City council decision heard ’round world

By Abby Hafer

Law360 Canada (June 15, 2023, 10:30 AM EDT) --
Abby Hafer
Abby Hafer
On the evening of March 23, 2023, a quiet explosion took place in Somerville, Massachusetts U.S.A. The explosion was virtual, but far-reaching.

That evening, the Somerville City Council voted unanimously and passed a series of measures that protect people who practise polyamory, and other people living in non-nuclear families, from discrimination. They now have status as a protected class, and cannot be discriminated against based on “family or relationship structure.”

Polyamory is a form of ethical non-monogamy. It is the practice of having more than one romantic or life partner, but with the consent and knowledge of all concerned. The Somerville ordinances mean, for instance, that people can visit their loved ones in the hospital even if they are not officially married or related; and that a person can display a photo of their trio on their desk at work and not get fired for it.

It also means that polyamory alone cannot be used as a basis for taking children away from their parents. This decision changed people’s lives.

It also sets a national precedent that a group called the Polyamory Legal Advocacy Coalition (PLAC) plans to repeat in other socially progressive cities and towns in the United States.

The city council meeting was otherwise delightfully ordinary. Other agenda items included construction projects, cable-laying, utility tunnels and other normal matters of city business.

Council members Willie Burnley Jr. and J.T. Scott introduced the measure jointly. His commentary was that “I’m a Black, queer, polyamorous person on the city council... I want Somerville to be a sanctuary.” He continued by explaining how polyamory had benefited him personally, and asserted that more love in people’s lives is better than less.

Those speaking in favour of the measure included Alexander Chen, founding director of the Harvard Law School’s LGBTQ+ Advocacy Clinic, and attorney Diana Adams of the Chosen Family Law Center in New York.

Adams said, “I’ve represented many clients in child custody cases in which inaccurate stigma about being polyamorous was used against them. I’ve heard countless stories of discrimination, including being fired for just mentioning being polyamorous. In 2023 when the majority of American children and adults don’t live in a heterosexual nuclear family, we need anti-discrimination laws like this one in Somerville to protect and value families as they exist, so we don’t need to worry about losing our job or custody of our child because of how we build family.”

This type of measure would not have been submitted before it was ready. The discussions about the details and wording of this measure had already taken place, so unsurprisingly, the vote by the council was unanimously in favour of this motion. Proudly aware of the historical nature of their vote, the Somerville councilors were pleased to cross this finish line first, before cities like Berkeley and Oakland, Calif., had a chance to pass similar legislation. 

The Somerville measures currently cover only city housing, city employees, and actions by city agencies, such as the police. An additional measure still in committee would extend the housing provision of non-discrimination to include all renters in Somerville, a city that adjoins Boston and Cambridge, with 81,000 residents.

The apparent ease of the vote masks years of hard work by the six members of PLAC. Together and separately, they have been working for years to make ordinances like this a reality. It has been a remarkable climb from declaiming about the unfairness of the legal system in living rooms and small gatherings to TED talks, convention speeches, and TV appearances, to making their desired legislation a reality. The next steps are moving this campaign to other city council rooms and into professional establishments and HR departments. Progress will be slow. But PLAC members and their allies are using same-sex marriage as a model for their path forward.

Although campaigns for same-sex marriage began in earnest in the United States in the 1970s, the first true legalization of it only took place in the state of Massachusetts in 2004. Other states only adopted it very slowly, but the lack of social trauma in Massachusetts made it clear that same-sex marriage does no harm. As a result, 11 years later, same-sex marriage was legalized throughout the United States by the Supreme Court. This result once seemed impossible.

Similar incremental changes regarding polyamory have taken place in Canada. The Canadian Polyamory Advocacy Association sums them up as follows:

In 2011 the Supreme Court of British Columbia decriminalized polyamory, so long as marriage to more than one individual was not involved. Between 2013 and 2016, there were three separate rulings in British Columbia that found that a polyamorous household does not damage a child living in it, and that a polyamorous parent can be fit to raise a child. In 2018 a Newfoundland court acknowledged three people in a polyamorous relationship to all be the legal parents of their child (Reference re: Childrens Law Act (Nfld. & Lab.) [2018] N.J. No. 100). And in 2021, the Supreme Court of B.C. similarly ruled that a second mother was a third parent to a child in a polyamorous relationship (British Columbia Birth Registration No. 2018-XX-XX58152021 BCSC 767).

These changes are significant, but do not give polyamorous people the same basic rights that monogamous people enjoy. That being the case, and given Canada’s excellent record on human rights, more changes of this nature are likely to take place in the future.

Why does this matter? For a society to be more just, it must move away from religion-based assumptions about morality, including sexual orientation, gender roles, and sexual practices. This will require re-examining ideas about family structures. Laws about partners, family, mutual assistance and child-rearing will have to be re-done with care, and by consulting the highest possible non-religious ethical standards. Family law can always be improved, to include and protect more honest people, and to give more people the chance at stable love and a happy family life. It’s a good goal.
 
Dr. Abby Hafer is a biologist, educator and writer with a doctorate in zoology from Oxford University. She teaches human anatomy and physiology at Curry College. She is the co-author of Bill H.471, a bill in the Massachusetts legislature which requires that all science taught in public schools be based on peer-reviewed science. Learn more at professionaldebunker.com and reach her at ahafer@curry.edu.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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