Foley Hoag Commemorates LGBTQ+ Pride Month 2020

A Sampling of Key Pro Bono Cases

Employment Discrimination

Leno v. Independent Public Employees Association (Mass. Labor Relations Comm’n 1994)
Represented a Cambridge municipal employee in a suit against her union for the breach of the duty of fair representation after union refused city’s no-strings offer of same-sex domestic partner benefits. Case settled with acceptance of benefits after complaint filed.

Attorneys: John Shope and Foley alumnus Arthur Telegen

Discrimination in Public Education

Jane Doe v. Town of Avon (1994)
Working with Gay & Lesbian Advocates & Defenders, represented the a lesbian student in claim that Avon public schools permitted harassment of student based on her sexual orientation. Case settled with student permitted to complete her high school degree at local community college at school department’s expense.

Attorneys: John Shope and Foley alumnus John Henn

Dulude, et al. v. Amherst School Committee, et al. (D. Mass. 1996)
Working with Gay & Lesbian Advocates & Defenders, represented creators of “Love Makes a Family” montage depicting families with same-sex parents in successfully opposing an injunction on its public display requested on the theory that that it interfered with parents’ constitutional right to educate their children.

Attorney: John Shope

Same-Sex Domestic Violence

Sommi v. Ayer, 51 Mass. App. Ct. 207 (2001)
We represented a gay client who obtained 209A Abuse Prevention Orders against the two men who raped him. Our client’s abusers sought baseless and retaliatory restraining orders against him in a different court. That court improperly issued orders against our client, without complying with the express requirements of M.G.L. Chapter 209A. We appealed, and the Massachusetts Appeals Court held that reciprocal restraining orders, even if issued from two different district courts, are “mutual orders” that require specific written findings of fact. This decision ensures that judges discharge their duty to discover and protect the real victim of domestic abuse, and cannot simply fall back on prejudiced assumptions that because the parties are of the same sex, they must have the same power, and therefore must have both been abusive.

This case was the first same-sex domestic violence case to reach appellate courts in Massachusetts, and the Court’s ruling -- that domestic violence laws protect gay, lesbian, and bisexual people, as well as heterosexuals -- was significant. The case established that the safeguards against mutual restraining orders apply in same-sex relationships, where at the time, courts were much more likely to issue mutual orders in a same-sex situation. The firm continues to represent victims of same-sex domestic violence, obtaining and enforcing restraining orders on behalf of LGBTQ victims.

Attorneys: Tony Mirenda, Ken Leonetti and Foley alums Vickie Henry and Jessica Silbey

Same-Sex Marriage & Rights of Same-Sex Couples

Defense of Marriage Act (DOMA) Repeal

Foley Hoag worked with Gay & Lesbian Advocates & Defenders (GLAD) and co-counsel from two other law firms to overturn portions of the 1996 Federal Defense of Marriage Act (DOMA), which denied Federal recognition to the valid Massachusetts marriages of our clients. As a result, our clients were denied a variety of Federal tax, health care, and retirement benefits. A three-judge panel of the First U.S. Circuit Court of Appeals in Boston unanimously upheld a 2010 U.S. District Court ruling that DOMA’s Section 3 unconstitutionally denies same-sex couples federal spousal benefits, such as Social Security survivor benefits and the ability to file joint tax returns. The lawsuit, Gill et al v. Office of Personnel Management, et al., was filed on behalf of seven same-sex couples married in Massachusetts and three surviving spouses of those marriages.

Soon thereafter, Foley Hoag filed an amicus brief in United States v. Windsor, challenging Section 3 of the Defense of Marriage Act (DOMA). Foley’s amicus brief was filed on behalf of Dr. Donna E. Shalala, Dr. Louis W. Sullivan, Togo D. West, Jr., Kenneth S. Apfel, Sheldon S. Cohen, Constance Berry Newman, and others with significant experience working for administrative agencies. It argued that federal agencies have never applied a uniform definition of marriage, agencies have significant experience navigating variations in state marriage laws, and agencies make other determinations that are far more burdensome than applying state marriage laws.

Although Gill was the earliest-filed of the cases challenging DOMA, the Supreme Court took certiorari in United States v. Windsor, not Gill - presumably, because Justice Elena Kagan was recused from considering the Gill case. In a momentous June 2013 decision, the U.S. Supreme Court affirmed the judgment that DOMA was unconstitutional. The Supreme Court’s opinion mentions our earlier victories in Gill in the Windsor opinion. Following this decision, the Court took certiorari in Gill and another case that Foley Hoag had worked on with GLAD and affirmed the Appeals Court victories we had secured.

Attorneys: Sarah Burg, Jeremy Younkin, Nicola Lemay, Matthew Miller, Nicole Kinsley, and Foley alums Claire Laporte, Vickie Henry, Ara Gershengorn, Catherine Deneke, and Amy Senier

Massachusetts Same-Sex Marriage Cases

Goodridge et al. v. Department of Public Health, 440 Mass. 309 (2003)
We filed an amicus brief in a case filed by GLAD in the Massachusetts Supreme Judicial Court on behalf of a group of constitutional law professors from around the country, concerning state constitutional principles supporting the right to equal access to marriage. This historic win, established that gay and lesbian couples in Massachusetts could no longer be excluded from civil marriage rights. The 4-3 opinion was the first of its kind in the country by a final appellate court.

Attorneys: Tony Mirenda, and Foley alums Vickie Henry, Lucy Fowler, John Granberry, and Gabriel Helmer

Cote-Whitacre et al. v. Department of Public Health, 446 Mass. 350 (2006)

We filed an amicus brief in the Massachusetts Supreme Judicial Court on behalf of twenty-seven civil rights organizations and eleven university professors, concerning the unconstitutionality of the application of a 1913 state law to limit the right to equal access to marriage.

Attorneys: Tony Mirenda and Foley alums Vickie Henry and Brad Abruzzi

Held v. Colvin, Challenge to Overpayment Collection Practices for LGBT Couples Receiving SSI benefits

Justice in Aging, GLBTQ Legal Advocates & Defenders (GLAD) and Foley Hoag LLP filed a lawsuit on behalf of Plaintiffs Hugh Held and Kelley Richardson-Wright and a proposed nationwide class to challenge the Social Security Administration (SSA)’s prior Supplemental Security Income (SSI) policy. The lawsuit alleged that SSA’s conduct violated the Social Security Act and the equal protection and due process guarantees of the U.S. Constitution.

SSI recipients married to someone of the same sex were being asked to pay back “overpayments” caused by SSA’s failure to recognize their marriages. These overpayments were caused by SSA’s continued application of the Defense of Marriage Act (DOMA), which unconstitutionally disrespected these marriages, for many months, and even years, after that statute was struck down by the U.S. Supreme Court in Windsor v. United States. SSA calculated eligibility and benefit amounts for these individuals as if they were single, even though they were married, which resulted in overpayments. When SSA finally recognized these marriages, the agency asked them to pay back thousands of dollars they did not have and which SSI rules did not allow them to save.

In October 2015, 39 Senators and 82 members of the House of Representatives sent a letter to SSA asking the agency to waive recovery of overpayments and implement the Supreme Court’s decision. The Congressional letter stated, in part: “SSA should not penalize people who are poor, elderly or disabled because SSA continued issuing benefits to these married individuals as though they were single. According to SSA’s statute and regulations, SSA shall avoid penalizing an individual for overpayment if the individual is without fault and if recovery of the overpayment would be against equity and good conscience.”

In April 2016, SSA issued a new policy that favorably addresses concerns raised in the lawsuit and the Congressional letter, providing a significant win for individuals receiving SSI benefits who are married to someone of the same sex but whose marriages were not recognized by SSA when they should have been. The agency issued instructions to its local offices across the country to presume that a waiver of the overpayment has been requested. The new policy provided further instructions, which resulted in a grant of a waiver on the grounds that the individual is without fault for the overpayment and that collection would be against equity and good conscience, as was argued in the lawsuit and the Congressional letter. The authority to deny a waiver is removed from local offices, and any denial must first be reviewed by SSA’s Central Office.

Attorneys: Marco Quina, Emily Nash, and Foley alums Claire Laporte, Steve Bychowski, and Brendan Jarboe

Pavan v. Smith, Right of Same-Sex Couples to have both parents’ names on birth certificates

Filed amicus brief with U.S. Supreme Court in support of cert. on behalf of Family Law Professors in the case Marisa N. Pavan, et al. v. Nathaniel Smith, M.D., MPH in support of the right of married same-sex couples to have both parents’ names listed on the birth certificates of their children. GLAD is counsel on one brief, representing 54 family law professors.

Attorneys: Marco Quina, Emma Winer and Foley alums Claire Laporte and Jennifer Kirby

Transgender Rights

Public Accommodations Discrimination

Rosa v. Park West Bank (1st Circuit 2000)

Assisted Gay & Lesbian Advocates & Defenders in preparation for argument of in, which the court held that a bank’s discrimination against a transgender customer violated the prohibition on sex discrimination in the Equal Credit Opportunity Act.

Attorney: John Shope

Transgender Students’ Bathroom Access

Challenge to Trump Administration’s Withdrawal of DOE/DOJ Guidance on Transgender Students’ bathroom access under the Administrative Procedure Act (ADA).

Attorneys: Dean Richlin, Kathleen Brill, Erik Schulwolf, Aaron Lang, Stephen Bartlett, Rachel Hutchinson and Foley alum Amanda Hainsworth

Gloucester, VA Amicus Brief, Transgender Students’ Bathroom Access

Filed U.S. Supreme Court amicus brief in Gloucester County, VA School Board v. GG, in support of transgender students wanting access to restrooms based on their gender identity.

Attorneys: Dean Richlin, Rachel Hutchinson, Emily Nash and Foley alums Claire Laporte and Amanda Hainsworth

Highland, OH Amicus Brief, Transgender Students’ Bathroom Access

Filed amicus brief on behalf of GLAD in support of transgender students wanting to access restrooms based on their gender identity in Highland, OH Local School District v. Dept. of Education

Attorneys: Dean Richlin, Emily Nash, Erin Olesen

Doe v. Trump, Transgender Ban in the Military
Working with GLAD and WilmerHale to represent active military service members in opposing a ban on transgender service member serving in the military

Attorneys: Matthew Miller, Kathleen Brill, Tracy Roosevelt, Rachel Hutchinson, Shrutih Tewarie, Mike Licker. Nicole Kinsley, Jacquie Chavez and Foley alums Claire Laporte, Dan Procaccini, Dan McFadden, and Lauren Milgroom

Protecting LGBTQ+ Immigrants from Persecution

N.R. Asylum Case

N.R. is a Honduran transgender woman who fled her home country to escape violent attacks from gang members affiliated to the 18th street gang, one of the most powerful and violent gangs in San Pedro Sula. N.R.’s persecutors targeted her because of her sexual orientation and subjected her to multiple beatings and death threats to force her out of the gang’s territory. Upon the escalation of the violence, and the realization that police forces could not help her, N.R. fled to the United States after the gang threatened to behead her on social media. N.R.’s case was referred to Foley Hoag in 2016 by Human Rights First in Washington, D.C. Foley Hoag represented N.R. in defensive asylum proceedings and helped her secure employment authorization. Throughout the proceedings, Foley attorneys briefed the Immigration Court on the uncontroversial status of protection granted under asylum law to people belonging to particular social groups based on sexual orientation inclusive of the LGBT spectrum. In addition, Foley attorneys presented compelling evidence of N.R.’s credibility and peril in returning to Honduras.

N.R.’s individual immigration hearing took place in the Baltimore Immigration Court on November 4, 2019, before Judge Crossland. The Judge granted asylum to N.R., after the DHS Attorneys deferred the decision to the bench due to the “great detail of N.R.’s pleadings and record.” DHS waived any appeal, which means that the asylum order is final. During the time Foley represented N.R. she was able to improve her life greatly by expressing freely her gender identity without fear of harm. N.R. is now eligible benefits as an asylee and will be able to apply for adjustment of status in one year.

Attorneys: José M. Garcia Rebolledo, John Marston

S.Y. Asylum Case

Our client is from Ethiopia and is a bisexual man who was arrested and imprisoned for engaging in a consensual same-sex relationship with another man in Ethiopia in 2012. Our client fled the country and arrived in the U.S. in the fall of that year. Due to the delay in the Immigration Courts, his hearing in the Baltimore Immigration Court was not held until earlier this month. At the hearing, Tom Barker and the attorney for the Department of Homeland Security agreed on a series of stipulations that led the judge to grant asylum without a hearing before the court. <

Attorneys: Tom Barker, Christian Springer, Ethan Severance and Foley alum Scott Bloomberg

E.E. Withholding of Removal Case

Foley Hoag recently achieved a challenging victory in Immigration Court for a Honduran national named E.E. in a case that was referred by GLBTQ Legal Advocates & Defenders. E.E.’s case, which was inherited by various Foley Hoag attorneys over 6 years, involved a petition for asylum based on a well-founded fear of persecution relating to sexual orientation. E.E. initially represented himself pro se, and the Boston Immigration Court rejected all forms of relief in his application. The Georgetown Appeals Clinic successfully appealed his case at the Board of Immigration Appeals (BIA), but the BIA largely affirmed the Immigration Judge’s determinations and remanded the case for the narrow issue of whether there was a “pattern or practice” of persecution of homosexuals in Honduras which may establish the fear of future persecution if E.E. were to be deported to Honduras.

We submitted a prehearing brief in advance of his April 2019 merits hearing arguing his eligibility for Withholding of Removal and establishing a 600+ page record of country conditions in Honduras involving the persecution of the LGBTQI community. On the day of the hearing, the Immigration Judge issued an oral decision on the pleadings granting E.E. Withholding of Removal and the Department of Homeland Security waived its right to appeal. After more than 20 years of living in the U.S. and approximately six total years in detention, E.E. is free to live in this country without fear of deportation.

Attorneys: Christian Springer, Kathleen Brill, Neil Austin, Tom Barker, and Foley alums Stacy Anderson, Brendan Jarboe, and Melissa Stewart

Transgender Prisoner’s Rights

Represented transgender inmate in dispute with Mass. Dept. of Corrections regarding access to bras while in prison.

Attorneys: Kathleen Brill, Sarah Cooleybeck and Foley alums Claire Laporte, Joe Lucia, and Catherine Deneke  

 

For an overview of the Firm's commitment to Pro Bono representation, visit our Pro Bono page here.