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On Legal Grounds
The Williams Project Holds Its First Sexual-Orientation Law Symposium at UCLA

Frontiers Newsmagazine
March 29, 2002
By Vince Catrone

For well over 150 people, Feb. 8 was much more than just another sunny day on the UCLA campus. In a packed lecture hall, the Williams Project, the country's first think tank dedicated to studying sexual orientation and the law, sponsored an inaugural conference that brought together experts in litigation, scholarship and legislation. These experts and others took part in a number of panels, some organized in a question-and-answer format, that allowed for the participation of UCLA students, faculty and interested community members.

USC Law Professor Erwin Chemerinsky, a nationally recognized scholar who opened the symposium, used a little humor to highlight the state of sexual-orientation law in the country today. "I decided to title my brief remarks 'It Could Be Worse,'" he said to laughter from the audience. In his legal roundup of some of the most notable, and infamous, decisions made by the U.S. Supreme Court, Chemerinsky pointed out a simple fact that explains why legal change has been so slow.

"The majority of justices on the Supreme Court simply don't get it," he said. "It is largely comprised of very conservative individuals in their 60s and 70s." Although there have been some small victories, Chemerinsky points to the decision allowing the Boy Scouts of America to discriminate as an example of the current Supreme Court's limitations. "If the Boy Scouts were excluding African-Americans rather than gays, does anybody believe the decision would have come out the same way?"

The place for progress, he argued, is not on the federal stage, but at the state and local level. "The battle has to be fought in all 50 states," he said.

Martha Matthews, a staff attorney for the American Civil Liberties Union of Southern California, spoke about her struggle in fighting for the rights of LGBT youths. One particular interest for Matthews has been the issue of LGBT youths in state custody.

Even getting information on the subject was a daunting task, she said. "Interestingly enough, Lambda Legal Defense did a survey of 15 state foster care systems, called up the state child health care facilitator on the phone and said, "What special programs and services and policies do you have in place to ensure that LGBT youth are safe and well cared for?" Some of those states responded, "What?" The first step is to be aware there are LGBT youths in the state system."

Jon Davidson, senior legal counsel for the Lambda Legal Defense and Education Fund, opened his remarks to the symposium by taking a different view from Chemerinsky's. With a short profile on the recent developments in sodomy laws, employment nondiscrimination and gay marriage, Davidson argued that progress is taking place for the LGBT community at an impressive rate, especially considering how long it took women and people of color to get more equitable parity from the system. "Fifteen years ago, only one state, Wisconsin, had a law to protect from sexual-orientation employment discrimination" he said. "Today, there are 12 states with express sexual-orientation employment anti-discrimination statutes. In just a short period of time, we are going from one state to almost a quarter of the states having some kind of statute.

Davidson also noted that the number of states protecting health rights and recognizing domestic-partner benefits has increased substantially, while in the private sector the number of companies extending benefits to their gay employees' partners has been increasing exponentially.

Kate Kendell, the executive director for the National Center for Lesbian Rights, looked into adoption and the legal issues surrounding LGBT parents and their children. "I'm reminded that It is still an issue that generates a tremendous amount of heat," she said, referring to the attention given to the American Academy of Pediatrics' recent statement that gay parents should not be prevented from adopting just because of their sexual orientation. "Given the response," Kendell mused, "it was either an incredibly slow news day or it is still a controversial issue."

Although cases involving recently out gay parents who find they are being challenged for custody by their straight ex-partners is waning, the number of "intercommunity disputes," as Kendell described them, is on the upswing. When a gay couple splits and they do not have a second-parent adoption, visitation can become incredibly difficult to negotiate. "These cases are dangerous, damaging and heartbreaking," she warned.

The legislation update got more interesting when questions from the audience were taken. A UCLA philosophy student seemed to flummox Davidson, Matthews and Kendell when he asked what their respective groups were doing for people of color and how many of their clients were minorities. "The number [of people of color represented by NCLR] is very, very low," Kendell admitted. "An overwhelming majority are working-class, but I think all of the organizations need to find ways to access and be more accessible to people of color." Davidson pointed out that Lambda has a Latino Outreach Project and is translating much of its material into Spanish. "But there is still al long, long way to go," he said. "The issue is, who feels an issue of entitlement? It is much more likely those who have been privileged."

Another audience member, Agustin Paculdar, the deputy director of civil-rights policy for the L.A. Gay & Lesbian Center, added to the discussion by noting that some of the most high-profile LGBT issues in Los Angeles that all these groups are focusing on—lewd conduct, school issues—disproportionately affect people of color. "Forty-one percent of the men arrested [for lewd conduct] were Latino men," he said.

During a panel on legislative issues, Chai Feldblum, the director of the Federal Legislation Clinic at Georgetown University, explained that, as the author of both the Americans With Disabilities Act and the Employment Non-Discrimination Act (ENDA), "I often say I have laws instead of kids." The difference between the two acts, however, is that ENDA failed to pass the Senate by one heartbreaking vote in 1996, after a one-for-one deal between Republicans and Democrats to bring the Defense of Marriage Act (DOMA) and ENDA to the floor of the Senate (DOMA passed by a wide margin).

For Feldblum, losing in the Senate brought about a number of positive outcomes. "ENDA absolutely energized the transgendered community in a very positive way," she said. "It was a clear statement of exclusion of gender identity from ENDA. It created a lot of education within the gay community such that today you can hear easily tripping off people's tongues 'GLBT,' but it's not so clear what the 'T' translates to in substantive action." Even more important, she argued, is that ENDA became a template for state and local laws. Now, in 2002, the LGBT community has a chance to look back at the compromises that were made to get ENDA first moving in the early '90s and see if it can be updated to reflect the realities of today's climate.

Although many of the symposium participants stressed that there was still much to be done, and that the next set of steps toward legal parity for the LGBT community is most likely going to be incremental, there is still room for hope. "Ultimately our cause has to be about justice and pragmatism, and I call myself a pragmatist with a passion," Feldblum said. "So let's get as much justice as possible within the realities of pragmatism."

See Slideshow 1 of Sexual Orientation Law 2002.

See Slideshow 2 of Sexual Orientation Law 2002.