AP ban on using “husband” “wife” for gays could fuel lawsuit

UPDATE: VICTORY! AP has corrected its error, and created a new styleguide entry recognizing that the legal marriages of gay couples are just as much “marriages” as legal marriages of straight couples.

The Associated Press’s ban (with two limited exceptions) on using the terms “husband” and “wife” for legally-married gay couples could have legal consequences for the wire service, should a gay employee ever sue AP for employment discrimination, says an attorney specializing in sexual orientation discrimination cases.

Hayley Gorenberg, Deputy Legal Director of Lambda Legal (the gay ACLU), says that AP’s presumption against using the terms “husband” or “wife” for legally-married gay couples, while the organization has a presumption for using those terms for heterosexual couples, could serve as an element in a job discrimination lawsuit brought against the media company by gay employees or job-seekers.

“It’s certainly plausible that repeatedly and intentionally disrespecting marital status, which the AP is trying to call its ‘style guideline,’ could contribute to a hostile workplace, which conceivably could be a component of a claim for workplace discrimination,” Gorenberg told me by phone this past Friday.

This whole story started a week ago when an Associated Press “style guidance” memo was leaked to influential media monitor Jim Romenesko.  The memo explained AP’s policy on whether, and when, to refer to legally-wed gay couples as “husband” or “wife.”  (No such AP policy appears to exist on when to refer to legally-wed heterosexuals as husband and wife.)

The guideline caused an uproar of concern among those who didn’t understand why the Associated Press would have a policy of not recognizing legal marriages of gay people in the nine states, and the District of Columbia, where such marriages are now legal.

The AP tweaked the style guidance in response to the uproar, but only at the fringes – the policy still remains that the AP will not refer to legally-married gay couples as husband or wife except under two narrow exceptions.  AP then tried to lie about the policy, claiming it was meaningless (while still refusing to do away with it) in an effort to make the brouhaha go away.

Here is the leaked policy guideline:

SAME-SEX COUPLES: We were asked how to report about same-sex couples who call themselves “husband” and “wife.” Our view is that such terms may be used in AP content if those involved have regularly used those terms (“Smith is survived by his husband, John Jones”) or in quotes attributed to them. Generally AP uses couples or partners to describe people in civil unions or same-sex marriages.

I’ve written about this issue extensively, but the main points are as follows.

1. AP’s policy guideline only applies to the legal marriages of gay people, not the marriages of straight people.  Why?  Why isn’t AP’s standard simply to refer to spouses as husband or wife when they are in a marriage legally recognized by the state?  I.e., AP should use the same standard used in American law, and the same standard AP uses to recognize heterosexual marriages – if the state marries you, you’re married.

2. AP’s policy of using “husband” if it’s in quotes is meaningless, and offensive.  You could call yourself a martian, and AP could quote it.  They can quote anything.  They don’t need a policy telling reporters that.

3. The “regularly used” standard is simply bizarre.  How do you prove you’ve regularly used the terms husband or wife if you’re dead and AP is writing your obituary, or a story about your murder?  And what if AP is writing a story about marriage equality overall, but not writing about any specific couples – there will be no one to prove “regular use.”

And finally, referring back to point 1 above, does AP apply a “regular use” standard when it refers to heterosexuals as “husband” or “wife”?  No.

The Associated Press has arbitrarily and capriciously decided to impose a ban, with limited exceptions, on the use of the terms “husband” and “wife” for legally-married gay couples when no such ban exists with regards to heterosexual marriages.  And that could end up being used against AP in an employment discrimination lawsuit.  Here’s how it works…

One of the elements you need to show when suing your employer, or potential future employer, for job discrimination is that they affirmatively discriminated against you based on your sexual orientation.  One of the ways of showing that is by proving that the employer created a hostile workplace for members of your class, in this case, gay people.   And one of the ways of showing a hostile workplace is via AP’s ban on recognizing legal gay marriages.

Say you’re a gay AP employee.  And you write a story about a gay couple that’s legally married.  You, naturally, refer to them as married, and perhaps even as “husband” or “wife” if the story merits using any moniker at all.  Your editor points to the internal style guideline which says you are not to treat gay marriages the same way you treat straight marriages, and tells you to strike any references to “husband” or “wife,” because the legally-married gay couple has not met AP’s limited standard for gay marriages.  As a gay person, especially one who’s married (and especially if you live in a city or state that has employment protections for gay workers), you’d be rather offended that your employer just ordered you to put in print, under your own byline, that your marriage was not the same as that of the reporter working at the desk next to you.

The Lovings, of the famous Loving v Virginia case, via ABC on YouTube.

Does AP have the right to vitiate this marriage too? (The Lovings, of the famous Loving v Virginia case, via ABC on YouTube.)

Think of it in a different way.  You’re an African-American reporter for AP, and you are told by your boss to stop treating inter-racial couples the same as white couples in your reporting, because they’re really not the same: Only white couples are “really” married.  And, your boss forces you to put your name on a story suggesting that inter-racial marriages aren’t “real” marriages.

Do you think that might create a hostile workplace, telling African-American writers to stop treating inter-racial marriages the same way they treat whites-only marriages?

And you might not even need state or city law.  If the Associated Press has a non-discrimination policy that inclues sexual orientation, their odd policy on legal marriages of gay couples might violate their own non-discrimination policy, in terms of creating a hostile workplace.

Not to mention, does AP offer health benefits and other “family” benefits to the husbands and wives of their gay employees if they live in a state that recognizes their marriages?  If not, why not?  And if so, why the double standard of recognizing such marriages internally but not externally?

This story isn’t going away.

PS AP is trying to claim that their policy isn’t a “ban.” Really? What do you call it when you write words for a living, when your boss has the most important style guideline in the world, that every newspaper in America follows, and that boss says “don’t use this word”? It’s not a ban? When we tell people not to smoke in restaurants it’s a smoking ban. When we tell them they can’t buy guns it’s a gun ban. So when we tell them they can’t use certain words, why isn’t it a word ban? This is just one more example of how AP treats everything “gay” as an exception to the rule.

Here’s an archived report from AP on the Lovings, who fought and won the famous Supreme Court case outlawing bans on inter-racial marriage.  One wonders whether AP would have had a problem with the Lovings too:

Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Instagram | Google+ | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

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