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Lesbian Gay Bisexual Transgender Advisory Committee

Minutes of the January 21, 2003 Meeting

Committee Members Present: Commissioner Martha Knutzen, Jason Alley, Virginia Benavidez, Sally Buchmann, Chris Caldeira, Scott Campbell, Chris Carnes, Jay Dwyer, Julie Frank, Ted Guggenheim, Jordy Jones, Danny Kirchoff, Nancy Lawlor, Yoseñio Lewis, Mara M. Montenegro, Johnnie Pratt, Jorge Romero-Lozano, Lisa Scheff, Stephen Schwichow, Morningstar Vancil.

Committee Members Absent: Commissioner Theresa Sparks (excused), Kirsten Boyd (excused), James DeVinny (excused), Kristine Oreskovich (excused).

Staff Present: Larry Brinkin, Ellise Nicholson, Domenic Viterbo.

Guests Present: Dusty Araujo, Adam Benditsky, Veronica Klaus-Shaul, Yoav Shaul, David Wright.

1. Call to Order and Roll Call:

Commissioner Knutzen called the meeting to order at 5:35 p.m. Mr. Brinkin called the roll.

2. Approval of Minutes of November 19, 2002:

Stephen Schwichow moved to approve the minutes as amended. Scott Campbell seconded. The motion passed unanimously.

3. Public Comments for Items Not on the Agenda: None.

4. Panel on Immigration & Asylum:

Dusty Araujo from the International Gay and Lesbian Human Rights Committee (IGLHRC) stated that IGLHRC is a non-profit, non-governmental organization that was founded in 1990. Mr. Araujo has been running IGLHRC's asylum program since 1994. IGLHRC has 9 staff members who assist LGBT people throughout the world. The IGLHRC website is Most of their work consists of advocacy and coalition building. They also work with activists in other countries by providing trainings on LGBT human rights issues, including train-the-trainer programs. A significant part of the asylum program consists of compiling information and conducting research concerning country conditions for LGBT people and those living with HIV and AIDS. Since its inception, IGLHRC has assisted in 4,900 cases worldwide. They provide information and education to attorneys handling asylum cases for the first time. Additionally, IGLHRC works with individuals being held in INS detention centers within the United States by providing referrals to immigration attorneys and investigation into issues of treatment of detainees. Mr. Araujo explained that after changes in the law in 1996, detention centers have become more crowded. This crowding has led to more complaints about mistreatment, especially of HIV positive detainees. After September 11, 2001 countries such as England also have begun instituting detention centers, which is creating issues of treatment and access to representation there. Moreover, after September 11, immigrants and asylum seekers have less access to information and less ability to make contact with those who can assist them. This contact is crucial, explained Mr. Araujo, because those with legal assistance have much higher chances of being granted asylum. Mr. Araujo added that South Africa is now open to asylum based on sexual orientation. Staff member Larry Brinkin asked Mr. Araujo if IGLHRC provides assistance to bi-national couples. Mr. Araujo answered that they do so only if the partner from outside the United States seeks asylum. They will need documentation to prove a claim of that nature. Staff member Hadas Rivera-Weiss asked how IGLHRC compiles their list of attorneys. Mr. Araujo explained that when attorneys contact them for information, they are put into a database that is shared with other attorneys and potential clients. As far as Mr. Araujo is aware, IGLHRC is the only organization in the world gathering legal information regarding political asylum. Mr. Araujo added that the Patriot Act would have a grave impact on asylum cases.

The next speaker was David Wright, a private immigration and asylum attorney who works with the National Center for Lesbian Rights' (NCLR) Immigration/Asylum Project. Mr. Wright said that people from a variety of countries seek asylum based on sexual orientation. Many have suffered incredible persecution, while other cases are not as clear. The first step Mr. Wright takes when handling an asylum case based on sexual orientation is to go to Mr. Araujo at IGLHRC to gather information about conditions in the relevant country. Mr. Wright stated that IGLHRC has really changed they way these cases are handled, and large numbers of cases are now winning because of the information IGLHRC has compiled that shows what is really going on in various countries. It is also important to keep track of developments in how INS is applying the law, since INS decides the cases. Mr. Wright explained that the basic definition of asylum based on sexual orientation is that a person is being persecuted and is unable to avail him or herself of the protection of the government. Proving that a person has been persecuted on account of his or her orientation or HIV status is sometimes difficult. Documentation of what is happening in that country helps substantially. Committee member Scott Campbell asked whether or not the discrimination has to be perpetrated by the government in order to qualify for asylum. Mr. Wright stated that to obtain asylum in the United States, an applicant must show that if the persecution is not being perpetrated by the government, the government is unwilling or unable to control the persecutors. Committee member Chris Caldeira asked Mr. Wright from which countries most people are seeking asylum. Mr. Wright stated that because he speaks Spanish, most of his clients are from Central and South America. Mr. Araujo added that it really depends on where asylum is being sought. For example, in the United States, especially California, most asylum seekers are from Latin America, particularly Mexico, simply because of geography. In France, a lot of them come from Africa. In Australia, most come probably from Asia. Larry Brinkin asked whether gender identity cases have been winning. Dusty Araujo answered that those cases are in fact more likely to be granted asylum because it is easier to show persecution on the basis of gender identity. Virginia Benavidez asked how long these cases take to resolve. Mr. Wright answered that from the time of filing until the time of the interview is about three months. A decision is issued two weeks later. If the petition is denied at this point, the case will go to court about two months later. If the petitioner opts for the "fast track," the case will be resolved in less than a year. If not, it could drag on for years. Once the petition is filed, the petitioner can stay in the country legally pending the final decision.

Veronica Klaus-Shaul and Yoav Shaul were the next speakers. Ms. Klaus-Shaul stated that she married Mr. Shaul at City Hall about three years ago. Mr. Shaul is from Israel, and she is from Illinois. Ms. Klaus-Shaul is transgender. Her birth certificate was changed before the marriage to record her gender as female. Soon after marrying, on May 12, 2000, the couple initiated the process through INS to get Mr. Shaul permanent residency. At the first interview, the couple was asked why, given that they had been together for seven years, they hadn't married sooner. Ms. Klaus-Shaul answered that they were waiting for her to have her gender confirmation surgery so that the marriage would be legally valid. The INS case manager stated that she would recommend approval, but that her supervisor had to review it first. Sometime thereafter, INS requested that Ms. Klaus-Shaul supply her original amended birth certificate and a notarized surgeon's statement attesting to her sex reassignment surgery. Then, in March of 2002, they received notification through their attorney that the case was referred to the Special Operations Unit, which investigates fraud. This letter stated that their second INS interview would likely take place in August or September of 2002. They remained in frequent contact with their attorney, but neither they nor their attorney ever received notice regarding a second interview. Then, in October of 2002, Mr. Shaul received a letter from the INS stating that his application was denied for failure to appear for an interview on September 17, 2002. This letter also stated that he must leave the United States immediately. The couple's attorney as well as Ms. Klaus-Shaul also received letters to this effect. While all three parties received the denial letter, not one of them received notification of the interview date. They spoke with Senator Barbara Boxer and Representative Nancy Pelosi's offices. Harriot Ishimoto from Representative Pelosi's office as well as their attorney all requested that INS reopen the case. The INS refused. On the advice of their attorney, the couple submitted a new application in December of 2002 in addition to the petition to re-open. They have not heard anything yet. They also have sought help from the San Francisco Board of Supervisors, which passed a resolution urging the INS to re-open the case. Mr. Wright explained that since 1996, INS is no longer required to send mail certified. Commissioner Knutzen asked Ms. Klaus-Shaul and Mr. Shaul to let us know how the HRC can assist them. Mr. Wright recommended that the HRC write a letter to the INS public relations officer inquiring about this situation. Larry Brinkin stated that staff could write a letter from the Director.

5. Equal Benefits Ordinance 5-Year Report:

Staff member Cynthia Goldstein reported that from the first offering of domestic partner benefits by the Village Voice Newspaper in 1982 until the introduction of the Equal Benefits Ordinance fifteen years later, only 500 companies nationwide extended domestic partner benefits to their employees. Five years later, that number has surged. As of June 30, 2002, the Human Rights Commission helped 3,500 City Contractors extend benefits to the domestic partners of their employees. Nationwide, over 4,500 employers have been documented as offering such benefits. As of June 30, 2002, 11,233 contractors submitted compliance paperwork to the Commission. Of those, the status of 8,163 has been finalized with 7,669 (94%) of them having been placed into compliance (having ended any existing discrimination in the provision of benefits) and only 494 (6%) determined to be non-compliant. This rate of compliance has slowly increased over the past five years.

The goal of the Equal Benefits Ordinance is to eliminate discrimination in the provision of employee benefits offered to married employees and employees with domestic partners. Contractors may avoid discriminating, and thereby comply with the Ordinance, in one of three ways. They may: (1) offer employee benefits that don't discriminate between spouses and domestic partners; (2) offer no employee benefits based on marriage or domestic partnership; or (3) have no employees. Of the 7,669 contractors complying by the end of fiscal year 2001-2002, forty-six percent (3,501) offer nondiscriminatory benefits to their employees, twenty-nine percent (2,216) do not offer any benefits based on marriage or domestic partnership to their employees, and twenty-five percent (1,952) do not have any employees (such as sole proprietors).

Ms. Goldstein added that over the past five years, the proportion of contractors complying with the Equal Benefits Ordinance in each of these three ways has remained fairly constant. There has been a slight increase in the percentage of companies offering nondiscriminatory benefits, mostly reflected within the first two years, and a rise in the percentage of contractors without employees. The most significant change has been a 6% decrease in the number of companies not offering benefits. This decline has continued over the five years of implementation and refutes the assertion that Equal Benefits legislation encourages employers to take away benefits they might otherwise offer.

As of the 2001-2002 fiscal year, Ms. Goldstein reported, 52 large companies (5,000 or more employees), 173 medium sized companies (500 to 4,999 employees) and 3,219 small companies (under 500 employees) comply by offering nondiscriminatory benefits. These proportions have remained fairly consistent during the life of the Ordinance and because they are reflective of the U.S. business community in general, they indicate that, regardless of company size, compliance with the Equal Benefits Ordinance is equally feasible.

City contractors offering domestic partner benefits employ a nationwide pool of approximately 1,722,000 people, reflecting an increase of almost 246,000 people in fiscal year 2001-2002. With actuarial statistics indicating an enrollment rate in domestic partner medical benefits offered to both same and opposite sex couples averaging 3% in the private sector, this means there are approximately 51,660 people who have taken advantage of this benefit through the programs offered by City contractors. This is an increase of approximately 7,380 insured domestic partners in the past year alone and reflects a steady growth in the number of individuals assisted by the City's policy.

After five years of Equal Benefits implementation, compliant contractors can be found in at least 44 states, plus the District of Columbia, and in over 900 cities across the country. The majority,

approximately 87%, are located in California, with 41.5% located in San Francisco. Companies that comply by offering benefits can be found in at least 39 states and the District of Columbia, and in almost 500 cities nationwide.

Lastly, Ms. Goldstein gave a legislative update on domestic partner laws and registries, and a litigation update regarding lawsuits against the City's Equal Benefits Ordinance.

6. Report of the Senior Issues Task Force:

Julie Frank reported that the Task Force met on Tuesday, January 7, 2003 at which time members began reviewing the findings and recommendations. Ms. Frank reported that Stephen Schwichow consolidated the findings and recommendations into a spread-sheet. More information will be available in February. Commissioner Knutzen reviewed the spread-sheet and notes and commended those involved, including Mr. Schwichow, Scott Campbell, Julie Frank, and Wood Massi. The next meeting of the Task Force will be held on February 4th at 5:30.

7. Report from Gender Identity Guidelines Revisions Task Force:

Lisa Scheff reported that the Task Force met last Tuesday, January 14, 2003. The Task Force is hoping to have a draft of the guidelines for the Committee's review soon, but at present they are working out some of the language and want to wait until they have fully discussed and resolved those issues. In particular, the Task Force is still working out the section on public accommodations with unavoidable nudity. The desire in the group is to move toward self-identification and away from the requirement of a "genital match." Ms. Scheff reported that the Task Force is working hard on this issue.

8. Report from Recruitment Committee:

Larry Brinkin reported that the deadline for applications to the Committee was last Thursday. Mr. Brinkin stated that Adam Benditsky, the Mayor's LGBT Liaison, would be appointed as an ex-officio member. Six people applied in addition to Mr. Benditsky. Recruitment Committee members will receive copies of these applications tonight, and will hopefully conduct interviews next Tuesday. The Recruitment Committee will make their recommendations to the full Committee at the regular February meeting.

9. Discussion of February Panel:

Larry Brinkin reminded Chris Caldeira, Nancy Lawlor, Ted Guggenheim, and Kirsten Boyd that they are on the organizing committee for the February panel on LGBT issues in public schools. Mr. Brinkin added that organizing committee members should talk to each other and plan the panel together. He also asked that the organizing committee please let staff know in advance who the panelists will be so that staff can send confirming letters to the panelists.

10. Commissioners' Report:

Commissioner Knutzen reported that the Commission met twice since the last Committee meeting, once in December and once in January. At the December meeting, the Commission passed a number of letters as a consequence of recommendations stemming from the post-9/11 backlash hearings. The Commission has yet to receive any responses to these letters. Also, every quarter the Commission conducts a report on how well the City is complying with the M/W/LBE statutes. Commissioner Knutzen reported that there is still a significant under-representation of minority and women contractors being awarded City contracts. Regarding the January Commission meeting, Commissioner Knutzen reported that the Chair of the Committee, Ghada Saliba-Malouf, resigned because she moved out of city. A new Chair, Malcolm Heinicke was elected, along with a new Vice-Chair, Alicia Becerril. The Commission also discussed the effort by the ACLU urging cities to refuse to comply with the Patriot Act to the extent that it infringes upon civil liberties. Nearly twenty cities are on board thus far. The Commission asked the Board of Supervisors to pass a resolution joining these cities in refusing to implement the Patriot Act. The Board is voting on that issue tonight. Commissioner Knutzen asked staff to include the four page ACLU handout on this issue in next month's packet.

11. Staff Report:

Larry Brinkin reported on the bad budgetary news. Every day, he stated, the City's budget deficit grows. The current deficit is now expected to be 350 million dollars, which is the largest since World War II. The City is in the process of discussing options to deal with this, including the possibility of mandatory unpaid leaves. This year the HRC has been asked to take a 3% cut. Next fiscal year's cut will be at least 8% and up to 20%. This could mean lay-offs. The HRC does not have much money to cut besides employee salaries. Mr. Brinkin also reported on additional sad news, which is that Mary Dunlap died of pancreatic cancer. Ms. Dunlap was the director of the Office of Citizen Complaints (OCC). She was a lesbian attorney famous for arguing before the United States Supreme Court in the gay Olympics case. She also founded Equal Rights Advocates. Mr. Brinkin stated that she had a wonderful heart and was very important to our community. Mr. Brinkin worked with her concerning police and transgender relationships, much of which came at her initiative. Mr. Brinkin added that we will miss her, and he would like to adjourn in her honor. Mr. Brinkin also reported that Director Harmon gave birth to a baby, named Patrick, who was born two days early. Director Harmon will be out for the next three months on maternity leave. Mr. Brinkin added that HRC staff is continuing to be part of the Legal Collaborative of the LGBT Center. Ellise Nicholson handed out a flyer for the next Legal Collaborative event, which will be a housing forum held at the center on February 20, 2003. Mr. Brinkin stated that Marcus Arana is speaking on transgender issues to a class at UC Santa Cruz, and remains in high demand as a speaker on transgender issues.

12. Old/New Business:


13. Announcements:

Stephen Schwichow announced that the Catholic Church recently made an official statement regarding transgender people, ordering parishes never to change any records with respect to gender. Sally Buchman asked where that leaves intersex persons. Yoseñio Lewis explained that there is a specific exception for those with "ambiguous external genitalia."

14. Adjournment:

Yoseñio Lewis moved to adjourn in honor of Ntombei Howell, who was the Director of the recovery program at Glide Memorial Church, and Angela Davis, who was an activist working on the issue of HIV/AIDS in Hunter's Point and in women's communities. Ms. Davis, who died of Multiple Sclerosis, had just completed her work to become a minister with the Unitarian Church, was an out air force pilot, and had three Master's degrees. The meeting was adjourned at 7:43 in honor of Mary Dunlap, Ntombei Howell, and Angela Davis.