Matthew Shepard Act Signed Into Law

Published on October 30, 2009 by Sandra Slaga

The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009 was signed into law October 28th by President Obama. The Act extends federal hate crime law to cover attacks based on sexual orientation and is the first significant expansion of federal criminal civil rights laws in more than ten years.

Specifically, the legislation creates a new criminal code provision which makes it a violation of federal law to willfully cause bodily injury to any person, or attempting to cause bodily injury to any person through the use of fire, a firearm, or an explosive or incendiary device, “because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person,” § 249(a)(2)(A) and the conduct occurs in at least one of a series of defined “circumstances” that have a definitive connection with or effect on interstate or foreign commerce, § 249(a)(2)(B).   The Act also provides that the Attorney General may award Magrants to state, local, and tribal law enforcement agencies to help them with extraordinary expenses associated with the investigation and prosecution of hate crimes.

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LGBT Students and the Equal Access Act

Published on October 26, 2009 by Sandra Slaga

LGBT students face harassment and discrimination on a daily basis.  Students in many schools in Illinois and across the United States have established gay-straight alliances.

Gay-Straight Alliances (GSAs) are formed and led by students who see them as a group that provides a safe place to meet as well as addresses issues of discrimination, tolerance, and school safety.

The Equal Access Act, which was passed by Congress in 1984, provides that high schools that receive federal funding and allow at least one after-school club to meet and use the school’s facilities may not deny any student club the same treatment based on the content of what they want to discuss.

The Act states,

It shall be unlawful for any public secondary school which receives
Federal financial assistance and which has a limited open forum to deny
equal access or a fair opportunity to, or discriminate against, any
students who wish to conduct a meeting within that limited open forum on
the basis of the religious, political, philosophical, or other content
of the speech at such meetings.   20 U.S.C. 4071(a)

A high school has a limited open forum when “such school grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time.”  20 U.S. 4071(b).

A “noncurriculum-related club has been defined by the United States Supreme Court as a club “that does not directly relate to the body of courses offered by the school.”   Board of Educ. of Westside Community Schools v. Mergens, 496 U.S. 226, 239 (1990).  Such clubs would include a chess club and a community service club.   Examples of curriculum-related clubs include language clubs such as the German Club, Math Club or Psychology Club.

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Schools and LGBT Youth

Published on October 20, 2009 by Sandra Slaga

The school year is well underway for junior high and high school students. For LGBT youth and their families, school can be frightening, intimidating and dangerous. Several organizations support and advocate for LGBT junior and senior high school youth. While Chicago has numerous resources, it’s important to note the resources available throughout Illinois.

According to its website, the mission of the Illinois Safe Schools Alliance is “to promote safety, support and healthy development for lesbian, gay, bisexual, transgender and questioning (LGBTQ) youth, in Illinois schools and communities, through advocacy, education, youth organizing and research.” The Alliance’s website is www.illinoissafeschools.org. They also have information on the social networking site, MySpace.

In the Peoria area, the Heartland Safe Schools Initiative (HSSI) works with concerned citizens and organizations to address the safety and welfare of lesbian, gay, bisexual, transgender and questioning (LGBTQ) youth in local schools. For more information, email heartlandsafeschools@gmail.com.

The Bloomington/Normal-based Central Illinois Safe School Alliance (CISSA) is a coalition of local youth, parents, educators and others that seek to end the bullying of students in schools because of their sexual orientation or gender identity. CISSA works to “increase the awareness of administrators, faculty and staff, students, parents, and the community about the negative social, emotional, and academic consequences of anti-gay bullying and provide programs designed to prevent bullying of students based upon actual or perceived sexual orientation or gender identity.” For more information, email cissa.bn@gmail.com.

Several Illinois high schools have Gay Straight Alliances, which are student-formed groups that address issues of discrimination, tolerance, and school safety. For more information, contact the Gay Straight Alliance at www.gaystraightalliance.org.

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Gay Adoption in Illinois

Published on October 19, 2009 by Sandra Slaga

Illinois is among several states that have laws which explicitly allow same-sex couples to adopt. The Illinois Adoption Act states that “a reputable person of legal age and of either sex” may petition to adopt a child. 750 ILCS 50/2. Illinois appellate courts have interpreted the Adoption Act to permit same-sex couples or lesbian or gay individuals to adopt if it is found to be in the best interests of the child. In re Petition of K.M. To Adopt Olivia M., 274 Ill.App.3d 189, 653 N.E.2d 888 (1st Dist. 1995); In re Petition of C.M.A. To Adopt K.D.W., 306 Ill.App.3d 1061, 715 N.E.2d 674 (1st Dist. 1999).

Adoption for same-sex couples arises in one of two scenarios. A “second-parent” adoption is a legal procedure in which a co-parent adopts her or his partner’s child without terminating the partner’s parental rights. In a “co-parent” adoption, an unmarried couple jointly petition the court to adopt a child.

Second-parent and co-parent adoptions allow same-sex couples to establish a legal relationship with their children and thereby ensure that the parent-child bond that has been formed is protected.

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Does Illinois Allow Same-Sex Marriage?

Published on October 13, 2009 by Sandra Slaga

No.  As of this writing, Illinois law does not allow two people of the same sex to marry.  Even if that same-sex couple travels to and marries in a state or country that allows same-sex marriage, their marriage will not be legally recognized in Illinois.

Although the state of Illinois prohibits same-sex marriage, other governmental entities in Illinois allow individuals to register as “domestic partners.”  While this doesn’t give the couple any legal rights, it does give them the opportunity to formally recognize their relationship and provides a basis for some employers to provide employment benefits.

Cook County has a Domestic Partnership Registry, which allows same-sex couples who live or work in Chicago or the Cook County suburbs to formally record their relationships.  Some Illinois municipalities, inlcuding Urbana and Oak Park, also have domestic partnership registries.

How can same-sex couples protect each other and their families?  They have to be proactive.  They need to seek legal advice and create effective solutions that will legalize their relationship to the greatest extent possible. Some of the keys to such a plan are: financial powers of attorney, medical powers of attorney, partnership agreements, wills and trusts.   Some of these I’ve already discussed here.  I’ll discuss others in future posts.

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Marriage Bill Introduced in Illinois Senate

Published on October 1, 2009 by Sandra Slaga

A bill to legalize marriage between two adults of the same sex was introduced Thursday in the Illinois Senate by State Senator Heather Steans. This marks the first time such a bill has been up for consideration in the Senate.

SB2468, known as the Equal Marriage Act, would provide for state recognition of same-sex marriage, while ensuring that religious institutions are not required to perform any marriages that are inconsistent with their religious practices. This is a companion bill to HB178 which was introduced in the Illinois House of Representatives by Representative Greg Harris and co-sponsored by Representatives Deborah Mell, Sara Feigenholtz, Constance Howard, Harry Osterman, and John Fritchey.

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Illinois Disposition of Remains Act

Published on August 6, 2009 by Sandra Slaga

Disagreements about funeral plans or cremation can be complicated and emotionally-charged for loved ones, but especially so for same-sex couples.   If your partner knows your wishes, but your parents or other biological family members object, there will likely be a lot of unnecessary arguments and pain.

The Illinois Disposition of Remains Act 755 ILCS 65/1 et.seq., allows you to name someone to act as your agent who will have the legal authority to make decisions about what happens to your body, including funeral arrangements, cremation and disposition of ashes.   In general, if you already have a health care power of attorney, you don’t need this advance directive unless you want someone other than your health care agent to have authority to make decisions about your remains.  If you decide to use both types of advance directives, they should be coordinated so that they don’t conflict or create confusion.

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Making Medical and Financial Decisions for Your Partner

Published on by Sandra Slaga

Planning.  Most of us know we need to do it, but we put it off.  And off.

What if you were to be injured or become sick and unable to make decisions about your health care or manage your finances?  You’d probably want your partner to step in and take care of things.  Unlike married couples, same-sex couples have no legal rights or protection without clear legal documents that spell them out.

To be certain that medical and financial decisions stay in the hands of your partner, you need to prepare the right legal documents.  In Illinois these documents are known as:  a power of attorney for health care, a living will and a power of attorney for property.

Health Care and End-of-Life Issues

Often doctors and other medical providers will look to a family member as defined by state law to make medical decisions for you if you can’t do so for yourself.  Most states give that authority to a legally recognized spouse, adult children, parents and other blood relatives.  Unless you have a power of attorney for health care that appoints your partner to make these decisions, she or he has no authority to do so.  Often times, biological family members can, and do, exclude same-sex partners from decisions.   This document can give your partner other rights, including:

  • visiting you in the hospital or other facility even when other visiting is restricted;
  • hiring and firing medical personnel or moving you to a different facility;
  • making decisions about your medical care if you become incapacitated;
  • dmaking end-of-life decisions.

A living will acts as your written directions to medical personnel about whether you want death-delaying procedures used if you have a terminal condition and are unable to communicate your wishes.  This document can provide a clear statement of your wishes in the event that your biological family has different views and/or does not want your partner making decisions.

In Illinois, the Health Care Power of Attorney and the Living Will are created and authorized by statute in the Illinois Powers of Attorney for Health Care Law, 755 ILCS 45/4-1 et seq., and the Illinois Living Will Act, 755 ILCS 35/1 et seq.

Finances

The Statutory Short Form Power of Attorney for Property Law, 755 ILCS 45/3-1 et seq., allows you to name someone you trust to handle your finances and property if you are unable to do so.  If you want your partner to have access to your finances and be able to pay bills or even sell your house if necessary, you should seriously consider having a power of attorney for property.  This is especially true if your partner and you have combined your households or intermingled  your finances for a long time.

You can give your partner (or other agent) as much or as little control over your finances as you want.  Some of the issues may include:

  • using your assets to pay your bills and everyday expenses;
  • handling your checking account or other transactions with banks and financial institutions;
  • buying or selling real estate or other property;
  • operating your small business.

Powers of attorney for health care and for property can be made effective immediately, or you can specify that they go into effect only if you become incapacitated or on a certain date (a “springing” power of attorney.)  This is a very personal decision.  Making the document effective immediately has its benefits for couples in long-term, trusting relationships.  A document that is effective immediately means that your partner can handle your affairs for you at any time, such as if you’re out of town or just not feeling well.

Planning.  No one can do it for you.  Failing to plan could have lasting effects on your future and that of your loved ones.  Think about it.  Talk about it with your loved ones.  Make the time to create the legal documents that will ensure that you control who makes health care and financial decisions for you when you can’t.

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Make Sure Your Loved Ones Inherit Your Property

Published on by Sandra Slaga

A will is a legal document that allows you to control who will receive your property when you die, and how and when they’ll receive it.  It also allows you to name someone to carry out the instructions in your will, and allows you to nominate a guardian for your minor children.

If you die without a will, the state of Illinois makes these decisions for you.  Property that you own in your own name will go to your legal heirs.  Who are they?  Usually these people are your spouse, your children, or, if you have neither, then your other closest relatives.

Same-sex partners are not considered to be legal heirs or relatives, and so are not legally entitled to inherit each other’s property without a will.  No matter how long you’ve been with your partner, no matter what your relationship is with your relatives, if you die without a will, your partner will not inherit your property.

A will allows you to make sure that your partner inherits your property when you die.

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Legal Strangers

Published on by Sandra Slaga

A marriage license is a powerful thing.  It automatically gives each marriage partner and their children specific legal protections and benefits.

The U.S. General Accounting Office has identified at least 1,138 federal benefits, rights and privileges that are available only to couples with traditional marriages.  In addition, the laws of most states give certain rights and privileges only to married couples.

The law makes legal strangers out of same-sex couples.  As a result, it’s critical for same-sex couples and all lesbian/gay/transgender individuals to create specific plans that protect their rights and care for their families and loved ones.

In future posts, I’ll be discussing how Illinois residents can do just that.

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