The National Journal of Sexual Orientation Law

Barbara J. Cox Professor of Law California Western School of Law

In re H.S.H-K, 193 Wis. 2d 649, 533 N.W.2d 419 (1995)

The brief which follows this introduction was submitted to the Wisconsin Supreme Court on behalf of the National Center for Lesbian Rights. They asked me to draft it for them, which I did.

I cannot take much credit for the initial section of the brief; this is "boiler-plate" language which NCLR includes in many of their family law briefs, in an attempt to educate judges about the existence of and issues facing lesbian and gay families.

The facts of the case are indicated in the brief. This is a custody and visitation claim filed by Sandra Lynne Holtzman, the non-biological parent of H.S.H-K, the child she had with Elsbeth Knott, the child's biological parent. The Wisconsin Supreme Court issued its decision on June 13, 1995 and, in doing so, became the first state supreme court to recognize the visitation rights of a non-biological lesbian parent.

The court essentially, although not expressly, reversed its earlier decision in In re Interest of Z.J.H., 162 Wis. 2d 1002, 471 N.W.2d 202 (1991) where it denied custody and visitation to

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the non-adoptive lesbian mother. Two similar cases, where visitation was also denied, include In the Matter of Alison D. v. Virginia M, 77 N.Y.2d 651, 572 N.E.2d 27, 569 N.Y.S.2d 586 (1991) and Nancy S. v. Michelle G., 228 Cal. App. 3d 831, 279 Cal. Rptr. 212 (1st Dist. 1991). For a discussion of those cases and the legal theories used in them, see Barbara J. Cox, Love Makes a Family--Nothing More, Nothing Less: How the Judicial System Has Refused to Protect Nonlegal Parents in Alternative Families, VIII J. L. & Pol. 5 (1991).

In this case, the Wisconsin Supreme Court rejected Holtzman's request for custody of her son. The court held that Holtzman had not "raised a triable issue regarding Knott's fitness or ability to parent her child and has not shown compelling circumstances requiring a change of custody." Thus, it affirmed the trial court's dismissal of the custody action.

It also concluded, perhaps to avoid overruling Z.J.H., that the visitation statute, sec. 767.245, Stats. 1991-1992, does not apply to "Holtzman's petition for visitation rights to Knott's biological child." However, the court determined that the legislature did not intend that the statute be the exclusive method for obtaining visitation. Refusing to read the statute as supplanting or preempting "the courts' long recognized equitable power to protect the best interest of a child by ordering visitation under circumstances not included in the statute," the court concluded that a trial court may determine whether visitation is in the best interest of the child "if the petitioner first proves that he or she has a parent-like relationship with the child and that a significant triggering event justifies state intervention in the child's relationship with a biological or adoptive parent."

The court explained that in order to demonstrate a parent- like relationship between the non-biological or non-adoptive parent and the child, the petitioner must prove four elements:

"(1) that the biological or adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child;

(2) that the petitioner and the child lived together in the same household;

(3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child's case, education and development, including contributing towards the child support, without expectation of financial compensation; and

(4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature." (footnotes omitted)

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If the trial court determines that these four factors are established, it must then find that a "significant triggering event" justifies state intervention. In order to do this, "the petitioner must prove that this parent has interfered substantially with the petitioner's parent-like relationship with the child, and the petitioner sought court ordered visitation within a reasonable time after the parent's interference.

Once the trial court finds both the existence of a parent- child relationship between the petitioner and the child and a significant triggering event justifying state intervention, then the trial court must determine whether court-ordered visitation is in the best interest of the child. For these findings, the Wisconsin court remanded to the trial court. Knott's appeal to the United States Supreme Court was denied.

The court's test resembles the theories set forth in two excellent articles: Nancy D. Polikoff's This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and Other Nontraditional Families, 78 Geo. L.J. 459 (1990), as well as Kathleen Bartlett's, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives When the Premise of the Nuclear Family Has Failed, 70 Va. L. Rev. 879 (1984). Unfortunately, the Wisconsin Supreme Court refused to go as far as either commentator in refusing to recognizing that this parent-child relationship rises to a level to support granting custody to the non-legal parent. While this case can be heralded as a significant contribution toward recognizing non-legal parents, until those parents are able to establish standing in custody suits, the courts will continue to show their misunderstanding of the parental bond between these parents and their children.

STATE OF WISCONSIN COURT OF APPEALS

DISTRICT IV

In Re the Custody of: HARRISON SAMUEL HOLTZMAN KNOTT SANDRA LYNNE HOLTZMAN,

Petitioner-Appellant,

v. Case No. 93-2911

ELSBETH KNOTT,

Respondent.

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ON APPEAL FROM ORDER OF CIRCUIT COURT FOR DANE COUNTY

THE HONORABLE GEORGE NORTHRUP, PRESIDING

AMICUS CURIAE BRIEF OF

NATIONAL CENTER FOR LESBIAN RIGHTS

HUME LAW OFFICES Kathleen E. Hume Wisconsin State Bar # 01014488 5665 S. 108th Street Hales Corners, WI 53130 (414) 529-4149

Abby Abinanti, Legal Director Barbara J. Cox National Center for Lesbian Rights 1663 Mission Street, Suite 550 San Francisco, CA 94103 (415) 621-0674

Attorneys for Amicus Curiae

National Center for Lesbian Rights

TABLE OF CONTENTS ARGUMENT

I. THIS CASE WILL IMPACT THE LIVES OF THOUSANDS OF CHILDREN WHO LIVE IN FAMILIES HEADED BY LESBIAN OR GAY PARENTS. . . . . . . . . . .8

II. UNLIKE Z.J.H., IN THIS CASE AN INTACT FAMILY UNIT DOES NOT EXIST AND AN UNDERLYING ACTION AFFECTING THE FAMILY HAS BEEN FILED, THEREFORE, SANDRA HOLTZMAN IS ENTITLED TO SEEK VISITATION OF HER SON. . . . . . . . . . . . . 12

III. APPLYING SEC. 767.245(1), STATS., TO VISITATION CASES ONLY WHEN UNDERLYING ACTIONS AFFECTING THE FAMILY UNIT (LIMITED TO CUSTODY, DIVORCE, OR CHIPS CASES) HAVE ALREADY BEEN FILED PREVENTS MOST LESBIANS FROM OBTAINING JUDICIAL ASSISTANCE IN RESOLVING DISPUTES CONCERNING CHILDREN BORN INTO THEIR PLANNED FAMILIES, CONTRARY TO PUBLIC POLICY

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 134---------------------------------------

AND STATUTORY MANDATE . . . . . . . . . . . . . . . 15

A. The Rule Delineated in Z.J.H. Unnecessarily Treats Lesbians Worse Than Heterosexuals Without Promoting The Policy Of Mitigating Trauma From Dissolving Family Relationships . . . . . . . . . . . . . . . . . . . 16

B. Allowing Co-Parents In Dissolving Lesbian Families To Obtain Visitation Is Consistent With The Clear Expression Of Legislative Policy To Prevent Discrimination

Due To Sexual Orientation . . . . . . . . . . . . . 19

TABLE OF AUTHORITIES In re Interest of Angel Lace M.,

Case Nos. 92-1369 and 92-1370. . . . . . . . . . 18 In re Interest of Z.J.H.,

162 Wis.2d 1002, 471 N.W.2d 202 (1991) . . . . . . . . . . . . . 12, 13, 14, 17, 18

WISCONSIN STATUTES 944.17, stats. . . . . . . . . . . . . . . . . . . 20 944.15, stats. . . . . . . . . . . . . . . . . . . 20 944.01, stats. . . . . . . . . . . . . . . . . . . 20 943.012, stats . . . . . . . . . . . . . . . . . . 20 939.645(1)(b), stats . . . . . . . . . . . . . . . 20 767.245(1), stats. . . . . . . . . . . . . . . 12, 15 767.24(3), stats . . . . . . . . . . . . . . . . . 18 234.29, stats . . . . . . . . . . . . . . . . . . 20 230.18, stats. . . . . . . . . . . . . . . . . . . 20 230.01(2), stats . . . . . . . . . . . . . . . . . 20 227.110(3)(a), stats . . . . . . . . . . . . . . . 21

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 135---------------------------------------

146.025(7)(c)1, stats. . . . . . . . . . . . . . . 21 Wisconsin Statutes Continued 111.85(2)(b), stats. . . . . . . . . . . . . . . . 21 111.81(12)(b), stats . . . . . . . . . . . . . . . 21 111.70(2), stats . . . . . . . . . . . . . . . . . 21 111.321, stats . . . . . . . . . . . . . . . . . . 21 111.32(13)(m), stats . . . . . . . . . . . . . . . 21 111.31(1), stats . . . . . . . . . . . . . . . . . 21 101.22(1), stats . . . . . . . . . . . . . . . . . 21 66.433(3), stats . . . . . . . . . . . . . . . . . 21 66.432(1), stats . . . . . . . . . . . . . . . . . 21 66.431(3)(e)2, stats . . . . . . . . . . . . . . . 21 66.43(2m), stats . . . . . . . . . . . . . . . . . 21 66.405(2m), stats. . . . . . . . . . . . . . . . . 21 66.40(2m), stats . . . . . . . . . . . . . . . . . 21 66.395(2m), stats. . . . . . . . . . . . . . . . . 22 66.39(13), stats . . . . . . . . . . . . . . . . . 22 38.23(1), stats. . . . . . . . . . . . . . . . . . 22 36.12(1), stats. . . . . . . . . . . . . . . . . . 22 21.35, stats . . . . . . . . . . . . . . . . . . . 22 16.765(1), stats . . . . . . . . . . . . . . . . . 22 15.04(1)(g), stats . . . . . . . . . . . . . . . . 22

OTHER PUBLICATIONS

Agenda, Business News Bulletin of GLPCI, Sept. 1993 . 10 Chira, Susan, Gay and Lesbian Parents Grow More Visible, The

New York Times, Sept. 30, 1993, p. 1. . . . . . 10

Griffin, Jean Latz, The Gay Baby Boom: Homosexual Couples Challenge Traditions as They Create New Families, Chicago Tribune, Sept. 3, 1992, at C1,

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 136---------------------------------------

col. 18

Griffin, Jean Latz, Law Begins to Address Rise in Gay

Families, Chicago Tribune, Sept. 4, 1992, at C1, col. 411

Harris, Scott, For This Family Call It Mothers' Day, Los

Angeles Times, May 9, 1993, at B1 . . . . 11

Nan Hunter & Nancy Polikoff, Custody Rights of Lesbian Mothers: Legal Theory and Litigation Strategy, 25

Buff. L. Rev. 691 (1976). . . . . . . . . .8

Kinsey, Pomeroy, Martin, & Gebhard, Sexual Behavior in the Human Family (W.B. Saunders Co. 1953) . . .8

Kolata, Gina, Lesbian Partners Find the Means to Become

Parents, N.Y. Times, Jan. 30, 1989, at A13, col. 111

Lan, Angela, Lesbian Couples Opt for Babies, San Diego

Union Tribune, 3 Nov. 18, 1993, at H3 . . 11

Lewin, Ellen, Lesbian Mothers (1993). . . . . . . . . .9

Mandell, Jonathan, The Lesbian Baby Boom, Newsday, July 13, 1989, at 8, col. 1. . . . . . . . . . 11

Martin, April, The Lesbian and Gay Parenting Handbook,

(1993) . . . . . . . . . . . . . . . . . . . . . 10Other Publications Continued

Martin, April, The Planned Lesbian and Gay Family:

Parenthood and Children, (Paper delivered to the

1989 Annual Meeting of the American Psychological

Association, New Orleans) . . . . . . . . .9

Minkowitz, Donna, No Book Can Change a Child's Sexuality, News Day, Nov. 30, 1992, at 55 .9

Newman, Leslie, Heather Has Two Mommies (1989). . . . .9

Note, Same-Sex Marriage, X N.Y.L.S. J. Hum. Rts. 555

(1993) . . . . . . . . . . . . . . . . . . . . . 17

O'Connor, Lesbian Urges Therapists to Find New Voices, Washington Blade, August 19, 1988, at 9, col. 2. 10

Perez, Julia, To Beverly, in Harriet Alpert, ed., We Are

Everywhere (1987) . . . . . . . . . . . . .9

Pies, Cheri, Considering Parenthood (1985). . . . . . .9 Rubenstein, William, ed., Lesbians, Gay Men and the Law,

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 137---------------------------------------

(1993) . . . . . . . . . . . . . . . . . . . . . 19

Tuller, David, Gays and Lesbians Try Co-Parenting, San Francisco

Chronicle, Sept. 4, 1993, at A1 . . . . . . . . . . 11

Tuller, David, Gay Co-Parenting Challenges Law on U.S. Family, The (New Orleans) Times-Picayne, Feb. 10,

1993, at F10. . . . . . . . . . . . . . . 11

Two Moms, San Francisco Examiner, June 12, 1989, at A1811

Seligman, Variations on a Theme, Newsweek, Special Section at 39, Winter/Spring 1990 . . . . .8

Shapiro, E. Donald & Schultz, Lisa, Single Sex Families:

The Impact of Birth Innovations Upon Traditional Notions, 24 J. Fam. L. 271 (1985-86). . . 10Other Publications Continued

Sherman, All In A Day's Work, Gay Community News, Feb.

14-20, 1988, at 7, col. 1 . . . . . . . . 10

Sullivan, Joseph, Court Backs Lesbian's Right to Adopt Partner's Child, New York Times, Aug. 11, 1993, at

B5. . . . . . . . . . . . . . . . . . . . 11

Weston, Kath, Families We Choose: Lesbians, Gays, and Kinship, (1991) . . . . . . . . . . . . . 10

OTHER SOURCES

Oprah Winfrey Show, "Gay and Lesbian Adoption," ABC Television Broadcast, Sept. 19, 1989. . . 11

Phil Donohue Show, CBS Television Broadcast, Sept. 19,

1989. . . . . . . . . . . . . . . . . . . 11

20/20, "I Have Two Moms," ABC Television Broadcast, May 6, 1989 . . . . . . . . . . . . . . . . . 11

20/20, "Women Who Love Women," ABC Television

Broadcast, Oct. 23, 1992. . . . . . . . . 10

I. THIS CASE WILL IMPACT THE LIVES OF

THOUSANDS OF CHILDREN WHO LIVE IN FAMILIES HEADED BY LESBIAN OR GAY PARENTS.

Sandra Lynne Holtzman and Elsbeth Knott represent two ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 138---------------------------------------

the estimated twenty-five million lesbians and gay men who live in

the United States. They are also among the one to five million

lesbians in this country who are mothers. While lesbian invisibility in our society makes it nearly impossible to provide an

accurate figure, it is estimated that more than ten thousand lesbians

have conceived via donor insemination and have given birth to

children within the context of a lesbian family relationship. Many

more have adopted children.

This case concerns the future of H.H.K., a child born into the

Holtzman-Knott "planned lesbian family." A planned lesbian family

is one in which a lesbian deliberately chooses to raise a child

without being married or heterosexually involved. Planned lesbian

families are a relatively recent phenomenon. [T]he 1980's have witnessed the emergence of an entirely new

family structure, unparalleled in human history. For the first

time ever in any society we know about, gay people in large

numbers are setting out consciously, deliberately, proudly,

openly, to bear and adopt children. The existence of planned lesbian and gay families has been amply

documented recently. In 1989, the first children's book whose

central character is a child born of donor insemination to a lesbian

couple sold out of its initial printing of 4000 copies before

publication. The first book designed exclusively to assist lesbians

in deciding whether and how to become parents is now in its fourth

printing. A study of nearly 2000 lesbians reported that approximately one-third wanted to "become mothers either through

adoption or artificial insemination."

The planned lesbian or gay family does not have one fixed

structure, and may be formed in many ways, including adoption,

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birth to a lesbian through insemination, or birth to a surrogate who

relinquishes the child to the gay biological father. This case

concerns the most common planned lesbian family -- a couple in a

long-term committed relationship, choosing to co-parent a child

born as a result of insemination. The day-to-day lives of lesbian

families and the difficulties presented when the child's relationship

with one of the two parents is not legally recognized has been

addressed in numerous public conferences, support groups, publications, and by the national and local print and television

media.

Amicus urges this court to protect the integrity of planned

lesbian families and the best interests of children within such

families. To do this, the court must consider the context within

which the particular family was created and understand what the

family looks like from the inside, including specifically the child's

perspective. Several overriding principles should be applied in

cases involving planned lesbian families. Three of the relevant

principles amicus advocates are: 1) a biological connection is not

necessary for establishing parenthood; 2) agreements, particularly

when coupled with an ongoing course of conduct, establish the

intent of a biological parent to share parenting with another person

and should be upheld; and 3) a child's experience of his or her

family is critical to any analysis. Given the prevalence of planned

lesbian families, the courts can expect legal questions to recur as

these families form, grow, and sometimes dissolve. This court

cannot turn from this problem, hoping that it is rare, hoping it will

disappear. Lesbians will seek judicial assistance in resolving

visitation disputes, just as heterosexual couples (married or not)

seek assistance. Two such cases reaching the Wisconsin appellate

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courts since 1990 establishes this truth. This court should not turn

a blind eye to this problem.

The Wisconsin Supreme Court, in In re Interest of Z.J.H.,

162 Wis. 2d. 1002, 1020, 471 N.W.2d 202, 209 (1991), reached the

"inescapable conclusion that there must be an underlying action

affecting the family unit, before the provisions of sec. 767.245(1)

are implicated." The public policy underlying that decision was to

"protect the children's best interests by ordering visitation with

appropriate adults to mitigate the trauma and impact of a dissolving

family relationship." Z.J.H., at 1022, 471 N.W.2d at 210. But, "the

legislature did not intend that the state intervene in the parents'

decision regarding their children's best interests when the family

unit is intact." Id. Here, the family unit has dissolved and an

underlying action affecting the family has been filed.

Sandra Holtzman and Elsbeth Knott shared "a close, committed relationship" for over 10 years. (Trial court decision

[dec] at 1) "Given the societal and legal standards to which they

are subject, the couple did everything they could to create and

formalize a normal family relationship." (Dec. 1) From the

beginning, they discussed adding a child to their family. (Dec. 2)

They decided that Elsbeth would be inseminated and she became

pregnant in March 1988. (Dec. 2) Sandra joined Elsbeth for

obstetrical visits, and they attended childbirth classes, prepared the

baby's room, decided on a name, and participated in decisions

regarding their child jointly. (Dec. 2) H.H.K. was born on

December 15, 1988 and they lived with him as a family, ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 141---------------------------------------

sharing all

parental responsibilities, until May 26, 1993 when Elsbeth took

H.H.K. from their family home because the adults had become

estranged. (Dec. 2).

This planned lesbian family is vastly different from the one

in Z.J.H. There, the adults had a long-term relationship and decided

to adopt a child together, but the adoptive relationship was not

legally established until after the adults' relationship had ended.

Z.J.H. at 1007, 471 N.W.2d at 204. The child was placed in their

home in March 1988, the parties separated in October 1988, and the

child was adopted in November 1988. Id. In contrast, the Holtzman-Knott family lived together with their child for over four

years.

While the Z.J.H. court could determine that the adoptive

mother and child were an intact family, without the co-parent, such

a determination here is impossible. Elsbeth did not create a family

unit with H.H.K. separate from Sandra. When the family relationship began to dissolve in January 1993, it was the relationship between all three members of the family that dissolved,

not simply the relationship between the adult partners. That family

unit included Sandra, Elsbeth, and H.H.K. and it has dissolved.

Furthermore, an underlying action affecting the family unit

was filed before Sandra's petitions for custody and visitation.

Elsbeth began that action on August 26, 1993, when she petitioned

the court for an injunction claiming that Sandra had threatened and

intimidated her and asking that she be restrained from having any

contact with Elsbeth or H.H.K. (Dec. at 4). At the hearing, Elsbeth

agreed to dismiss her petition, Sandra agreed not to contact Elsbeth,

and they agreed jointly to refer the visitation issue to family court.

(Dec. at 4).

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Elsbeth's petition for an injunction was an underlying action

affecting the family unit. She sought judicial assistance in

restraining Sandra from continuing her relationship with H.H.K.,

one that Sandra had maintained despite ending her relationship with

Elsbeth. Clearly, that petition would have significantly affected the

family unit.

III. APPLYING SEC. 767.245(1), STATS., TO VISITATION CASES ONLY WHEN UNDERLYING ACTIONS AFFECTING THE FAMILY UNIT (LIMITED TO CUSTODY, DIVORCE, OR CHIPS CASES) HAVE ALREADY BEEN FILED WOULD PREVENT MOST LESBIANS FROM OBTAINING JUDICIAL ASSISTANCE IN RESOLVING DISPUTES CONCERNING CHILDREN BORN INTO THEIR PLANNED FAMILIES, CONTRARY TO PUBLIC POLICY AND STATUTORY MANDATE.

Visitation actions under sec. 767.245(1), Stats., are permitted

for any "person who has maintained a relationship similar to a

parent-child relationship with the child." The statutory language

concentrates on the relationship between the third party and the

child and focuses on promoting the best interest of the child.

Visitation is contingent on the relationship between the biological

parent and the third party only to the extent that the parent has

allowed or created a parent-child relationship between the third

party and the child. The language of the statute coupled with Wisconsin's

leadership in preventing discrimination against lesbians and gay

men signifies legislative support for modifying the expression of the

Z.J.H. rule, though not the underlying policy, to avoid treating

lesbians differently than heterosexual couples needing to resolve

visitation disputes.

A. The Rule Delineated in Z.J.H. Unnecessarily Treats Lesbians Worse Than Heterosexuals Without Promoting The Policy Of Mitigating Trauma From Dissolving Family Relationships.

In Z.J.H., the Supreme Court indicated that underlying actions affecting the family, which it seemed to define as

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divorce,

custody, or CHIPS actions, must be filed before visitation actions

are appropriate. Z.J.H. at 1020, 471 N.W.2d at 209. There, the

court concluded that the lesbian co-parent's visitation petition should

not be allowed because either (a) the adoptive mother and child

were an "intact family unit," or (b) no underlying action affecting

the family unit had been previously filed. Z.J.H. at 1022, 471

N.W.2d at 211.

Unfortunately, the Supreme Court did not recognize that its

rule, as delineated, could preclude lesbian couples from access to

the courts when visitation disputes arise. While protecting most

heterosexual couples, none of the options listed readily permit

access to the courts for lesbians in dissolving families.

First, lesbians cannot marry in any state. Therefore, they

cannot use an underlying divorce action to seek visitation because

they are not permitted to create a marriage, an obvious prerequisite.

They also cannot file "other actions affecting the marriage."

Second, lesbian co-parents cannot bring custody actions as

natural or adoptive parents. Lesbians are unable to bear a child

genetically-related to both parents. Thus, lesbians are unlike

unmarried heterosexual couples who have children genetically

related to both parents, and who therefore, although precluded from

using a divorce action, can pursue a custody option to resolve

visitation disputes. The Supreme Court is considering whether a

same-sex co-parent can adopt the biological or adoptive child of her

partner. (In the Interest of Angel Lace M., Case Nos. 92-1369 and

92-1370). Because it is unclear whether adoption is a viable

alternative for lesbian co-parents, Sandra could not have adopted

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H.H.K., thereby allowing her to seek visitation through an underlying custody action as an adoptive parent.

Third, requiring lesbians to pursue a CHIPS action under sec.

767.24(3), Stats., or otherwise allege unfitness as their only means

to obtain custody is inappropriate public policy. Unlike married or

unmarried heterosexual couples, lesbians must attack the fitness of

their ex-partners, and their children's other parent, as the singular

basis for obtaining custody or visitation of their children. While

these allegations exist in this case (see, Pet.'s brief at 6-7), they will

not exist in most cases. See, Z.J.H., at 1010, 471 N.W.2d at 205.

Additionally, these allegations increase the "trauma" for all

members of the dissolving family and cannot promote the children's

best interests.

It is inconceivable that the Z.J.H. court intended to preclude

lesbians from attaining visitation, absent allegations of unfitness.

Such a decision squarely contradicts the Wisconsin legislature's

leadership in protecting gay men and lesbians from pernicious

discrimination.

B. Allowing Co-Parents In Dissolving Lesbian Families To Obtain Visitation Is Consistent With The Clear Expression

Of Legislative Policy To Prevent Discrimination Due To Sexual

Orientation.

Wisconsin has a proud heritage of leading this nation by

prohibiting discrimination based on sexual orientation. Long before

other states recognized its crippling impact, Wisconsin statutorily

prohibited that discrimination. It would be inconsistent with this

legislative mandate to limit lesbians so much more drastically than

heterosexual couples when seeking visitation.

The legislature, by ending its regulation of private sexual

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 145---------------------------------------

activity between consenting adults, indicated an acceptance of

relationships outside the marital relationship. Sec. 944.01, Stats.

By revising secs. 944.15 and 944.17, the legislature indicated a

willingness to allow individuals to choose the intimate relationships

that best express their personalities, desires, and beliefs.

The legislature, however, has not simply evinced a passive

attitude toward sexual minorities living in Wisconsin. As the

following comprehensive statement shows, it took significant steps

to prevent harmful differences in treatment. Each statute prohibits

some form of differential treatment due to sexual orientation.

Sec. 943.012: Felony to damage community property based

on sexual orientation.

Sec. 939.645(1)(b): Increased penalties for crimes against

victims based on sexual orientation.

Sec. 440.77(1)(o): Prohibits discrimination in loan practices.

Sec. 234.29: Prohibits discrimination in housing projects.

Sec. 230.18: Prohibits discrimination in civil service.

Sec. 230.01(2): Prohibits discrimination in State

employment. Sec. 227.10(3)(a): Prohibits discrimination in State administrative rules.

Sec. 146.025(7)(c)(1): HIV test results may not indicate

sexual orientation.

Sec. 111.85(2)(b): Prohibits discrimination in fair share

agreements.

Sec. 111.81(12)(b): Prohibits discrimination in State employee labor organizations.

Sec. 111.70(2): Prohibits discrimination in municipal fair

share agreements. ------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 146---------------------------------------

Sec. 111.321: Prohibits employment discrimination.

Sec. 111.32(13)(m): "Sexual orientation" defined as having,

having a history of, or being identified with, a preference for

heterosexuality, homosexuality, or bisexuality.

Sec. 111.31(1): Employment discrimination substantially and

adversely affects state's general welfare.

Sec. 101.22(1): Prohibits housing discrimination.

Sec. 66.433(3): Community commissions recommend solutions to sexual orientation discrimination in housing, employment, and public accommodations and facilities.

Sec. 66.432(1): Equal opportunity in housing is local concern.

Sec. 66.431(3)(e)2 and 66.43(2m): Entitlement to slum clearance benefits without regard to sexual orientation.

Sec. 66.405(2m): Equal opportunity in urban redevelopment

projects.

Sec. 66.40(2m): Prohibits discrimination by housing authorities.

Sec. 66.395(2m): Prohibits discrimination in elderly housing.

Sec. 66.39(13): Prohibits discrimination in veterans housing.

Sec. 38.23(1): Prohibits discrimination against vocational,

technical, and adult education students.

Sec. 36.12(1): Prohibits discrimination against Wisconsin

System students.

Sec. 21.35: Prohibits discrimination in National guard admission.

Sec. 16.765(1): Prohibits discrimination by State contractors.

Sec. 15.04(1)(g): State agency heads must take remedial

action to end discrimination. These statutes clearly indicate that sexual minorities may

------------National Journal of Sexual Orientation Law, Vol. 2, Issue 1 ------------ ---------------------------------END PAGE 147---------------------------------------

not be

treated differently due to their sexual orientation.

To prohibit differential treatment in visitation, the legislature

permitted individuals with a "parent-child relationship" to petition

the court for visitation. This statute applies to members of

dissolving lesbian families. Therefore, this court should acknowledge this legislative intent, while following the policies

underlying Supreme Court precedent, and permit Sandra Holtzman

to request visitation with her son.

CONCLUSION

Restricting lesbians in dissolving families to pursuing a

divorce, custody or CHIPS action as the only methods for seeking

visitation precludes most lesbians from court assistance in resolving

visitation disputes. Additionally, recognizing other actions as

fulfilling the policies behind the Z.J.H. rule protects intact family

units and is consistent with expressed legislative policies to prevent

differences in treatment by the state due to sexual orientation. This

court should allow Sandra Holtzman to seek visitation with her son.

Dated this ___ day of March, 1994.

Hume Law Offices Kathleen E. Hume

National Center for Lesbian Rights Abby Abinanti Barbara J. Cox

By________________________ Kathleen E. Hume

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