Obama and same-sex partner visitation

So we’ve all heard about Obama’s memo mandating hospitals to allow same sex partners to visit and make decisions for each other if that is their wish. I wonder if this will make a difference– patients have already had the right to designate anyone they choose (who is of age and of sound mind) to make their decisions for them, but I know (even though I am somehow still incredulous) that these wishes are sometimes not honored for same-sex couples. And I also know that there are hospitals where partners have been refused the right to visit, even when one of them is dying. I can’t imagine refusing someone that right, but I know it happens. When I worked at HRC, in the healthcare project, one of our recommendations was to carry a copy of all your POA paperwork with you, always, for just this reason. I hope that this step generates some awareness and helps to end some injustice. I just cannot understand– what does anyone, even someone who doesn’t believe in homosexuality, gain from denying a dying person’s lover the chance to say goodbye? We are committed to caring for our patients– so let’s CARE, at least a little! Ok, off soapbox. Thanks, prez!

(see also: http://nurseandlawyer.wordpress.com/2009/04/08/more-on-marriage/)

Ping-Pong Post: Sotomayor Nomination

President Obama’s nomination of Sonia Sotomayor for the Supreme Court raises several nurse-and-lawyer issues:

1. Abortion.

Lawyer: We don’t know what she thinks. We have a little bit of evidence (upholding the Bush administration’s right to restrict federal funds to overseas agencies that perform or promote abortion, granting asylum to Chinese women (and their husbands) who would either be forced to abort or charged with a crime for allowing a pregnant woman to escape forced abortion) but neither of these rulings gives us much of a glimmer about a Roe challenge, which hinges on an implicit right to privacy as part of substantive due process.   As the Times says, objecting to forced abortion is hardly a radical stance — and it doesn’t really come down on either side of the choice debate as we know it in this country.

Nurse: Abortion is clearly a health issue, and a major one– and frequently kind of a litmus test (but we’ll get into that later). I think if a judge had NOT objected to forced abortion, it would be a huge, major red flag– whether or not we were looking Roe v. Wade in the future. I think that in the abortion issue, having another woman on the court– liberal or conservative– is a good thing. It’s hard to have a conversation about somethig which is so clearly a women’s issue without any women.

Lawyer: That’s a really good point, and one that I think is underplayed in the discussion. Gotta love the idea of a room full of men deciding things about women’s bodies. But that’s how it’s been.
2. Gun control.
Lawyer: SCOTUS ruled last year  that the FEDERAL government cannot make a law prohibiting guns to be kept in the home for self defense, and that played out in DC, which exists under federal laws — Judge Sotomayor sat on a panel that decided that a state CAN make such a law, and that’s  headed for the supreme court this summer (Maloney v. Cuomo.) She would almost surely recuse herself from this case, having already ruled on it, but there are others coming along on which she could rule.
Nurse: Violence is also a health issue– and some people don’t think so, but as a health care professional, I do. It’s good practice to ask about guns in the home when doing a health interview. I feel that law that regulate where guns can be have the potential to be really good– but like any laws, they need to be done well
Lawyer: I also think this issue is an interesting test of a judge’s judicial philosophy, as the Second Amendment, more than much of the rest of the constitution, seems a little anachronistic.  It was written to address a specific type of situation that no longer occurs, but other related situations do occur. So looking at how a judge interprets a question like this can give us a good sense of how much she wants to be living in the eighteenth century and how much she is willing to view the Constitution as a living document, a question that becomes more and more important as our society changes ever faster.
3. Gay marriage:
Lawyer: It’s already in the works. She has a history of siding with victims of discrimination — but that’s no sure bet.
Nurse: Again, in terms of health, we talked about gay marriage and the right to make healthcare decisions– this IS discrimination, no question. The law should protect people from discrimination.
Lawyer: I’m curious about where civil unions come into this discussion. Theoretically, a couple who was civilly united would have all those same visitation rights — right? I’m not condoning it — but in a way, that option being available makes the marriage fight harder to fight, because the discrrimination isn’t as blatant as it seems like it might be.
General thoughts:
Lawyer: The bigger question, from where I sit: to what degee is it right to look for a sure bet? We’re choosing a judge, not a congressman —  the President and Senate are not supposed to choose based on a stated platform. But at the same time, the President and the Senate need to make sure they choose someone who will protect our fundamental rights under the Constitution (though we differ on what those may be). It’s a fine line to walk.
Nurse: No, I don’t think we should look for a “sure bet.” We shouldn’t be picking judges on their positions on laws and issues, but rather on their process and their views on the law and the constitution, no? Healthcare is an area that needs law, and it needs it badly, so these are good questions to ask– but we need to remember in what context we’re asking them.
Lawyer: Either way, barring some revelation of a major ethical transgression, she’s almost certain to be confirmed. And I feel good about that.
Nurse: Me too.  :)

A little from column A, a little from column B


Bad news first: Prop 8 stands. No more gay marriages in California. (They’re trying to play it down as a question of semantics: civil union, yes. marriage, no.) At least until the next election when we introduce that measure that repeals prop 8 for another referendum. Existing marriages are allowed to stand. This saddens me — I believe the prohibition of gay marriage to be unconstitutional. Heading for the Supreme Court?

Which brings us to the good news: nomination of Sonia Sotomayor for the Supreme Court. I won’t repeat all the qualifications and comments about her (that’s what the New York Times and the Huffington Post are for), but I will say this: there’s been chatter about her only abortion ruling (yes, we can prohibit gifts of federal money to groups that promote/allow/offer abortion overseas).  But I think people are really asking the wrong question there. Any judge worth her salt, which this one seems to be, isn’t just going to focus on “do I believe abortion is wrong?” but rather, does the Constitution allow for this?

I don’t know enough about her to know to what extent she is willing and able to do this. She has shown someone of an inclination to side with the worker/victim/discriminee. But I don’t think we can generalize from there. And I’m not sure we should. President Obama is selecting someone to make judgments, not selecting a pre-determined slate of judgements.

And the senate republicans seem to realize that barring some major revelation, they probably can’t oppose this. Nor should they — she seems to be a well-qualified judge. And anyway, can they afford to alienate the Latino voting community any more?

The new judge — Sotomayor if confirmed, which I imagine she will be — is likely to face a Roe challenge and a gay marriage decision. Both of which are nurse and lawyer type topics. I’ll be interested to see how the confirmation hearings go — what kind of info they try to weasel out of her, and what she is and isn’t willing to say. I personally hope that she doesn’t spill too much.

Opposite marriage? Take THIS for a spin.

Nurse: All this marvelous talk about same-sex marriage has stirred up some intersting questions around marriage and gender transition. (See: NYT op-ed). (See also: The Traditional Values Coalition’s statement: “Once homosexual marriage is legalized, transgendered individuals will demand the right to marry each other. It’s already been tried in Kansas.”

Lawyer: Indeed, this question is governed entirely by state law. And different states approach it differently. (Most allow you to change your name and sex on your birth certificate — way to hold out, Idaho, Ohio and Tennessee.) But whether or not they recognize these sex reassignments for the purpose of marriage really varies.

First, a terminology clarification: I will take the approach of sex as the physical/biological charactaristic, and gender as the expression of  maleness, femaleness, or somewhere in between. I do not accept the mismatching of sex and gender as a mental illness. One can alter one’s sex to match one’s gender through various medical procedures including hormone therapy and surgery. Capice? So how does the law recognize a person’s sex? The most reliable document, it seems, is the birth certificate. If yours says M, you’re recognized as a man, if it says F, you’re a woman.  Most states allow a revised birth certificate upon the completion of sex reassignment surgery, although many trans folk don’t undergo this procedure. It’s expensive, risky, and painful. A person CAN change sex in many ways without undergoing this surgery.

States also have differing requirements for what you must do and/or prove in order to revise your birth certificate. Some laws are more specific in what they will and won’t allow than others — and it’s the ones that are vague that can be really sticky to deal with. No states specify that you can have your sex revised without sexual reassignment surgery, though some don’t spell out that you need to have had it in their laws

There are a couple of scenarios: first, a couple that was born opposite sex can marry, although they live currently as a same-sex couple, even where same-sex marriage isn’t legal. I know people who’ve done this, and although it wasn’t easy, it appears to be valid, or at least hasn’t been challenged.

The only context in which I can really see this being challenged is if the sex change is officially documented, a revised birth certificate is issued, and then there is some sort of fight over the estate. (Someone might argue that the sex change invalidates the marraige.) But you’re right — that particular scenario hasn’t yet come up.
Second, in a couple which was originally sopposite-sex, a partner undergoes transition, and the couple is now same-sex. Is the marriage valid?
Third: A man-born-man marries a transsexual (male-to-female) after the transition. Is that marriage valid?  Texas has ruled that it isn’t, in Littleton v. Prange (1999) in which a post-op Male-to-female transsexual was not allowed to inherit her (male) husband’s estate.
Questions like these are sticky because, among many other reasons, they suggest that a person misrepresent his or her identity to obtain what ought to be a legal right. This is damaging to an already marginalized population.

These two scenarios look like they ought to be legally identical. But they’ve been treated differently. (i.e. they involve two people who were born opposite genders, marry, and live, either at the time of marriage or afterwards, as the same gender.) There was a case in Kansas (In re Estate of Gardiner, 2001) that found that the court had to consider what an individual’s gender (gender, mind you, not sex) was at the time that the marriage license was issued, not simply the individual’s chromosomes at the moment of birth. That decision ultimately led to Kansas recognizing reassignment for purposes of marriage. We’ll see how much that spreads.

Gay used to mean happy. Now you can be both.

Lawyer: Disclaimer: This is only tangentially related to healthcare. But I wanted to talk about it.


Before I begin, let me explain how I was planning to tie this all to the Nurse and Lawyer mission:

1. Marriage has a direct bearing on benefits — health insurance, life insurance, tax status, etc.  — which is a big deal. Last I checked, Obama was still trying to wiggle around the question of whether or not same-sex parners of federal employees were entitled to benefits.

2. Marriage has a bearing on who is or isn’t allowed to make medical decisions, visiting rights in hospital settings, etc.

There are probably more. But now, on with it. After a tough November (thanks, Arizona, California, and Florida), three victories in a week, via three different methods!

April 3: Iowa legalizes same sex marriage when their Supreme Court strikes down a law forbidding it.

April 7: Vermont’s legislature overrides the governor’s veto of a law allowing same-sex marriage.  These two states join Connecticut, Massachusetts, and

April 7: DC City Council votes to recognize same-sex marriages performed in other jurisdictions.

Some states, like Maryland, New Jersey, and New Hampshire, offer formal recognition but stop short of marriage. I don’t like it — it’s still unequal treatment — but at least they are doing what a state should do, and giving legal rights to people in a closer-to-equitable way than most others.

The solution? States can formally recognize unions, houses of worship can perform marriages, and the two can exist together or separately.  A marriage by a priest can unite you in the eyes of God, a union in front of a judge can get you hospital visitation rights etc., and everyone has an equal right to choose his or her partner under the law. Please? Pretty please?