

Office of Civil Rights
The U.S. Department of Education
John W. McCormack Post Office & Courthouse, Room 222
Post Office Square
Boston, MA 02109

Additionally, some kinds of discrimination and harassment may violate a student’s constitutional rights.

What can I do if I’m being discriminated against at school?

There are many ways to approach the issue. One is to ask for support from a friend, teacher, or counselor and talk to the people who are bothering you. That is not an option, however, if you don’t feel safe doing so.

Take a look at your school policies and notify whoever is supposed to be notified — usually a vice principal or Title IX coordinator. You should document any incidents of harassment or discrimination in writing with at least the date and time. Once you meet with the right officials, write yourself notes about what you told them and on what date and ask when they will be getting back to you with a response. If they don’t help you or don’t follow through, you may wish to write to the principal and superintendent and ask for them to end the discrimination.

If this fails, you may also wish to consider legal action against the town by contacting the Maine Human Rights Commission or the federal Department of Education Office of Civil Rights.

This is a complicated area of law as well as being emotionally challenging. Contact GLAD Answers by filling out the email form at GLAD Answers or by phone at 800-455-4523 (GLAD) to discuss options.

Does Maine have an anti-bullying law that protects public school students?

In 2012 Maine passed a law, “An Act To Prohibit Bullying and Cyberbullying in Schools” (available at: http://www.mainelegislature.org/legis/bills/bills_125th/chapters/PUBLIC659.asp).

  The Act defines bullying as any communication (written, oral or electronic) or physical act or gesture that:

  1. harms or seriously threatens you or your property;
  2. creates a hostile school environment; or
  3. interferes with your academic performance or ability to participate in school activities.

The law identifies certain characteristics that are often a target for bullying, including actual or perceived race sexual orientation or gender identity and expression or association with another person with one or more of these actual or perceived characteristics.

By January 1, 2013, the Maine Department of Education must develop a model policy that must include:

  • A requirement that school staff report bullying and procedures for school staff, students, parents and others to report bullying;
  • A procedure for promptly investigating and responding to incidents of bullying, including written documentation of incidents and the outcome of investigations;
  • A process for communicating with the parent(s) of a student who has been bullied the measures taken to ensure the safety of the student and to prevent further acts of bullying;
  • Each school’s anti-bullying policy must be as stringent as the model policy and must be widely published and disseminated in written form annually to all students, parents and staff.
  • Each school shall provide staff training in the best approaches to implementing the anti-bully policy.

Students | Transgender Rights | Massachusetts

Nondiscrimination in MA Schools

You have the right to attend school in safety and free from discrimination and harassment based on your sexual orientation or gender identity or expression.

Your school must provide you equal access to and allow you to participate on equal terms in all school programs, including extracurricular activities and sports.

Schools must respect your gender identity, including allowing you to dress and present yourself in a manner consistent with your gender identity.

Need help updating your name or gender marker? Contact our Transgender ID Project.

Sexual Orientation and Gender Identity and Expression Discrimination

Massachusetts bans discrimination based on sexual orientation and gender identity and expression in private and public schools.

The ban makes it unlawful, because of sexual orientation and gender identity and expression, to:

  • Deny a person equal opportunity in athletic programs;
  • Exclude any person from any program or activity;
  • Deny admission to an institution or program or to fail to provide equal access to any information about an institution or program through recruitment; or
  • Deny financial assistance availability and opportunity.

Note:  There are some exemptions for educational facilities owned or operated by religious corporations, associations, or societies.

What Massachusetts laws exist to protect transgender students?

Chapter 76, Section 5 of the Massachusetts General Laws prohibits discrimination based on gender identity, sex, sexual orientation, and perceived sexual orientation in all Massachusetts schools which accept students from the general public, regardless of whether the discrimination comes from students or employees. Similarly, Chapter 151C, which defines fair educational practices, prohibits sexual harassment by public school teachers, staff, or other students. Violations of this law can be brought to the Massachusetts Commission Against Discrimination (MCAD), a state agency that does not require the parties to have a lawyer.

Schools are also required to take certain steps to prevent the harassment of LGBTQ+ students, per the Code of Massachusetts Regulations 603 CMR 26.00, Access to Equal Educational Opportunity (www.doe.mass.edu/lawsregs/603cmr26.html?section=01). In particular, the Code requires that schools have policies in place to ensure discrimination and harassment complaints are investigated promptly, and also requires schools to educate staff annually on harassment prevention and appropriate methods of responding to harassment in a school environment.

In May 2010, Massachusetts implemented one of the strongest anti-bullying laws (Chapter 92 of the Acts of 2010.  See http://www.malegislature.gov/Laws/SessionLaws/Acts/2010/Chapter92) in the country.  It has strict requirements that schools must follow to protect students from a wide variety of bullying, be it physical, verbal, or online. Many of these requirements apply to all schools, whether public, private, or charter. Some of the key provisions of the law include:

  • Every school, with the exception of some private schools, must have in place a comprehensive anti-bullying policy;
  • A student’s parents or guardians must be notified if the school learns that they have been bullied;
  • Teachers and other school staff must receive training on how to handle bullying, and are required to report bullying to the administration;
  • Each school must teach students about bullying.

For detailed information about this law, see GLAD’s publication, Massachusetts Students:  What To Do If You’re Being Bullied.

What protections exist for transgender students in Massachusetts?

Discrimination against transgender students is prohibited in Massachusetts public schools. Chapter 76, Section 5 of the Massachusetts General Laws prohibits discrimination in public schools based on gender identity, as do the revised Access to Equal Education Opportunity Regulations, 603 CMR 26.00, and Charter School Regulations, 603 CMR 1.00.

In 2013, the Massachusetts Department of Elementary and Secondary Education (DESE) issued a set of guidelines for public schools on the equal treatment of transgender students (see Nondiscrimination on the Basis of Gender Identity, Massachusetts Department of Elementary and Secondary Education (February 15, 2013), available here. The guidelines included the following:

  • Schools should respect a transgender student’s name and pronouns;
  • Schools should respect transgender students’ privacy regarding any medical information, previous names, etc.;
  • The name and gender on a student’s records should conform to the student’s gender identity;
  • Transgender students should be able to use the restroom, locker room, and changing facility that accord with their gender identity;
  • In any sex-segregated activities (including athletics), transgender students should be able to participate in a manner consistent with their gender identity.

In 2016, the Obama administration issued a federal directive on the equal treatment of transgender public school students that largely mirrored the DESE’s guidelines (see Dear Colleague Letter on Transgender Students, U.S. Department of Justice/U.S. Department of Education, available here.

Does Massachusetts have a law to protect public school students from bullying?

Yes. In May 2010, Massachusetts implemented one of the strongest anti-bullying laws (Chapter 92 of the Acts of 2010.  See http://www.malegislature.gov/Laws/SessionLaws/Acts/2010/Chapter92) in the country.  It has strict requirements that schools must follow to protect students from a wide variety of bullying, be it physical, verbal, or online. Many of these requirements apply to all schools, whether public, private, or charter. Some of the key provisions of the law include:

  • Every school, with the exception of some private schools, must have in place a comprehensive anti-bullying policy;
  • A student’s parents or guardians must be notified if the school learns that they have been bullied;
  • Teachers and other school staff must receive training on how to handle bullying, and are required to report bullying to the administration;
  • Each school must teach students about bullying.

For detailed information about this law, see GLAD’s publication, Massachusetts Students:  What To Do If You’re Being Bullied.

Antidiscrimination Protection Under Title IX of Federal Law

Title IX is a federal law that bans sex discrimination in schools that receive federal funding (nearly all public schools). Many courts have interpreted “sex discrimination” as applying to discrimination experienced by transgender students, and those who don’t meet gender stereotypes or expectations.

Title IX is enforced by the United States Department of Education. If you have been discriminated against based on your transgender identity, you have 180 days after the discrimination or harassment occurred to file a complaint with the United States Department of Education. We believe Title IX protects transgender students.  The Supreme Court has taken up the question as to whether sex discrimination encompasses LGBTQ people, so more guidance is forthcoming.

More information about Title IX and filing a complaint can be found at the National Center for Transgender Equality.

What can I do if I’m being discriminated against at school?

There are many ways to approach the issue. One is to ask for support from a friend, teacher, or counselor, and talk to the people who are bothering you. That is not an option, however, if you don’t feel safe doing so.

Take a look at your school’s policies and notify whoever is supposed to be notified – usually a vice principal or Title IX coordinator. You should document any incidents of harassment or discrimination in writing. Once you meet with the right officials, make a note of what you told them and on what date, and ask when they will be getting back to you with a response. If they don’t help you or don’t follow through, you may wish to write to the principal and superintendent and ask for them to end the discrimination.

At the same time, or after contacting the administration as set out above, you may want to file a complaint with the Problem Resolution System of the Mass. Dept. of Elementary and Secondary Education at (781) 338-3700. They will investigate and examine whether or not the school should consider taking further actions.

If the above methods fail to stop the discrimination, you may also wish to consider legal action. Contact GLAD Answers for attorney referrals.

Where else can I get support if I’m having a problem?

In addition to the resources listed above, you may wish to contact the Massachusetts Commission on GLBT Youth, (617) 624-5485; or the Violence Recovery Program, 1-800-834-3242.

Public Accommodations | Discrimination | Rhode Island

What is a “place of public accommodation”?

Places of public accommodation are places that are open to the public and include, but are not limited to, stores, restaurants, bars, public transportation, garages, hotels, hospitals, clinics, rest rooms, barber shops, salons, amusement parks, gyms, golf courses, swimming pools, theaters, fairs, libraries, public housing projects, and so on (R.I. Gen. Laws § 11-24-3).

Does Rhode Island have an anti-discrimination law protecting LGBTQ+ individuals from discrimination in places of public accommodation?

Yes. Since 1995, Rhode Island has had a comprehensive anti-discrimination law concerning sexual orientation in employment, housing, credit and public accommodations and has included sexual orientation under its equal opportunity and affirmative action law.  In 2001, Rhode Island added gender identity or expression to each of these statutory protections (R.I. Gen. Laws, ch. 11-24 (public accommodations); ch. 28-5 (employment); ch. 28-5.1 (equal opportunity and affirmative action); and ch. 34-37 (housing and credit)).

Does it also protect people perceived to be LGBTQ+ in places of public accommodation?

Yes. The anti-discrimination laws define “sexual orientation” as “having or being perceived as having an orientation for heterosexuality, bisexuality or homosexuality and define “gender identity or expression” as including a “person’s actual or perceived gender” (R.I. Gen. Laws §§ 28-5-6(11)(gender identity or expression) and (16)(sexual orientation) (employment); 34-37-3(9)(gender identity or expression) and (15)(sexual orientation) (housing and credit); and 11-24-2.1(h)(sexual orientation) and (i)(gender identity or expression) (public accommodations)). Thus, if a person is fired because they are perceived to be gay (whether they are or not), they may still invoke the protection of the anti-discrimination law to challenge the firing.

What does the law say about discrimination in places of public accommodation?

Such places shall not “directly or indirectly refuse, withhold from, or deny to any … person any of the accommodations, advantages, facilities or privileges of that public place,” and shall not advertise or state that their accommodations are so limited, because of a person’s sexual orientation or gender identity or expression (or other protected characteristics) (R.I. Gen. Laws § 11-24-2).

How do I file a claim of discrimination?

You may file a charge of discrimination in person or in writing at the Rhode Island Commission For Human Rights (RICHR), 180 Westminster Street, 3rd floor, Providence, RI 02903. If you plan to go in person, you can call in advance to set up an appointment and find out what you need to bring. Their phone number is (401) 222-2661 (voice) and 401-222-2664 (TTY). The fax number is (401) 222-2616.

The charge must be under oath and must state the name and address of the individual making the complaint as well as the name and address of the entity against which they are complaining (called the “respondent”). The complaint must set out the particulars of the alleged unlawful acts and (preferably) the times they occurred.

Do I need a lawyer?

No, but GLAD strongly encourages people to find lawyers to represent them throughout the process. Although the process is designed to allow people to represent themselves, there are many legal rules governing the RICHR process, and employers and other defendants are almost certain to have legal representation.

What are the deadlines for filing a complaint of discrimination?

A complaint must generally be filed with the RICHR within one year of the discriminatory act or acts (R.I. Gen. Laws §§ 28-5-17(a); 34-37-5 (b); see Rules and Regulations of the RICHR Rule 4.05). There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.

Can I file more than one type of discrimination complaint at once, for example, if I believe I was fired both because I am a lesbian and Latina?

Yes, you can file several claims if you have suffered discriminatory treatment based on more than one personal characteristic. The state antidiscrimination laws for employment and public accommodations forbid taking an action against someone because of sexual orientation or gender identity or expression as well as race, color, religion, sex (including pregnancy and sexual harassment), disability, age, or country of ancestral origin (R.I. Gen. Laws § 11-24-2 and § 28-5-7 (1)(i)).

What happens after a charge is filed with the RICHR?

The RICHR may initiate a preliminary investigation in an employment, credit, housing, or public accommodations case. If the RICHR determines it is probable that a defendant is or was engaged in unlawful practices, then the RICHR shall attempt to eliminate the unlawful practices by “informal methods of conference, conciliation and persuasion” (See, e.g., R.I. Gen. Laws, § 28-5-17(a) and § 34-37-5(b); see also Rules and Regulations of the RICHR Rule 5.02).

If conciliation is unsuccessful, or at any time when the circumstances so warrant (including before investigation in egregious cases), the RICHR may serve a complaint and notice of hearing on the respondent. This process involves a trial type hearing but is not as formal as an actual trial in court. This process must be commenced within 2 years of when the complainant first filed their charge with the RICHR (R.I. Gen. Laws §§ 28-5-18; 34-37-5).

After the RICHR rules (either because it has found no probable cause to proceed, or because it has ruled on the merits after a hearing), any complainant, intervener, or respondent claiming to be aggrieved by a final order of the commission may obtain judicial review in Superior Court (R.I. Gen. Laws §§ 28-5-28; 34-37-6).

There are a few times when the case can be taken from the RICHR and filed in court. For example:

  • Once the complaint has been pending at the RICHR for at least 120 days, (but less than 2 years and before any conciliation agreement has been made), the complainant may request permission to remove the case from the RICHR. That request should be granted, and the complainant then has 90 days from when they receive a “right to sue” letter to file the case in Superior Court (R.I. Gen. Laws § 28-5-24.1(a) and § 34-37-5(l); see also Rules and Regulations of the RICHR Rule 17.01).
  • After the RICHR finds probable cause to credit the allegations in a complaint, either party may elect to terminate the proceedings at the RICHR and file in court as long as they do so within the strict timelines set by the RICHR rules (See R.I. Gen. Laws, § 28-5-24.1(c) and § 34-37-5(n)).
  • In addition, in housing cases, the RICHR may go to court to seek an order forbidding the respondent from selling, renting or otherwise disposing of the property at issue while the case is pending (R.I. Gen. Laws § 34-37-5(m)).

If probable cause is found lacking, the case is over unless you seek judicial review of the “lack of probable cause” finding. There are special rules and time constraints on this process which must be observed strictly (R.I. Gen. Laws § 28-5-28 and § 34-37-6).

What are the legal remedies the RICHR may award for discrimination if an individual wins their case there?

In all cases alleging different treatment discrimination, the remedies for a successful complainant in an intentional discrimination case may include compensatory damages (including for emotional distress), attorney’s fees (including expert fees and other litigation expenses), cease and desist orders, and any other action which will effectuate the purpose of the anti-discrimination laws (R.I. Gen. Laws § 28-5-24 (b)(employment); § 34-37-5(h) (housing cases); § 11-24-4 (public accommodations cases); Rules and Regulations of the RICHR Rule 12.02).

When complainants prevail in court, the remedies named above may be awarded, as well as punitive damages when the challenged conduct is shown to be motivated by malice or ill will, or when the action involves reckless or callous indifference to the statutorily protected rights of others (R.I. Gen. Laws § 28-5-29.1 (employment); § 11-24-4 (public accommodations); § 34-37-5 (o) (3) (housing)). The only exception is that punitive damages may not be awarded against the State.

Can I also file a discrimination complaint with a federal agency?

Yes, in many cases. Since federal law and state law contain overlapping provisions, someone bringing a discrimination claim may sometimes pursue protections under both. For example, the federal employment non-discrimination law, called Title VII, applies to employers with at least 15 employees and forbids employment discrimination based on race, sex, age, religion, and disability (which includes HIV status).

While Title VII does not expressly forbid discrimination based on sexual orientation or gender identity, a growing number of courts and government agencies have taken the position that its proscription against sex discrimination encompasses both (See, e.g., United States & Dr. Rachel Tudor v. Southeastern Oklahoma State University, 2015 U.S. Dist. LEXIS 89547 (2015) (denying motion to dismiss professor’s Title VII complaint that school had subjected her to a hostile work environment based on her gender identity)). In two separate decisions in 2012 and 2016, the EEOC itself concluded that sexual orientation discrimination, gender identity discrimination, and sex discrimination are one and the same, since the latter two are based on preferences, assumptions, expectations, stereotypes, and norms associated with masculinity and femininity (See Macy v. Holder, EEOC Appeal No. 0120120821 (Apr. 20, 2012); Baldwin v. Foxx, EEOC Appeal No. 0120133080 (July 15, 2015)). Although the EEOC’s decisions are not binding on the courts, many have used similar reasoning in affirming Title VII’s applicability to discrimination based on gender identity and sexual orientation (See, e.g., Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (holding that Title VII prohibits discrimination against transgender people based on gender stereotyping); Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1160 (C.D. Cal. 2015) (holding “sexual orientation discrimination is a form of sex or gender discrimination”)).

Should I file a complaint with a federal agency?

GLAD recommends that, where there may be overlapping state and federal jurisdiction, you explore filing with the state first but keep in mind the possibility of pursuing a federal claim as well. Federal complaints must be filed within 180 days of the discriminatory act with the Equal Employment Opportunity Commission (EEOC). However, if you initially institute your complaint with the RICHR and indicate that you wish to have the complaint cross-filed with the EEOC, then the time limit is extended to the earlier of 300 days or 30 days after the RICHR has terminated the case (42 United States Code § 2000e-5(e)(1)). (People who work for federal agencies are beyond the scope of this publication.)

If you have a sexual orientation or gender identity or expression complaint, you should check off “sex” as well as “sexual orientation” or “gender identity” as the bases for your claim and request that the RICHR cross-file your complaint with the EEOC.

Are there other options for filing a complaint for discrimination?

Possibly yes, depending on the facts of your particular situation.

State or Federal Court: After filing with the RICHR, the EEOC, or both, you may decide to remove your discrimination case from those agencies and file the case in court. There are rules about when and how this must be done, as discussed above. In addition, you may file a court case to address other claims which are not appropriately handled by discrimination agencies. For example, if you are fired in violation of a contract; fired without the progressive discipline promised in a handbook; or fired for doing something the employer doesn’t like but which the law requires, then these matters are beyond the scope of what the agencies can investigate and the matter should be pursued in court. Similarly, if your claim involves a violation of constitutional rights, such as a teacher or governmental employee who believes their free speech or equal protection rights were violated, then those matters must be heard in court.

What can I do to prepare myself before filing a complaint of discrimination?

Contact GLAD Answers at www.GLADAnswers.org or by phone at 800-455-4523 (GLAD) any weekday to discuss options.

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful to bring the attorney an outline of what happened on the job that you are complaining about, organized by date and with an explanation of who the various players are (and how to get in touch with them); what happened; who said what; and who else was present.

Second Parent Adoption | Connecticut

What is the difference between joint, second-parent, and single-parent adoptions?

A joint adoption is when both partners adopt a child together at the same time. A second-parent adoption is when one partner adopts the other partner’s child. A single-parent adoption is where a single individual adopts a child.

Can same-sex partners together adopt a child in Connecticut?

Yes.  A couple with a marriage or civil union must generally adopt a child not born into the relationship as a couple (Conn. Gen. Stat. sec. 45a-732 (married person cannot adopt unless spouse adopts jointly, unless probate court finds sufficient reason for spouse not to adopt)). A couple who does not have a marriage or civil union can both become legal parents of a child through a process, called “second parent adoption,” whereby one adopts (or gives birth to the child), and then the second parent adopts (Conn. Gen. Stat. sec. 45a-724(a)(3)).

What is the advantage of doing a second parent adoption or joint adoption?

Both joint adoptions and second parent adoptions ensure your child has two legal parents, which often provides greater comfort and security to everyone involved. Depending on your particular family situation, the law may not recognize both partners as legal parents without an adoption. In these cases, the non-legal parent needs special permission to make medical decisions for the child or attend school meetings, and is at risk of losing custody if the couple splits up.

Adoption allows a non-legal parent to become a legal parent, entitled to make decisions for the child without special authorization. It also permits the adoptive parent to automatically assume custody of the child if their partner dies. Likewise, if the adoptive parent dies, the child will have the right to inherit from them even absent a will, and may be able to collect social security survivor benefits.

Finally, if the couple separates, adoption ensures that both parents have the right to custody and visitation, and that any disputes will be decided based on what is in the best interests of the child rather than on who is the legal parent.

Do we need to do a second-parent adoption if we are married or in a civil union?

A second parent adoption is the best way to ensure the ongoing parental rights of both parents. While Connecticut law presumes that a child born into a marriage or a civil union is the child of both spouses (see Barse v. Pasternak, 2015 Conn. Super. LEXIS 142 (2015) (legal presumption that child born into wedlock is the legitimate child of the mother and mother’s spouse extends to same-sex couples, even if the spouse did not conceive or adopt the child or comply with artificial insemination statutes)), another state may not respect that presumption if you or your partner moves. By contrast, adoption is a court judgment creating a parent-child relationship and is very likely to be respected by other states, even if these states are otherwise hostile to same-sex couples parenting.

Miller-Jenkins Sidebar

Relying on a partner’s good will, or even on the fact that a child was born into a marriage or civil union, is not the best way to ensure the ongoing rights of both parents if a couple later separates. A case in point is Miller-Jenkins v. Miller-Jenkins. This case has been in litigation since 2004, has involved two state Supreme Courts (Vermont and Virginia), and has already made several trips to the U.S. Supreme Court. Proceedings are ongoing.

In that case, Janet and Lisa had a child, Isabella, while they were in a civil union. Janet did not adopt. After the couple separated, Lisa moved to Virginia and used both the lack of an adoption, and Virginia’s laws hostile to same-sex relationships to thwart Janet’s contact with their daughter. Finally, however, the Virginia courts agreed that the Vermont courts had the authority to make custody and visitation decisions.

After many attempts to get Lisa to allow Janet visitation rights, in November, 2009, the Vermont Family Court issued an order granting Janet responsibility for the day-to-day care of Isabella while granting Lisa liberal visitation rights. The transfer of custody was to have taken place on January 1, 2010. However, Lisa failed to appear at the appointed time, and an arrest warrant was issued.  Lisa and Isabella still have not been found.

GLAD and local counsel represented Janet in the Vermont proceedings. For more information about the case, go to https://www.glad.org/work/cases/miller-jenkins-v-miller-jenkins

If I am a parent who has signed an Acknowledgement of Parentage, do I also need to do a second-parent adoption?

No. A parent who has signed an Acknowledgement of Parentage should not need to do a co-parent adoption to establish parentage. An Acknowledgement of Parentage establishes legal parentage under state law, is the equivalent of a judgment of parentage under state law and gives you all the rights and duties of a parent. Under federal law, an Acknowledgement of Parentage is the equivalent of a judicial decree of parentage and should be recognized in all states.

Since expanded access to acknowledgments of parentage is an emerging development, some parents might feel more comfortable also completing a second parent adoption in addition to or instead of an Acknowledgment of Parentage. To understand what is best for your family, individualized legal advice is recommended.

If same-sex parents raise a child together, but only one is the “legal” parent, then what rights does the non-legal parent have vis-à-vis the child?

As a general matter, the rights of a non-legal parent are limited. If a couple is unmarried, the law permits a non-legal parent to petition the Superior Court for visitation (but not custody) (Conn. Gen. Stat. sec. 46b-59). The court will grant visitation if it finds that: (1) a parent-like relationship exists between the non-legal parent, and (2) denying visitation would cause real and significant harm (Conn. Gen. Stat. sec. 46b-59(b)). Several Connecticut courts have allowed lesbian co-parents the right to visit with their children following a separation (see e.g. Antonucci v. Cameron, 25 Conn. L. Rptr. 509 (Conn. Super. Ct. Dept., Sept. 24, 1999) (allowing visitation to lesbian co-parent where visitation is in the best interests of the child); Laspina-Williams v. Laspina-Williams, 46 Conn. Supp. 165, 742 A.2d 840 (1999) (denying motion to dismiss of biological mother in co-parent visitation case)). A visitation award does not come with any child support obligations, but if support is offered, a legal parent may accept it.

Regardless of the status of a person’s legal rights, it is critical to remember that children form strong attachments to their parental caregivers regardless of legal labels. Separating a child from a person who has acted as their parent can be a devastating loss. Moreover, court proceedings to establish visitation will be painful and costly, so anything people can do outside of court to make decisions together about a child’s interests is strongly encouraged. See GLAD’s publication: Protecting Families: Standards for LGBT Families at Protecting Families: Standards for LGBT Families.

Short of second parent adoption, how can a family protect the interests of the child vis-à-vis their non-legal parent?

There are a number of steps which can be taken, although none offer the security of a second parent adoption.

Co-parenting Agreement: A co-parenting agreement is an agreement setting out the parents’ expectations about each other’s roles and their plans in the event of separation, disability, or death. While these agreements may not always be given full effect by courts, which are bound to make custody and visitation decisions based on the child’s best interests, they are important indicators of what the couple believed was in the best interests of the child and may influence a court’s ultimate decision.

Wills: A legal parent may nominate a guardian to take custody of the child upon the parent’s death. These wishes are given strong preference by courts. However, if the child has another legal parent living, then that person will have priority over the nominated guardian.

Power of Attorney: A legal parent may choose to grant the non-legal parent power of attorney over the child, which allows the non-legal parent to make medical or financial decisions. Power of attorney documents should be updated regularly.

Public Accommodations | Discrimination | Massachusetts

What is a “place of public accommodation”?

A place that holds itself open to, and accepts the patronage of the general public is a place of public accommodation subject to Massachusetts non-discrimination laws (Mass. Gen. Laws, chap. 272, sec. 92A). This definition is intentionally broad and may include a motel, restaurant, rest area, highway or hospital, as just a few examples.

What does the law say about discrimination in places of public accommodation?

Such places may not discriminate, or make any distinctions, or impose any restrictions because of a person’s sexual orientation or gender identity. “[W]hoever aides or incites” such discriminatory treatment may also be penalized under the law (Mass. Gen. Laws, chap. 272, sec. 98).

Example: women, who were attacked by a used car dealer when he realized they were lesbians, stated a claim under the law and were awarded damages in a settlement.

Example: two women who kissed on a bus and were then forced off of the bus by the driver were protected by the law because the driver did not order off of the bus a heterosexual couple who were kissing were awarded damages (Rome v. Transit Express, 19 Mass. Discrim. Law Rptr. (M.D.L.R.) 159 (1997), affirmed, 22 M.D.L.R. 88 (2000)).

Example: couples who were forcibly ejected from a night club because customers were uncomfortable with their being physically affectionate were awarded damages (Stoll et al. v. State Street Stock Exchange, Inc., 18 M.D.L.R. 141 (1996)).

Does Massachusetts have an anti-discrimination law protecting LGBTQ+ individuals from discrimination in places of public accommodation?

Yes. Since 1990, Massachusetts has prohibited discrimination based on sexual orientation in public and private employment, housing, public accommodations, credit, and services (see generally Mass. Gen. Laws, chap. 151B). Other areas of the law (e.g. education and insurance) also prohibit discrimination based on sexual orientation.

Recently, these laws have been extended to protect transgender people. In 2011, Governor Deval Patrick signed a historic executive order prohibiting discrimination based on gender identity and expression in state employment (Mass. Exec. Order. No. 526 (Feb. 17, 2011), MA Executive Order 526). In 2012, Massachusetts amended its anti-discrimination laws to prohibit discrimination based on gender identity in public and private employment, housing, credit, education, and services—but not public accommodations. Finally, in 2016, Massachusetts passed the long-awaited transgender public accommodations bill, protecting transgender people from discrimination in restaurants, libraries, hotels, malls, public transportation, and beyond (Mass. Gen. Laws, chap. 272, secs. 92A, 98). For further information about the bill, see GLAD’s MA Public Accommodations Q&A, at www.glad.org/current/post/ma-public-accommodations-q-a.

Do the laws also protect people perceived to be LGBTQ+ in places of public accommodation?

Yes. Massachusetts non-discrimination law defines “sexual orientation” as “having an orientation for or being identified as having an orientation for heterosexuality, bisexuality or homosexuality” (Mass. Gen. Laws, chap. 151B, sec. 3(6)). This language has been interpreted to include discrimination based on perception. For example, if a person is fired because they are perceived to be gay, they may invoke the protection of the anti-discrimination law regardless of their actual orientation.

Similarly, the law defines “gender identity” as:

[A] person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth… (Mass. Gen. Laws, chap. 4, sec. 7(59) (emphasis added)).

What protections exist for transgender people in places of public accommodation?

In 2016, Massachusetts passed the transgender public accommodations law, making gender identity an explicitly protected class. This means that transgender people are protected against discrimination in public accommodations, and may file a complaint against any person or entity perpetuating said discrimination.

How do I file a complaint of discrimination under Massachusetts law?

You may file in person or in writing at the Massachusetts Commission Against Discrimination (MCAD). The MCAD prefers for people to file in person, unless an attorney has prepared the complaint for them. Call in advance to set up an appointment and find out what you need to bring.

Boston: (617) 994-6000, One Ashburton Place, Room 601.

Springfield: (413) 739-2145.

Worcester: (508) 799-8010.

The complaint must be under oath, state the name and address of the individual making the complaint (“the complainant’) as well as the name and address of the entity he or she is complaining against (“the respondent”). The complaint must set out the particulars of the alleged unlawful acts and (preferably) the times they occurred.

Do I need a lawyer?

No. The process is designed to allow people to represent themselves. However, GLAD strongly encourages people to find lawyers to represent them throughout the process. Not only are there many legal rules governing the MCAD process, but employers and other defendants are likely to have legal representation.

What are the deadlines for filing a complaint of discrimination?

Complaints of discrimination must be filed at the MCAD within 300 days of the last discriminatory act or acts. There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.

What happens after a complaint is filed with the MCAD?

The MCAD assigns an investigator to look into your case. The parties may engage in limited “discovery” – a legal process which allows the other side to examine the basis of your claim and allows you to examine their justifications and defenses. This is conducted through written questions (interrogatories), requests for documents, and depositions. Ultimately, if the case is not dismissed for technical reasons, a Commissioner will decide if there is probable cause to credit your allegations.

If probable cause is found in an employment, credit, services, or public accommodations case, the case will be sent for “conciliation” or settlement proceedings. If negotiations fail to produce a settlement agreeable to all parties, the case proceeds further with more discovery and possibly a trial type hearing.

Even before probable cause is determined in a housing case, the MCAD may go to court to seek an order forbidding the respondent from selling, renting, or otherwise disposing of the property at issue while the case is pending. Once probable cause is found, the respondent must be notified of its right to have its case heard in court rather than at the MCAD (33 Mass. Gen. Laws, chap. 151B, sec. 5).

If probable cause is found lacking, the case is over unless you appeal the “lack of probable cause” finding. There are special rules and
time constraints on appeals within the MCAD that must be observed strictly.

What are the legal remedies the MCAD may award for discrimination if an individual wins their case there?

The remedies for a successful complainant may include, for employment cases, hiring, reinstatement or upgrading, backpay, restoration in a labor organization, and front pay. In housing cases, remedies may include damages (expenses actually incurred because of unlawful action related to moving, storage, or obtaining alternate housing) and civil fines to be paid to the state. In public accommodations cases, the MCAD may order civil fines to be paid to the state. In all cases, the remedies may also include emotional distress damages, attorneys’ fees, cease and desist orders, and other relief that would fulfill the purposes of the anti-discrimination laws (e.g. training programs, posting of notices, allowing person to apply for credit on nondiscriminatory terms, allowing person non-discriminatory access to and use of services).

Can I also file a complaint a discrimination complaint with a federal agency?

Yes, in many cases. Federal employment non-discrimination law, called Title VII, applies to employers with at least 15 employees. Complaints must be filed within 180 days of the discriminatory act with the Equal Employment Opportunity Commission (EEOC). However, if you initially institute your complaint with MCAD and indicate that you wish to have the complaint cross-filed with the EEOC, then the time limit is extended to the earlier of 300 days or 30 days after MCAD has terminated the case (United States Code 42 sec. 2000e-5(e)(1)). (People who work for federal agencies are beyond the scope of this publication.)

Someone who brings a claim of discrimination may sometimes pursue protections under both state and federal law. This is true because there may be overlapping provisions of state and federal law. For example, Title VII forbids employment discrimination based on race, sex, age, religion, and disability (which includes HIV status), but does not expressly forbid discrimination based on “sexual orientation” or “gender identity.”

Recently, however, a growing number of courts and government agencies have taken the position that Title VII’s proscription against sex discrimination encompasses discrimination on the basis of sexual orientation or gender identity (See, e.g., United States & Dr. Rachel Tudor v. Southeastern Oklahoma State University, 2015 U.S. Dist. LEXIS 89547 (2015) (denying motion to dismiss professor’s Title VII complaint that school had subjected her to a hostile work environment based on her gender identity)). In two separate decisions in 2012 and 2016, the EEOC itself concluded that sexual orientation discrimination, gender identity discrimination, and sex discrimination are one and the same, since the latter two are based on preferences, assumptions, expectations, stereotypes, and norms associated with masculinity and femininity (See Macy v. Holder, EEOC Appeal No. 0120120821 (Apr. 20, 2012); Baldwin v. Foxx, EEOC Appeal No. 0120133080 (July 15, 2015)). Although the EEOC’s decisions are not binding on the courts, many have used similar reasoning in affirming Title VII’s applicability to discrimination based on gender identity and sexual orientation (See, e.g., Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (holding that Title VII prohibits discrimination against transgender people based on gender stereotyping); Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1160 (C.D. Cal. 2015) (holding “sexual orientation discrimination is a form of sex or gender discrimination”)).

GLAD recommends that, where there may be overlapping state and federal jurisdiction, you explore filing with MCAD first but keep in mind the possibility of pursuing a federal claim as well. If you have a sexual orientation or gender identity complaint, you should check off “sex” as well as “sexual orientation” or “gender identity” as the bases for your claim and request that MCAD cross-file your complaint with the EEOC.

Are there other options for filing a complaint for discrimination?

Possibly yes, depending on the facts of your particular situation.

  1. Local Agencies: Several cities and towns have their own local non-discrimination laws and agencies with which you can file a complaint in addition to filing at the MCAD. Sometimes the MCAD allows the local agency to investigate the case instead of the MCAD, which might produce advantages in time and accessibility of staff. Cambridge and Boston have the most developed local agencies, although Newton, Somerville, Worcester and Springfield also have some staff for certain kinds of complaints. Even if you file with the local agency, you must still file with the MCAD within 300 days of the last act of discrimination in order for your case to be processed at all.
  2. State or Federal Court: After filing with the MCAD or EEOC, or both, as discussed above, a person may decide to remove their discrimination case from those agencies and file the case in court. There are rules about when and how this must be done (See e.g., Mass. Gen. Laws, chap. 151B, sec. 9).

In addition, you may wish to file a court case to address other claims which cannot be appropriately handled by discrimination agencies. For example, if you are fired in violation of a contract, or fired without the progressive discipline promised in a handbook, or fired for doing something the employer doesn’t like but which the law requires, these matters are beyond the scope of what the agencies can investigate and instead the matter should be pursued in court. Similarly, if your claim involves a violation of constitutional rights—for instance, if you are a teacher or governmental employee who believes your free speech or equal protection rights were violated—then those matters must also be heard in court.

What can I do to prepare myself before filing a complaint of discrimination?

Contact GLADAnswers at www.GLADAnswers.org or by phone at 1-800-455-4523 (GLAD) any weekday to discuss options.

As a general matter, people who are still working with or residing under discriminatory conditions have to evaluate how filing a case will affect their job or housing, and if they will be able to handle those possible consequences. Of course, even if a person has been fired or evicted, they may decide it is not worth it to pursue a discrimination claim. This is an individual choice, which should be made after gathering enough information and advice to make an informed decision.

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful to bring the attorney an outline of what happened, organized by date and with an explanation of who the various players are (and how to get in touch with them).

Second Parent Adoption | Maine

Can same-sex partners together adopt a child in Maine?

Yes, as the result of an appeal that GLAD made to the Maine Law Court concerning the refusal of a Maine Probate Court to assume jurisdiction of the joint adoption petition by a lesbian couple (In re Adoption of M.A.,—- A.2d——, 2007 WL 2446019 (Me. 2007)). In August 2007, the Maine Law Court ruled that the Probate Court did have jurisdiction and that state law allows for unmarried couples to adopt. This ruling makes it clear that joint or second parent adoptions by unmarried couples are permitted under Maine law. For more specific information on the process, see GLAD’s publication, Joint Adoption Practice and Procedure in Light of Adoption of M.A.: Second Parent Adoption.

What is the difference between joint, second-parent, and single-parent adoptions?

A joint adoption is when both partners adopt a child together at the same time. A second-parent adoption is when one partner adopts the other partner’s child. A single-parent adoption is where a single individual adopts a child.

What is the advantage of doing a second parent or joint adoption?

An adoption is a court judgment that the child has two legal parents for all purposes. In addition to providing legal security, an adoption decree mirrors the actual family situation and thereby provides emotional comfort and security as well.

Without an adoption, the non-legal parent needs special permission to seek medical care for the child, or to attend school meetings. With an adoption, the adopting parent is a legal parent entitled to make decisions for the child in day-to-day and emergency matters without special authorization.

With an adoption, if one parent dies, the other parent will automatically assume custody of the child. In addition, the child would have the automatic right to inherit from the deceased parent, even if there is no will. The child could also collect social security survivor benefits based on the deceased parent’s work record.

Finally, if the couple separates, then the adoption means that both parents have the right to seek parental rights and responsibilities, and any disputes will be decided based on what is in the best interests of the child.

Do we need to do a second-parent adoption if we are married?

When a child is born into a marriage, Maine law and the law of all states presumes that both spouses are the parents of the child and both names are listed on the child’s birth certificate. However, this is only a presumption and can be challenged in court, so in the past GLAD recommended that married couples do a second parent adoption to ensure the parentage of the non-biological parent because adoption is a court judgment creating a parent-child relationship and must be respected by other states. 

Now Maine couples have a second way to protect the parentage of the non-biological partner by signing an Acknowledgement of Parentage.

If I am a parent who has signed an Acknowledgement of Parentage, do I also need to do a second parent adoption?

No. A parent who has signed an Acknowledgement of Parentage should not need to do a second parent adoption to establish parentage. An Acknowledgement of Parentage establishes legal parentage under state law, is the equivalent of a court judgment of parentage under state law and gives you all the rights and duties of a parent. Under federal law, an Acknowledgement of Parentage is the equivalent of a judicial decree of parentage and should be recognized in all states.

Since expanded access to Acknowledgements of parentage is an emerging development, some parents might feel more comfortable completing a second parent adoption in addition to or instead of an Acknowledgement of Parentage. To understand what is best for your family, individualized legal advice is recommended.

Short of joint adoption or second parent adoption, how can a family protect the interests of the child vis-à-vis his or her second parent?

There are a number of steps that can be taken, although none offer the security of a second parent adoption or marriage. Among these are:

  1. Co-parenting agreement: An agreement setting out the parents’ expectations about each other’s roles, and their plans in the event of separation, disability or death. While these agreements may not be enforceable as a contract, they are important indicators of what the couple’s intent was when they formed their family and what they believed was in the best interests of the child, and thus may be influential on a court’s assessment of who the parents are and their respective parental rights and responsibilities.
  2. Wills: The legal parent may nominate a guardian of the child upon the parent’s death. These “testamentary appointments” are given strong and respectful consideration by courts. Of course, if the child has another legal parent living, then that person would have priority over the nominated guardian (see 18-A Me. Rev. Stat. sec. 5-301 et seq).
  3. Co-guardianship: This process allows a biological or adoptive parent to name his or her partner as a co-guardian so that the partner may secure medical attention and health insurance for the child and in most other ways act with the legal authority of a parent. The Probate Court may appoint the legal parent and his or her partner as co-guardians if the legal parent consents to the appointment and the court finds the appointment to be in the best interests of the child (see 18-A Me. Rev. Stat. sec. 5-204(b). GLAD’s case, In re Guardianship of I.H., 834 A.2d 922 (Me. 2003), clarified the law in this area. See also https://www.glad.org/current/pr-detail/maine-high-court-affirms-lesbian-couples-right-to-petition-for-full-coguard/). This status is not permanent, and may be terminated by the court upon a legal petition if the guardianship is no longer in the best interests of the child. Additionally, co-guardianship status ceases to be recognized once the child reaches the age of eighteen (A Me. Rev. Stat. sec. 5-212(d).  In addition, a court can order a “de facto” guardianship even if the parents do not consent where the child has lived with another person and the parents have consistently not participated in the child’s life.  18-A Me. Rev. Stat. sec. 5-101).
  4. Power of Attorney Delegating Parent’s Rights: This document is signed by the parent and delegates to another adult all powers regarding that parent’s child, except the power to consent to the child’s adoption. It must be notarized, and it must be renewed every six months.

If same-sex parents raise a child together, but only one is the “legal” parent (because of birth or adoption), then what rights does the other parent have vis-à-vis the child?

This area of law is rapidly evolving in Maine. If the non-birth or non-adoptive parent is a “de facto parent,” then he or she is entitled to be considered for an award of full parental rights and responsibilities, which may include custody or visitation (see C.E.W. v. D.E.W., 845 A.2d 1146 (Me. 2004)). Although the Maine Law Court has not clearly defined who qualifies as a de facto parent, that Court has stated:

  1. the de facto parent must have developed a parent-child relationship with the child;
  2. the legal parent must have consented to and encouraged the development of this relationship;
  3. the de facto parent must have performed a share of the care-taking functions at least a great as the legal parent (see Stitham v. Henderson, 768 A.2d 598, 605-06 (Me. 2001) (Saufley, J., concurring) (quoting E.N.O. v. L.M.M., 711 N.E.2d 886, 891 (Mass. 1999)).

The Law Court added that a de facto parent “must surely be limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed and responsible parental role in the child’s life” (see C.E.W. v. D.E.W., 845 A.2d 1146 (Me. 2004)). This area of law needs further clarification. For example, even though the Law Court has not required this, many judges and practitioners have imported a two year term of the child and de facto parent living together.

Regardless of the status of a person’s legal rights, it is critical to remember that children form strong attachments to their parental caregivers regardless of legal labels. Separating a child from a person who has acted as his or her parent can be a devastating loss for a child. Moreover, court proceedings to establish de facto parenthood will be painful and costly, so anything people can do outside of court to make decisions together about a child’s interests is strongly encouraged. See GLAD’s publication, Protecting Families: Standards for LGBT Families.

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