GPSolo January/February 2007
Sexual Orientation and the Law
By Roberta Achtenberg and Karen B. Moulding
Legal issues involving lesbian, gay, bisexual, and transgender (LGBT) persons involve rapidly evolving theories and decisions. It is always helpful to have a primary reference source to help navigate these turbulent waves. Sexual Orientation and the Law (Thomson West, 2006, $331) is an excellent resource for developing a greater understanding of LGBT legal issues.
This is a two-volume set that includes a table of cases and an extensive index. Volume 1 addresses, in detail, legal issues affecting LGBT families. This is the volume to consult for an introduction to current case law on parenting, adoption, and reproductive technology. Other chapters in Volume 1 provide practice tips and forms on cohabitation and same-sex marriage. Most states do not permit any formal recognition of same-sex relationships. Nevertheless, helping clients prepare a domestic partnership agreement will benefit them in the end. Using basic contract principles, two people can enter into an agreement for their mutual benefit.
I am not a tax lawyer. In fact, most times I plead the Fifth on tax questions. But a basic understanding of tax law is essential when representing LGBT clients. Tax laws are inherently unfair to same-sex couples. These couples are treated differently than their similarly situated heterosexual married counterparts. The authors do a wonderful job of explaining how the tax laws adversely affect LGBT clients. The writing is clear, concise, and understandable.
Chapter 4 of Volume 1 addresses the issues of death, incapacity, and illness. Estate planning for LGBT persons is a significant untapped market. Most LGBT people, either individually or those in committed relationships, do not have an estate plan. Lawyers representing LGBT clients owe them a duty to explain why estate planning is so essential. Sexual Orientation and the Law provides myriad reasons why estate planning is vital to your LGBT clients. Many LGBT people are estranged from their families. Preparing a solid estate plan that protects both partners may reduce the chance that estranged family members will pop up to claim a share of the estate.
Chapter 5 of Volume 1 is titled “Civil Rights and Discrimination.” The chapter starts with extensive information on employment issues. This area is one where most people, straight and gay, believe discrimination has no place. The authors provide information that is useful in preparing to represent a person fired for being gay. This is a hands-on, practice-tip chapter, including litigation and discovery strategies.
Even with “don’t ask, don’t tell,” there are thousands of LGBT persons in the military. Anyone representing LGBT clients will find military veterans among them. The chapter entitled “Military and Veterans” gives the practitioner the basics for advising clients.
One of the best chapters involves transsexual clients. The issues facing transgender or transsexual persons encompass all areas of law. Achtenberg and Moulding provide the legal background to represent these clients with confidence.
Most chapters in Volume 1 include appendixes providing practitioners with sample forms, agreements, checklists, and similar practice aids.
First Amendment issues as they affect LGBT persons are discussed in Chapter 11 of Volume 2.
Health, employment, and insurance issues affecting persons with AIDS make up a significant part of Volume 2. As with the first volume, most chapters include appendixes that provide the practitioner with forms, letters, and other helpful information.
Much of what is included in Sexual Orientation and the Law involves litigation and discovery strategies, but even transactional lawyers will find a plethora of information, practice tips, and forms to help their practices. Any lawyers representing LGBT couples will find this two-volume book chockablock with information to make their practices more effective and efficient.
Note: West Group is a corporate sponsor of the General Practice, Solo and Small Firm Division; this article appears in connection with the Division’s sponsorship agreement with West Group. Neither the ABA nor ABA entities endorse non-ABA products or services, and this review should not be so construed.
Joan M. Burda operates a solo practice in Lakewood, Ohio. She can be reached at firstname.lastname@example.org.