On Tuesday, January 19^th, the Obama Administration announced plans to implement new hospital visitation regulations. These new regulations extend to same-sex couples the same rights as heterosexual couples. Under the new regulations, patients being treated at nearly all hospitals, specifically those that accept Medicare and Medicaid, will now be allowed to make their own decisions as to who has visitation rights and who can make medical decisions on their behalf.

The Secretary of Health and Human Services has added these new regulations to the already existing requirements that hospitals and critical access hospitals (CAH’s) must meet in order to participate in the Medicare and States’ Medicaid programs. Under these new regulations, hospitals are obligated to have written policies and procedures regarding patients’ visitation rights.  They must inform each patient, or his or her representative, of the patient’s visitation rights, subject to his or her consent, to receive the visitors whom he or she designates, be it a spouse, another family member, or a friend, and of the right to withdraw or deny such consent at any time; and the hospital would not be permitted to restrict, limit, or otherwise deny visitation privileges on the basis of race, sex, gender identity, sexual orientation, or disability. Officials said the new visitation regulations would also benefit, for example, childless widows or widowers who may seek the care and companionship of an unmarried partner or friend. The regulations also apply to members of religious orders.

This is an important victory for many who have suffered the tragedy of being denied visitation to their partners. Can you imagine not being allowed to see your loved ones during their final hours? This social injustice has been documented numerous times and is exactly what the new proposed regulations are hope to quash. Previously, the regulations stated that visitation was only granted on the grounds of marriage or blood relation. Obama told the public, after the announcement, that the LGBT community is uniquely effected by hospital visitation rights and “are often barred from the bedsides of the partners with whom they may have spent decades of their lives — unable to be there for the person they love, and unable to act as a legal surrogate if their partner is incapacitated.”

One touching story inspired President Obama to enact the regulation. For nearly 4 years, Janice Langbehn has been tirelessly fighting for equality. Her fight was for hospital visitation regulations to be expanded beyond the traditional hetero-marriage model. Her partner, Lisa Pond, of 18 years collapsed with an aneurysm during a Florida vacation. She was taken to a Miami trauma center where she died, at age 39.  Despite tirelessly fighting to persuade hospital officials to let her and their adopted children, Danielle, 15; David, 13; and Katie, 12 to visit Lisa, passed away without the comfort of family around her.  Langbehn sued the hospital for the tragedy they faced.  Lambda Legal represented the family which resulted in the court dismissing the lawsuit. The court’s reasoning was that no statue existed to protect Janice and her partner Lisa.

Obama, inspired by this story, decided to change these regulations. He drafted a proposal that was made public by the Department of Health and Human Services. After President Obama issued a presidential memorandum directing the Secretary of Health and Human Services to take steps to fix health care issues affecting LGBT families, he called Janice Langbehn to express his sympathies for her tragic loss.

Lambda Legal has noted that some important protections still need to be added to the new regulations. The new regulations do not outline who may visit when an incapacitated patient has not designated someone to make decisions.  Also, there is still a need for an appeals procedure for visitation denials, and for hospices and nursing homes to have LGBT-specific nondiscrimination policies in place.

Though the outlook is positive the regulations will not take immediate effect because it will take time to fully flush out and draft the regulations.  In the meantime, it is important to understand your rights for hospital visitation and to talk with your doctor about who you want to have access to you in times of medical emergency.  Moreover, contact your attorney and have him or her draw up a hospital visitation authorization, a living will and a health-care proxy.  These documents allow you to designate who can visit you in the hospital, as well as designate who will make health-care decisions should you become unconscious or unable to communicate them yourself.  Under most state laws, lesbian, gay, bisexual and transgender partners are not considered family and these documents helps to overcome traditional definitions of family and outlines what family means to you while protecting your lifelong partner.

Also, please consider that even if you know your local hospital’s policy, emergencies can happen when traveling. Traveling to another state is one instance when the need for a living will and health-care proxy documents are crucial. Although some states, such as North Carolina, Delaware, Nebraska, and Minnesota, have already enacted their own laws granting patients the right to designate visitors, it is important to remember that each state, each hospital and each attendant at each hospital, has a different perspective about gay rights. Ultimately, you must have all legal documents in place and accessible in the event that you or a loved one needs hospitalization.

**Angela D. Giampolo, Principal of Giampolo Law Group maintains offices in both Pennsylvania and New Jersey and specializes in LGBT Law, Business Law, Real Estate Law and Civil Rights. Her website is www.giampololaw.com and she maintains a blog www.phillygaylawyer.com. Please feel free to send Angela your legal questions at angela@giampololaw.com.

The modern gay rights and current immigration movements may seem like two dissimilar issues; however, the two issues have much more in common than what initially meets the eye.  The push for human dignity, respect, and equality under the law are dominant themes underlying both minority movements.   And, with a large population of gay immigrants seeking refuge in the United States, the LGBT community cannot afford to shy away from ever present immigration concerns.

The United States has historically opened its doors to those seeking a better life, but as times have changed, so too has America’s stance on immigration. Today, immigrants hoping to join America’s melting pot are not always met with welcoming arms, a sentiment all too familiar to many LGBT individuals.

As the push for equality on both fronts moves forward, Deepak Bhargava, Executive Director of Washington, D.C.’s Center for Community Change, believes the immigrant movement can take a page out of the LGBT book in noting, “I think the LGBT movement is one of the few progressive social justice movements that is really moving the country in the right direction.  The work that the LGBT movement has done on every front, from legal and legislative to cultural, offers a good model for the immigrant rights movement.”  One thing is for sure, the LGBT community has been extremely successful at garnering outside support.  An increasing number of non-LGBT individuals have become passionate about standing up for LGBT rights. Arguably, this shift in attitude among straight allies is what has helped propel the LGBT movement forward.   In the same regard, immigrants must work to garner the support of the non-immigrant communities in order to have a viable chance at gaining equal footing.

LGBT issues are not confined to naturally born LGBT citizens.    LGBT immigrants face the same discrimination and abuse as any other LGBT individual.   “LGBT People who are not legalized are often afraid to report hate crimes, fight job or housing discrimination, report police abuse, or stand up for their own civil rights, which will have an impact on all other LGBT people”, reports Kevin Cathcart, Executive Director of Lambda Legal.  In addition, LGBT individuals in detention, especially transgender individuals, are oftentimes subject to brutal discrimination and abuse.  Thus, as Bhargava points out, immigration needs reform because currently, “[p]roviding a path to citizenship is a gay issue.  For so many LGBT people, it is the single most transformative thing that could be done to improve their lives.”

Just as LGBT issues are not confined to naturally born LGBT citizens, immigration issues are is not solely confined to immigrants.  Although immigrants are more likely to have a same-sex partner located outside of the U.S. and are unable to petition the government for their partner to come to the U.S., immigrant couples are not the only ones torn apart by the current policy.  Under the U.S. Immigration and Nationality Act, U.S. citizens and legal residents may sponsor their foreign “spouse” for immigration purposes, but because under the Defense of Marriage Act (DOMA) the federal government does not recognize same-sex marriage, same-sex partners are not considered “spouses” for immigration purposes.  As a result, foreign born individuals comprising 50% of same-sex couples continue to face deportation, even in situations where a same-sex couple may be legally married under prevailing state law.

The Comprehensive Immigration Reform Act, which includes the Uniting American Families Act (UAFA), which was reintroduced into the Senate this past June, looks to overturn the current policy.  UAFA would not end DOMA. Rather, UAFA was purposefully drafted to circumvent DOMA.  If passed, the legislation would allow U.S. nationals to sponsor their foreign-born same-sex permanent partners for citizenship. The Human Rights Campaign website (www.hrc.org) provides the following explanation of the bill.

UAFA defines “permanent partner” as an individual who is at least 18 years of age who is in a committed relationship with another individual at least 18 years of age who is not a first, second or third-degree blood relative, with the intent that this be a lifelong commitment.

The individual must be financially interdependent with his or her partner, cannot be married or in another permanent partnership and must be unable to enter into a marriage recognized under the INA with the partner.

UAFA will provide lesbian and gay individuals the same opportunity as different-sex, married couples to sponsor their partner.  Like different-sex couples, there are requirements such as providing proof of the relationship — including affidavits from friends and family or evidence of financial support.  As with current immigration laws for married couples, UAFA would impose harsh penalties for fraud, including up to five years in prison and as much as $250,000 in fines.

The UAFA has been introduced into every session of Congress since 2000; however, the stand alone act continuously failed to garner majority support.  Advocates of the measure hope UAFA will perform better this time around packaged as part of the overall immigration reform, but with little bi-partisan support, the Act will have a hard time navigating its way through Congress, especially since the Republicans have taken up defense of DOMA.

Although it would not end DOMA, UAFA’s passage would be a huge step forward for both the LGBT and immigration movements.  And while indeed the two communities share common goals and face similar pitfalls as outlined above, one factor separating the two communities remains – the notion that the large wave of immigrants is comprised of socially conservative individuals who typically oppose LGBT rights.  This notion, combined with the fact that many immigrants are supported by Catholic and evangelical churches, makes the idea of joining the two forces difficult.  Nevertheless, Bhargava believes there is “tremendous openness in the immigrant community for the LGBT agenda.” With any luck, the two sides can merge common agendas and work together toward fighting discrimination and bringing about equality for everyone.

On the afternoon of October 28, 2009, President Barack Obama signed the Matthew Shepard and James Byrd Hate Crimes Prevention Act of 2009 (18 U.S.C. Section 249) into law.  The Act is named after two victims of bias-motivated crimes.   The hate-crime that captured the world’s attention happened to Mathew Shepard, a student in Laramie, Wyoming who, in 1998, who was tortured and murdered because of his perceived sexual orientation.   The less well-known namesake hate-crime happened that same year, in Jasper, Texas, James Byrd, Jr. who was tied to a truck and dragged from it and then decapitated by two known white supremacists because he was African-American.

According to FBI statistics, there were 7,621 reported hate crime incidents that were motivated by a single, discernable animus. This means that there was at least one hate crime incident every hour or every day in the U.S. in 2007. Of those reported incidents, over half were motivated by racial bias; 18% were motivated by religious bias and 16% were motivated by sexual-orientation bias.  From 2003-2007 the number of reported hate crimes against Hispanics increased nearly 40%. And, the number of reported hate crimes against individuals because of their sexual orientation increased to the highest level in five years – amounting to 1,265 incidents.

In response to the insurgence of hate-crimes, The Matthew Shepard and James Byrd Hate Crimes Prevention Act expands the 1969 United States federal hate-crime law, which extends to crimes motivated by a victim’s actual or perceived race, color, religion, or national origin, to include actual or perceived gender, sexual orientation, gender identity, or disability. The statute further expands the hate crimes law by removing the prerequisite that the victim be engaging in a federally-protected activity, like voting or going to school; giving federal authorities greater ability to engage in hate crime investigations that local authorities choose not to pursue; providing $5 million per year in funding for fiscal years 2010-2012 to help state and local agencies pay for investigating and prosecuting hate crimes; and requiring the FBI to track statistics on hate crimes against transgender people, as the statistics for the other groups are already tracked.

The statute specifically provides funding and technical assistance to state, local and tribal jurisdictions to help them to more effectively investigate and prosecute hate crimes. It also creates a new federal criminal law which criminalizes willfully causing bodily injury (or attempting to do so with fire, firearm, or other dangerous weapon) when (1) the crime was committed because of the actual or perceived race, color, religion, national origin of any person or (2) the crime was committed because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person and the crime affected interstate or foreign commerce or occurred within federal special maritime and territorial jurisdiction.

The newly enacted law has three significant subsections. Subsection (a)(1) has a broader reach than existing hate crime statutes and does not require the government to prove an additional “jurisdictional” element to obtain a conviction.  It criminalizes violent acts and attempts to commit violent acts undertaken with a dangerous weapon when those acts occur because of the actual or perceived race, color, religion, or national origin of any person.

Subsection (a)(2) of the statute protects a wider class of victims. This subsection criminalizes acts of violence, and attempts to commit violent acts undertaken with a dangerous weapon, when motivated by the actual or perceived gender, disability, sexual orientation, or gender identity of any person.  It also applies to violent acts motivated by animus against those religions and national origins which were not considered to be “races” at the time the Thirteenth Amendment was passed.  Because this portion of the statute was passed pursuant to Congress’s Commerce Clause authority, the government must prove that the crime was in or affected interstate or foreign commerce to obtain a conviction.

Subsection (a)(3) of the statute provides for prosecution of crimes committed because of any of the characteristics defined in subsections (a)(1) or (a)(2), whenever such crimes occur within the Special Maritime and Territorial Jurisdiction (SMTJ) of the United States.

It is very important to note, especially in light of the pervasive bullying and harassment of LGBT children and teenagers, that the statute criminalizes only violent acts resulting in bodily injury or attempts to inflict bodily injury, through the use of fire, firearms, explosive and incendiary devices, or other dangerous weapons.  While, the statute does not criminalize threats of violence, threats to inflict physical injury may be prosecutable under other hate crimes statutes, such as 42 U.S.C. Section 3631 or 18 U.S.C. Section 245.

The Department of Justice stated that its prosecution of hate crime cases “have sent the strong message that criminal conduct that violates an individual’s civil rights or seeks to victimize entire communities has no place in a democratic society, wherever and whenever it occurs in the Unites States of America.”  It has gone on to state that the Matthew Shepard and James Byrd Hate Crimes Prevention Act  “is essential because, sadly, hate crimes and the intolerance that breeds them remain all too prevent in our nation.”   Attorney General Holder repeatedly emphasized that the “Department [of Justice] and the Civil Rights Division are steadfastly committed to enforcing the Matthew Shepard and James Byrd Hate Crimes Prevention Act.”

Those who opposed the passage of the statute, such as the socially conservative lobbying group Focus on the Family, argue that it infringes on the First Amendment rights of free speech and free exercise. But the statute only applies to bias-motivated crimes of violence and does not impinge on freedom or speech or religious expression in any way. The law actually contains specific protections for freedom of speech and association, including religious speech and association ensuring that religious leaders can continue to express their beliefs or serve their congregations as they see fit.

If you have experienced any form of hate-based violence, time is of the essence.  Start by calling 911 and explain as many details about the incident as possible.  File a police report and remember to be as detailed as possible. If you are injured, ask for an ambulance and go to the nearest emergency room right away.  Then, most importantly, find support.  No one should have to deal with the emotional and mental strain of experience a hate-crime alone.  Lean on a good friend, family member or someone at a local LGBT community center or agency.  Talking through the incident can help facilitate the healing process.  There are anonymous services available in your local area that can assist you with dealing with the police, finding counseling, and other services.

In short, while the Matthew Shepard and James Byrd Hate Crimes Prevention Act of 2009 does not have all the enforcement “teeth” that it could at the moment and its constitutionality is still being challenged by opposition to the Act, awareness of its existence and its power at the federal level is growing.  Moreover, the Justice Department is working vigorously to educate communities about the new law and to prevent hate crimes from occurring in the first place.

**Angela D. Giampolo, Principal of Giampolo Law Group maintains offices in both Pennsylvania and New Jersey and specializes in LGBT Law, Business Law, Real Estate Law and Civil Rights. Her website is www.giampololaw.com and she maintains a blog www.phillygaylawyer.com. Please feel free to send Angela your legal questions at angela@giampololaw.com.