A while back the folks and staff at the State Board of Education in Michigan announced proposed guidelines (not legislation and nothing requiring actions by local school boards) for public schools addressing and working with LGBT students. (Lesbian Gay Bi-sexual Transgender–LGBT)
The Board of Education develops these suggestions in order to help school districts around the state. In fact, last year and this winter the Board and others worked on Special Education issues, and a little about that effort can be found here: http://www.michigan.gov/snyder/0,4668,7-277-73341-376468–,00.html
More recently the Board worked on issues surrounding the LGBT students found in our schools around the state and I think their draft report was a good step to help as schools and families and the public struggle with such issues, and I thought most of the suggestions made good sense. The draft guidelines took steps to make the students safer and to allow more expression for the students, in a safe way.
Not everyone thought the guidelines were smart though. There was quite a bit of push back. from some, and so the Board extended the comment period. Some of the objections from others seem to stem from their religious beliefs, which I think should have a limited role, at best, in public schools–for once you go down that road the obvious question is: which belief? And some seemed to have misunderstood the nature of the guidelines, since it is not legislation nor is it required.
Another big objection among some commentators seems to spring in part from concerns about letting minors do things or seek guidance, without much (if any) input from their parents–and this may seem troubling of course.
But in several areas of the law, including emancipation, treatment for sexually transmitted disease (STD), homeless youth, counseling, and a few other areas, we carve out small islands to let minors deal with some issues with professionals and others, without absolutely requiring mom or dad get involved.
While often enough mom or dad do eventually get involved, there have been enough cases around where mom or dad was the problem, or at least mom and dad had a heck of a time initially digesting what their child had to say. LGBT youth are still, studies find, more likely to be booted out from their homes, compared to others, and seem to have a higher suicide rate too. While less common that in the past, such youth are sometimes still ‘disowned’ by family.
Just as our decades of experience working with youth concerned about STD’s has shown, a smart approach to sensitive topics and issues, which can include working with others and not automatically assuming “father knows best” may have value too.
We commented, on the 11th on our firm’s letterhead. We think working with LGBT members of the community is worthwhile–and we’ve done that since we started. Likewise, we’ve worked with Special Education issues since we started. Not everyone has a chance to speak up–sometimes we can.
Our letter is below:
May 11, 2016
Kim Kovalchick, Supervisor
Michigan Department of Education
Coordinated School Health and Safety Programs unit
P.O. Box 30008
Lansing, MI 48909
Re: State Board of Education Statement and Guidance on Safe and Supportive Learning Environments for Lesbian, Gay, Bisexual, Transgender, and Questioning (LGBTQ) Students
To whom this may concern:
I write in support of the above named draft guidelines and think it is appropriate, and important for the Board to address the issues involved and to make suggestions for schools around the state that are trying to come to grips with the needs facing the transgendered individuals we find in our school systems, as well as the needs of teachers, communities and other staff working on education for all.
By way of introduction I am an attorney in private practice, and served a few years ago as chair of the elder law and disability rights section of the state bar of Michigan. Our practice includes elder law, lgbt work, estate planning and special education and disability representation.
I think the draft recommendations provide a pretty good snapshot of current thinking in the field and would offer a few other observations based on comments I’ve seen from others coupled with my own experiences.
First, it is important to note these are suggestions and not legislation, and giving weight to commentators thinking otherwise probably isn’t required.
Second, as to “bathroom safety” as some have suggested, we know already that little in these suggestions make bathrooms less safe, and that indeed, just last month at the Howard High School of Technology a girl was assaulted and died, in a traditional girls only bathroom, and her death was laid at the foot of the other girl’s action. But we have every reason to think these suggestions could make bathrooms a bit safer for those students who are transgendered.
Third, I note many suggestions are made by those who quote various religious texts, which I think may color their perception of the role of the Board and our public schools in these matters. As Article VIII of our Michigan Constitution makes clear, while religion and morality and knowledge generally are cited for a foundation of good government and support of education, we are not permitted really, nor should we countenance, specific religious texts of certain religions, quoted only in part and out of context. The Board should not create policy based on someone’s interpretation of portions of religious texts in a secular system such as we have, nor should the board give any weight to those making religious arguments against the proposal guidelines.
Fourth, I think it prudent to allow children to turn to others for guidance or at least information and research in a safe environment—and yes, I mean, without consulting or “telling” their parents. Again, many commentators suggested this bothered them a good deal—and at first blush they might seem to have a point. However, we know from legislation and public policy in this state, at least a few decades old, that there is support for the proposition that minors in sensitive areas, such as treatment of STD’s for instance (Seen MCL 333.5127 as amended, for example) may do so without parental consent. The safety and welfare of the individual, and the possibility that a shocked or dismayed parent might over-react and perhaps hurt a student with unwelcome news, is a basis for these sort of carve-outs from complete parental control. And as national statistics and materials cited in your own policies imply, lgbt youth, especially trans youth, face a delicate path forward, and more often are homeless, assaulted, or harmed in other ways, than non-lgbt youth. Why on earth would some commentators suggest that we put their life more at risk?
Fifth, although treated or labeled now as a Dysphoria in DSM 5, rather than the Disorder in DSM 4 the diagnosis of a person with the condition makes me think an intelligent and thoughtful and non judgmental and religion free approach is the best way to help students and staff coming to grips with the small per cent of students involved.
Sixth, as the Department of Justice and the Civil Rights office have already noted, their policy seems to indicate, at present, that gender disorder and trans discrimination complaints may well be treated as sex discrimination cases. As such, and until that policy is withdrawn by the feds or struck down by the US Supreme Court, a Michigan policy that discriminates against transgendered individuals might well be a costly and losing endeavor for the state, and as a taxpayer and as a general supporter of everyone’s human rights, I’d hope you would not make the policies discriminatory.
Bradley A. Vauter, J.D.
P.S. one of the earlier stories covering the draft guidelines can be found on the Education World website: http://www.educationworld.com/a_news/new-guidance-michigan-board-education-pushes-state-schools-allow-students-pick-gender
From time to time we hear about the aging population and the growth of our older citizens. But when we think of it, we don’t often think all that much of reaching 100. Perhaps we should, since some say the centenarian population world wide is slated to increase eight-fold by 2050.
Here is some information from the Pew Research Center which you might find of interest: http://www.pewresearch.org/fact-tank/2016/04/21/worlds-centenarian-population-projected-to-grow-eightfold-by-2050/
Elder law firms, like ours, can sometimes help with some of the legal issues that crop up for the elderly, in terms of care, long term care, finances, and legal planning. It might be smart to see an elder law attorney if you are quite old to see if your planning is up to snuff.
Name changes are not terribly difficult but some hoop jumping is usually involved.
Under the old common law, a person could change their name simply by common and constant use of the new name in place of the old (and so long as they didn’t do it to defraud, etc.).
But we live in a sort of “official document” world today, and so name changes on our various I.D. cards and the like often require some sort of proof or affidavit or court order. We can help you in Michigan, if you are working on a name change and find yourself confused a bit by the process, or want our professional help in making the name change.
A national group though, the National Center for Transgender Equality, has added a link about name change requirements with state by state postings on the laws involved, and you may want to look there for more info: http://www.transequality.org/documents
In Michigan the ACLU filed a case regarding some challenges to Michigan last spring, and in November, although the state of Michigan asked that the suit be dismissed, the Court denied the request, and the case continues. See more here: http://www.clearinghouse.net/chDocs/public/PB-MI-0010-0001.pdf and also here: http://www.aclumich.org/article/judge-permits-aclu-lawsuit-challenging-michigans-id-policy-move-forward
As the articles below illustrate, our capacity to handle money and attend to our affairs can vary. Some older people never really run into difficulties, others seem ripe for exploitation and abuse.
Capacity, in the eyes of the law, the medical community and the field of social work is also defined differently by professionals in those fields. So trying to determine whether an adult “wanted or meant” to do one thing or another is sometimes a tricky question. Did they want to give money away, even though it might hurt later if they lack funds for long term care? Did they understand that adding a child to a deed could be divestment in the eyes of Medicaid, or were they pressured into this act by a child without having enough pertinent information from an unbiased attorney who understands elder law?
The law can help in many ways, via preventive arrangements and schemes, or by chasing down a bad apple after the fact. But even so, frustration continues since not every solution fits every individual, and because we often think too late about our slipping capacity. Further, we have long thought, and properly so, that adults are entitled to make their own decisions — even stupid ones — so long as they have a bit of reasoning power left, and have applied it to the choice or decision at hand.
This article from the Detroit Free Press helps illuminate some issues, as well as a tool being developed to better assess the types of capacity — or one might say, the areas in which our capacity is stronger or weaker. Perhaps we are great at knowing family, figuring out a course of health care, but we can no longer really figure out our own budget and get bills paid on time. A tool like this might help provide some structure or guidance as we evaluate the financial capacity of a person.
And the additional material from a recent AARP publication also outlines some current thinking on these issues as well as possible financial and management services one could use in an effort to keep our ship afloat.
The Free Press article is here: http://www.freep.com/story/news/local/michigan/2015/07/14/entitlement-senior-fraud/30103897/
And the AARP article is here: http://www.aarp.org/money/investing/info-2015/financial-services-for-memory-loss.html
In our firm, we help people with these issues. Sometimes by preventive actions, sometimes by chasing down the bad apple and trying to secure restitution.
As an author of a chapter on senior exploitation and abuse and the possible civil remedies one might try, I’ve had the opportunity to use such thinking to help several vulnerable adults.*
We are also trying, when practical, to see if mediation is helpful at times–mediation would seldom help in outright theft or scam, but what about family dynamics–where one child getting far more from mom or dad rather than others, and such generosity is now hurting the senior? Mediation might help there.
- *If you have access to ICLE you may find more about my work here: http://www.icle.org/modules/store/books/book.aspx?PRODUCT_CODE=2009552610&LINKDIRECT=CONTRIBUTORS
If you need help or are helping a loved one, call us. Since some options are time sensitive, calling sooner rather than later makes good sense. Our telephone is 517 853-8015, and our office is conveniently located in Grand Ledge and was designed with accessibility in mind.
Releases/Waivers of Liability
By Richard Rooney, J.D.
The basics of tort liability
Negligence is a fundamental component of the common law system. Negligence is based upon duties that the law imposes on individuals. Some duties are tied to relationships between individuals–for example, a landlord has certain duties to tenants of his/her property. Additionally, every individual “owes” a general duty to be “reasonably prudent” in his or her actions.
If someone fails to discharge an owed duty and another is harmed as a result, the person owing the duty may be liable for the resulting harm. As an example, if you are cutting down a tree and aren’t careful to make sure nobody is around and part of the tree falls on a passerby, you are liable for the harm the tree caused to that person.
What are releases and why do we need them?
Some activities and locations are inherently risky to people and injury is a foreseeable or even likely consequence. If people had to constantly worry about the looming threat of legal actions, many beneficial experiences couldn’t be organized or promoted. Businesses want some assurances that they are limiting their exposure to lawsuits as they go about their business–particularly in the recreation and fitness business areas.
Thankfully, there are contractual releases of liability for just such activities. Go to any business establishment that sells fitness related services and you will likely be asked to sign such a release.
These agreements are called waivers, releases, or exculpatory agreements. What they actually are is a contract agreeing that the signing party cannot sue for reasons stated in the release in exchange for being allowed to participate in the risky activity.
When are releases valid?
How valid are such agreements? In Michigan, releases will be upheld under most conditions. The courts have reviewed challenges to releases. In general, as long as the party granting a release has the capacity to enter into a contract, the parties agreed to the release fairly and knowingly and in exchange for some benefit, and the release is clear enough to not mislead the parties, releases have been upheld. So releases that are among adults, and not overreaching, are typically valid.
When releases aren’t valid.
Releases can be broad as long as they are clear enough for the person signing them to know to what they are agreeing. But releases cannot be ambiguous or misleading. And releases that seem to cover “gross negligence” on the part of a party, typically cannot withstand court scrutiny.
Also, because releases are contracts, releases signed on or for minors will generally not be enforceable. Minors lack the legal capacity to contract and parents/guardians lack the legal capacity to completely bind children in their care to contract.
What does this all mean?
To sum things up, in Michigan there are a few things to consider when evaluating a release’s validity:
- Does the person signing have legal capacity? (Is the person a minor, intoxicated, or incapacitated?) If the person lacks capacity the waiver can be challenged on those grounds.
- Does the waiver completely cover the subject matter intended? If the waiver is too narrow, it might still leave liability gaps.
- Is the waiver clear enough for the person signing to understand what he/she is waiving? If the waiver is confusing, ambiguous, or misleading, a court might find it invalid.
- Should minors or their parents sign waivers notwithstanding their unenforceability? While a parent cannot bind minors to contracts, signing a waiver may dissuade people from bringing a suit. If a minor signs directly, the waiver could be affirmed upon the minor reaching age 18.
Affirmation of a contract can occur by actions, meaning if the minor continued to participate the waiver would become valid. The widest legal cover possible under these circumstances (outside of barring minors from the activity), would be to have both the minor and guardian sign.
If you’d like help with releases or other parts of your fitness business or operations, please feel free to contact our firm. We are conveniently located at 912 Charlevoix Drive, Ste. 120, Grand Ledge MI 48837. Our telephone number is 517 853-8015.