EQUAL PROTECTION OF THE LAW FOR SEXUAL MINORITIES

By David Grossack, Esq. and David Friedman, Esq.

The right to have a sexual orientation that differs from what is professed and presumably practiced by the people who make up the mainstream culture has been expressed in the writings and works of America’s founding fathers’, most notably James Madison, whose contribution to the Bill of Rights included the Ninth Amendment.

The Ninth Amendment is widely interpreted to support the proposition that people have certain natural rights, such as the right to travel and the right to marital privacy, that are not specifically mentioned in the Bill of Rights.

Although gay, lesbian, and bisexual people certainly did not enjoy legal protections in the days of the founding fathers, the revolutionaries and statesmen who brought us the Constitution gave us a document that has survived, and the principles behind it are today widely interpreted to let individuals decide for themselves how they wish to live the sexual part of their lives.

In 2003, the United States Supreme Court struck down a law in Texas that outlawed sodomy, i.e. “unnatural” sexual acts, between consenting adults.

Justice Sandra day O’Connor expressed the opinion that the law was unconstitutional because the gay community was its apparent target, and that violated the principle of equal protection of the law.

Other justices believed that the law violated the right to personal liberty guaranteed by the Due Process clause , though a minority of three justices (Rehnquist, Scalia and Thomas) dissented.

That it took the legal system over two hundred years to reach the understanding that people with different sexual orientations deserve to be free from such laws is disturbing. Although the law has evolved slowly, our society has reached the point where sexual minorities can seek redress for discriminatory behavior in the workplace and other abuses, such as hate crimes, and now have the right to marry in some states.

Massachusetts has several laws and regulations in place to protect gay, lesbian, bisexual and trangendered persons from discrimination in the workplace.

Chapter 151B of the Massachusetts General Laws is the anti-discrimination statute for the Commonwealth of Massachusetts. The statute provides protection against discrimination on the basis of race, color, religious creed, national origin, ancestry, sex or sexual orientation. This protection prohibits an employer from treating a person differently based upon that person’s actual or perceived sexual orientation. Massachusetts defines sexual orientation as “heterosexuality, homosexuality, or bisexuality.” Other sexual orientations are not specifically included, and may or may not receive protection under this law.

The protection offered by Chapter 151B has some general limitations. Small businesses with five or less employees and non-profit social organizations are exempt from these rules. Religious organizations, including any charities or educational organizations run by religious organizations, are also exempted from Chapter 151B restrictons to avoid government interference with their religious practices. Finally, Chapter 151B’s protection is limited to discriminatory actions in the workplace. An employer may take other actions that have disproportionate effects on LGBT individuals, including the provision of employee benefits. The most common application of this is an employer’s decision to provide health insurance for spouses in heterosexual but not homosexual relationships. While clearly discriminatory against LGBT individuals, such business decisions are explicitly exempt from Chapter 151B protection.

Massachusetts Law on Gender Identity and Expression

Massachusetts does not provide protection for gender identity and expression at this time. Legislation seeking to protect an employee from employment discrimination or retaliation based upon their gender identity and expression has been brought before the Massachusetts legislature, but has yet to receive sufficient support. States that have passed legislation protecting gender identity and expression as of June 2009 include California, Colorado, Iowa, Illinois, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington, and the District of Columbia has passed similar legislation.

While there are currently no laws protecting all Massachusetts citizens from employment discrimination on the basis of their gender identity or expression, some legal protection is available. The Massachusetts Commission Against Discrimination, the Commonwealth’s human rights commission, and some Massachusetts courts have allowed employees to bring gender identity discrimination claims against employers as claims for discrimination on the basis of sex or disability.

In addition to Massachusetts law, local ordinances protect employees in certain parts of the Commonwealth from discrimination based on sexual orientation and gender identity and expression. The municipalities of Amherst, Boston, Cambridge, and Northampton have non-discrimination ordinances in place

Other Massachusetts Regulations

Massachusetts has several general regulations to protect Massachusetts citizens from employment discrimination. Executive Order No. 340 allows Commonwealth employees to register their domestic partners for certain employment benefits. A more recent order, Executive Order No. 478, requires all programs, activities, and services provided by the Commonwealth to be conducted without unlawful discrimination, and makes the Office of Diversity and Equal Opportunity responsible for overseeing compliance.

Federal Law

Currently, there are no federal laws specifically protecting United States citizens from employment discrimination based upon sexual orientation or gender identity and expression. Even so, employment discrimination claims based upon sexual orientation or gender identity and expression can and have been made using existing laws. The most prominent anti-employment discrimination law is Title VII of the Civil Rights Act of 1964. Title VII prohibits employment discrimination on the basis of race, color, religion, sex (including pregnancy), or national origin. Subsequent laws have also added protection against discrimination on the basis of age, disability, or genetic information. Laws specifically protecting employees from discrimination on the basis of sexual orientation, gender identity and expression remain under consideration by Congress. The federal government created the U.S. Equal Employment Opportunity Commission (“EEOC”) to interpret and enforce these laws.

Federal employees receive some protection from employment discrimination or retaliation based upon their sexual orientation. In 1998, President Bill Clinton signed an executive order prohibiting discrimination based on sexual orientation in the federal civilian workforce. Other government employees may claim protection from discriminatory practices by the federal and state government under the due process clause of the United States Constitution. The U.S. Constitution limits the power of federal and state governments to deprive people of “life, liberty, or property” without due process of the law”, and requires that each person be treated equally by state and federal governments. When applied to employment, this prevents the federal or state governments from discriminating in their employment practices against former, current, or potential employees based upon their perceived or actual membership in a protected group, as discussed above. It is important to note that the United States Constitution only applies to federal and state employees, and does not directly apply to employees in the private sector.

While federal laws do not provide specific protection against private sector employment discrimination based upon sexual orientation or gender identity and expression, victims of LGBT-related employment discrimination have successfully used federal laws to oppose discriminatory practices. Specifically, LGBT individuals have successfully used Title VII of the Civil Rights Act of 1964 to sue employers for sexual orientation and gender identity and expression discrimination by using claims of sexual harassment and creation of a hostile work environment.

The Law offices of David Grossack offer professional and confidential assistance to people concerned about employment discrimination or relation in their workplaces based on sexual orientation or other circumstances

Attorney Grossack is an outspoken supporter of LGBT rights in Massachusetts and has been a strong supporter of marriage equality.

List of Resources and Other References

More about the Federal and State laws and organizations influencing employment discrimination and retaliation may be found through the sources below:

General Laws of Massachusetts, Chapter 151B: Unlawful discrimination because of race, color, religious creed, national origin, ancestry or sex.
http://www.mass.gov/legis/laws/mgl/gl-151b-toc.htm

Massachusetts Commission Against Discrimination (MCAD): http://www.mass.gov/mcad/

U.S. Equal Employment Opportunity Commission: http://www.eeoc.gov

One man dared to challenge a judge; another took on his arresting officer, and, much worse, his ex wife. Both had success in the courtroom. What is more amazing is that these ordinary people with no legal training handled these lawsuits by themselves, which is known as pro se (Latin for ‘oneself’) representation. Few people are aware of how successful pro se litigants can be, and fewer still know how to go about trying it. For people who lack the finances to hire a lawyer, or for people who have had bad experiences with relying on lawyers in the past, pro se representation can be the solution – and one organization is out to encourage and help these struggling litigants.

The Citizens’ Justice Institute, founded in 1993 by Grossack, started out as a series of newsletters. It eventually expanded to include many published materials to aid pro se litigants, as well as occasional seminars designed to reach out to people and educate them on pro se concepts. Now, it is most easily accessed through its website citizensjustice.com, which proclaims, “Without Justice, There’s Just Us.” This motto is the driving sentiment behind Grossack’s pro se movement, as well the people who feel like they have been victimized by a legal system in which those trusted with defending them are dependent on the very system that is trying to convict them, and who are ready to take matters into their own hands.

Barry Weinstein first met Grossack in the late 1990’s after dealing with legal problems, and says that Grossack’s “reputation preceded him.” Grossack had been named “Lawyer of the Year” by Massachusetts Lawyers Weekly, as well as one of the state’s ten best lawyers by the Boston Herald, after suing the Massachusetts Family Court system for abuse of male litigants. He was unsuccessful, but the case attracted worldwide attention, and it hit home for Weinstein, sparking his interest in learning more about pro se litigation from Grossack.

Weinstein had been falsely jailed for 19 months for kidnapping after his ex wife refused to support his visitation rights and moved to a different state with their children. He had initially approached the police in that town to enforce his rights, but they said they could not get involved with such custody related issues. However, after he picked up his son on a day he had visitation, a warrant was issued for his arrest. He had previously hired an attorney from what he describes as a “big law firm, one of the best,” but he says that in his experience, the family courts are so biased against men that attorneys who claim to be able to get a favorable ruling “commit fraud.”

His sense of being wronged deepened when his prosecutor, Nicholas Bissell, was caught abusing his power in order to intimidate people into giving up property, among other crimes. Bissell later committed suicide, and the ordeal was a headline making scandal in New Jersey, where Weinstein’s case took place. As a result, Weinstein’s conviction was successfully appealed after it was determined he did not have a fair trial. It is no wonder Weinstein lost faith in the ability of the legal system to return fair and just results. After meeting Grossack, who he says he immediately “felt comfortable with,” he bought How to Win a Lawsuit Without a Lawyer, the most popular publication of the Citizens’ Justice Institute. Written by Grossack himself, it is a manual for pro se litigants that can be purchased from citizensjustice.com and is used by many of Grossack’s clients in their pro se proceedings.

Weinstein was ultimately satisfied with the education he received through the Citizens’ Justice Institute, as well as his ability to apply what he learned to his actual legal matters. He found the materials to be “very helpful” and “straightforward” and succeeded in having a judgment reversed twice. Feeling as though he was finally being given a fair shot at prevailing in the justice system, Weinstein appreciated the fact that he “was always able to give David a call” when he had questions. This personal connection Grossack has with the people he works with is one of the reasons so many people feel like the Citizens’ Justice Institute is capable of helping them in ways traditional legal methods cannot.

James Nollet, another person who learned how to litigate pro se from Grossack, expressed enthusiasm for the Citizens’ Justice Institute, and reaffirmed the closeness and appreciation many of the organization’s participants feel towards Grossack. He agrees to discuss the organization “Firstly, as a favor to Attorney Grossack, who's always been most kind and generous to me. And secondly, because I am a firm and great believer in the prospects of pro se litigation.” When asked why he feels this way, Nollet cites the reason many people choose pro se litigation: financial hardship. “As you know…people …have no savings to tide them over in the event of catastrophe. A legal catastrophe can be every bit as devastating as a burnt out home, a major illness, a major accident, or something of that nature.” With attorney fees often hundreds of dollars per hour, it is easy to see why many people cannot afford them.

He recounts his own experiences with the legal system that led to him to become interested in pro se litigation: “Let me tell you about the zoo that is Middlesex Probate and Family Court…on any given day, there can be literally dozens if not hundreds of other litigants, all of whom are there for what ought to be relatively minor legal procedures. So you're there with your attorney, for hours and hours. He or she is doing nothing but sitting around but you, his client, are paying him at billable hourly rates, of something like one hundred to two hundred dollars per hour or more.” Nollet continues by saying that the court system “was not in the business of administering justice. It was in the business of administering process, of going through the motions.”

A significant advantage to pro se litigation, according to Nollet, is that because the litigant does not have to pay attorney’s fees, he or she is able to continue complex cases that people are typically forced to settle quickly, and often in a way that it is not in their best interest, to avoid a costly process. He says the average litigant is forced “to slough along and eventually throw in the towel, since the State will continue our cases until Doomsday.” However, he continues, a pro se litigant up against someone with a typical lawyer “can quickly drain the wallets of their adversaries and force them to either compromise or give up.” It is a rough tactic, but if it results in victory, it is something to be paid attention to by people facing legal issues.

Nollet says he believes everyone should have an understanding of the legal system, because so many people face at least one minor legal issue at some point in their lives. “I wish all high schools would teach the equivalent of Law 101. It is the task of public schools to teach all citizens how to function…and it is clear to me that someone needs legal skills…as much as he needs to know how to read and count.” While he acknowledges that “while most of us do not commit crimes and are not the focus of criminal accusations [or] major civil litigations,” the reality is that for millions of Americans, unexpected legal disputes arise, often domestic, and according to Nollet, sometimes “the only way left is for ordinary human beings to take the law into their own hands legally, of course.”

This outlook exemplifies why Nollet connected on a personal level with Grossack, who believes strongly in using legal methods to fight for justice in any way possible. Grossack speaks of using “radical activism…picketing, demonstrations, sit ins, organizing public communications, and in general the kind of conduct that transforms society, produces changes, and puts the wrongdoers on the defensive.” The self described “revolutionary” hopes his Institute will create changes in the legal system to ensure people like Nollet have a fair shot as pro se litigants and are not victimized. He agrees that the law should not be a mystery to the average citizen, as evidenced by the fact that he told The Boston Business Journal in 1999, “My profession doesn’t have to be a magical priesthood holding occult knowledge …let’s share it with the public.” Both believe that there is no reason to view pro se litigants as people making an uninformed and potentially disastrous choice in foregoing a lawyer, as long as they are given the proper legal education.

Nollet jokes, “They say, ‘a person who represents himself has a fool for a client’ Well, a person who relies on a public defender is relying on a professional fool." This striking statement exemplifies how “passionate” Nollet is about promoting pro se litigation. It “found him” when he faced what he says were false accusations of abuse by his now ex wife, resulting in restraining orders and other legal problems. He later filed pro se for false arrest in relation to an alleged violation of a restraining order, and he received a $5,000 settlement.

Nollet summarizes his experiences by saying, “I was just living a normal life, and suddenly found that I had extraordinary legal needs that I couldn't possibly pay any attorney to do for me, so I was forced to learn how and do it myself.” The pressures and frustrations that led him to take matters into his own hands are what motivate many people to seek out the Citizens’ Justice Institute. It is easy to see why people who are driven to pro se litigation due to the “despair that any amount of professional representation could give me a fair, even shake in court,” as Nollet describes it, find solace in Grossack’s activism and desire to educate and empower them.

Another of Grossack’s associates, who wishes to remain anonymous, cautions that pro se litigation, while sometimes the only viable financial option, is not always the answer if someone is able to hire a competent attorney. His main concern is that the justice system is biased against pro se litigants and that it can be too much to take on as one person. “Going pro se is going against the grain. If you can win a case pro se, then a lawyer’s out of business. Therefore, there’s a lot of prejudice against pro se litigants…You’re threatening the establishment.” However, he has a great deal of respect for Grossack’s unusual and at times controversial endeavors to encourage pro se litigants through the Institute. He says, “David is an exception because he believes justice can’t be done if only the wealthy can afford it – something must be done through outside channels. It’s commendable – more lawyers should get involved.”

People other than lawyers and pro se litigants are getting involved as well, hoping to achieve fairness and justice in the U.S. legal system. Tim McKyer, a former NFL star, wrote to Grossack about feeling abused by the court system after facing various legal issues. He writes, “I’m totally committed with Mr. Grossack…who [is] a true American hero who dare[s] to challenge the status quo and help defend the defenseless.” His letter makes clear his admiration for Grossack’s work helping people struggling in the court system to defend themselves.

And Grossack shows no signs of stopping, proclaiming, “I want to continue the important work of the Institute…I want to train victims of the Bar, Big Government, and the Courts in legal methods of fighting back.” Grossack is very public with his desire to help those he refers to as “victims of legal abuse,” detailing his beliefs in his numerous writings, some available for free online and others orderable from citizensjustice.com. And his efforts are appreciated, as he has a binder full of grateful emails and letters from people who support and trust his methods and ideas.

One letter states, “I am exposing corrupt people in the judicial system, and I expect to get out of being wrongfully imprisoned and to have my parental rights reinstated …if you did not help me, I would not have made it to this point.” Grossack received passionate email responses to an article he wrote for newswithviews.com, detailing his belief in the importance of “Awareness Training for Victims of Legal and Government Abuse,” with one woman writing, “You have brought me to tears with the stinging truth in your words. What can I do to help?”

Perhaps the most touching letter is by a woman suing a judge for constitutional violations, who writes, “You have inspired me to further my education and get to a complete understanding of my rights as an American citizen.” Grossack says, “The goal of the Citizens’ Justice Institute is to improve the quality of justice by teaching people how to demand real justice, not the assembly line kind of justice so often meted out.” People like Barry Weinstein and James Nollet have experienced the drawn out, confusing, and sometimes corrupt world of the legal system that Grossack is referencing, and they have suffered the consequences. By using the Citizens’ Justice Institute to inspire people to take charge of their own futures and educate themselves about the legal issues they face, Grossack is helping people avoid being drawn into similar legal dilemmas, and with each grateful letter, he is one step closer to achieving his goal of “real justice."