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Fair Housing Act Protects LGBT Couples

The Fair Housing Act, passed as part of the Civil Rights Act of 1968, protects renters and home buyers from a variety of discrimination based on everything from sex, race, and national origin to religion, marriage status, and pregnancy. But until Wednesday of this week, no court had extended those protections to include lesbian, gay, or transgender people. That all changed when a federal court in Denver ruled that sex discrimination under the Fair Housing Act includes discrimination based on gender and sexual orientation, including discrimination motivated by outdated stereotypes about how men and women should act and with whom they should romantically partner. Judicial Protection Rachel Smith, a transgender woman, and her wife Tonya Smith attempted to rent a townhouse for themselves and their two children in Boulder, Colorado, but were denied, according to their lawsuit, because the landlord did not approve of their "unique relationship." In a ruling their lawyer believes is the first of its kind, the court found that LGBT renters are protected from such discrimination under federal law. "This is the first case under the Fair Housing Act dealing with gender identity where there's been liability found for discrimination based on stereotypes," Omar Gonzalez-Pagan told the Washington Post. "It demonstrates the importance of bringing these cases. Housing discrimination is a significant unreported problem" for LGBT people. Judicial Reasoning The district court's ruling mirrored one issued a day earlier by the U.S. 7th Circuit Court of Appeals in Chicago. There, the court ruled that Title VII of the Civil Rights Act prohibits employment discrimination based on sexual orientation. Both courts found that sexual stereotyping is a form of sex discrimination, and therefore illegal under federal statutes that bar discrimination based on "sex." In doing so, the courts relied on a 1989 Supreme Court case holding that male partners and managers discriminated against a female employee when they said she needed to "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry" in order to advance. In the Smith's case, U.S. District Judge Raymond P. Moore wrote, "Such stereotypical norms are no different from other stereotypes associated with women, such as the way she should dress or act (e.g., that a woman should not be overly aggressive, or should not act macho), and are products of sex stereotyping." Such sexual stereotyping is illegal under federal law, and therefore the landlord's refusal to rent to the Smith's based on their relationship violated the Fair Housing Act. Related Resources: Find Landlord-Tenant Lawyers Near You (FindLaw's Lawyer Directory) Can Landlords Discriminate Against Unmarried Couples? (FindLaw's Law and Daily Life) Housing Discrimination for LGBT Couples (FindLaw's Learn About the Law) Understanding Your Rights: Housing Discrimination (FindLaw's Learn About the Law)
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Federal Court: Civil Rights Act Protects Gay, Lesbian Workers From Discrimination

Title VII of the Civil Rights Act prohibits discrimination against employees based on race, color, religion, sex, or national origin. Because it was enacted in 1964, many have wondered whether gay and lesbian workers were also protected under the law. The Seventh Circuit Court of Appeals answered that question this week, ruling that Title VII protects employees from discrimination on the basis of sexual orientation. The court reasoned that the statute's ban on sex discrimination also prohibited sexual orientation discrimination because, among other reasons, the discrimination is based on outdated gender stereotypes. Here's a look: Stereotypical Discrimination The plaintiff in the case, Kimberly Hively, contends that she was passed over for full-time employment at Ivy Tech Community College because she is lesbian. Her central claim, as it pertains to Title VII, is that this discrimination was based on her sex or gender -- that, had she been a man, she would not have been discriminated against for being sexually attracted to women. And the majority found it persuasive: Viewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual ... Hively's claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man). Essentially, Hivey was still discriminated against based on her sex in that she did not conform to stereotypes about female sexual orientation. A Definitive Decision? The court's decision is groundbreaking. Until now, the majority of courts interpreting Title VII have held that it did not cover discrimination based solely on sexual orientation. While the Second Circuit found that sexual-orientation discrimination wasn't explicitly prohibited by Title VII, it recently found that gay workers who were subject to gender stereotyping still had the right bring sex discrimination claims. The Supreme Court has yet to decide the issue, but may need to soon, giving the disagreement between circuits. For now, the Seventh Circuit's ruling applies only to its own jurisdiction: Illinois, Indiana, and Wisconsin. Related Resources: Find Employment Lawyers Near You (FindLaw's Lawyer Directory) Seventh Circuit Holds That Title VII Forbids Anti-Gay Job Discrimination (The Washington Post) LGBT Worker Protections Missing in Mississippi and Most States (FindLaw's Law and Daily Life) 5 Signs of Employment Discrimination (FindLaw's Law and Daily Life)
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Georgia Judge Who Blocked Transgender Name Changes Overruled by Appeals Court

When Rebecca Elizabeth Feldhaus and Delphine Renee Baumert attempted to legally change their names -- to Rowan Elijah Feldhaus and Andrew Norman Baumert, respectively -- they were told by a Georgia judge that their choices weren't gender-neutral enough to suit his taste. "I do not approve of changing names from male to female -- male names to obvious female names, and vice versa," Columbia County Superior Court Judge J. David Roper, said in denying Feldhaus's request. "I think it is misleading to the public and think that it is dangerous in some circumstances for one -- for the public not to know whether they're dealing with a male or a female." But an appeals court has ruled that Judge Roper abused his discretion in denying the name change petitions, and ordered that the changes be granted. Names You Can Live With Both Feldhaus and Baumert were born female but identify as male. Under Georgia law, if a person follows the proper procedure to petition for a name change, "there is nothing in the law prohibiting a person from taking or assuming another name, so long as he does not assume a name for the purpose of defrauding other persons through a mistake of identity." And in rejecting Feldhaus and Baumert's petitions, he wrote that "[n]ame changes which allow a person to assume the role of a person of the opposite sex are, in effect, a type of fraud on the general public," and that "third parties should not have to contend with the quandary, predicament, and dilemma of a person who presents as a male, but who has an obviously female name, and vice versa." Roper also said that name changes that were not to more gender-neutral names "offend the sensibilities and mores of a substantial portion of the citizens of this state." When it came to Baumert's request, Roper suggested several names he said he "can live with," including Morgan, Shannon, Shaun and Jaimie, and when Baumert rejected those options, Roper denied his petition. Sound Legal Discretion In a terse opinion, the Fourth Division Court of Appeals overruled Roper's decisions, reiterating that "a trial court's conclusions about any person's 'confusion' or 'embarrassment' was 'not a valid basis for denying' a petition for a name change," and that the only basis for denying a petition for a name change was evidence that "showed that the petitioner was acting under an 'improper motive,' such as intentionally assuming another person's name for the purpose of embarrassing that person or avoiding the petitioner's own criminal past." Absent that evidence, the appeals court ruled, Roper should not have denied the name change requests. Name and gender change petitions are becoming more common in courts, even if some judges remain resistant. If you need help with a name change or a gender change petition, or if yours has been denied, contact an experienced civil rights attorney in your area. Related Resources: Find Civil Rights Lawyers Near You (FindLaw's Lawyer Directory) Oregon Residents Can Be 'Agender' as Well as 'Non-Binary' (FindLaw's Law and Daily Life) DMV Sued by Transgender Woman Over Privacy (FindLaw's Law and Daily Life) Can Parents Block Children's Gender Transitions? (FindLaw's Law and Daily Life)
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Why Voter Fraud Doesn’t Matter, but Allegations of Rigged Elections Do

A lot of accusations get tossed around come election time, and this year has been no exception. Some are old -- accusations of voter fraud have been thrown around for at least a decade and have spawned strict state voter ID statutes. Some are new -- few candidates, if any, have claimed outright that an election is rigged and refused to say they will accept the results of an election if they lose. Both claims sound serious, striking at the heart of our democracy. But the negative effects of one of these charges have been disproven, while the consequences of the other may be right around the corner. The (Mostly) Myth of Voter Fraud The claim goes something like this: unscrupulous voters could register to vote in more than one place, vote in districts where they don't live, vote more than once, or provide false information to election officials. And as Justin Levitt noted in the Washington Times, this can be a real concern: "This sort of misdirection is pretty common, actually. Election fraud happens ... Or vote buying. Or coercion. Or fake registration forms. Or voting from the wrong address. Or ballot box stuffing by officials in on the scam." And then there's pretending to be someone else at the polls, which Levitt describes as a "clunky way to steal an election." Levitt began tracking allegations of voter fraud, and looked at "general, primary, special, and municipal elections from 2000 through 2014," a data set containing at least 1 billion ballots. And in all, found just 31 specific, credible allegations of voter fraud at the polls. To put that number in context, all 31 of those votes would not have been enough to swing the state of Florida for Al Gore in the 2000 election. As Senator Cory Booker, D-N.J., put it, "You're more likely to get struck by lightning in Texas than to find any kind of voter fraud." The Very Real Voter ID Law Response In response to allegations of voter fraud -- or for more sinister reasons that courts have touched on below -- some states began passing voter ID laws requiring voters to present some form of identification at the polls in order to cast a ballot. Voter ID laws can vary from state to state, from strict photo ID requirements in some states to no ID requirement at all in others. In general, courts have upheld these requirements. In 2008, the Supreme Court looked at Indiana's ID law that required a person to present a U.S. or Indiana ID in order to cast a ballot. (Voters without a photo ID could cast a provisional ballot, and had to visit a designated government office within 10 days with a photo ID or a signed statement saying they cannot afford one in order to have their votes counted.) The Court found the law constitutional, even though the state failed to produce any evidence of the kind of fraud the law was passed to prohibit. But some courts have started to push back on overly restrictive ID laws. The federal Fourth Circuit Court of Appeals recently struck down North Carolina's voter identification requirement, but for reasons that may be unique to the state. Along with requiring photo ID in order to vote, the North Carolina law also abolished same-day voter registration and ended preregistration. But it wasn't just the text of the law that the court had a problem with -- it was the context: ... the General Assembly enacted [the laws] in the immediate aftermath of unprecedented African American voter participation in a state with a troubled racial history and racially polarized voting. The district court clearly erred in ignoring or dismissing this historical background evidence, all of which supports a finding of discriminatory intent. Because the law was passed with discriminatory intent, the court ruled it invalid. Given the near absence of any in-person voter fraud, it's fair to wonder whether these voter ID laws accomplish the goal of preventing fraud, and, if not, what they actually do prevent. Critics of the laws point to a disparate impact on minority and senior voters -- those less likely to have an ID -- and many believe voter ID laws were passed with that purpose in mind. The Fourth Circuit felt the same in its opinion on North Carolina's ID law: "Before enacting that law, the legislature requested data on the use, by race, of a number of voting practices" the court noted. The state's General Assembly then acted on that data in multiple ways, "all of which disproportionately affected African Americans." The Dangerous Allegation of Election Rigging Since August, Donald Trump has been suggesting that the "election is going to be rigged." And the type of fraud he's alleging -- "People are going to walk in and they're going to vote 10 times, maybe, who knows?" -- is exactly the kind that voter ID laws are intended to stop and the kind that happens just 31 times in fourteen years. But the fact that an election can't be rigged or could not effectively be swayed in the way Trump imagines doesn't make his claims any less serious. The legitimacy of any representative democracy is the belief that the government officials selected to represent the people were chosen fairly, and that their presence in government is the will of their constituency. To suggest a rigged election, or a corrupt election process, is to undermine that legitimacy. Absent the legitimacy of elected officials, the laws they enact and represent also lose their legitimacy. And, according to recent psychological studies, the perceived legitimacy of law effects whether people follow it or not: ... people who respond to the moral appropriateness of different laws may (for example) use drugs or engage in illegal sexual practices, feeling that these crimes are not immoral, but at the same time will refrain from stealing. Similarly, if they regard legal authorities as more legitimate, they are less likely to break any laws, for they will believe that they ought to follow all of them, regardless of the potential for punishment. Delegitimizing the election's process and results can have dangerous consequences, both during and after the election. ...
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States Sue Johnson & Johnson for Pelvic Mesh Dangers

Health care giant Johnson and Johnson was sued this week by the attorneys general of California and Washington for misrepresenting the risks of vaginal mesh implants, causing severe complications for thousands of women. The company responded by calling the lawsuits unjustified. But the devices were recently reclassified as high-risk by the Food and Drug Administration and there are already product liability lawsuits against the company for injury from them. Let’s consider the claims. Why This Device? Pelvic organ prolapse describes a condition of shifting organs on the pelvic floor. It can happen to women after childbirth, a hysterectomy or menopause, and the vaginal mesh devices are used to treat the condition. The mesh is also used to treat stress urinary incontinence (SUI) as described ably by an appellate court in a product liability case last year: SUI is the involuntary loss of urine when the bladder is put under stress such as from sneezing, coughing, laughing, or exercising. Using a … curved needle, a surgeon pulls the [mesh] tape through incisions in the anterior wall of a woman’s vagina … form[ing] a hammock underneath the urethra to help prevent the leakage of urine. After reports of thousands of injuries from this insertion, however, the FDA now considers these devices dangerous and is scrutinizing them more closely. Meanwhile, the states are closing in on Johnson and Johnson. The Lawsuits California and Washington sued on behalf of thousands of women who they say were injured by the Johnson and Johnson devices, seeking penalties and an end to advertising of the vaginal mesh. The states were part of a national investigation, led by the California attorney general. According to the lawsuit filed in California, Johnson and Johnson and its Ethicon unit falsely marketed the devices as a safe and superior alternative to non-mesh treatments for pelvic floor disorders, despite knowing that they could cause pain, bleeding, loss of sexual function and other side effects. “Johnson & Johnson put millions of women at risk of severe health problems by failing to provide critical information to doctors and patients about its surgical mesh products,” California Attorney General Kamala Harris said in a statement. Injured? If you have been injured by a vaginal mesh, or due to any other defective product, talk to a lawyer. Many attorneys consult for free or a minimal fee and will be happy to hear your story. Related Resources: Injured by a pelvic mesh or defective device? Get your claim reviewed for free. (Consumer Injury) What Is Product Liability? (FindLaw’s Learn About the Law) Legal Basis for Liability in Product Cases (FindLaw’s Learn About the Law) Product Liability Law FAQ (FindLaw’s Learn About the Law)
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When Can You Get a Change of Venue for a Criminal Trial?

The Boston Herald reported today that the 1st U.S. Circuit Court of Appeals has given the judge in charge of accused Boston Marathon bomber Dzhokhar Tsarnaev's case until 5 p.m. tomorrow to rule on a change of venue request. This is apparently the third change of venue request Tsarnaev's attorneys have filed with Judge George A. O'Toole. The defense wants the trial conducted in a different state, claiming that Tsarnaev wouldn't be able to get a fair trial in Massachusetts. So when can a defendant move for a change of venue? Fairness and Impartiality A "venue" is the geographic location where a court proceeding is held. In Tsarnaev's case, that venue is the District of Massachusetts, a federal judicial district that encompasses the whole state. (Some states are divided into more judicial districts, depending on how populous the state is.) The Constitution affords a criminal defendant the right to a fair and impartial trial, which includes jurors who haven't already made up their minds about the defendant's guilt or innocence before ever seeing any evidence in court. If no impartial jurors -- or not very many -- can be found in the venue where the crime occurred, then the trial can be moved to a place where impartial jurors can be found. Tsarnaev's lawyers claimed that there's no way he could receive a fair trial in the same district where such a notorious crime occurred. The most recent motion for a change of venue, filed January 22, supported that claim with questionnaires completed by over 1,300 prospective jurors, 68 percent of whom already believe Tsarnaev is guilty, and 65 percent of whom claim a "connection or expressed allegiance to the people, places, and/or events at issue in the case." What Are the Rules for a Venue Change? The Federal Rules of Criminal Procedure give two reasons for moving a criminal trial to another district, including a district in another state. These are: If the defendant can't obtain a "fair and impartial" trial in the district; or For the convenience of the parties, victims, witnesses, or "in the interest of justice." When a venue change is granted because of a perceived lack of fairness and impartiality, it's often because the crime alleged was incredibly newsworthy. For example, the 2009 criminal trial against Johannes Mehserle, the Bay Area Rapid Transit police officer later convicted of involuntary manslaughter for killing Oscar Grant, an unarmed train rider, was moved from Oakland, California, to Los Angeles after a judge determined Mehserle couldn't get a fair trial in Oakland. Of course, moving a trial to a different place can be controversial. The trial of the LAPD officers accused of beating Rodney King in 1991 was moved from Los Angeles County to nearby Ventura County after a judge determined the officers couldn't get a fair trial. Ventura County, however, was predominantly white, leading to speculation that the officers wouldn't have been acquitted in a more racially mixed county. Related Resources: Browse Criminal Defense Lawyers by Location (FindLaw) Making the Case for a Change of Venue in Tsarnaev Trial (The Boston Globe) Dzhokhar Tsarnaev Criminal Complaint Filed in Federal (Not Military) Court (FindLaw's Courtside) Boston Bombing Anniversary: A Legal Update (FindLaw's Blotter)
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Women Criminal Defense Attorneys: Lori Voepel Wins Appeal for Woman Who Spent 22 Years on Death Row on Egregious Prosecutorial Misconduct

Attorney Lori Voepel, from Phoenix, Arizona, won a stunning appeal last week for Debra Jean Milke, who spent 22 years on death row for the alleged murder of her 4 year old son. The Arizona Court of Appeals ordered the dismissal of murder charges against Milke and agreed with Voepel that to conduct a retrial would amount to double jeopardy. The Court was extremely critical of the prosecutors’ failure to turn over evidence during Milke’s trial about Detective Saldate who had a long history of misconduct and lying. The case was largely built on the detective’s testimony that Milke had confessed to him in spite of the fact that it was not preserved by recording or in writing. The Court called the prosecutors’ actions “a severe stain on the Arizona justice system” and stated that the failure to turn over the evidence “calls into question the integrity of the system and was highly prejudicial to Milke.” The Huffington Post detailed the appellate twists and turns starting from the federal habeas to 9th U.S. Circuit Court of Appeals that resulted in the conviction being reversed in March of 2013. Listen here to Voepel discussing the 9th Circuit’s ruling last year. The 9th Circuit cited numerous instances of now-retired Detective Saldate committing misconduct in previous cases, lying under oath, and violating suspects’ rights. The federal appeals court went as far as asking the Justice Department to investigate whether he had committed civil rights violations. Thereafter when the prosecutors were preparing for a retrial the detective refused to testify and asserted his Fifth Amendment right, which the trial judge accepted. When the State appealed, the court’s ruling was reversed after both State and Federal authorities said they would not prosecute him. Finally, the last appeal resulted in the Arizona Court of Appeals agreeing that a retrial would amount to double jeopardy. Some news reports have indicated that the County Attorney plans to appeal to the Arizona Supreme Court. In September of last year Milke posted bond and was released from prison after spending close to 25 years in prison to await her retrial and the appeals the followed. This case is yet another example of the insidious nature of Brady violations. Here the prosecutors had evidence that went directly to the credibility of the main witness against the defendant and rather than follow the law, they chose to break the law. Thankfully in this instance Lori Voepel was able to demonstrate that Brady evidence existed but wasn’t turned over. This kind of case is a prime example as to why we, as trial attorneys, need to remain vigilant about Brady and continue to shine a bright light on the damaging effects of Brady violations. Congrats to Lori Voepel and her tireless fight for justice for her client. Bravo!
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S.D. Comic-Con’s Moving Because of Court Ruling?

A decision by the San Diego City Council not to appeal a ruling by the Fourth District Court of Appeals may spell the end of that city's annual hosting of what has become a comic book culture institution: San Diego Comic-Con. The appeals court decision earlier this month struck down the proposed levying of a special tax on hotel rooms around the San Diego Convention Center, where the yearly event is held, reports The Hollywood Reporter. The city had planned to use the money to expand for a $520 million expansion of the convention center. Why does this news mean we may be seeing the Los Angeles Comic-Con after the convention's contract with San Diego runs out in 2016? Expansion Was Key to Extending Comic-Con Contract The annual, five-day Comic-Con is estimated to bring $180 million dollars a year to San Diego, reports the San Diego Union Tribune. So when other cities began tempting the convention with their larger convention centers San Diego officials convinced Comic-Con to stay put, in large part by agreeing to an expansion of the city's aging convention center. However, in order to finance the expansion, city officials enacted a somewhat controversial plan. According to the Los Angeles Times, the plan allowed hotel owners to increase taxes on hotel rooms around the convention center without putting it to a vote by the city's voters. Special Tax Found Invalid The Fourth Appellate District Court ruled that this tax plan violated the California Constitution, which requires that no special tax will be imposed unless it is submitted to the electorate and approved by a two-thirds vote. In deciding not to appeal the ruling, the City Council now must now find another way to come up with the money needed to expand the convention center to accommodate the Comic-Con's growing footprint. In the meantime, the Comic-Con may be once again entertaining offers from other cities. Follow FindLaw for Consumers on Facebook and Twitter (@FindLawConsumer). Related Resources: San Diego Ruling Means Comic-Con Could Leave After 2016 (IGN) SLCC Punk: San Diego Tries to Muscle Rights to 'Comic Con' (FindLaw's Free Enterprise) 'Twilight' Fan Killed by Car at Comic-Con (FindLaw's Injured) San Diego Mayor Bob Filner Set to Resign: Report (FindLaw's Law and Daily Life)
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