Your Rights - LGBT Issues

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Discrimination

Massachusetts Anti-Discrimination Law

Does Massachusetts have an anti-discrimination law protecting gay, lesbian, and bisexual individuals from discrimination?

Yes.  In 1989, Massachusetts became the second state in the country to pass a comprehensive anti-discrimination law concerning sexual orientation.

Does it also protect people perceived of as gay, lesbian, and bisexual?

Yes.  The non-discrimination law defines "sexual orientation" as "having an orientation for or being identified as having an orientation for heterosexuality, bisexuality or homosexuality..."¹.    The language of "being identified as" has been interpreted to mean that, for example, if a person is fired because they are perceived to be gay (whether they are or not), they may still invoke the protection of the anti-discrimination law to challenge the firing.

Does it also protect people associated with gay, lesbian, and bisexual individuals?

Not specifically.  But in some situations, if a person is fired from a job or evicted from their home because they hang out with someone who is gay or lesbian, it may be possible to show that they were fired or evicted because the employer or landlord thought they, too, were gay or lesbian.

What kinds of discrimination are addressed by the anti-discrimination law?

• EMPLOYMENT
• PLACES OF PUBLIC ACCOMMODATION
• HOUSING
• CREDIT
• SERVICES

Employment Discrimination on the Basis of Sexual Orientation

Who does the non-discrimination law apply to and what does it forbid?

The non-discrimination law applies to employers (government based or private) who have at least 6 employees (not including the owner or certain family members).  If forbids employers from refusing to hire a person, or discharging them, or discriminating against them "in compensation, or in terms, conditions or privileges of employment" because of sexual orientation.² This covers most significant job actions, such as hiring, firing, failure to promote, demotion, excessive discipline, harassment and different treatment of the employee than similarly situated co-workers.  For more information, see GLAD's publication on Employment issues.

The law also applies to employment agencies and labor organizations (e.g. unions).³

Example: After an employer saw a male employee reading a gay newspaper, employer told him not to bring in "pornographic materials", and then disciplined the employee for making personal phone calls (but not others who made phone calls) and berated for hanging out with friends (although the meeting was work-related).  When the employee confronted the employer for referring to another employee as a "faggot," the employee was fired.  Discrimination was found and the employee was awarded damages.⁴

Example: An employee's supervisor ridiculed an employee as a "pipe smoker" and "lollipop licker."  The employee was awarded damages for harassment.⁵

Are any companies exempt from the anti-discrimination law?

Employers with fewer than six employees are exempt.

An employer, agency or labor organization may defend against a discrimination claim by arguing that a "bona fide occupational qualification" of the particular job is that it have someone in it who is non-gay. But there are no general occupational exemptions from the reach of the non-discrimination law. While that defense is allowed in the law, it is strictly applied and very rarely successful.⁶

Religious institutions and their charitable and educational associations are sometimes exempt from the law.⁷  Where an employer is operated or supervised by a religious institution, it may preferentially hire members of its own religion, and may take employment actions that it "calculate[s will] ...promote the religious principles for which it is established or maintained." This exemption, however, is not a carte blanche for an employer to use his or her religious beliefs as a justification for discriminating against a gay person.⁸

Does the Massachusetts law prohibit sexual harassment?

Yes.  Sexual harassment is specifically prohibited under the law.  Massachusetts law defines "sexual harassment" as:

...sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (a) submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions; (b) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.⁹

A claim of harassment can be pursued under Mass. Gen. Laws chap. 151B, sec. 4 (16A)¹⁰ For employers who are not large enough to be subject to the jurisdiction of the Mass. Commission Against Discrimination, claims may be brought directly in court under Mass. Gen. Laws, chap. 214, sec. 1C¹¹

It is as unlawful to sexually harass a gay, lesbian or bisexual person as it is to harass a non-gay person.  Some harassment is specifically anti-gay, and may be more fairly characterized as harassment on the basis of sexual orientation.  Other harassment is sexual in nature and more appropriately caregorized as "sexual harassment." Both types of harassment can happen to the same person, and both are forbidden.

Both the United States Supreme Court and several state courts have found same-sex sexual harassment to violate sexual harassment laws.¹²
 

Public Accomodations

What is a "place of public accommodation"?

A place that holds itself open to, and accepts the patronage of the general public is a place of public accommodation subject to the non-discrimination laws.¹³ This definition is intentionally broad and may include a motel, restaurant, rest area, highway or hospital, as just a few examples.

What does the law say about discrimination in places of public accommodation?

Such places may not discrimnate, or make any distinctions, or impose any restrictions because of a person's sexual orientation. "[W]hoever aides or incites" such discriminatory treatment may also be penalized under the law.¹⁴

Example: Two women were attacked by a used car dealer when he realized they were lesbians.  They stated a claim under the law and were awarded damages in a settlement.

Example:Two women who kissed on a bus and were then forced off of a bus by the driver were protected by the law and awarded damages because the driver did not order off of the bus a heterosexual couple who were kissing.¹⁵

Example: Couples who were forcibly ejected from a nightclub because other customers were uncomfortable with their being physically affectionate were awarded damages.¹⁶
 

Housing

What is prohibited by the housing anti-discrimination law in Massachusetts?

The housing laws are intended to prohibit discrimination by those engaged in most aspects of the business of listing, buying, selling, renting or financing housing, whether for profit or not.¹⁷ Most often, these claims involve a refusal by an owner, landlord or real estate broker to sell, or lease, or even negotiate with a person about the housing they desire to obtain.¹⁸ But other practices are forbidden, too, such as inquiring into or making a record of a person's sexual orientation or marital status;¹⁹ or discriminating with respect to mortgage loans.²⁰ For more information, see GLAD's publication on housing discrimination in Massachusetts.

Are any landlords exempt from the housing anti-discrimination law?

The main exemption from the law is for owner-occupied buildings that have two units or less. The law is focused on protecting people in "multiple dwelling[s]". This is a dwelling which is usually occupied for permanent residence and which is either rented, leased, let or hired out, to be occupied as the residence or home of three or more families living independently of each other. If the building only has two apartments and the owner lives in one of them, the exemption may apply.²¹ The other exemptions in this area of the law are fairly technical and relate to the definitions of "housing development," "contiguously located housing," and "other covered housing accommodations."

¹⁷Mass. Gen. Laws, chap. 151B, sec. 4 (3B, 3C, 6, 7).
¹⁸Mass. Gen. Laws, chap. 151B, sec. 4(6) (a) (public housing), sec. 7 (private housing).
¹⁹(sec. 4(6)(c)(public housing), sec. 4(7)(private housing); or discriminating with respect to mortgage loans 20(sec. 4(3B)).
²⁰sec. 4(3B)
²¹Mass. Gen. Laws, chap. 151B, sec. 1 (11).

Credit and Services

What protections exist under Massachusetts anti-discrimination law with regard to credit?

Any person who furnishes credit, such as a bank, credit union, or other financial institution, may not "deny or terminate such credit... or... adversely affect an individual's credit" because of sexual orientation or marital status.²²

Example: GLAD brought and settled a claim against a bank which refused to allow two men to apply jointly for a loan, claiming it was both sexual orientation and marital status discrimination.

Example: GLAD brought and settled a claim against a credit union which refused to allow a feminine appearing man from applying for a loan until he came back looking more masculine.  A federal court ruled that this stated a claim of sex discrimination in violation of the credit non-discrimination laws.²³

How does Massachusetts anti-discrimination law protect people receiving services?

Any person who furnishes services may not "deny or terminate such... services" because of sexual orientation or marital status.²⁴  While many of those businesses which furnish services will be subject to the public accommodations law, this provision also captures those who do not, including those in the business of insurance.

²²Mass. Gen. Laws, chap. 151B, sec. 4(14).
²³Rosa v. Park West Bank, 214 F.3d 213 (1st Cir. 2000).
²⁴Mass. Gen. Laws, chap. 151B, sec. 4(14).

Transgender / Gender Identity Discrimination

What protections exist for transgender people under the discrimination law?

There is no explicit protection in the law for transgendered persons in Massachusetts state law, although Cambridge has a local law that creates some protections there.  However, even absent explicit protection, in some cases an individual's gender identity may be regarded as "a gay issue" by the person or entity perpetrating the discrimination and therefore allow a person to bring a sexual orientation claim.

In addition, in some cases a transgendered person may have a claim of sex discrimination if he or she is adversely treated at work, in housing, in a place of public accommodation, or in a credit transaction.  If the adverse action is triggered by the sense that the individual does not meet the expectations of or act like a "real man" or "real woman," then this can be the basis for a sex stereotyping claim.²⁵ For more information , see Protections Against Discrimination for Transsexual People in Massachusetts.

  ²⁵See Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989); Rosa v. Park West Bank, 214 F.3d 213 (1st Cir. 2000).

Pursuing a Complaint

How do I file a complaint of discrimination?

You may file in person or in writing at the Massachusetts Commission Against Discrimination.  The "MCAD" prefers for people to file in person, unless an attorney has prepared the complaint for them.  Call in advance to set up an appointment and find out what you need to bring.

Boston: (617) 994-6000, One Ashburton Place, Room 601.
Springfield: (413) 739-2145.

Do I need a lawyer?

No. The process is designed to allow people to represent themselves.  However, GLAD strongly encourages people to find lawyers to represent them throughout the process.  Not only are there many legal rules governing the MCAD process, but employers and other defendants are likely to have representation.

What are the deadlines for filing a complaint of discrimination?

Complaints of discrimination arising after November 5, 2002 must be filed at teh MCAD within 300 days of the last discriminatory act or acts.  (Claims of discrimination arising prior to November 5, 2002 must be filed within 6 months).  There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.

What happens after a complaint is filed with the MCAD?

The MCAD assigns an investigator to look into your case.  The parties may engage in limited "discovery" -- a legal process which allows the other side to examine the basis of your claim and allows you to examine their justifications and defenses.  This is conducted through written questions (interrogatories), requests for documents, and depositions. Ultimately, if the case is not dismissed for technical reasons, a Commissioner will decide if there is probable cause to credit your allegations.

If probable cause is found in an employment, credit, service, or public accommodations case, the case will be sent for "conciliation" or settlement proceedings.  If negotiations fail to produce a settlement agreeable to all parties, the case proceeds further with more discovery and possibly a trial type hearing.

Even before probable cause is determined In a housing case, the MCAD may go to court to seek an order forbidding the respondent from selling, renting or otherwise disposing of the property at issue while the case is pending.  Once probable cause is found, both sides must be notified of their right to have the case heard in court rather than at the MCAD.²⁶

If probable cause is found lacking, the case is over unless you appeal the "lack of probable cause" finding.  There are special rules and time constraints on appeals within the MCAD which must be observed strictly.

What are the legal remedies the MCAD may award for discrimination if an individual wins his or her case there?

The remedies for a successful complainant may include, for employment cases, hiring, reinstatement or upgrading, backpay, restoration in a labor organization, and front pay.  In housing cases, remedies may include damages (expenses actually incurred because of unlawful action related to moving, storage, obtaining alternate housing) and civil fines to be paid to the state. In public accommodations cases, the MCAD may also order civil fines to be paid to the state. In all cases, the remedies may also include emotional distress damages, attorneys' fees, cease and desist orders, and other relief that would fulfill the purposes of the anti-discrimination laws (e.g. training programs, posting of notices, allowing the person to apply for credit on non-discriminatory terms, allowing the person non-discriminatory access to and use of services.)

Are there other agencies at which I can file a complaint for discrimination?

Possibly, yes, depending on the facts of your particular situation.  This outline concerns only Massachusetts non-discrimination law, and you may well have other rights.

1. Union: If you are a member of a union, your contract (collective bargaining agreement) may provide additional rights to you in the event of discipline, discharge or other job-related actions.  In fact, if you obtain relief under your contract, you may decide not to pursue other remedies.  Get and read a copy of your contract and contact a union steward about filing a complaint.   Deadlines in contracts are strict.  Bear in mind that if your union refuses to assist you with a complaint, you may have a discrimination action against them for their failure to work with you or for failure of duty of fair representation.
   
2. Local Agencies: Several cities and towns have their own local non-discirmination laws and agencies with which you can file a complaint in addition to filing at the MCAD.  Sometimes the MCAD allows the local agency to investigate the case instead of the MCAD, which might produce advantages in time and accessibility of staff.  Cambridge and Boston have the most developed local agencies, although Newton, Somerville, Worcester and Springfield also have some staff for certain kinds of complaints.  Even if you file with the local agency, you must still file with the MCAD within 300 days of the last act of discrimination (6 months for claims arising before November 5, 2002) in order for your case to be processed at all.
   
3. Federal Agencies: Sometimes an action states a claim for a violation of federal law in addition to state law.  For example, federal law forbids discrimination based on race, sex, age, religion and disability, but not on the basis of sexual orientation.  Thus a gay person with HIV who is fired from a job can file with the MCAD (for sexual orientation and disability discrimination) as well as the Equal Employment Opportunity Commission (EEOC) (for disability discrimination).  Federal non-discrimination laws apply only to employers with at least 15 employees, and complaints must be filed within 180 days of the discriminatory act. (People who work for federal agencies are beyond the scope of this publication).
   
4. State or Federal Court: After filing with the MCAD or EEOC, or both, as discussed above, a person may decide to remove his or her discrimination case from those agencies and file the case in court.  There are rules about when and how this must be done.²⁷

In addition, a person may file a court case to address other claims which are not appropriately handled by discrimination agencies.  For example, if a person is fired in violation of a contract, or fired without the progressive discipline promised in a handbook, or fired for doing something the employer doesn't like but which the law requires, then these matters are beyond the scope of what the agencies can investigate and matter should be pursued in court.  If a person has a claim for a violation of constitutional rights, such as a teacher or governmental employee who believes his or her free speech or equal protection rights were violated, then those matter must be filed in court.

What can I do if my employer fires me or my landlord evicts me because I filed a complaint of discrimination?

It is illegal to retaliate in these circumstances, and the employee could file an additional complaint against the employer for the act of retaliation.  "Retaliation" protections cover those who participate in proceedings, oppose unlawful conduct, or state an objection to discriminatory conduct. If the employer takes action against an employee because of that conduct, then the employee can state a claim of retaliation.²⁸

What can I do to prepare myself before filing a complaint of discrimination?

Call the GLAD Legal InfoLine at (800) 455-GLAD any weekday between 1:30-4:30 p.m. to talk about options.

As a general matter, people who are still working with or residing under discriminatory conditions have to evaluate how filing a case will affect their job or housing, and if they will be able to handle those possible consequences.  Of course, even if a person has been fired, or evicted, he or she may decide it is not worth it to pursue a discrimination claim.  This is an individual choice, which should be made after gathering the information and advice to make an informed choice.

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case.  It is always helpful if you bring to the attorney an outline of what happened on the job that you are complaining about, organized by date and with an explanation of who the various players are (and how to get in touch with them).  Try to have on hand copies of your employee handbooks or personnel manuals, any contracts, job evaluations, memos, discharge letters and the like.  If you are concerned about a housing matter, bring a copy of your lease, along with any notices and letters you have received from your landlord.
 

Can I file more than one type of discrimination complaint at once, for example, if I believe I was fired both because I am a lesbian and Latina?

Yes.  The state non-discrimination laws for employment forbid taking an action against someone because of sexual orientation as well as race, color, religious creed, national origin, sex, ancestry, age or disability.  In housing, the criteria are expanded to include marital status, or because the person is a veteran or member of the armed services.  In public accommodations, marital status and age are not included among the law's protections.

²⁶Mass. Gen. Laws, chap. 151B, sec. 5).
²⁷See e.g., Mass. Gen. Laws, chap. 151B, sec. 9.
²⁸Mass. Gen. Law, chap. 151B, secs. 4(4), 4A. See also Provencher v. CVS Pharmacy, 76 F.E.P. Cases (BNA) 1569 (1st Cir. 1998) (upholding federal retaliation claim of gay man).

Marriage and Civil Unions

Can same-sex couples marry in Massachusetts?

In an historic decision, the Massachusetts Supreme Judicial Court ruled on November 18, 2003, that gay and lesbian couples have the right to civil marriage in Massachusetts. The ruling in GLAD's case, Goodridge v. Department of Public Health, is the first of its kind in this country by a state high court.

This is a legal and cultural milestone. At long last, gay and lesbian families and their children are finally equal families in the Commonwealth.

Massachusetts does not have a residency requirement for marriage, but an old law from 1913 was revived to deny marriage licenses to same-sex couples from other states unless the couple intends to reside in Massachusetts.  GLAD filed a lawsuit challenging the constitutionality of this law.  The decision by the Massachusetts Supreme Judicial Court was that same-sex couples from other states could marry in Massachusetts provided there was no statute, constitutional provision or controlling appellate decision in their state that prohibited same-sex couples from marrying.

Since most states have one of these prohibitions, at this time the only same-sex couples who can marry in Massachusetts are Massachusetts residents, Rhode Island residents and residents from any state who intend to reside in Massachusetts in the near future.

GLAD has prepared a number of publications dealing with marriage. These publications are available both in printed form and on our website, www.glad.org. They include:

• How To Get Married In Massachusetts
• Marriage Tips and Traps
• Same-Sex Spousal Health Benefits In Massachusetts After Goodridge
• Taxes On Employment Benefits For Same-Sex Spouses
• Navigating Income Taxes For Married Same-Sex Couples
• Protections, Benefits and Obligations of Marriage
• Separation, Divorce and Marriage Equality
• Legal Issues for Non-Massachusetss Same-Sex Couples Who Married in Massachusetts
• Marrying in Massachusetts: A Guide for Rhode Island Same-Sex Couples

In what other ways can same-sex couples obtain legal recognition of their relationships in Massachusetts?

Marriage in Canada: Same-sex couples can marry on an equal basis with different-sex couples in all regions in Canada.  These regions have no residency requirements, so qualified couples from anywhere in the world can marry there.  For more information, see GLAD’s publication, What Do I Need To Know About Getting Married In Canada?

Civil Unions: Adult same-sex couples can also enter into "civil unions" in Vermont, Connecticut, New Jersey (and soon in New Hampshire) which will give them a legal status, but it is not yet clear what effect those civil unions will be accorded in Massachusetts. A civil union is intended to be parallel to civil marriage in all respects under state law.  GLAD thinks the legal status of civil unions should be respected in Massachusetts, but that it will take time for that state of affairs to evolve.  See GLAD's publications, "A Historic Victory:  Civil Unions in Vermont and Connecticut Civil Unions," and stay tuned to the GLAD website for further publications and developments.

Other Legal Protections: In addition, same-sex couples can create a variety of legal documents to protect them in specific ways even if they are not married or civilly united.  See the section on Legal Protections for Same-Sex Couples, below.

Legal Protections for Same-Sex Couples

What steps can a couple take to safeguard their legal relationship in Massachusetts?

1. Relationship Agreement or Contract: In 1998, the Massachusetts Supreme Judicial Court ruled that cohabitation agreements regarding property and finances will be respected and honored according to ordinary rules of contract law.²⁹  This ruling provides a strong incentive for couples to sort out their affairs in writing before a separation.  Note that the rules governing cohabitation contracts between married people are based on what is "fair and reasonable," a more generous standard which is not available to unmarried persons.  And as in any state, specific provisions concerning children may not be enforced according to their terms because it is always in the court's power to determine the best interest of children.

2. Power of Attorney: Any competent person may appoint another person as his or her "attorney-in-fact" for financial matters in the event the one becomes incapacitated or disabled.³⁰   If no such appointment is made, then a "family" member will be empowered to make decisions for the disabled or incapacitated individual.

   A person may also nominate his or her guardian or conservator -- a longer term appointment which takes priority over the attorney-in-fact -- in the same document. An individual's choice can only be rejected by a court for good cause or disqualification. The mere fact that a family member is not appointed is not good cause.

3. Health Care Proxy: Since medical care providers look to next-of-kin to make health care decisions for an incapacitated indvidual, an unmarried person must appoint a health care proxy if he or she wishes another person to make those decisions instead of the family member.  Under Mass. Gen. Laws, chap. 201D, a person may appoint a health care agent to make decisions for him or her upon incompetence.  This can be revoked at any time by creating a new health care proxy or by a clear expression of revocation.  People often give a copy of the health care proxy to their doctors and sometimes to family members.

4. Will: Without a will, a deceased unmarried person's property passes to:
   1. his or her children
   2. his or her family
   3. if next-of-kin cannot be located, to the state.
   If a person wishes to provide for others, such as his or her partner, a will is essential.  Even if a person has few possessions, he or she can name in the will who will administer his or her estate.  If a person has children, he or she can nominate the future guardian of the child in a will.

5. Funeral Planning Documents: Upon death, a person's body is given to their next-of-kin. This can mean that a person's own partner has no right to remove the body or make plans for a final resting place.  But if a person leaves explicit written directions giving another person (such as their partner or friend) control over the funeral and burial arrangements, any confusion can be avoided.  Some people include these instructions as part of a will, but since a will may not be found for days after death, it is preferable to give the instructions to the person you want to take care of matters as well as to family members.

6. Living Will: Within a health care proxy, language may be inserted stating what the individual wishes regarding termination of life support, preferences for types of medical care, or limits on the agent's authority.

7. Standby Guardianship: Parents, particularly those with life-threatening illnesses, may use the Standby Guardianship and Emergency Guardianship Proxies Law,³¹ which permits parents and legal guardians to name a proxy and successor proxy to care for the child, the child's estate, or both.  The proxy takes effect when a parent needs help caring for his or her children.  The proxy is automatically suspended if the parent recovers, and is reactivated when needed again. Within 90 days of assuming authority, the proxy must file a guardianship petition in the Probate and Family Court.  In addition, short term emergency guardianship proxies allow parents (but not legal guardians) in critically urgent situations to appoint a guardian immediately without going to court.  With both types of proxies, the proxy shares authority with the parent and does not displace him or her.

Does a person need an attorney to get these documents?

GLAD recommends working with an attorney on these documents.  Although some forms are available, the form may not be suited to your individual needs and wishes.  Moreover, attorneys may be able to help effectuate your goals, for example, by drafting a will in a way which is more likely to deter a will contest by unhappy family members, or drafting a health care proxy with your specific instructions.

If a couple separates, what is the legal status of these documents?

Upon separation, the terms of a Relationship or Partnership Agreement/Contract will come into play if the couple has one.  Absent an agreement, couples can get involved in costly and protracted litigation about property and financial matters but without the divorce system to help them sort through it.

If a person has changed his or her mind about who should be his or her attorney-in-fact, or health care agent, or beneficiary or executor under a will, or a funeral planner, then those documents should be revoked -- with notice to all persons who were given copies of those documents, and new documents should be prepared which relect the person's present wishes.

²⁹Wilcox v. Trautz, 427 Mass. 316 (1998).
³⁰Mass. Gen. Laws, chap. 201B.
³¹Mass. Gen. Laws, chap. 210, sec. 2 (a-1).

Domestic Partnership

What is domestic partnership?

Although it is a term used in many contexts, it most often means a status which recognizes an unmarried couple and their children as a family for certain limited purposes.  In the workplace context, domestic partnership plans allow an employee to obtain certain fringe benefits for his or her partner which were previously limited to married spouses.  Some states, cities and towns have also enacted domestic partner laws.  In other contexts, "domestic partner" is also a shorthand term for family, replacing "lover," friend," and "roomate." Some people call cohabitation agreements "domestic partner agreements." See GLAD publications on Domestic Partnership for further information.

Does Massachusetts provide domestic partner benefits to state employees?

Generally no. By the terms of a 1993 Executive Order³², certain managerial employees have expanded leave rights for their partners.  But overall, state employees do not have equal access to health benefits or other employee benefits for their partners, and the state pension system does not allow people to name unmarried partners as beneficiaries of an employee's pension.

Can cities and towns in Massachusetts provide domestic partner health insurance benefits to their own employees?

Probably not.  While several cities and towns have done so in the past, a ruling by Massachusetts high court in 1999 found that Boston did not have the power to expand the reach of the state insurance laws by including domestic partners in the group health system.³³  Amherst has continued its domestic partner program by buying individual health insurance policies for the partner of Amherst employees who previously had group health coverage through the town.  Several other cities and towns have also continued to provide coverage.
 

What kinds of domestic partner benefits may private employers provide?

Private employers can provide to domestic partners any benefits they wish -- whether health insurance, family medical or bereavement leave, equal pension benefits, relocation expenses, or access to company facilities.

Even when employers provide these benefits, federal laws require different tax or other treatment of the benefits for domestic partners as compared to spouses.  For example, an employee must pay income tax on the value of his or her partner's health insurance benefits, but an employee with a different-sex spouse does not.³⁴   Because of the federal DOMA, an employee with a same-sex spouse for federal (but not Massachusetts) income tax is treated like a domestic partner.   And for pensions, a domestic partner has no right to sign off if their partner decides to name someone other than them as the beneficiary of a pension although a spouse would have that right.  In addition, a domestic partner has no right comparable to that of a spouse to sign off on their partner's designation of another person for survivor benefits.

Can I use the state non-discrimination law to force my employer to provide domestic partnership benefits?

No.   Although the non-discrimination law says that an employer can't discriminate on the basis of sexual orientation in terms of compensation, and even though employee benefits are a form of compensation, the law contains an express exemption for employee benefits.³⁵   Thus, an employer may provide domestic partner benefits if it chooses to do so, but it cannot be forced to do so through the state non-discrimination law.

Adoption

Can a single gay individual adopt a child in Massachusetts?

Yes.³⁶

Can same-sex partners together adopt a child in Massachusetts?

Yes, ever since court rulings by the Supreme Judicial Court in 1993.³⁷

What is the advantage of doing a second-parent or joint adoption?

A joint adoption means that the child now has two legal parents for all purposes.  The law will finally reflect the actual family situation, which often gives great comfort and security to everyone involved.

Without an adoption, the non-legal parent needs special permission to seek medical care for the child, or to attend school meetings.  With an adoption, the adopting parent is a legal parent entitled to make decisions for the child in day-to-day and emergency matters without special authorization.

With an adoption, if one parent dies, the other parent will automatically assume custody of the child without a fight from others.  In addition, the child would have the automatic right to inherit from the deceased parent, even if there is no will, a possibly to collect social security survivor benefits.

Finally, if the couple separates, then the adoption means that both parents have the right to custody and visitation, and any disputes will be decided based on what is in the best interests of the child rather than the basis of who is the legal parent.

If same-sex parents raise a child together, but only one is the "legal" parent (because of birth or adoption), then what rights does the other parent have vis-à-vis the child?

These are tricky cases, but if the other person can show that he or she is a "defacto parent", then he or she has the right to visitation with the child.  Defacto parents should also have rights to custody, but that has not yet been definitively decided by the courts.  Defacto parents will also have an obligation to support the child.

In a groundbreaking case, the SJC ruled a defacto parent is "one who has no biological relation to the child, but has participated in the child's life as a member of the child's family."³⁸  To establish defacto parenthood, a parent must:

• Reside with the child;
• And with the consent and encouragement of the legal parent, perform a share of the caretaking functions at least as great as the legal parent, shape the child's daily routine, address his developmental needs;
• Discipline the child, provide for his education and medical care, and serve as a moral guide.

Short of joint adoption or second parent adoption, how can a family protect the interests of the child vis-à-vis his or her second parent?

There are a number of steps which can be taken, although none offer the security of a second parent adoption.

Co-parenting Agreement: An agreement setting out the parents' expectations about each other's roles, and their plans in the event of separation, disability or death.  While these agreements may not be given effect by courts, they are important indicators of what the couple believed was in the best interests of the child, and thus may be influential (although not binding) on a court.

Wills: The legal parent may nominate a guardian of the child upon the parent's death. These wishes are given strong preferences by courts.  Of course, if the child has another legal parent living, then that person would have priority over the nominated guardian.

Co-guardianship: This process allows a parent to name the other non-legal parent as a co-guardian so that he or she may secure medical attention for the child and act as a parent.  This status is not permanent, and may be revoked by the legal parent.

Power of Attorney: This document is signed by the parent and authorizes another person (the attorney-in-fact) to make medical or financial decisions for the child.  It should be updated regularly.

³⁶ Mass. Gen. Laws, chap. 210, sec.1.
³⁷ Adoption of Tammy, 416 Mass. 420, Adoption of Susan, 416 Mass. 1003 (1993).
³⁸E.N.O. v. L.M.M., 429 Mass. 824, 711 N.E.2d 886, cert. denied, 120 S.Ct 500 (1999).  

Custody and Visitation

If I have a child from a former heterosexual relationship, and I am now involved with a same-sex partner, can my "ex" use this against me to deny me custody or visitation of my kids?

In Massachusetts, the question turns on whether there is evidence of direct harm to the best interests of the child.  As a general matter, a parent's sexual orientation is not itself grounds for denying custody or visitation.³⁹  In a heterosexual case, a court found that a father who had had an extramarital affair and lived with the other woman while married did not deprive him of custody rights where there was no evidence of harm to his children.⁴⁰

What are the factors for making custody determinations generally?

Upon divorce, a court considers the parents as equals (unless one has engaged in misconduct) and makes orders based on the happiness and welfare of the children.  "When considering the happiness and welfare of the child, the court shall consider whether or not the child's present or past living conditions adversely affect his physical, mental, moral or educational health."⁴¹

If the parents are unmarried biological parents (such as a former heterosexual couple where one of the parties is now gay or lesbian), then the rules are different than at divorce.  In a "paternity" proceeding, the court is still bound to act in the best interests of the child, but in awarding custody is bound to preserve the relationship between the child and the primary caretaker parent.⁴²  Parents cannot be awarded joint custody unless they have agreed to do so or the court finds that they have successfully exercised joint respoinsibility for the child in the past and have the ability to communicate with each other about the child's interests.

Are there different kinds of custody?

Yes.⁴³

"Sole legal custody" means that one parent only has the right and responsibility to make major life decisions for the child, including matters of education, medical care, and emotional, moral and religious development.

"Shared legal custody" means that both parents are involved in and make these decisions.

"Sole physical custody" means that a child lives with and is under the supervision of only one parent, subject to reasonable visitation with the other parent, unless a court finds that visitation is not in the child's best interests.

"Shared physical custody" means that the child resides with both parents in a way which ensures frequent contact with both.

How is "sexual orientation" used in custody procedings?

In a divorce or paternity proceeding, a parent may argue that the other parent's sexual orientation is causing detriment to the child.  Any number of reasons can be cited, such as that the gay or lesbian parent's sexual orientation is causing other people to tease or ostracize the child, or that the parent is a bad role model.  Or a parent may argue that the ex's new partner is not good for the child.  In the overwhelming majority of circumstances, these matters can be answered to the satisfaction of a judge in a way which does not penalize the gay parent or the child.  Contact GLAD for further resources for dealing with such a situation.

Does it matter is my "ex" knew I was gay or lesbian or might be before we separated?

It can make a difference with respect to future modification of court orders for custody.  People can seek to modify court orders when there has a been a substantial change in circumstances.  If a spouse did not know of your sexual orientation at the time of the court proceedings but learns it later, he or she may argue that this is a substantial change of circumstances and that the custody and visitation issues should be litigated anew.  Of course, if your spouse or former heterosexual partner knew of your sexual orientation at the time of the court proceedings establishing custody, a modification petition on those grounds would be pointless.⁴⁴

Can a court keep my kids from visiting when my partner is present?

Courts have the power to do this, but unless the partner is causing harm to the child -- a very high standard -- visitation should not be restricted.

³⁹ Bezio v. Patenaude, 381 Mass. 563 (1980); Doe v. Doe, 16 Mass. App. Ct. 499 (1983)  ("[A] parent's [homosexual] life-style -- standing alone, is insufficient ground for severing the natural bond between a parent and a child").
⁴⁰ Fort v. Fort, 12 Mass. App. Ct. 411 (1981).
⁴¹Mass. Gen. Laws, chap. 208, sec. 31
⁴² Mass. Gen Laws, chap. 209C, sec.10.
⁴³ Mass. Gen. Laws, chap. 208, sec.31.
⁴⁴See generally, Mass. Gen. Laws, chap. 208, sec. 31

Domestic Violence

What is domestic violence?

Under the law, "abuse" means that any of the following have occurred between people who are family or household members":

• attempting to cause or causing physical harm;
• placing another in fear of imminent serious physical harm;
• causing another to engage involuntarily in sexual relations by force, threat or duress.⁴⁵

Do the domestic violence laws apply to people in same-sex relationships?

In most situations, yes.  "Abuse" between family or household members includes, among other relationships, those relationships in which people are or were residing in the same household, or who have a child in common, or who are or have been in a substantive dating relationship.⁴⁶

How do I get a court order protecting me from an abusive partner?

Victims can file an application for a temporary restraining order (specifying 'domestic violence' or '209A') in the clerk's Office at the District Court with jurisdiction over the neighborhood in which they live, or at Boston Municipal Court, or at a Superior Court.  In emergency situations after normal business hours, orders may be obtained through a police officer or at a police station.  In order to keep an abuser from learning the new address of a victim, the victim needs to request that their address be "impounded".  This will not be available, however, with a 'stay away' order, since a stay away order needs to specify where the abuser is not supposed to go.  A victim's address is always kept confidential from the public.

Temporary orders are good for ten days, and are generally issued upon request, providing the victim indicates that a relationship existed between the victim and the offender that is covered by the law and that they make credible allegation of abuse, threats of abuse, or sexual assault.  A hearing to extend the order for up to one year is scheduled for ten days after the initial order.  There is no fee.  The defendant can choose not to show up at the extension hearing, but the victim is required to be present at that hearing for the order to be extended.  A lawyer is not needed for the temporary order, though in certain cases it may be helpful to have one for the extension hearing, particularly if you think the order is going to be contested by the abuser.

Violations of a 209A order are criminal offenses and can result in the immediate arrest of the abuser. It is worth noting that restraining orders do not restrict the activities or contacts of the victim.

If I go to court, will I 'out' myself for all purposes?

Not necessarily.  The courts try to be sensitive to the fact that some people seeking orders may be closeted, or may be in a same-sex relationship which they do not want revealed.  Abuse Prevention Guidelines, No. 2:02 (Commentary asking courts to protect people's privacy as much a possible).

Where can I go to get help?

In addition to the local police and district attorney, you can call the Violence Recovery Program at 800-834-3242, the Network for Battered Lesbians and Bisexual Women at 617-236-7233, the Gay Men's Domestic Violence Project at 800-832-1901, and Jane Doe, Inc. at 617-248-0922.

Does domestic violence play a role in custody decisions?

Yes.  Evidence that a parent has in the past or is presently, abusing the other parent or the child is a factor showing that the parent is not acting in the best interests of the child.  If there is a pattern of abuse, or a serious incident of abuse, a rebuttable presumption arises in the law that it is not in the child's best interests to be placed in sole custody, shared legal custody or shared physical custody with the abusive parent.<sup>47

45</sup>See Mass. Gen. Laws, chap. 209A, sec. 1
⁴⁶ Mass. Gen. Laws, chap. 209A, sec. 1. See also Abuse Prevention Guidelines, No. 3:02 (Commentary) ("Unmarried persons who live together, or who did so in the past, are also within the court's jurisdiction under c. 209A, regardless of whether the relationship between them is homosexual, heterosexual, or not sexual").
⁴⁷ Mass. Gen. Laws, chap. 208, sec. 31A.

Hate Crimes & Violence

Does Massachusetts have a hate crimes law?

Yes, Massachusetts has several provisions of law geared toward identifying and punishing hate-motivated crime.

Most specifically, Massachusetts law contains a "Hate Crimes Penalties Act" which provides stiff penalties for those who:

• commit an assault and battery; or
• cause damage to a person's real or personal property with the entent to intimidate a person because of sexual orientation as well as race, ethnicity, religion, national origin and disability.⁴⁸

• by force or threat of force;
• willfully injure, intimidate, interfere with, or oppress a person (or attempt to do so);
• in the exercise of a right secured to them under state or federal law.⁴⁹   The penalties are higher when force is used than when it is not.⁵⁰

There are also specific laws concerning vandalism of personal property, homes, and sites of religious worship which are beyond the scope of this document.

In a typical hate crimes case, both sections 37 and 39 are charged, along with another criminal statute (such as assault and battery, or assault and battery with a dangerous weapon, or assault with intent to murder and maim).  Sometimes it is easier to prove a violation of section 37 than section 39 so both are charged.  (Section 37 requires proving only a willful interference with a person's secured rights, whereas a successful prosecution under section 39 requires that the motivation behind an attack was a particular characteristic of the victim.)

In order to track hate crimes, the State has also set up a reporting system so that incidents alleged are centrally recorded.⁵¹   To enter an incident of hate violence into the statistics, contact the Violence Recovery Program at the Fenway Community Health Center, 617-927-6250.

How does the law define what is a hate crime?

Under state law, a "hate crime" is "any criminal act coupled with overt actions motivated by bigotry and bias, including, but not limited to, a threatened, attempted or completed overt act motivated at least in part by racial, religious, ethnic, handicap, gender or sexual orientation prejudice, or which otherwise deprives another person of his constitutional rights by threats, intimidation or coercion, or which seek to interfere with or disrupt a person's exercise of constitutional rights through harassment or intimidation. . ."⁵²  It also includes any violation of several other laws.

Technical definitions aside, law enforcement officials and others tend to use the following as guideposts for determining whether or not a crime is an anti-gay hate crime.

• Did the attacker use anti-gay language or epithets?
• Was the victim in an area associated with gay people (e.g. outside a gay bar or a cruising area)?
• Have there been similar crimes in the area?
• Did the attack occur regardless of economic motive (i.e., person attacked but not robbed?⁵³

Where can I call if I think I've been a victim of a hate crime?

In addition to contacting the local police, you may contact the Criminal Division of the Attorney General's office at (617) 727-2200.  Be sure to explain all of the factors that make you think this was a crime of bias.

For support and advocacy, contact the Violence Recovery Program (VRP) at the Fenway Community Health Center.  In addition to short term counseling for victims, their professional advocates help people understand and navigate the criminal system from police reporting to obtaining injunctions to the various appearances and hearings of the court process.  Their phone number is 617-927-6250.

What other options do I have if I think I have been a victim of a hate crime?

In addition to pursuing your rights in the criminal justice system, or instead of going that route if there was no force or threat of force in your case, you may seek a "civil rights injunction" from the Superior Court.

A civil rights injunction is a protection order issued by the court, and typically forbids a person or persons from coming near you (or your home, or school, or workplace, or from telephoning you) because they have been determined to be threatening to you.  To obtain an injunction, you must show that the person interfered or attempted to interfere with the exercise of your secured rights by using threats, intimidation or coercion.  This is not always as easy as it sounds.

You can seek a civil rights injunction with your own lawyer, or you can ask the Attorney General to do so on your behalf.⁵⁴  The Attorney General's Office, Civil Rights Unit can be reached at 617-727-2200, but cannot fulfill all of the requests it receives.  In an action you bring on your own, you may also seek compensatory money damages and an award of attorney's fees.

A violation of a civil rights injunction is itself a criminal offense.  The penalties for a violation are greater when bodily injury results from the violation than when it does not.<sup>55

48</sup>Mass. Gen. Laws, chap. 265, sec. 39.
⁴⁹Mass. Gen. Laws, chap. 265, sec. 37.
⁵⁰See also Commonwealth v. Stephens, 25 Mass. App. Ct. 117, 123-24 (1987) (section 37 applies to hate-motivated harassment and violence).
⁵¹See Mass. Gen. Laws, chap. 22C, secs. 32-35.
⁵²Mass. Gen. Laws, chap. 22C, sec. 32
⁵³See generally Mass. Gen. Laws, chap. 22C, sec. 33; 501 Code of Mass. Regs. sec. 4.04(1) (Hate Crimes Reporting Classification Criteria).
⁵⁴ Mass. Gen. Laws, chap. 12, sec. 11H (actions by Attorney General); chap. 12, sec. 11I (actions by private individuals).
⁵⁵ Mass. Gen. Laws, chap. 12, sec. 11J.

Criminal Sex Laws

Does Massachusetts have a sodomy law?

Although Massachusetts has had two sodomy laws on the books since before its statehood, the Supreme Judicial Court recently said that neither law applies to private consensual conduct.⁵⁶

The first of the two laws challenged in GLAD's case is a more "traditional" sodomy law in that it prohibits anal sex and bestiality.⁵⁷  It can be applied to anal sex between gay or non-gay people, but has often been associated in the public mind with gay men.

The second of the two laws challenged is also a felony which covers "unnatural and lascivious acts."⁵⁸  The courts have ruled that this law encompasses "oral and anal intercourse, including fellatio, cunnilingus, and other intrusions of a part of a person's body or other object into the genital or anal opening of another person's body."⁵⁹

As a result of GLAD's case, there are no general criminal proscriptions against adults engaging in particular types of consensual, intimate activity, only a range of laws directed at prohibiting public acts of intimacy.

In a separate, similar ruling in 2003, the U.S. Supreme Court ruled that it is unconstitutional to apply sodomy laws to non-commercial sex between consenting adults in private.⁶⁰

But how do I know whether the place where I am engaged in sexual intimacy is "private"?

That is the million dollar question:  what is "private"?  For the most part, what happens in the privacy of your own home should be no concern of the police.  Most people arrested for sexual activity are arrested for activity occurring out of doors.  The courts have ruled several times that sex is not illegal simply because it takes place outdoors, in parked cars, or on public lands.  It all depends on the circumstances.

In order for the conduct to be "public," it must be in a place where it is reasonably foreseeable that unsuspecting members of the public will come by at the time and place in question.  When the participants act in deliberate disregard of that risk, whether or not they are discovered by the police or another person, their conduct is considered "public."  Or stated another way, if people have secreted themselves behind remote bushes or beyond fences -- a place where the individual does not know or reasonably expect the presence of persons who would be offended by the conduct --  then there should be no realistic danger to the public.  The criminal sex laws are "not designed to punish persons who desire privacy and take reasonable measures to secure it,"⁶¹

Why do people get arrested for sex outdoors if it can be considered "private"?

The Commonwealth has a legitimate law enforcement interest in protecting the general public from open displays of sex -- whether the sex is between people of the same-sex or of a different-sex.  But socializing and expressions of same-sex affection that does not involve the touching of genitals or buttocks or exposure of those is not illegal, regardless of where it occurs.  No one should be arrested or hassled for hand-holding, or cruising, or talking, or flirting, or other non-sexual touching.

As a practical matter, regardless of one's rights, having sex outdoors is a risky business.  For one, based on numerous reports to us, we believe that some police will overlook sexual activity of non-gay people occurring outdoors, but arrest gay people engaged in sexual activity in the same types of venues.  Another concern is that some police "hunt" for gay people having sex outdoors in park lands and rest areas -- sometimes in uniform and sometimes as undercover decoys.  Either way, a person can be charged with either of the sodomy laws discussed above, or any other variety of sex offenses, some of which may require the person to register as a "sex offender."

GLAD has challenged these practices by many police departments, and has sometimes helped to develop more constructive policing practices, such as with the MBTA.  Due to a court case filed by GLAD, the Massachusetts State Police have issued training bulletins to all Troopers informing them of the limits of the sex laws in Massachusetts.

Does Massachusetts have any other criminal laws which are applied to gay people?

There are numerous laws addressing public sexual activity, any number of which can be charged against a person arrested for having sex in "public."  These include "open and gross lewdness or lascivious behavior", a felony involving the public exposure of the genitals,⁶² as well as "lewd and lascivious behavior", a misdemeanor.⁶³  When an undercover police officer has been touched by someone, the individual can be charged with "indecent assault and battery of a person over the age 14", another felony.⁶⁴  Often, both of these are charged.  Sometimes, police will also charge trespass or disorderly conduct, both of which are misdemeanors.  Occasionally, charges will also include a violation of section 34 or 35.  If you are being charged with a violation of section 34 or 35, please contact GLAD.

Does Massachusetts have a "sex offender registry" type of law?

Yes.  Every state now has such a law, although the terms differ from state to state.  In Massachusetts, the law has been tied up in legal challenges and has been redrafted several times.  GLAD successfully challenged one version of the law because of our concerns that it denominated as sex offenders people whose only "crime" was consensual adults' sex or touching an undercover police officer.⁶⁵

What types of crimes are deemed to be "sex offenses"?

As you would expect with a law designed to ensnare dangerous and violent predators, most of the crimes involve violence or sex with children.  However, a conviction for indecent assault and battery on a person over 14 is still a "sex offense" in some circumstances,⁶⁶ as is a "second and subsequent adjudication or conviction for open and gross lewdness and lascivious behavior".⁶⁷  For a full list of sex offenses, see Mass. Gen. Laws, chap. 6, sec. 178C.

What if I got a continuance without a finding?  Or if my conviction is very old?

The law only applies to people who were convicted (or "adjudicated" as a youthful offender) after August 1, 1981, or were still incarcerated, on parole or probation, or in civil commitment as of that date.  If you received a continuance without a finding, that is NOT a conviction and the law does not apply to you.

How can I find out of what charges I have been convicted?

You can contact you local police, or call the Criminal History Systems Board, at 617-660-4600, to request a form to get your criminal records.  You need to fill out the form, have it notarized, and send it back to the CHSB, 200 Arlington St., Suite 2200, Chelsea, MA  02150.

What obligations are imposed on "sex offenders"?

Most sex offenders will have to register annually with the Sex Offender Registry Board and provide personal data, work information, and other identification.  Depending on the circumstances, some or all of this information may be made available to the public.

Based on case law, there is a legal precedent supporting your right to a hearing before you are compelled to register for non-violent offenses -- such as the offenses listed above.  The "new" 1999 version of the law acknowledges that the law will sweep in some people who are not dangerous and predatory sex offenders.  It has set up several systems allowing for petitions or hearings to relieve such persons from the obligation or re-registering and having the information about them stricken from the system.  For more information, contact an attorney ASAP.

Where can I get help if I have been convicted of a crime which qualifies me as a "sex offender"?

Because of the strict time deadlines involved in contesting the need to register at all and the classification of one's dangerousness, get an attorney right away.  Call the GLAD Legal InfoLine for a referral.

What is the age of consent for sexual activity?

Generally, the age of consent for sexual activity is 16.  Mass. Gen. Laws, chap. 272, sec. 4B.  There is some confusion about the age of consent for "unnatural acts," with case law suggesting the age of consent for such acts is 18.<sup>68

56</sup> See GLAD et al. v. Reilly et al., 436 Mass. 132 (2002).
⁵⁷ Mass. Gen. Laws, chap. 272, sec. 34 ("crime against nature").
⁵⁸ Gen. Laws, chap. 272, sec. 35.
⁵⁹ Comm. v. Gallant, 373 Mass. 577, 585 (1977).
⁶⁰See Lawrence & v. Texas, 539 U.S. 558 (2003)
⁶¹ Commonwealth v. Ferguson, 384 Mass. 13 (1981), -- even if a police officer finds them.  Comm. v. Nicholas, 40 Mass. App. Ct. 255, 258 (1996).
⁶² (Mass. Gen. Laws, chap. 272, sec. 16)
⁶³ (Mass. Gen. laws, chap 272, sec. 53).
⁶⁴ (Mass. Gen. laws, chap. 265, sec. 13H).
⁶⁵ Doe v. Attorney General, 426 Mass. 136, 686 N.E.2d 1007 (1997).
⁶⁶ (Mass. Gen. Laws, chap. 272, sec. 13H)
⁶⁷ (Mass. Gen. Laws, chap. 272, sec. 16).
⁶⁸ Comm. v. Zeitler, 7 Mass. App. Ct. 543 (1979).

Police Harassment

I am often told by the police to "move along" from public areas.  Is that legal?

Not necessarily.  If the area is public and not posted as having particular hours, you generally have a right to be there as long as you are engaged in lawful activity.  Public places belong to everyone, and are likely also places of public accommodation to which non-discrimination rules apply.  Even if police officers want to deter crime, or suspect some kind of unlawful intent, they have no general right to request people to move from one place to another unless there is unlawful conduct.⁶⁹

What are the general rules about interaction with police?

The presence of individuals who appear to be gay, lesbian, bisexual or transgendered - whether because such individuals are displaying symbols such as a rainbow flag or pink triangle or for any other reason - should not trigger any special scrutiny by a police officer, other than a concern for the safety and well-being of those persons that the officer would have for any other park or rest area patron.

Police may, of course, approach a person, and make inquiries, but the officer can neither explicitly or implicitly assert that the person must respond to their inquiries.⁷⁰  Even if a person has been convicted of a past offense, or fails to respond, or responds in a way which does not satisfy the officer, the person cannot be arrested.⁷¹

If an officer has "reasonable suspicion" that a crime has been committed or is about to be committed, he or she may briefly detain an individual, or stop the person for purposes of investigation.⁷²  An arrest can only occur upon "probable cause" that a crime has been committed.⁷³

What can I do if I believe I have been improperly treated by the police?

Complaints may be made to any individual police department for matters concerning its officers.  Call GLAD if you need to find out how to make a complaint to the local police.

Complaints to the Massachusetts State Police may be made to State Police Headquarters, c/o Personnel Investigations, 470 Worcester Rd., Framingham, MA 01702.  You can request a form SP 340 from any barracks.  According to State Police Regulations (ADM-14, Jan. 14, 2000), a complainant shall be notified of the receipt of the complaint, and the steps to be taken, be given a status report when requested, and be notified of the final disposition of the case.

Please let GLAD know whenever you make a complaint so that we can track the responsiveness of the various police departments.

In some cases, an individual may decide to pursue a lawsuit - because of injuries, improper detainment, or for some other reason.  These matters are highly specialized, and GLAD can make attorney referrals through our Legal InfoLine.  People can also register serious complaints with the Attorney General's Office, Civil Rights Division.

⁶⁹ Commonwealth v. Carpenter, 325 Mass. 519, 521 (1950) (sauntering and loitering in public places is the right of every person); Benefit v. City of Cambridge, 424 Mass. 918) (streets and other public areas are "quintessential public forums" for expression); Kent v. Dulles, 357 U.S. 116, 126 (1958).
⁷⁰ Commonwealth v. Murdough, 428 Mass. 700 (1999).
⁷¹ Murdough, 428 Mass. at 703; Alegata v. Commonwealth, 353 Mass. 287, 300-01, 231 N.E.2d 201 (1967).
⁷² Murdough, 428 Mass. at 763, Terry v Ohio, 392 U.S. 1, 16 (1968).
⁷³ Murdough, 428 Mass. at 703.

Students' Rights

Are there any laws protecting gay and transgender students in Massachusetts?

Yes.  Mass. Gen Laws, chap. 76, sec. 5, is widely touted as the student rights law for public school students.  It provides that "no person shall be excluded from or discriminated against in admission to a public school of any town, or in obtaining the advantages, privileges and course of study of such public school on account of race, color, sex, religion, national origin, or sexual orientation."

What kinds of conduct does the law cover?

Technically, the law covers exclusion from a public school or discrimination in taking advantage of school programs.  A school may not be so bold as to say, "Don't come here," or "You can't take track," but if they fail to redress pervasive harassment against you at school or in a particular class or activity, they may have said so in effect.  Regulations put out by the State Department of Education make it clear that harassment by peers is covered by the law.⁷⁴

Are there any other laws which may protect me from discrimination and harassment because of my sexual orientation?

Possibly.  Massachusetts state law allows victims of sexual harassment in post-secondary schools to file complaints at the MCAD.  Under federal law, public schools which receive federal funds may not discriminate on the basis of sex.  Sometimes, the harassment of a gay student will be sexual harassment forbidden by this federal law, known as Title IX.  Complaints can be made to your school Title IX coordinator, as well as to the U.S. Department of Education, Office of Civil Rights, in Boston.  A student's constitutional rights may be violated by some kinds of discrimination and harassment.

What can I do if I'm being discriminated against in school?

There are many ways to approach the issue.  One is to ask for support from a friend, teacher or counselor, and talk to the people who are bothering you.  That is not an option, however, if you don't feel safe doing so.

Take a look at your school policies and notify whoever is supposed to be notified - usually a vice principal or Title IX coordinator.  You should document any incidents of harassment or discrimination in writing.  Once you meet with the right officials, make a note of what you told them and on what date and ask when they will be getting back to you with a response.  If they don't help you or don't follow through, you may wish to write to the principal and superintendent and ask for them to end the discrimination.

At the same time, or after contacting the administration as set out above, you may want to file a complaint with the Massachusetts State Department of Education.  Call them at 781-338-6322, or -6313.  They will investigate and examine whether or not the school should consider taking further actions.

If this fails, you may also wish to consider legal action against the town.  Mass. Gen. Laws, chap. 76, sec. 16.  Contact GLAD for attorney referrals.

Where else can I get support if I'm having a problem?

In addition to the resources listed above, you may wish to contact the Governor's Commission on Gay and Lesbian Youth, at 617-727-3600 x 312, or the Violence Recovery Program, 800-834-3242, or the Governor's Task Force on Hate Crimes, 617-660-4610.

⁷⁴ 603 C.M.R. 801 et seq.

Gay / Straight Alliances

Do students have the right to form Gay Straight Alliances in their schools even if the principal or community opposes it?

In all likelihood, yes.  According to the Mass. Dept. of Education, the non-discrimination law (chap. 76, sec. 5) means that the school administrators must respond consistently to all requests for the formation and funding of extra-curricular clubs, even if they don't agree personally with the content or think the community isn't ready for it.

In addition, a federal law known as the "Equal Access Act" provides that secondary school students in schools that receive federal funding and have extra-curricular groups must allow students to form other extra-curricular groups without discriminating based on the religious, philosophical, political, or other content of speech at those meetings.  GLAD brought and won a case for students at West High in Manchester, New Hampshire on this very basis. See GLAD's docket for more information about this case.