It wasn’t the goodbye kiss she intended to give.
On May 3, 2011, local musician (and contracted costumer by trade) Terri Binion, then 52, says she was feeling down and out when she awoke around 7 a.m. She had what she calls a “frozen shoulder,” likely from work, and had built a wall of pillows between herself and her wife, Tracy Irwin, also a production contractor in the entertainment industry, to stabilize her injury.
“Tracy got up probably at 7 a.m. in order to be at work by 8 a.m,” Binion remembers. “And when she got up, I got up a few minutes later, and I just felt this stuff on me. I just remember turning, pulling myself out of bed and looking at the pillows in the middle of the bed and thought: This isn’t good. I’ve got to clean this stuff up.
“And then I was sitting right there in that chair when she came to kiss me goodbye to go to work,” she says, pointing to an empty chair in her living room. “And I raised my cheek up to her. And that was it.”
Irwin was headed off to work at the old (now demolished) Amway Arena on Amelia Street in downtown Orlando. She was helping construct the elaborate set for Cirque du Soleil’s Zarkana show before it made the trip to New York’s Radio City Music Hall. Cirque needed a big place “with high ceilings and no support beams in the way,” the production manager told the Orlando Sentinel on April 20, two weeks before that morning. Irwin – officially employed by Production Resource Group, which was hired by Cirque to handle the heavy lifting – was loading aluminum lighting trusses onto a forklift for a couple of hours. After placing a support beam over a load on the forklift, Irwin gave the OK for the forklift operator, Cirque employee Marc Provencher, to begin the lift, according to an Orlando Police Department investigative report; at about 3 to 4 feet up, the stack on the forklift began to lean in Irwin’s direction. Surrounding staff saw what was coming and yelled for everyone to get out of the way, but Irwin wasn’t quick enough. She was trying to stabilize the load until it was too late.
“Everyone got out of the way except for Tracy,” witness Shelly Laberge told the police, “so the stack of trusses fell on her back, crushing her body.”
Laberge was one of a number of people who tried to notify Binion immediately following the incident, but as Binion remembers it, she was on the porch and her phone was in the house. When she finally got the call, probably around 11 a.m., she says, she went into autopilot.
“I got in the car, and I calmly drove over to Orlando Regional Medical Center; I don’t remember where I parked my car or what I did with it. But I sat in front of ORMC on a bench,” she recalls. “There was an ambulance there that was closing up, and I thought, ‘They can’t possibly have beat me here.’ I thought I was going to wait for the ambulance to come. And, after a minute or so, I walked inside to the desk, and I said, ‘I’m here to see Tracy Irwin.’ And it was probably just a couple of minutes, then I was taken to a room. And a man in a suit with a chaplain’s pin, a black man, came in and very sternly addressed me. ‘What is your name? What relation are you to Tracy? Tracy is not responding.’ And he wasn’t there very long. But I just started to wail, and I’m in a room all by myself. He addressed me in a way that was almost military-like: ‘This is what’s happening.’ And that’s when I knew that this could be the end.”
Thirteen grueling hours later, after the arrival of members of Irwin’s family, Irwin was removed from life support.
Binion, stunned by grief over losing the partner she had married nearly three years earlier in California – the first woman she had ever loved – couldn’t know that she was just at the beginning of a nearly three-year nightmare of silence and, to some degree, fear. Cirque was found negligent by the Occupational Safety and Health Administration for allowing Provencher, who was not properly permitted to operate heavy machinery, to use the forklift.
“During the investigation it was discovered that the Cirque du Soleil did not provide the required forklift operator training of formal instruction, practical training and evaluation as specified by OSHA standards,” a Nov. 4, 2011, letter from OSHA reads. Cirque would eventually pay $10,000 in fines related to Irwin’s death.
Binion – joined by Irwin’s former partner Christine Wall, who was named in Irwin’s will – sought legal assistance to bring a wrongful death suit. But because Florida statutes neither recognized Binion’s marriage, nor, in the case of a wrongful-death complaint, Wall’s role as the estate’s personal representative (only blood relatives and recognized spouses can file wrongful death suits in Florida), the attorneys of the Maher Law Firm in Winter Park had to get creative: The firm had to either attempt to try the case in California court, where the couple’s marriage was recognized, or take it to Quebec – gay marriage is also recognized there – which is the home of Cirque’s parent company. What followed was a series of dead ends.
In the United States, 32 states now effectively recognize gay marriage, but for those living in the remainder (including Florida), the perils of living in limbo cause confusion and heartache for those seeking compassion and equality in the most devastating of situations. Behind the veil of elaborate marriage processions, thousands of statutes block LGBT couples from partaking in basic, vital activities with their partners: They aren’t guaranteed hospital visitation; they may be blocked from making funeral arrangements or having access to end-of-life compensation, even if they’re named in a will. Same-sex couples who cannot marry have to make special child-custody arrangements with their spouses to ensure that both have equal rights as parents to their children.
For Binion, who has remained silent about Irwin’s death for nearly three years for fear of legal repercussions, it means she has been denied closure in her wife’s death.
“The laws aren’t fair,” she says. “There is not justice for all, but for some. We all learn that at some point in our lives.”
There will be good witness on our wedding day
There will be good witness on our wedding day
And no one can deny that our love is true love
There will be good witness on our wedding day
“Going to California”
In November 2005, Tracy Irwin, a former Orlando resident, returned to the Bob Carr Performing Arts Centre (or “Dead Bob’s,” as local arts insiders jokingly referred to it) for a contract gig after relocating to Asheville, North Carolina, approximately five years earlier. Irwin and Binion had been, at best, acquaintances.
They knew one another via their similar fields, mutual friends and their membership in the International Alliance of Theater and Trade Employees. Irwin was in town for the Rockettes Christmas show, Binion recalls, and they both happened to be working the same circuit.
“I knew her name and I had met her at least once before, and she had met me at least once before,” Binion says. “And I don’t even recall when that was exactly. Tracy says that some friends of hers said to her, ‘Let’s go listen to Terri Binion play music,’ so she would tell me later that that is what she remembered.”
Things progressed tentatively, with occasional glances and shared meals at the catering table, until the show ended. During the three days of strikedown – specifically, on New Year’s Eve – Binion begrudgingly agreed to join Irwin at her apartment. There was wine, but nothing hugely romantic.
“All this time I’ve been feeling, I’ve been going to work and thinking, ‘OK, today will feel different,’ or, ‘Tomorrow, I’ll go to work and I won’t have these feelings.’ I was having butterflies every day. I just couldn’t shake the feeling,” she says. “You know, she was in a relationship. And I had never been with a woman.
And it was complicated like that, but we were just friends. So the day that she flew out of town she said, ‘I’ll be here till about 3 p.m. Come on over and we’ll have pizza.’”
After some consternation and a construction roadblock, Binion met Irwin again in Gotha at her apartment to help her pack. A “tiny little kiss on the mouth” followed and the stage was set. Irwin returned “with a half-assed excuse” to Orlando three days later to spend more time with Binion.
“And we spent two days together,” Binion says. “And she said to me, ‘I’ve been rehearsing in my mind how to get out of this relationship [with Wall] for the last five years. I’ve been trying to figure out in my own mind how to get out of this.’ They had been together for 18 years. She said, ‘It’s been dead in the water for eight years and I’ve been trying to figure out what to do.’ She said, ‘Even if this doesn’t work, this is getting me out of that relationship.’ And we were elated.”
Irwin eventually brought her three dogs and a cat and moved into Binion’s residence near downtown. People noticed a change in both of them; friends praised the happiness they brought to each other, says Binion. It was time to make the leap.
“I just finally felt like I was complete,” Binion says. “Why did I want to get married? It was kind of like a sort of traditional sort of feeling, like, I want to be married like everybody else, too. And she went to work every year in [San Francisco] ... the ban had been lifted in California the same time she was going to be in San Francisco and that’s how we sort of determined where we were going to get married and when.”
In September 2008, Terri Binion and Tracy Irwin tied the knot. They rented a villa at Carmel Highlands on the Pacific Coast Highway; they had obtained their wedding license (from a “transvestite,” says Binion) in the same place that Frida Kahlo did for her second marriage.
“We didn’t tell our families we were getting married,” Binion says. “We eloped.”
Binion didn’t want to complicate matters for her mother, who was trying to cope with her husband’s bout with Alzheimer’s disease. “She thought somebody would tie me to a post and beat me up with a baseball bat,” she says.
Still, it was perfect. Binion wanted bells; she got bells. Friends made up most of the audience, all in casual dress. The two were married, legally, in Big Sur on Sept. 1, 2008. Less than three years later, Irwin was killed at the hands of an unlicensed forklift operator.
Everyone I know has something to say
And it goes in one ear and out the other
While I appreciate that, there’s no good reason why
Someone killed my baby and it’s just all wrong
“Long Way Back”
What happened between the families, Wall and Binion after Irwin’s death is mostly the stuff of American gothic legend, and, according to Binion, nothing that needs to be explored any more deeply than she already has in private. Suffice it to say, death brings out the worst in people. Family members held vigil, as did friends, and things, as much as they could, worked their way to equilibrium in the end.
But what happened legally is a different story. Within weeks of Irwin’s death, Binion and Irwin’s ex-girlfriend, Wall, began working with the Maher Law Firm in an attempt to pursue a wrongful death suit; the aim was to hold someone, namely Cirque du Soleil, accountable for what seemed to be a senseless death.
According to attorney Senthia Santana, Florida laws were not on their side.
“Florida’s wrongful death act would be what was used moving forward,” she says. “So we did try to see about Canada, because they recognize same-sex marriages there, and Cirque du Soleil’s parent corporation is a Quebec corporation. But what came to light was, all the work they did here in Florida, they had a U.S. corporation that they contracted through. If the court in Canada would even look at it, which our Canadian co-counsel looked into it, they would look into it happening in Florida and apply the laws in Florida. It was a dead end. … We tried every avenue we could, because Terri’s a very nice person and we just wanted to help in any way we could, but we got doors slammed in our faces each way we went.”
Michael Maher, a partner in the firm, says that the case wouldn’t pass the judicial test in California, either. Wrongful death cases are shifted back to where they originated in most cases. Florida, while generally conceived to be strong and “positive” with its wrongful death statutes, because it makes allowances for mental pain and suffering by the surviving spouse, is equally strong in ignoring same-sex cases.
According to Santana, Cirque was virtually unresponsive as the group conferred on the case in Florida and California. It was only when the idea of bringing the case to Canada arose, Santana says, that Cirque actively indicated that the wrongful death laws in Quebec did not apply in Florida cases because Cirque du Soleil had, according to counsel, established separate entities in the states in which the company operated.
“It appears that Cirque created/used two U.S. corporations primarily for Orlando events,” reads one email from the firm. “While one is named Cirque du Soleil Orlando, Inc., the other, Cirque du Soleil America, Inc., was the entity through which the subject 2011 event was handled.” Essentially, Cirque’s Quebec entity was not involved in the incident at all. The Florida Department of State business documents for each entity were included in the email.
Cirque du Soleil did not return calls or email for this story, but the organization is no stranger to this kind of controversy. In 2009, Ukrainian acrobat Oleksandr Zhurov died at the company’s Montreal headquarters. Last year, aerialist Sarah Guillot-Guyard died during a performance of the company’s Ka show; associated OSHA fines were appealed, according to the Los Angeles Times, though the company was at the ready with a statement.
“Cirque du Soleil completed an exhaustive review of its safety policies and procedures in the wake of the tragic accident involving Sarah. We have redoubled our efforts to ensure the overall diligence and safety of our performers and crew,” the company said.
In Irwin’s case, there may not have been much that could have been done, anyway. And the company did pay its OSHA fines. According to the Lambda Legal senior staff attorney for its southern regional office, Beth Littrell, it’s likely more about state law than corporate positioning, though she still says, “Shame on Cirque du Soleil.” (Cirque, again, was unresponsive to requests for comment for this story.)
Irwin’s case, she says, highlights a huge lack of equality among states when it comes to marriage rights. Successes in the campaign for marriage equality in some places lay bare the inequality that exists in the dogged states that refuse to recognize same-sex couples’ right to marry – particularly when those couples have already been legally married somewhere else.
“Companies and people get away with their actions in a wrongful death situation, because the state refuses to recognize their relationship, where any other spouse would be compensated for the loss that comes,” Litrell says. “It’s heartbreaking and really painful, a pretty clear example of how discriminatory laws really impact human beings.”
She points to two specific cases: one, that of Janice Langbehn, who was turned away – with her children – by a Florida hospital in 2007 when she tried to visit her dying wife, Lisa Marie Pond. The hospital said she would need a health care proxy to visit Pond. Langbehn did actually have power of attorney, which she had faxed to the hospital as quickly as she could. But the delay while waiting for the paperwork, and the hospital’s refusal to acknowledge the couple and their children as a legal family, meant that she missed the actual chance to say goodbye; worse, the family didn’t even live in Florida – they were here on vacation, waiting to board a cruise ship, when Pond collapsed of an aneurysm.
The other is a case filed by the Southern Poverty Law Center that’s currently playing out in Alabama on behalf of Paul Hard, whose husband was killed in a car wreck. When Hard arrived at the hospital, he was ignored. Later, he was told, “Well, he’s dead,” and when his knees buckled, was not assisted by any hospital staff. When the body of his husband, David Fancher, was finally released, Hard wasn’t named on the death certificate, so a funeral director refused him service as well.
“Alabama has created two classes of marriages within its borders and deemed one of those classes – marriages between people of the same sex – to be inferior to the other,” SPLC deputy legal director David C. Dinielli said in a statement. “This is unconstitutional.”
In terms of statewide policy, there has already been one isolated ruling, in the case of W. Jason Simpson and Frank Bangor, married in Delaware; the former had to fight to be recognized as personal representative of the estate after his husband’s sudden death in Boynton Beach. In August, a Palm Beach County judge ruled that the state had to recognize the men’s marriage because the law preventing Simpson from acting as fiduciary due to his gender and sexual orientation unnecessarily discriminated against him.
The U.S. Supreme Court has refused to hear any more state appeals on marriage-banning amendments (which has increased the number of states that recognize gay marriage to 32), but Florida Attorney General Pam Bondi (who still held office as this issue went to press) is continuing to fight to keep this state’s marriage ban in place. Most recently, she stated that she’d take the matter to the Florida Supreme Court to save taxpayers some money.
While the public waits, people like Binion – and Irwin – suffer.
“People are being forced into this multiple-identity situation where they’ve got their marriage license and their Social Security card and their bank account that recognize their new last name, but the driver’s license bureau in a non-recognition state refuses to recognize that marriage,” Littrell says. “So now they’re in this crazy limbo.”
All these years an anchor out
And through the years
I’ve dragged it round
Ready down, and steady as she goes
How deep no one knows
All this life with an anchor out
Binion, like many of the longtime aggrieved, isn’t necessarily in limbo anymore. Palpably angry and yet outwardly sweet, the sort of honeysuckle tones that have informed her songs for years have taken over her countenance in equal measure, both extremes closely guarded by a person who has had a huge part of her life ripped out from underneath her with no legal recourse.
For nearly three years, Binion didn’t want to talk about it, didn’t want to ruin things, or, arguably, people’s moods. She’s put together an honest, sometimes painful autobiography about the pain and set it to music; her new long-player, Quiet Giant, should be ready early next year. There’s a video shoot for “Goin’ to California,” a song specifically about her marriage to Irwin, in the works in the coming weeks. She seems to be moving on, albeit apprehensively.
“Believe you me, I still feel very, very lost,” she says over a shot of tequila.
Her former attorneys at the Maher Law Firm (who essentially dropped the case in January, since they don’t think they can do anything with it) assure me that, should something come along to right this wrong, they will dive back in. However, the statute of limitations on wrongful death is two years and those two years are gone.
And so is Terri’s wife.
“There’s just no past situation or set of circumstances in our history, other than perhaps interracial marriage, that kind of reflects this ludicrousness of having your marriage erased from one state to the next,” Lambda Legal’s LIttrell says. “One-third of the states recognize your marriage and two-thirds don’t? It has to be resolved. We can’t have a United States of America and treat people this way.”
All songs copyright 2014, BMI/T Hawley Binion Music.