Post Stonewall
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AIDS
Military
Employment
Marriage
AIDS
Can AIDS patients be denied care?
Facts of the Case
Florida court decides that tuberculosis is
considered an infection that is protected
by the law.
America with Disabilities Act (1990)
protects people disabilities from
discrimination
Insurance companies would not pay fully for
AIDS related treatments.
Question
Does the insurance companies
failure to pay fully for AIDS
related treatment violate the
ADA?
Decision
• The ADA prohibits insurance companies from
paying less for specific diseases.
• Case law is inconsistent. The Supreme Court let a
lower court’s decisions stand that allowed
insurance companies to use disease specific caps.
However, the company in question has actually
stopped this policy. As late as 2000 some
insurance companies still have disease specific
caps. (IS this still happening?)
AIDS
Can a doctor deny treatment to AIDS
patients?
Facts of the Case
Sidney Abbott goes to dental office for a cavity.
The dentist refuses treatment after Sidney
reveals that she has contracted AIDS. Doctor
suggests that she should get her treatment at
a hospital setting at her own expensive.
Question
• Does the doctor’s refusal of care based on the
fact that a patient has AIDS violate the ADA
(1990)?
FYI/Decision
• In a previous case Ennis v. National Association of Business and Education
Radio Inc (1995) the 4th Circuit Court of Appeals held
• HIV is considered an impairment from the moment you are infected.
• HIV substantially limits a major life activity of reproduction.
• Therefore, HIV and eventually AIDS would be considered a disability if it
got in the way of reproduction.
• If Sidney could prove that her AIDS limited her chances of reproduction
then she could prove that the doctor’s refusal of care violated the ADA
(1990)
• The Court in the Abbott decision found that:
• Court review of medical literature found that HIV persons imposed a
significant risk of infection of their partners when trying to conceive.
• Also found that there was a risk to a fetus of an unborn child because of
contraction of HIV.
• Therefore Abbot’s doctor violated her protection as a disabled person
under ADA (1990) when the disability threatens reproduction.
Questions Unanswered
• Are gay women who contract HIV and have no
intention of reproduction protected by ADA?
• Are gay men who contract HIV and want to
have children protected by ADA protected?
• How do you prove “intention of
reproduction”?
• What about the transgendered community?
• http://youtu.be/sCMr9jbq3Tk
Military
Can openly gay people serve in the
military?
FYI
• 1943 Military Regulations banned all gay people from
serving in the military.
• Testing to determine during WWII if you are gay was.
• This lead to something called “Blue discharge”:
dishonorable discharge for being identified as being gay
(10,000 during and immediately after WWII)
• 1957 the Crittenden Report concluded that homosexuals
posed no security risk to the United States
• The reports were buried, but leaks to Congress and the
press brought them and the Crittenden Report to the
surface in October 1989.
Facts of the Case
• In 1993 President “Don’t Ask, Don’t Tell” policy.
• The persecution of lesbian and gay military
personnel soared instead of declining as
expected.
• It was revealed in 2000 that the Naval Criminal
Investigative Service (NCIS) conducted
undercover surveillance operations in District of
Columbia gay-friendly bars and nightclubs for
conduct that carries administrative or criminal
penalties.
FYI
• Executive Order 10450-Dwight D. Eisenhower
issued Executive Order 10450 in April 1953
• (iii) Any criminal, infamous, dishonest,
immoral, or notoriously disgraceful conduct,
habitual use of intoxicants to excess, drug
addiction or sexual perversion [prohibits you
from working in the Federal government]
• Rationale: Allows FBI to investigate federal
employees to determine security risks.
Executive Order Location: http://www.fas.org/irp/offdocs/eo10450.htm
FBI Report: \\sbhs-2008-fileserve.sbschools.org\HomeDirs\Faculty\006435\Documents\EXTRACTED 2010
2011\GAY RIGHTS\100-403320 Section 1 -111[1].pdf
Question
• Ninth U.S. Circuit Court of Appeals
Holmes/Watson v. California Army National
Guard (1997)
• Is the “Don’t Ask, Don’t Tell” policy a violation
of the 14th Amendment’s protection of equal
treatment under the law?
Decision
• Ninth U.S. Circuit Court of Appeals Holmes/Watson v.
California Army National Guard (1997)
• “Don’t Ask, Don’t Tell” policy was not discriminatory
because it treated homosexuals and heterosexuals equally
since neither are allowed to say they are gay and are
required to prove that they have not, or will not, engaged
in homosexual conduct. This ruling was utterly confusing
and shows to what extent courts are willing to go to avoid
resolving conflicts over military policy. Until some president
or Congress takes action to make the military safe for
lesbians and gay men by following the lead set by President
Harry Truman in racially desegregating the military, more
witch hunts, prosecutions, lawsuits, and conflicting court
rulings involving gays can be expected.
Employment
Are gay men and women protected
from workplace discrimination?
FYI
Private: Unless forbidden by state or local law
employers can discriminate based on sexual
orientation.
FYI
Public Employment:
Federal:
• Executive Order 10450-Dwight D. Eisenhower issued in
April 1953
• (iii) Any criminal, infamous, dishonest, immoral, or
notoriously disgraceful conduct, habitual use of intoxicants
to excess, drug addiction or sexual perversion [prohibits
you from working in the Federal government]
• Rationale: Allows FBI to investigate federal employees to
determine security risks.
Facts of the Case
• Norton v. Macy (1969)
• Clifford Norton was employed by NASA. He was
arrested by officers of the DC Police
Department’s morals squad in Lafayette Square
(directly across from the White House) for a
traffic violation after they saw him attempt to
make the acquaintance of another man by asking
the man up to his place for a drink. He was fired
from his job for “immoral, indecent and
disgraceful conduct.”
Question
• Can a public employees fire you for being
gay?
Decision
• He sued and the court agreed that the
government failed to show a specific
connection between the employee’s
potentially embarrassing conduct and any
reduction in the efficiency of the department
for which he worked (Norton v. Macy).
Facts of the Case
Childers v. Dallas Police Department (1981)
In 1981 the Dallas Police Department refused to
hire openly gay man.
Question
• Does a local government’s refusal to hire a
openly gay man violate the equal protection
clause of the Fourteenth Amendment?
Decision
• Yes, Texas federal district court upheld the
right of the Dallas Police Department to refuse
to hire an openly gay man to work in its
property room. The court believed there were
legitimate doubts that a homosexual could
develop the trust and respect of the other
personnel with whom he needed to work.
FYI
• July 2011
Facts of the Case
• Defense of Marriage Act (1996)
• The federal Defense of Marriage Act (DOMA), passed in
1996, and similar state measures attempt to define
marriage as a union between one woman and one man,
and allow states to deny recognition for same-sex
marriages that may originate in other states.
• Full faith and Credit Article IV: “Full faith and credit shall
be given in each state to the public acts, records, and
judicial proceedings of every other state. And the
Congress may by general laws prescribe the manner in
which such acts, records, and proceedings shall be
proved, and the effect thereof.”
Question
• If one state like Hawaii, Vermont, or both were
soon to allow same-sex marriage would the
other states have to recognize that marriage?
• Does DOMA (1996) which allows states to
deny recognition for same-sex marriage that
may originate in other states a violation of the
Full Faith and Credit clause?
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Benefits of marriage: Tax Benefits
Filing joint income tax returns with the IRS and state taxing authorities.
Inheriting a share of your spouse's estate.
Employment Benefits
Obtaining insurance benefits through a spouse's employer.
Taking family leave to care for your spouse during an illness.
Receiving wages, workers' compensation, and retirement plan benefits
for a deceased spouse.
• Taking bereavement leave if your spouse or one of your spouse's close
relatives dies.
• Medical Benefits
• Visiting your spouse in a hospital intensive care unit or during
restricted visiting hours in other parts of a medical facility.
• Making medical decisions for your spouse if he or she becomes
incapacitated and unable to express wishes for treatment.
• Filing for stepparent or joint adoption.
• Applying for joint foster care rights.
• Receiving equitable division of property if you divorce.
• Receiving spousal or child support, child custody, and visitation if you
divorce.
Decision
• A case challenging DOMA has not gone
through the courts yet….
Marriage
Would a ban on same-sex marriage
violate the equal protection clause of
the Fourteenth Amendment?
Facts of the Case
• Perry v. Schwarzenegger (2012)
• A Supreme Court Decision
• On May 15, 2008, the Supreme Court of
California voted 4-to-3 that a state law
banning same-sex marriage was
unconstitutional.
• California Referendum
• Opponents quickly organized, and launched
the Proposition 8 initiative campaign.
Facts of the Case
Arguments for Same-Sex Marriage
• Proposition 8 violates people’s Constitutional
rights to equal protection and due process.
Arguments Against Same-Sex Marriage
• Same-sex marriage damages traditional marriage
as an institution. They also argued that marriage
was essentially created to foster procreation that
ensured the survival of the human race.
Question
• Does Proposition 8, which bans same-sex
marriage, violate the equal protection clause
of the 14th Amendment?
Decision
• Federal Court of Appeals
• On Feb. 7, 2012. a federal appeals court panel
declared that Proposition 8 violated the
Constitution, all but ensuring that the case will
proceed to the United States Supreme Court. The
court ruled that Proposition 8 violated the 14th
Amendment of the Constitution by discriminating
against a group of people, gay men and lesbians.
• This case will likely go to the Supreme Court