U.S. Supreme Court Affirms that Obergell Requires Placing Married Same-Sex Parents on Birth Certificates

Maintaining a tradition of issuing cases impacting the LGBTQ community on June 26th, the U.S. Supreme Court issued its decision in Pavan v. Smith, upholding the requirement outlined in Obergefell (the case that banned marriage discrimination based on sexual orientation/gender) that birth and death certificates reflect the same-sex spouse.

The decision was a per curiam opinion, which means it was a decision of the court. Per curiam opinions are rare, but this is the second time since Obergrefell that the court has issued a per curiam opinion with regard to marriage and families. (See U.S. Supreme Court Reverses Alabama’s Decision to Invalidate a Georgia Adoption for a discussion of the other case).

The Paven case involved two lesbian couples in Arkansas. Both couples were married in another state and then had children in Arkansas, using anonymous sperm donations. Both parents filled out the paperwork to have their spouse listed as the other parent on the birth certificate. In both cases the Arkansas Department of Health issued certificates bearing only the birth mother’s name. The Arkansas Department of Health relied on the Arkansas law that stated that if the mother was married at the time of either conception or birth that the name of her husband shall be entered on the certificate as the father of the child.

The Arkansas Supreme Court upheld the gendered nature of the law as not violating Obergefell, asserting that the statute centered on the biological relationships, not on the marital relationships, and so it does not run afoul of Obergefell.  The U.S. Supreme Court disagreed finding that it denied marriage same-sex couples access to the “constellation of benefits that the Stat[e] ha[s] linked to marriage.”

The per curiam decision goes on to say that Obergefell proscribes such disparate treatment and the Obergefell explicitly referenced birth and death certificates. The court also noted that the statute is not about biology as married men are required to be on birth certificates of the children born of the marriage when ART is used. The decision of the court also noted that the adoption statute allows for birth certificates to be amended to reflect the adoptive, nonbiological parents, to be put on the birth certificate.

Despite being a per curiam decision, Gorsuch, Thomas and Alito dissented. Gorsuch wrote, that he did not believe this case met the threshold of a per curiam decision because he did not think the issue was settled and stable, which are the types of case per curiam decisions are supposed to be reserved for.

This dissent repeated the state’s argument that the per curiam decision noted was false on its face – that biology was the reason for the gendered nature of the birth certificate law. The dissent comes up with the term, “biology based birth registration regime” perpetuating the facially false argument that the gendered nature of marriage and the birth certificate was related to biology. The per curiam opinion specifically discussed this, noting that when an opposite sex married couple uses ART to conceive the husband must be put on the birth certificate and that the adoption law places adopted parents on the birth certificate, so a birth certificate is clearly not about biological connections).

The dissent makes another argument that makes no sense when it stated,  the “State agrees, the female spouse of the birth mother must be listed on birth certificates too.” This whole case is based on the refusal to allow same-sex married spouses on the birth certificate, so it is unclear how the Gorsuch could make this claim. The only way that this claim would be accurate, would be if the state conceded the same-sex spouse should be on the birth certificate, which would make the biological argument pointless.

The dissent does what the conservative agenda often tries to do -create a path to achieving its desired goal to discriminate against the LGBTQ community. The dissent essentially invites states to create “biology based birth registration regimes.” This is clearly an anti-LGBTQ stance, but it is more than that it’s a push towards the idea of biological imparity connected with parenting. The impact of this approach would impact far more people than the LGBTQ community. Assisted reproduction is widely used in the U.S. by opposite-sex married couples, single women, and same-sex couples. According to a February 2014 CNN article, 61,740 babies born using some form of assisted reproduction technology in 2012. A 2015 Huffington Post article notes that there is a guestimate that is 15 years old that between 30,000 and 60,000 children are conceived using sperm or egg donors (the article also criticizes the lack of tracking of this information).

It is also important to connect this case to the other recent per curiam adoption case that said Alabama could not invalidate a Georgia adoption. One of the judges at the Alabama Supreme Court rallied on about the idea that adoption is merely an administrative tool and doesn’t create real parentage and the state can revoke parentage on a whim without meeting the constitutional requirements for biological (“real”) parents. This is perhaps one of the reasons, Chief Justice Roberts, who is an adoptive parent, did not join in the dissent. Adoptive parents understand biology is not the only way people become parents and biology does not somehow make more of a parent.

What does this decision mean for parents using Assisted Reproduction Technology, especially same-sex parents?

This decision makes it clear that if a state has provision that requires a married spouse to be placed on a birth certificate, any effort to restrict this to opposite sex couples will be deemed unconstitutional. The per curiam nature of the decision is an effort to send a strong message – states cannot rely on gendered laws to limit the benefits and responsibilities allocated through marriage. Arguably this would also apply to parentage statutes, statutes that typically say that a child born of a marriage is presumed the legal child of both parents in the marriage.

Nevertheless, the dissent, the long-term hostility to the LGBTQ community and families, and the backlash to marriage equality make it imperative for same-sex couples (and arguably any parent conceiving through ART where they may not be the biological parent to their child – including birth mothers who use an egg donor) to affirm their parentage through a court order. It is clear that there will be continued challenges to parentage and there are still courts and justices open to arguments that same-sex parents aren’t real parents, and more than that, that nonbiological parents are not real parents.

There are two types of court orders, the one that many advocates believe provide the strongest protection are second parent adoptions (more commonly referred to as stepparent adoptions). This is a process where the nonbiological parent would adopt their child. Adoptions are recognized nationally and internationally.

The other option is an order affirming parentage (these have various names). It is an court order that affirms that that the intended parents are the legal parents and would be entitled to enforcement under Full Faith and Credit. States that have adopted a version of the Uniform Parentage Act (UPA) may also have an ability to use the holding out provision for parents who were not married at the time of conception or birth and who have not done an adoption. Provided that the nonbiological parent has met the requirements of the state statute for the holding out provision, they could file a parentage action and affirm their parentage.

JELS has successfully done parentage confirmations in Washington. Every situation is unique and there may be some situations that a parentage confirmation would not be appropriate (i.e., if a child was conceived through intercourse, even if all parties intended the child to be the child of the married couple).  I like parentage confirmations because it does not required either parent to allege that they are not a parent and therefore must adopt their child to become a parent. It should also be less expensive to do a parentage confirmation than an adoption and it is relatively quick. You won’t get the same feel good ceremony many people experience when they do an adoption, it’s more like a somewhat administrative process to affirm your parentage.

Disappointing Parentage Case Out of Idaho

Queer Idahoans had their families narrowly defined, excluding a nonbiological parent from the definition in a recent case, Doe v. Doe, 44419; Supreme Court of Idaho; June 7, 2017.

The case involved a nonmarried couple. In the court’s recitation of facts, it alleged that they were not married because the biomom didn’t not want to formalize the relationship with the nonbiomom. The court concluded that because Idaho’s parentage statute (the statute that defines who is a parent and how you can affirm or rebut your parentage) was clear that the presumption of parentage only applied to married couples and since the couple was not married, the nonbiomom wasn’t a parent (despite the fact their appears to be little to no dispute nonbiomom was involved in ever part of the assisted reproduction decision, there at the birth, and involved in the child’s life as a parent up until the biomom excluded her from the child’s life.

Glaringly absent from the court’s analysis was the fact that the couple’s relationship ended in 2012, for those who have already forgotten our history, same-sex couples were prohibited from marrying in the vast majority of states in 2012. In fact, it was at the end of 2012 that several states, including Washington passed marriage equality (or in the case of Washington, we had a referendum affirming the law passed by our legislature in February 2012). Idaho was not one of those states.

It would take until the June 26, 2015 for the U.S. Supreme Court to uphold marriage equality in Obergefell v. Hodges, 576 U.S. ___ (2015) and outlaw all of the state laws discriminating against same-sex married couples.

The Idaho court refused to create a de facto parentage doctrine and limited an existing decision that perhaps opened the door for nonbiological parents who had acted as parents and formed strong parental bonds with the child from accessing legal rights to the care, custody, and control of  their children.

This means that same-sex couples in Idaho are particularly vulnerable if they have not adopted or confirmed parentage through a court proceeding.

It is worth noting, that the court did not address whether same-sex married couples would be prevented from being presumed to be the legal parents of their child. The court discussed Idaho’s parentage statute, which is gendered (i.e., references “mother’s husband”). The court seemed to indicate that its decision turned not on the gendered nature of the parentage act, but that the couple was not married, with the implication that had the couple been married, the nonbiomom may have been considered a legal parent in the eyes of the court. However, I wouldn’t hold on to this distinction as some sort of bright hope that married same-sex couples will be recognized as parents of their children. The fact that the court failed to address the fact that the parents could not legally marry in Idaho for the entirety of their relationship speaks loudly of a bias that they wanted to hide so as their decision would be less likely to be challenged as discriminatory.

As I have often comment in blogs or presentations – marriage equality does not equal parentage equality. Decisions like this make all too clear how precarious our legal rights to our children can be in the LGBTQI communities. Any parents who have children together who have not adopted or affirmed parentage should seek advice from an attorney in their state.

There are options available. Many states have parentage statutes that include a holding out provision, which means that if you have been living with the child since birth and taking on the role of a parent with the consent of the other party, you may be able to affirm parentage. If you are married, every state should have some law presuming that the child is a child of marriage, and even if the statute is gendered, you could pursue a parentage confirmation.

Second parent adoption (a/k/a stepparent adoption) is the option that many attorneys who practice primarily with LGBTQI clients recommend. While this option always sits badly with me, I do not think an intended parent should have to adopt their own child. However, adoptions have been tried, tested, and affirmed. If you have any concerns your spouse, or if your spouse were to predecease you, their parents, would fight to have you excluded from your child’s life, an adoption may well be the safest option.

Sadly, homophobia is alive and well and we know with the spate of laws passing trying to allow same-sex couples to be denied adoption and foster care placements that homophobia will defeat the best interest of the child for many people. As such, protecting your relationship to your child is crucial.

Arlene’s Flowers and Washington State’s Commitment to Nondiscrimination

State v. Arlene’s Flowers, Inc., 91615-2 (Unanimous Opinion –  McCloud author). This case involved the violation of the Washington Law Against Discrimination (WLAD) and the Consumer Protection Act (CPA) by a florist seeking to deny services for a same-sex wedding. The Washington State Supreme Court unanimously held that the a business owner engaged in secular activities could not discriminate against their customers based on alleged religious beliefs (I use alleged, not the court. I use “alleged” for a number of reasons, but perhaps most important is the bizarre distinction Arlene’s Flowers attempts to draw between selling flowers to a gay couple for a wedding versus Valentine’s day, anniversaries, birthdays, or other occasions where one person in a couple is purchasing flowers for the other and attempting to claim that one violates their religion and the other doesn’t. It seems clear that applying to marriage is simply a wedge to being allowed to discriminate against LGBTQ people in any setting).

UPDATE: On July 17, 2017, Arlene’s Flowers petitioned the U.S. Supreme Court to review the case.  On June 26, 2017, The Supreme Court agreed to hear a case involving a Colorado Baker who wants to discriminate against same-sex couples when selling cakes for marriages (but again claims that he will sell cakes to same-sex couples for other reasons). 

Continued discussion of the Alrene’s Flowers Case:

  •  The court upheld the WLAD and the CPA and rejected the attempt to create an exception based on religious belief. The court held that the refusal to provide flowers was discrimination based on sexual orientation, rejecting the argument that it was marital status discrimination (and therefor permissible).
    • The florist attempted to argue (1) that it was marital status discrimination, not sexual orientation discrimination (and therefore okay for her to refuse services), (2) the WLAD already an express exemption to RCW 49.60.215 for “religious organization[s]” that object to providing public accommodations for same-sex weddings, thus the attempt to argue that WLAD didn’t cover marriages in secular public accommodations failed. The court also rejected the argument that the WLAD requires a balancing test between the rights of the protected class members (i.e., the public using the accommodation) and the business providing the service and the religious beliefs possibly held by the owner of the company.
    • The court also rejected the claim that the WLAD violated her right to Free Speech or Religious Exercise. The court held that the “WLAD is a neutral, generally applicable law subject to rational basis review.  And the WLAD clearly meets that standard: it is rationally related to the government’s legitimate interest in ensuring equal access to public accommodations.” (Citations omitted)

    • The court also noted that the WLAD withstands strict scrutiny review – rejecting the florist’s argument that the couple suffered no real harm:
      • We emphatically reject [the argument the couple suffered no real harm.] We agree with Ingersoll and Freed that “[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.” Br. of Resp’ts Ingersoll and Freed at 32. As every other court to address the question has concluded, public accommodations laws do not simply guarantee access to goods or services. Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined.

    • Finding that Supreme Court has never held that a commercial enterprise, open to the general public, is an ‘”expressive association’” for purposes of First Amendment protections, the court rejected the florist’s Free Association claim.

What this means for the LGBTQ Community in Washington

We know our experience and the experiences of our friends, people continue to discriminate based on sexual orientation and gender identity despite the laws. The best way to get compliance is to complain to the people who can command enforcement. If you experience discrimination in a public accommodation, file a complaint. The Washington State Human Rights Commission is the agency where a complaint should be filed. The Office of the Attorney General also has a complaint process.

 

Bias Based on Sexual Orientation or Religion in a Parenting Plan is Unacceptable and Invalidates the Parenting Plan

Short Overview

The Washington State Supreme Court held that when a parenting plan includes restrictions in any part of the parenting plan based on sexual orientation the entire order is invalidated because

This bias casts doubt on the trial court’s entire ruling, and we are not confident the trial court ensured a fair proceeding by maintaining a neutral attitude regarding Rachelle’s sexual orientation.

In some ways, this was already the rule in Washington, but this decision makes it abundantly clear that it is improper to even try to bring up sexual orientation as a factor in a residential schedule, even if the family practiced a religion that viewed homosexuality as sinful.

Case Details

In re Marriage of Black, Docket No. 92994-7; Opinion Author – Justice Fairhurst, Unanimous Opinion with a concurrence authored by Justice Wiggins and joined by Justice Stephens; Attorney for Petitioners – Amanda J. Beane, Kelly F. Moser, Julie Wilson-McNerney all of Perkins Coie, and David Ward of Legal Voice; Attorneys for Respondent – Kenneth Wendell Masters and Shelby R. Frost Lemmel of Masters Law Group PLLC

Legal Voice was one of the leading advocacy groups in this case. Their discussion of this ruling can be found here.

Because of the issues involved in this case, there were numerous amicus (friend of the court) briefs. You can find the list of the attorneys for the organizations providing amicus briefing (ACLU-Wa and National, NCLR, Fred T. Korematsu Center for Law & Equality, SU Law Professor, QLaw, GLAD). Full disclosure, I provided some assistance on the ACLU Amicus brief.

Basic Facts

Couple marries young (wife 19, husband 21). They were religious and involved in the church. They had three children and the mother wrapped around her life around the children, giving up her work in her family’s business to be able to focus on her family. The father worked in her family’s business and provided the financial support. Like so many divorcing families, it is clear that both parents loved their children.

Like many people, later in life the mother realized that she was not straight. As much as she loved her family, she could no longer hide this important part of her identity. She told her husband. They continued to reside together, agreeing that the mother would explore her sexual orientation.

The mother was committed to making her children come first. Based on her upbringing and belief that having a stay-at-home parent was important for children, she stayed in the family home, with the father, attempting to disrupt the children’s lives as little as possible, only moving out when the trial court ordered the family home would go to the father and the mother had to move out. The court made the father the primary custodian and said he got to make all the decision about the children (something typically reserved for high conflict cases, particularly instances with domestic violence). In addition to providing limited residential time with the mother and allowing the father to make all major decisions, the trial court limited the mother’s ability to talk about her sexual orientation or introduce the children to her long-term partner. The court of appeals struck down the provisions that were explicitly homophobic, but allowed all the other provisions to remain in place (For more discussion of the basic facts and the court of appeals decision, check out my earlier blog).

Washington State Supreme Court Opinion

Sexual Orientation and Parenting 

The Court reaffirmed that a trial court may not consider a parent’s sexual orientation as a factor for custody decisions absent an express showing of harm to the children. This principal was first articulated by the Washington State Supreme Court in 1983, In re Marriage of Cabalquinto, 100 Wn.2d 325, 329, 669 P.2d 886 (1983) it was reiterated in In re Marriage of Wicklund, 84 Wn. App. 763, 770, 932 P.2d 652 (1996) (trial court abuses its discretion “if it restricts parental rights because the parent is gay or lesbian).

In this case, the GAL issued a homophobic report that was highly critical of the mother for “making choices” to divorce the father and for her “lifestyle choices” and essentially blamed Rachelle for the marriage ending the marriage, believing she should have waited until the children were grown before living an authentic life. The trial court relied heavily upon the GAL report. The Supreme Court stated:

We are not confident the trial court here approached the parenting plan with an attitude of neutrality regarding sexual orientation that fairness demands.

The question to tease out in the case was, when is a trial court basing its decision on sexual orientation? The father argued that the trial court did not base its residential schedule based on sexual orientation and that the numerous references to her sexual orientation were simply included for context. The mother argued that the because the GAL report, the trial, and the opinion where full of references and restrictions connected to her sexual orientation, the entire parenting plan was tainted with bias and needed to be reversed.

Previously, our state Supreme Court decisions allowed parenting plans to remain in effect even if there was a reference to sexual orientation. In the Wicklund decision, while the court held that parental rights couldn’t be restricted based on sexual orientation, the result of the case still ended up feeling like that was exactly what was allowed to happen. The trial court trial court focused on causing the least amount of change for the children, which inherently created a bias on the parent who was trying to live more authentically.

The Washington State Supreme Court noted that since Wicklund was decided in 1996 courts have recognized that members of the LGBTQ community are vulnerable to discrimination. The court referenced Obergefell v. Hodges, the decision that affirmed the dignity of same-sex relations and overturned marriage discrimination (as a side note, the court also noted that this decision abrogated its own decision in Andersen v. King County – the case where our state failed to properly apply constitutional rights, arguing that dignity of LGBTQ people should be subject to political whims and that gays were going to get there through the political process. This ultimately happened, but it took six more years and justice deferred is justice denied).

The court did not draw the connection that 1996, when Wicklund was decided, was also the height of the gay marriage panic when the Federal Government passed the Defense of Marriage Act and many other states passed “Baby DOMAs.” When Wicklund was decided, in many states it was still criminal to engage in same-sex sexual relations – those laws wouldn’t be held as unconstitutional for another seven years in Lawrence v. Texas.

I mention the timing because as President Obama noted when he finally supported ending marriage discrimination, attitudes around the LGBTQ community have evolved, not simply with respect to marriage, but with respect to our ability actually live a life without being criminalized.

In the Black case, the State Supreme Court found that the trial court abused its discretion for failing to remain neutral in determining the residential schedule. This is a good ruling, but I would have preferred a bit more bright line ruling: Sexual Orientation cannot be used in determining a residential plan and any plan that bases any part of a decision or restrictions on sexual orientation will be presumed to have abused discretion and will be void. This case does not appear to overrule the caveat that sexual orientation may influence a residential schedule if it harms the child. This is wrong. Would anyone argue that if a same-sex marriage ended because a partner realized s/he had a deep sexual attraction to someone of an opposite-sex that this could harm the child? No. Sexual orientation does not harm children. LGBTQ people are not inherently sexually deviant with a greater likelihood that their behavior could be harmful. In the same way that someone who has a heterosexual orientation may engage in harmful sexual behaviors, it is the actual harmful sexual behaviors that is a problem and has nothing to do with sexual orientation.

Nevertheless, the ruling effectively determined that sexual orientation cannot be used in any part of a parenting plan and if it a trial court makes unnecessary reference to sexual orientation and especially if a trial court includes any limitations based on sexual orientation, it will be presumed to bias the entire parenting plan (not simply the place that references sexual orientation).

Religion and Parenting 

In this case, the children were raised in a conservative Christian faith that was judgmental towards divorce and sexual orientation. The trial court also based parenting decisions on stability and maintaining the religious identity the children were raised in (without ever inquiring as to the children’s own religious beliefs). This clearly favored a particular religion. The mom still maintained a Christian identity, but she embraced Christian ideals that were more accepting. The court determined that the children must be raised in the more conservative Christian setting. This decision also violated the law with regard to parenting decision.

[Washington courts] require an analogous attitude of neutrality regarding conflicting religious beliefs. Although a trial court may consider the parents’ and the children’s religious beliefs when fashioning a parenting plan under RCW 26.09.184(3), it may not favor either parent’s religious beliefs without a clear showing of harm to the children[.]

(emphasis added).

The consideration of religion is intended to allow for an ability to figure out religious holidays and residential schedules and possibly other issues (i.e., coordinating taking children to religious services where there is a gender segregation, coordinating important religious milestones, like bar/bat mitzvahs).

In the Black case, religion and sexuality were intertwined. The argument was basically that because the children were raised in an ultra conservative religion they would be harmed by the mother’s sexual orientation because it contradicted the teachings of their religion. The trial court concluded that the father was better able to maintain the religious beliefs the children had thus far been raised. Thus, the court effectively favored the father’s religion.

The court didn’t do an analysis if either religious practice would harm the child. Arguably, if the court had done such an analysis, if any religious practice would have the possibility of harming the children, the father’s religion, which demands viewing their mother as a sinner, would be more likely to cause an actual detriment to the children.

Bias in a Parenting Plan Requires Dismissal of the Entire Parenting Plan

Parenting plans include numerous provision, there is the time each parent has with the the children, there are decision-making provisions, there are possible restrictions on visitation, and any parenting plan done with lawyers involved will include a vast array of “other” provisions that attempt to help guide parents on behaving respectfully with each other during the challenge of co-parenting. The Supreme Court decision essentially held that these other decisions must be reviewed when the trial court’s decision appears to have been tainted with bias.

What Happens Next? 

Sadly, this decision doesn’t mean an end for the family. Perhaps they will be able to go back to mediation in light of this decision and make agreements about their parenting, and increasing the mother’s time with her children. If they cannot reach agreements, they will have to go to trial. They will have to incur expense to hire a new GAL and likely another psychologist to interview the children. At the time this decision was issued, the court noted that one of the children is already 17, parenting plans do not apply to legal adults, so that means the oldest child will likely not be impacted, because with how slow the process is, he will likely be 18 before a final parenting plan is entered. The vast majority of his high school life had his mother radically diminished from his life because of the bias of the trial court and the bias of the ex-husband. If the ex-husband had not pushed for the restraints and limitations in the children’s life, the court never would have ordered it. The other two children are 14 and 9, so there is still a significant impact that a new parenting plan could have on their lives and their relationships with both parents.

Cases like this are heartbreaking. It seems clear that both parents love their children and that their children love both their parents. But in the way that break-ups can be toxic, this break-up got toxic and the father successfully leveraged the lingering homophobic attitudes to try to diminish the relationship between the children and their mother.

The reality is that as the children grow up, there is no way they will be anything other than resentful to the father for his efforts to marginalize their mother in their lives. Divorce does not inherently harm children, messy divorces where a parent is vindictive against another parent harm children. Children know more than we realize and eventually the father’s relationship with the children will likely suffer from his actions.

It didn’t have to be this way. In fact, our legislature has done everything it can and our courts have interpreted the statutes in ways to try to prevent exactly this kind of harm. The trial court missed an incredible opportunity to apply our state statutes to assist parents in doing what is best for their children. Instead of having a long court battle lasting years and years, had the court followed the statute and court law, the family could have been on a path towards healing and existing in their newly defined family.

Additional Side Note

Sexism, heterosexism, and homophobia are all leaves on the same branch of bias based on sexual stereotyping. In addition to religion and sexual orientation, this case seemed to be tinged with bias based on gender/against a parent who stays at home with children. The Supreme Court did not address this issue, but the decision by the trial court clearly punished the mother for being a stay-at-home parent. It argued that the father was more stable because he had a job. The court and GAL seemed to be critical of the mother for not making more of an effort to become employed outside the home. Despite questioning her ability to support herself, the court denied her alimony.

This case presents a particularly bizarre situation to assert the financial stability of the father because his financial stability is based on his employment with the mother’s parents. That seems like an inherently unstable relationship. What if the father starts dating someone else and the parents fire him? What if the parents evolve in their acceptance of their daughter and fire him for the trauma that he caused to their daughter?

Nevertheless stability referenced in our parenting statute is not financial stability or religious stability, it is the stability of the relationship between the parents. To use financial stability as a basis in a parenting plan deeply contradicts the legislative efforts to usurp that kind of decision through the creation of the child support schedule. It is dangerous to identify financial stability as a basis for a residential schedule because it will inevitably punish one parent. Studies show that regardless of sexual orientation, families almost universally tend to have one parent who makes financial sacrifices to support the family. Because of systemic sexism (i.e., that women still make significantly less for the same jobs as men, particularly if they are women of color), in opposite-sex relationships, it will often make the most economic sense for women to make the financial sacrifice, factoring in “financial stability” would result in systemic discrimination against (primarily) women in parenting decisions.

 

 

 

Summary of February 2017 Supreme Court Decisions

Appellate decisions within two weeks of 2/28/17:

Washington State Supreme Court Decisions:

  • In re Marriage of Zandi, 92296-9 (unanimous opinion)- Court held that out-of-network expenses are uninsured medical expenses and must be paid according to the parties’ child support order.
  • “The legislature defines ‘” [u]ninsured medical expenses”‘ as costs “not covered” by insurance. RCW 26.18.170(18)(d). WAC 388-14A-1020 clarifies that this includes costs “not paid” by insurance, even if those costs would be covered under other circumstances. Because the health care expenses in this case are unambiguously within the scope of RCW 26.18.170(18)(d), financial responsibility is allocated by the 2009 order and may not be modified absent evidence of changed circumstances or other evidence consistent with the requirements of RCW 26.09.170(6)-(7).”

    • In this case, it didn’t matter that the father had requested the mother get pre-approval from the insurance company, the mother thought that the issue was urgent enough to require immediate attention. Nothing in the record indicated that the mother acted in bad faith (she did request pre-approval and was assured by hospital staff it would be approved). The court said that to look at the fact that the father did not have a say in the incurrence of the out-of-network expense, “incorrectly introduces concepts of marital fault into the enforcement of a child support order.”
  •  Estate of Ackerley v. Dep’t of Revenue, 92791-0 , (5-4 opinion, Madison authored majority, Wiggins authored the dissent). This is a case concerning the Estate and Transfer Tax Act, chapter 83.100 RCW. There is something called the “gross-up rule” wherein the federal government assesses estate taxes on gift taxes paid within three years of death. The question was whether they also needed to be included as a part of the Washington taxable estate (this would result in more taxes being owed to the state). The majority said yes. The court held:
    • “Following the legislature’s clear mandate, we must also find that the gift tax paid is part of the Washington taxable estate and transferred upon death as part of the entire estate. Thus, the Washington State Department of Revenue (DOR) properly included the gift tax paid in its assessment of Barry Ackerley’s estate.”

    • The focus of the majority is on the concept of “transfer.”
    • The dissent argued that, “[w]here no transfer exists, Washington’s Constitution prohibits the imposition of an excise tax.” In this case, the federal gift taxes were fully and finally paid during life, so no transfer of gift occurred at death. This would mean exclusion of the gift tax from Washington’s estate tax. This focus of the dissent is on the concept of “direct tax:”
    • “Because the estate tax is imposed on a “transfer of property,” it is an excise tax, not a direct tax. And because the tax is not a direct tax, it is not subject to the uniformity requirement of the Washington Constitution.”

 

  • In re Disciplinary Proceeding Against Conteh, 201,448-8  (unanimous opinion – Madsen author). This case involves the suspension of an attorney and whether the Disciplinary Board should have reviewed the case on its own, even when the attorney did not appeal the suspension. The disciplined attorney appealed the decision of the Disciplinary Board not to review the suspension. The court noted that the attorney did not identify any specific assignments of error or any findings he disagreed with. Since unchallenged facts are assumed to be true on appeal, the attorney had no basis for his appeal.

 

  • Lundgren v. Upper Skagit Indian Tribe, 91622-5 (5-4 opinion – Johnson authored majority, Stephens authored dissent). This case involves a property dispute involving land that was purchased by a tribe and where there had been a long-term fence that was inconsistent with documented boundary lines.
    • Majority Opinion: There were issues of sovereign immunity because of the tribal ownership of the land. The issue involved In Rem jurisdiction and the right of Washington Courts to decide actions regarding property. The majority discussed CR 19 and whether the tribe was a necessary party and determined because the Lundgren’s obtained possession long before the Tribe acquired the disputed property, the Tribe was not a necessary party and therefore there was no concern regarding sovereign immunity. The majority also noted that there would be no other remedy without suit in Washington Superior Court.
    • Dissent: The dissent’s argument is captured succinctly with this quote:

      “While the existence of in rem jurisdiction gives a court authority to quiet title to real property without obtaining personal jurisdiction over affected parties, Civil Rule (CR) 19 counsels against exercising this authority in the face of a valid assertion of sovereign immunity. Proceeding without regard to the Tribe’s defense, the majority gives “insufficient weight” to the sovereign status of the Tribe and erroneously “reach[es] and discount[s] the merits of [the Tribe’s] claims.”

 

  • Peralta v. State, 92675-1  (Unanimous Opinion – Wiggins author). This case involved an admission during pretrial discovery (discovery is where both sides ask questions and provide documents relevant to the case). There is a part of discovery where you can be asked to admit or deny certain facts. This case involved an issue where a woman was hit while walking while intoxicated. She admitted in discovery that she was intoxicated and didn’t attempt to qualify it, like she had a drink, but didn’t think she was impaired. The trial court allowed the admission and required her to be bound by it, including it in a jury instruction. The jury found that Peralta’s intoxication was more than 50% of the reason why Peralta was hit. The Supreme Court upheld the trial court’s decision because the intoxication defense statute provides a complete defense to an action for personal injury when the person injured “was under the influence of intoxicating liquor” at the time of the injury.
  • State v. Arlene’s Flowers, Inc., 91615-2 (Unanimous Opinion –  McCloud author). This case involved the violation of the Washington Law Against Discrimination (WLAD) and the Consumer Protection Act (CPA) by a florist seeking to deny services for a same-sex wedding. I hope to blog about this case in more detail soon, but in the meantime, here are the basics.
    •  The court upheld the WLAD and the CPA and rejected the attempt to create an exception based on religious belief. The court held that the refusal to provide flowers was discrimination based on sexual orientation, rejecting the argument that it was marital status discrimination (and therefor permissible).
      • The florist attempted to argue (1) that it was marital status discrimination, not sexual orientation discrimination (and therefore okay for her to refuse services), (2) the WLAD already an express exemption to RCW 49.60.215 for “religious organization[s]” that object to providing public accommodations for same-sex weddings, thus the attempt to argue that WLAD didn’t cover marriages in secular public accommodations failed. The court also rejected the argument that the WLAD requires a balancing test between the rights of the protected class members (i.e., the public using the accommodation) and the business providing the service and the religious beliefs possibly held by the owner of the company.
      • The court also rejected the claim that the WLAD violated her right to Free Speech or Religious Exercise. The court held that the “WLAD is a neutral, generally applicable law subject to rational basis review.  And the WLAD clearly meets that standard: it is rationally related to the government’s legitimate interest in ensuring equal access to public accommodations.” (Citations omitted)

      • The court also noted that the WLAD withstands strict scrutiny review – rejecting the florist’s argument that the couple suffered no real harm:
        • We emphatically reject [the argument the couple suffered no real harm.] We agree with Ingersoll and Freed that “[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.” Br. of Resp’ts Ingersoll and Freed at 32. As every other court to address the question has concluded, public accommodations laws do not simply guarantee access to goods or services. Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined.

      • Finding that Supreme Court has never held that a commercial enterprise, open to the general public, is an ‘”expressive association'” for purposes of First Amendment protections, the court rejected the florist’s Free Association claim.

LGBTQ Rights Going Forward – Possible Impact of a Trump Presidency

During this campaign cycle, we saw the backlash to broad spectrum of efforts to obtain full equality. While Obama was not perfect, under his administration, movements of the people flourished. Immigrant communities organized, raised awareness, and applied pressure achieving at least a few minor gains, like the DREAM Act. Black Lives Matter flourished. While the president was not as forceful as I would have liked, he did defend the movement and under his leadership investigations occurred into police accountability/abuse and reports were issued that have the power to create some systemic change. He raised awareness of about the abuse of our system of incarceration and took steps available on the federal level.

The LGBTQ movement was also able to thrive under Obama. He appointed several members of our LGBTQ community into key leadership positions. Questions about fair housing, included questions about whether LGBTQ people were discriminated against. He also took a position that the ban on marriage discrimination was wrong. When the Supreme Court finally remedied the long standing practice of denying marriage to same-sex couples, the Obama administration went to work on finding all of the places where the federal government was involved and removing any barriers to equality.

It is hard to believe sometimes that Lawrence v. Texas was decided in 2003. How on earth was it only about 13 years ago that some states still outlawed homosexual conduct (i.e., sodomy)?  When the barriers finally began to fall, full equality felt like it came at a rapid pace. This is why, despite all the growth we have had, in many ways the changing administration doesn’t change the longstanding advice for the LGBTQ community.

The people dedicated to these issues have issued FAQs and information. Lambda Legal has Post-Election Facts – Covering marriage (unlikely to see much change), trans youth, conversion therapy, hospital visitation, HIV and concerns about the repeal of Obamacare and hate crimes. NCLR has several blogs, Shannon Minter, their super smart legal director has this to say about the unlikely outcome of repealing marriage. The NCLR is also one of the best resources out there to understand state-by-state differences. The Transgender Law Center issued this Statement on the election.

In addition to these thoughts, I will add, no president, congress, or court has ever simply given the LGBTQ people rights. It has been a hard fought battle, that was based in some incredible activism changing hearts and minds.

It also doesn’t hurt our cause that LGBTQ people are everywhere. Race, religion, ethnicity, and many other identities find people still segregated, largely due to historic discrimination issues, but also because sometimes it is easier to live in communities where you see yourself, you know you are less likely to be targeted for harassment and violence, you know when you go to the store they will have beauty products for your hair, or a grocery store that will meet your kosher needs. This segregation doesn’t occur in the same way for the LGBTQ people, while as grown-ups we may seek out gayborhoods, we are raised Muslim, Evangelical, atheist, Jewish and every other religion. We are Black, Asian, Latinx, Native American/First Nations/Indigenous, White and every other race and combination of race and/or ethnicity. We come from conservative families to progressive to anarchistic families. It is simply impossible to shield yourself from loving someone, a son, daughter, auntie, uncle, parent, who may come out as LGBTQ and the more accepting world expanded the safety area for people to come out. It is impossible to exist in any identity without also having LGBTQ people as a part of that identity.

However, this change is recent. We have not lived in a post-Obergefell (Supreme Court case affirming the dignity of same-sex marriages and holding discriminating against same-sex people in marriage liscenses violated our constitution) world long enough to have let our guard down. Attorneys advising same-sex clients were still saying, get your documents and don’t delay.

What kind of documents should you get?

Transgender people should make sure their identity documents match their gender identity (to the extent possible as they predominately exist in the male/female binary). One place to turn for information on this available at the Transgender Law Center Identity Document Resources– it’s California focused, but it does have information about federal changes. Looking at the California info may also help you figure out how to look for the same in your own state.

Protect your relationship to your children. If you have read any other blogs I have written or seem me present, you have heard me say marriage equality does not equal parentage equalityGet a court order affirming parents are parents. This can be done a couple of ways. Many people are most comfortable with adoptions. There is case law to support that court orders adjudicating parentage will be given full faith and credit, this is essentially an order of parentage, similar to what has been historically called paternity. In Washington State, our law regarding determining parentage is gender neutral (Uniform Parentage Act / UPA, which despite its name is not uniform and many states haven’t adopted it, or they tweak it. Washington tweaked our UPA to be clear it included same-sex couples).

If you haven’t done this, and your family is splitting up, you can make sure that your parenting plan has a finding that you are the legal parents. Parenting plans have extra security under a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA – and unlike the UPA it actually is uniform). There is also something called the Hague convention and signatory countries (countries who have agreed to follow the Hague rules) will also help with the enforcement of parenting plans). There are some concerns with something like this and possible rights and benefits that could flow to your child upon your death, so you should definitely explore other possibilities.

All LGBTQ couples should have estate planning documents – which a way of making you sound wealthy, but really means that you should have a power of attorney, medical directives, a will. These kind of documents are fairly easy to obtain. The reason for having them is mainly to have an additional weapon against discriminatory individuals at important times. These are also the kinds of documents people absolutely needed when there was no marriage. It was the only way that same-sex couples could link themselves in the eyes of the state.

Pay Attention – More Advice Will Come Out Once Trump is in Office with a Republican Congress

There is so much more we will learn in the coming months and years. The hateful rhetoric connected to this election has all of us justifiably nervous. The thing that helps keep me from panicking is remember that our government was set up to thwart major sweeping changes. It took a long time to get where we are and it will not be unwound easily.

Perhaps it means as states that are happy with having the marriage issue decided can try to clean up their statutes that banned marriage and explicitly say that same-sex marriage is allowed in their state (this would mean absent an amendment to our constitution marriages would still have state protection). While states are at it, they should make their laws regarding parentage and have two things clear (1) that families can affirm their parentage if they meet the terms of the UPA (which is basically that you consented to assisted reproduction while married or that you have lived with the child since birth for several years and held the child out as your own) and that the provision apply on a gender neutral basis, i.e., biology is not the only factor in determining parentage.

Also, be sure to reach out when you experience discrimination. The national organizations like Lambda Legal, NCLR, Transgender Law Center, and the Southern Poverty Law Center, need to know what’s happening in people’s lives to respond to it. Also, let your state organizations know. In Washington, groups like Legal Voice and the ACLU have been spearheading many efforts. Our Attorney General created a Civil Rights Division. The QLaw Foundation has a legal clinic that provides free legal advice on civil question (i.e., non-criminal).  Gender Justice League has resources on health insurance issues (among many other things). Ingersoll Gender Center has support groups, resources, and information about providers. There are also many other groups that focus on intersectionality: Entre Hermanos, Trikone NW, NQAPIA, and many more.

I’ll keep trying to update about what’s happening in Washington as several interesting cases concerning LGBTQ people are before our state Supreme Court this week.

Parting thought: Please take care of yourself, legally, socially, and emotionally.

Title IX Covers Transgender Students and Access to Bathrooms

May 13, 2016 marked an important day for Title IX, as the U.S. Department of Justice Civil Rights Division issued a Dear Colleague Letter regarding the application of the ban on sex discrimination in schools and what schools need to do to ensure that they do not discriminate based on gender identity. The letter notes this is not a change to the law, but simply significant guidance to “inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations.”

The Dear Colleague Letter states:

Title IX of the Education Amendments of 1972 (Title IX) and its implementing regulations prohibit sex discrimination in educational programs and activities operated by recipients of Federal financial assistance. This prohibition encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.

The letter is a great resources for schools struggling with how to respect transgender or gender queer students. It provides terminology definitions and advice on how to create a safe and nondiscriminatory environment.

It also addresses the biggest issue that schools have with understanding how to create a nondiscriminatory environment for transgender and gender queer students: sex-segregated facilities. Below is exactly what the Dear Colleague Letter says:

Sex-Segregated Activities and Facilities Title IX’s implementing regulations permit a school to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances. When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.

Restrooms and Locker Rooms. A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity.A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.

Athletics. Title IX regulations permit a school to operate or sponsor sex-segregated athletics teams when selection for such teams is based upon competitive skill or when the activity involved is a contact sport. A school may not, however, adopt or adhere to requirements that rely on overly broad generalizations or stereotypes about the differences between transgender students and other students of the same sex (i.e., the same gender identity) or others’ discomfort with transgender students. Title IX does not prohibit age-appropriate, tailored requirements based on sound, current, and research-based medical knowledge about the impact of the students’ participation on the competitive fairness or physical safety of the sport.18

Single-Sex Classes. Although separating students by sex in classes and activities is generally prohibited, nonvocational elementary and secondary schools may offer nonvocational single-sex classes and extracurricular activities under certain circumstances. When offering such classes and activities, a school must allow transgender students to participate consistent with their gender identity.

Single-Sex Schools. Title IX does not apply to the admissions policies of certain educational institutions, including nonvocational elementary and secondary schools, and private undergraduate colleges.20 Those schools are therefore permitted under Title IX to set their own ex-based admissions policies. Nothing in Title IX prohibits a private undergraduate women’s college from admitting transgender women if it so chooses.

Social Fraternities and Sororities. Title IX does not apply to the membership practices of social fraternities and sororities. Those organizations are therefore permitted under Title IX to set their own policies regarding the sex, including gender identity, of their members. Nothing in Title IX prohibits a fraternity from admitting transgender men or a sorority from admitting transgender women if it so chooses.

Housing and Overnight Accommodations. Title IX allows a school to provide separate housing on the basis of sex. But a school must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in single-occupancy accommodations or to disclose personal information when not required of other students. Nothing in Title IX prohibits a school from honoring a student’s voluntary request for single occupancy accommodations if it so chooses.

Other Sex-Specific Activities and Rules. Unless expressly authorized by Title IX or its implementing regulations, a school may not segregate or otherwise distinguish students on the basis of their sex, including gender identity, in any school activities or the application of any school rule. Likewise, a school may not discipline students or exclude them from participating in activities for appearing or behaving in a manner that is consistent with their gender identity or that does not conform to stereotypical notions of masculinity or femininity (e.g., in yearbook photographs, at school dances, or at graduation ceremonies).

 

Sexual Orientation and Parenting in Washington State

In Washington State, it has seemed like settled law that sexual orientation and gender identity are not supposed to play a role in parenting decisions. Homosexuality was held as not a valid factor in parenting plan in 1983 in a case called In re Marriage of Cabalquinto, 100 Wn.2d 325, 669 P.2d 886 (1983) and Transgender identity was held to not be a valid factor in parenting plans in In re Marriage of Magnuson, 141 Wash.App. 347, 170 P.3d 65 (2007).

 

However, any of us who have grown up in a society that is homophobic and transphobic understand that just because things are supposed to be a certain way, does not mean they are that way. A recent Washington State Court of Appeals decision showed us that a trial court will violate the rules and that an appellate court will reverse the most overtly homophobic aspects of a decision, but will leave the bulk of the decision in place, even though the whole case is infused with homophobia and religiously based discrimination against a parent.

In re Marriage of Black, Docket No. 45788-7-II; Opinion Author Sutton; joined by Worsick and Maxa. Attorneys for Appellant(s) Amanda Beane, Kelly Moser, Julie Wilson-McNerney, and Ward . Attorneys for  Respondent Levy, Masters, Lemmel. Amicus – NCLR – Rasnic; WA State Psychological Association -Clinton, Peterson Aand Nickel-Nguy; ACLU – Talner. – Update the Washington State Supreme Court has accepted review of this case.

Basics of Decision: The appellate court held the trial court erred when it restricted the Mom’s conduct and speech about religion and sexuality without making any specific findings of harm to the children, and erred when it allocated Father sole decision-making authority regarding religious upbringing and daycare. But the court found that the trial court did not err when it designated the father as the primary residential parent, allocated sole decision-making authority for education to Father, denied Mother spousal maintenance based on Father’s inability to pay, and required Mother to pay child support.

Basic Facts: Mother and Father married in 1994 and had three children together. They raised their children in a conservative Christian home and sent them to religious-based schools. For the majority of the marriage, Mom did not work outside the home.

Mom came out as a lesbian and began dating another woman in December 2011. In May 2013, Mom filed for divorce, and both parents sought designation as the primary residential parent and sole-decision making authority regarding the children’s education.

The GAL only spoke to two of the three children, and only spoke to those two children for an hour. The children’s therapist said while the divorce was difficult, they were adjusting. When Mom came out to the children, the therapist told mom to hide her relationship. The therapist also told the mom not to talk about sexual orientation or answer the children’s questions outside of therapy.

Mom’s new partner was supporting her financially and the trial court speculated that Mom’s search for full-time employment or enrollment in an educational program would affect her ability to parent full-time.

The trial court did state that Father was clearly the more stable parent in terms of ability to provide for the needs of the children financially, emotionally, and in maintaining their religious upbringing.

The trial court ordered the mother could not introduce the children to her partner until the therapist decided she could (and provided no requirement that the introduction be made by a certain time).

The Decision: The standard on appeal is “abuse of discretion,” meaning that a trial court decision is manifestly unreasonable or based on untenable grounds or untenable reasons. As long as there is substantial evidence to persuade a fair-minded individual of the truth of the matter asserted, the findings of fact are upheld on appeal.

In determining whether the trial court abused its discretion, the appellate court discussed the inability to use sexual orientation as a reason for restriction and noted that the trial court found there was no basis for .191 restrictions (restrictions that exists because a parent’s behavior harms the child(ren)). Without .191 restrictions, the limitations Mother’s parenting regarding introducing to her partner and discussing sexuality or religion constituted an abuse of discretion. Restrictions aren’t allowed to make the transition of divorce easier.

The court found that the restrictions violated Mother’s first amendment rights, especially because it was a blanket prohibition with no findings made by the court of any actual or perceived harm that the children would suffer from the prohibited speech.

The court noted that in prior cases regarding religion and parenting that parent’s have a right of free exercise of religion.

Despite the appellate court acknowledging that trial court had engaged in “blatantly content-based restrictions” regarding religion, homosexuality, or “alternative lifestyle concepts” the appellate court rejected the argument that the trial court improperly considered Mother’s sexual orientation and favored Father’s religion.

The appellate court focused significantly on the idea that there is no  presumption in favor of the primary care giver in determining a parenting plan (citing a case called Kovacs).  Instead the court focused on the emotional needs and development level of the child and the child’s relationship with siblings and with other significant adults, [and] the child’s involvement . . . [in] school, or other significant activates; finding that “because of [the children’s] sheltered upbringing and emotional development, [the father] was best suited to provide for the children financially and emotionally.”

The trial court also weighed the factor of employment schedule in the father’s favor because Mother’s future employment is unknown.

In the end, the appellate court concluded that there was substantial evidence support the trial court’s findings that (i) both parents had strong relationships and bonds with the children, (ii) they had no prior parenting agreements, (iii) both parents have good potential for future parenting functions, but that father had taken on many of the responsibilities since December 2011, (iv) father was the parent most able to provide stability, and emotional and financial support to the children, (v) father was most able to maintain the other strong relationships in the children’s lives, (vi) none of the children stated their preference to the court, and (vii) the father’s employment situation was best suited to provide him the flexibility to parent the children consistently.

Discussion of Judicial Bias

In response to the question of whether the court’s opinion demonstrated judicial bias, the appellate court found that there was no evidence in the record to support the argument that the trial court based its residential placement on the mother’s sexual orientation or preference for the father’s religion and that the judicial ruling alone is not valid evidence of bias. Somehow the court of appeals held that explicitly biased provisions are not evidence that when the trial court was likely making credibility determinations and other forms of fact-finding that it was likely making those determinations with bias.

Essentially, even though the court entered restrictions based solely on sexual orientation (or as the the trial court called it, “alternative lifestyle concepts”) and effectively limited Mother’s time with her children by not allowing her to exercise residential time with her  new partner, the appellate court found the trial court did not act in a biased manner.

This leads to the natural question: Exactly what must a court do to rise to the level of actual bias for the court of appeals? Would the court have to affirmatively say, “I hate gays”? Would it require a GAL report that wasn’t also biased and a court entering restrictions that a GAL report did not include? Would a requirement for supervised visitation without specific findings allow the court to conclude the trial court was biased?

Unfortunately, this case affirms what many LGBTQI people fear, that the court system will be unfair and limit their parenting in ways they would not if they weren’t LGBTQI. Maybe this court will wind it’s way up to our state Supreme Court. As for right now it is what is called an unpublished opinion, meaning that it is not allowed to used by other courts as authority.

The Problem with the Bias Argument 

There is no doubt in my mind, or likely any person who has had someone make comments about something like their stability in connection to their sexual orientation and their ability to parent, that bias plays a role in the decision. The problem is that in order to maintain the important fiction that judges are unbiased, requesting that a case turn on the issue of bias puts courts in the untenable position of saying that their colleagues are biased. The Supreme Court is unlikely to want to open the door for future cases to claim that there is bias by using this case to acknowledge that bias exists within the judiciary.

Beyond that, determining there is judicial bias isn’t required. In a case where the court enters provision based on sexual orientation, the whole order should be void. There was a case, Wicklund, that essentially held as long as the rest of the order had tenable underpinnings that this would not require the entire order to be vacated. But Wicklund occurred in 1996. 1996 was the year DOMA was signed into law. In 1996, Bowers v. Hardwick, was still good law, and that case said it was okay for states to criminalize sodomy. We have seen a sea change occur in our society with regard to homosexuality and as such, Wicklund, to the extent that it doesn’t vacate the entire parenting plan when the judges explicitly states decisions were based on sexual orientation can be upheld, should be overruled.

Requiring that sexual orientation cannot be a factor for any part of the parenting plan will make it so that parties will be discouraged from claiming sexual orientation inevitably harms children (or now that we have marriage equality that a heterosexual relationship post a same-sex relationship inevitably harms the children).

Then we will be pushed to the next issue – how to deal with covert judicial bias. Like the judge who claims a parents transgender identity or sexual orientation plays not role in the case but places restrictions that are similar to a pedophile even though there are no allegations of any physical harm against the child.

Hopefully our State Supreme Court will make it clear that if a parenting plan involves restrictions based on sexual orientation or religion that the parenting plan will be preemptively invalid and it will be sent back down for a new judge just for the sake of the appearance of fairness. If no judge is available (a possible problem in smaller counties), require a change of venue (i.e., require the case to be heard in another county).

U.S. Supreme Court Reverses Alabama’s Decision to Invalidate a Georgia Adoption

Back in September 2015, I wrote a post about an Alabama Supreme Court invalidating an adoption of a lesbian couple that was issued in Georgia. Today I get to write a post that the U.S. Supreme Court has overturned the Alabama Supreme Court in V.L. v. E.L., 577 U.S. ____ (2016). The court affirmed that adoptions are judgments that must be respected from state to state.

Quick summary of the case. Moms were in a relationship from 1995 to 2011. Biomom gave birth in 2002 to one child and in 2004 to twins. Couple lived in Alabama, but the couldn’t do a second parent adoption in Alabama, so they set up temporary residence in Georgia and the nonbiomom adopted all three children in 2007.

Couple breaks up and biomom withholds the children from nonbiomom. Nonbiomom turns to the court to get visitation and Biomom seeks to dismiss the case. The case goes on for years (break up was in 2011, Alabama Supreme Court decision was issued on 9/18/15) with the court finally concluding that Georgia did not allow the court to enter an adoption order. The court was clear that this was because the couple was not married and that the statute did not allow adoption without invalidating the parent’s rights and since biomom’s rights were not invalidated, Georgia did not have the jurisdiction to enter the adoption order.

The Supreme Court disagreed with Alabama in a Per curiam (meaning a decision by the court as a whole) finding that the Alabama Supreme Court erred in refusing to grant the adoption judgment full faith and credit.

Understanding Full Faith and Credit in Parentage vs. Marriage

Many people wondered why marriage was not considered a “Full Faith and Credit” issue and so are confused that parentage issues may now be covered by the Full Faith and Credit. Full Faith and Credit requires each state to recognize the “public acts, records, and judicial proceedings of every other state.” There was concern with marriage that marriage certificates were viewed more as an administrative act of a state. It certainly wasn’t a judgment, which is essentially a court order. Adoptions are court orders, where all parties are represented and the court makes a judgment.

Other types of court orders are also judgments. For example, there was a recent issue in Texas (see blog post). This was a confirmation of parentage order from California that was upheld applying Full Faith and Credit.

I am an advocate that in Washington, and nationally, especially with states that have Uniform Parentage Acts that affirm that a child born of a marriage is presumed to be the child of the marriage, that same-sex couples should have access to a Confirmation of Parentage. Essentially a court order would make it clear that each parent is an intended parent and that as a parent is entitled to all of the rights and responsibilities of a parent, similar to an adoption without as much expense and invasion (i.e., no need for home studies).

The goal with approaching legal parentage in this way is to take out the othering of a nonbiolgoical parent. When parents engage in assisted reproduction in order to conceive on parent should not be considered somehow more of a “real” parent. This should be as simple as it is for the state to establish parentage of a biological father when a mother is on state benefits and there is no child support order (this process in incredible simple). In fact, I believe that this is something that can and should be able to be done through the Division of Child Support in the same way the state, through the Division of Child Support, establish parentage for opposite-sex couples based on paternity.

The Sad Reality

Even though the U.S. Supreme Court has made it’s decision, there is not necessarily immediate relief for the children and their nonbiomom. They now have to go back to the trial courts and try to work out a parenting plan. Five years passed and it will probably be close to six years before anything is finalized. The kids, born in 2002 and 2007 will be about 15 and ten years old. The twins (the younger children) will have spent more than half their lives with their parents fighting over them. While the U.S. Supreme Court decision is a win for future same-sex couples, and while a win for this family, it brings to mind an expression that “justice delayed is justice denied.” This whole family has lost too much of their lives in this fight.

 

Parentage Establishment and a pending Texas Supreme Court Case

Marriage equality is not parentage equality.

For years, prior to Obergefell, when presenting about issues of family law and LGBTQ identity, I advocated the creation of a process for the adjudication of parentage in Washington State as something married co-parents could do instead of adoption. An adjudication of parentage would be similar to what happens with opposite-sex couples when a state establishes paternity.

States must establish paternity when a mother is receiving a cash grant like TANF and states also provides paternity establishment services to any party that requests it, even if they are not on public benefits.  Typically in these cases, states rely on genetic testing, but they can also rely on the word of the parents.

In a confirmation of parentage action, instead of relying on genetic testing, the state would rely on the presumption of parentage statute. In the past, I have cautioned about the dangers of this approach for same-sex couples because of the concern that if an order stated that the sole source of right to parent was based on the presumption of parentage connected to marriage that other states may try to invalidate the parentage order by arguing that they don’t recognize the underlying marriage.

To back up briefly, in Washington and other states with the Uniform Parentage Act, a child born of a marriage is presumed to be the child of both parents. With Obergefell and the fact that every state must now recognize the marriages of same-sex couples, the concern about the presumption being over-turned because of anti-marriage views is lessened.

I still have some reservations. Not every state has a Uniform Parentage Act. The name is “uniform” is totally deceptive, because even states have UPAs do not necessarily adopt the Act in uniformly. For example, Washington has a gender neutral parentage act, making it clear it applies to same-sex couples.  Nevertheless, to receive federal funding connected to welfare, every state must have some sort of law to get co-parents on the hook for child support, which mean all states are familiar with parentage orders (often referred to as paternity orders).

However, that concern is lessened, especially as Texas has upheld a California Paternity Order between two fathers who used a surrogate. The case is discussed below.

In Berwick, v. Wagner, No. 01–12–00872–CV, Decided September 11, 2014, the appellate court upheld a Judgment of Paternity for the nonbiodad.

<<<UPDATE – On October 23, 2015, the Texas Supreme Court declined to hear the case. This means the decision of the court of appeals stands and the paternity judgment will be recognized by Texas>>>

The basic facts: Couple began dating in 1994; enter into a gestational surrogacy agreement with a married woman in California (Berwicks’ sperm + donated ova in the uterus of the surrogate). A California court entered a Judgment of Paternity before the child’s birth (1) declaring both Berwick and Wagner each to be a “legal parent” of C .B.W., (2) declaring the surrogate and her husband to not be C.B.W.’s legal parents, (3) ordering the hospital to list Berwick in the space provided for father on the original birth certificate, and (4) ordering the hospital to list Wagner in the space provided for mother on the original birth certificate.

Relationship ended in 2008. Nonbiodad filed a two suits, one to recognize the paternity judgment and one under Texas law called a “Suit Affecting the Parent Child Relationship.”  Biodad opposed both actions. He argues that it would be against Texas public policy to recognize the California judgment of paternity.

The basic argument is that biology is king and a child can only have one father. In more detail the argument is, biodad is the only one who has a genetic relationship to the child, that Texas would not ordinarily allow two men to be fathers, and that nonbiodad could not take advantage of the holding out provision because even though he lived in the home for the first two years of the child’s life, he could not “genuinely represent to others that [the child] was his own because of Berwick’s undisputed paternity and Wagner’s confessed knowledge thereof.”

Nonbiodad argues based on the Full Faith and Credit Clause – “it is irrelevant whether his and Berwick’s surrogacy contract would have been enforceable if entered in Texas in the first instance because “[w]hen presented with a final judgment from another state, Texas may not first look behind the judgment to determine if Texas agrees with the law and application of that law giving rise to it before deciding whether Texas will recognize and enforce it.”4 E.g., Baker by Thomas v. General Motors Corp., 522 U.S. 222, 233, 118 S.Ct. 657, 664 (1998) (“[O]ur decisions support no roving ‘public policy exception’ to the full faith and credit due judgments ”).”

Appellate Court’s Decision

The trial court did not err in recognizing nonbiodad as a parent because (1) The trial court correctly recognized that both men had already been adjudicated as parents of the child by the California Judgment of Paternity. and (2) the trial court properly gave full faith and credit to the California judgment.

The court found that biodad’s arguments, “(1) improperly conflates the constitutional principles of full faith and credit with choice-of-law policy considerations, and (2) ignores settled Texas law holding that foreign judgments are entitled to full faith and credit without regard to public policy concerns.”

There was also an issue that is specific to Texas family law, about “managing conservators.” This is not a concept I’m familiar with, but the relevant part is that the court’s rejection of Biodad’s argument for “applying a presumption in favor of a biological “parent” over a parent acquiring “parent” status through other legal channels (be it adoption, presumption, or assisted reproduction.” A legal parent is a legal parent and they are on the same footing, regardless of biology.

Understanding Full Faith and Credit in Parentage vs. Marriage

Many people wondered why marriage was not considered a “Full Faith and Credit” issue and so may wonder why this case is a Full Faith and Credit Issue. Full Faith and Credit requires each state to recognize the “public acts, records, and judicial proceedings of every other state.” There was concern with marriage that marriage certificates were viewed more as an administrative act of a state. It certainly wasn’t a judgment, which is essentially a court order.

An adjudication of parentage or confirmation of parentage that I advocate establishing model forms to create would be a court order. It would have the parents and the child listed as parties. It would make it clear that each parent is an intended parent and entitled to all of the rights and responsibilities of a parent. The goal with approaching legal parentage in this way is to take out the othering of a nonbiolgoical parent. When parents engage in assisted reproduction in order to conceive one parent should not be considered somehow more of a “real” parent. The process of affirming a parent’s legal status as a parent, particularly when they use assisted reproduction, should be as simple as it is for the state to establish parentage of a biological father when a mother is on state benefits and there is no child support order (this process in incredible simple).

The Texas case provides further support that this approach is a viable alternative to adoption. Adoption has simply been the “go to” for so long that it will likely be hard to try something new, but especially in light of marriage equality, our same-sex parents are going to find the idea of having to adopt their child an even harder pill to swallow than it previously was. A order confirming parentage should provide the same protections and instead of requiring a parent to adopt their own child, it says that both parents are and always have been parents and this order is simply making sure that everyone understands that biology doesn’t determine their parentage, they are the full and legal parents.

Alabama Invalidated a Georgia Second Parent Adoption

Updates on this case:

On March 7, 2016, the U.S. Supreme Court reversed the Alabama Court holding that Alabama cannot invalidate the Georgia adoption under the Full Faith and Credit Clause. See blog post here for more discussion. 

On 11/16/15 this case was appealed to the U.S. Supreme Court. More about the appeal is available at the NCLR website – link

One thing we know is that marriage equality does not equal parentage equality. We also know that while the world has seen a significant amount of change in hostile treatment of same-sex couples towards more acceptance, same-sex families still face a much greater threat to their security than their opposite-sex peers. This is particularly true when one parent in a same-sex relationship decides to use homophobia as a tool to deny another parent their rights as a parent. A recent case demonstrates how that can be done with a possible harmful impact that may resonate well outside their individual custody battle.

A quick summary of the facts is important to understand how the case is not necessarily applicable in the way that it might seem at the outset of just hearing that an Alabama Court invalidated a Georgia adoption. In In re: E.L. v. V.L., Jefferson Family Court, CS-13-719; Court of Civil Appeals, 2130683, the couple lived in Alabama. They spent just enough time in Georgia to be able to technically establish residency (and possibly not even that much, appellate court decisions are not detailed in the facts and it appears they may not have spent a lot of time in the state, simply leased a space for the required amount of time).

The couple was together for approximately 16 years and E.L. gave birth to three kids (one set of twins) using assisted-reproductive technology in 2002 and 2004. It was undisputed that V.L. acted as a parent to the twins and they couple sought to legally formalize V.L. as a parent and in 2007 they did a second parent adoption in Georgia after doing research and believing it would be granted in Georgia.

Couple breaks up, biomom apparently doesn’t let nonbiomom see the children. Nonbiomom petitions the Jefferson Circuit Court (Alabama) to recognize her constitutional right to parent and register the Georgia adoption judgment and award her some custody or visitation with the children. Biomom moved to dismiss nonbiomom’s case. On April 3, 2014 (three years after the couple separated and the kids would be 10 and 12), nonbio mom was awarded scheduled visitation. A couple weeks later, the court issued an order that all other relief was denied and the case considered closed. Biomom promptly moved the court to alter, amend, or vacate its judgment (denied on procedural grounds). Biomom appealed the decision.

At the appellate level she argued that:

  1. the Jefferson Family Court lacked subject-matter jurisdiction to rule on V.L.’s petition;
  2. the Georgia court lacked subject-matter jurisdiction to enter the Georgia judgment;
  3. the Jefferson Family Court should have refused to recognize and to enforce the Georgia judgment for public policy reasons; and
  4. the Jefferson Family Court denied her due process inasmuch as it awarded V.L. visitation rights without holding an evidentiary hearing at which E.L. could be heard.

On February 27, 2015, the Court of Civil Appeals released its opinion rejecting the frist three of the arguments, but holding that the Jefferson Family Court had erred by awarding V.L. visitation without conducting an evidentiary hearing. The judgment was reversed and remanded for the Jefferson Family Court to conduct an evidentiary hearing before deciding the visitation issue.

The Alabama Supreme Court noted that implicit in the court of appeal’s opinion was an implicitly finding in the judgment of the Jefferson Family Court that the Georgia judgment was valid and subject to enforcement in Alabama.

On March 11, 2015, biomom appealed the decision to the extent of the Court of Civil Appeals’ affirmance of the judgment of the Jefferson Family Court to the extent that judgment recognized and enforced the Georgia judgment. The Alabama Supreme Court granted the petition. There were several briefs in the case, including that of GAL, the Academy of Adoption Attorneys, and the Georgia Council of Adoption Lawyers.

The court claimed that in its decision, it was not reviewing the legal merits of the Georgia judgment, because the court is prohibited from making any inquiry into the merits of the Georgia Judgment by the Full Faith and Credit Clause of the Constitution and that the validity of a foreign judgment is supposed to be determined by the state in which it was rendered.

Review is limited to whether the rendering court had jurisdiction to enter the judgment sought to be domesticated – essentially a subject matter jurisdiction issue, which is one of the few grounds upon which a judgment may be challenged after that judgment has become final and any available appellate remedies exhausted.

Biomom argued that the Georgia judgment was unenforceable in Alabama because the Georgia court lacked subject-matter jurisdiction because (1) Georgia does not provide for so-called “second parent adoptions” and (2) that V.L. was not a bona fide resident of Georgia at the time of the adoption. Biomom also argued that even if there was subject matter jurisdiction, the Alabama court should not recognize the order because it would be contrary to Alabama public policy.

The Alabama Supreme Court said the only way that they could not enforce the judgment was to find there was no subject matter jurisdiction. The court rejected the claim that Georgia law prohibits any judicial challenge to an adoption more than six months after the date of entry of the decree. The court discussed subject matter jurisidiction and wavier issues, noting that the equitable defenses of laches and estoppel may prevent a party from complaining of a lack of subject matter jurisdiction in Georgia and agreed that Georgia generally will not accept a subject matter jurisdiction challenge to its adoptions. Nonbio mom’s argument is that it doesn’t apply in second parent adoptions because the adoption statute requires termination of each parent and the Georgia court did not explicitly follow this requirement.

The Alabama Court sites the dissent in a refusal of the Georgia court to hear a motion to vacate a same-sex adoption in Georgia and finds that the Georgia court would permit a challenge on jurisdictional grounds to an adoption decree that did not fully comply with  § 19-8-18(b) (termination of the biomom’s rights as a parent).

The Alabama court then reviewed the Georgia law and found that the Georgia law does not allow for a non-spouse to adopt a child without first terminating the parental rights of the current parents. Since biomom’s rights were not terminated, the Georgia court erred in granting the adoption of nonbio mom. The Georgia adoption judgment is void and full faith and credit is not required.

One distinction that was made in this case is the difference between a second parent adoption and a stepparent adoption. A Georgia stepparent adoption would presumably would have been upheld in Alabama, but the court noted their was no question the parties were not married (omitting the reality that they couldn’t marry in most states) and the second parent adoption of a nonspouse was what the court rejected.

Concurrence  – One justice concurred to say that adoption is not a statutory right and there exists no “fundamental right to adopt a child.” Further, the state has a legitimate interest in encouraging that children be adopted into the optimal family structure, i.e., one with both a father and a mother. (As far as I can tell, no one joined this justice in this concurrence).

Dissent – The dissent argues that the majority reached the merits of the decision and that is not allowed – that only Georgia could decide if it’s adoption was valid. (As far as I can tell, no one joined the dissent).

Impact of this decision 

This decision could impact any second-parent adoption in Alabama from another state where the non-Alabama statutory language is ambiguous enough as to allow Alabama to interpret it to require the termination of the biological parent’s parental rights. It’s a relatively small subset of people.

However, at the time that I am writing this, according to the National Center for Lesbian Rights, who keeps the best records I’ve found on these issues, only 14 states explicitly allow same-sex couples to second parent adopt. At least, thirteen states, including Georgia and Washington do not prohibit second parent adoptions and they have been performed in some counties. This means anyone from these 13 states, and any place where the statute is not unequivocal in it’s allowance of a second parent or stepparent adoption and the lack of a need to terminate at least one parent’s rights could be invalidated by Alabama (or another state who follows Alabama’s lead).

It is a troubling decision because adoptions have long been believed to be orders that were believed a court would not terminate. Sure there’s the full faith and credit clause and that’s a strong legal argument all by itself, but there is also the best interest of the child. It’s a fairly universal belief that excluding a parent from participating in the life a child is detrimental to the child. Even parents who have done awful things to their children are typically allowed supervised visits with their children.

The over-emphasis on biology makes the concurrence so troubling. The ability to adopt may not be a fundamental right, but once an adoption has occurred a parent is a parent. Adoptive parents are just as much of a parent as a biological parent in the eyes of the law. If the concurrence were to become the law of the land this view of adoption would destabilize all adoptive families, regardless of whether the parents are opposite-sex or same-sex.

Does this mean nonbiological parents shouldn’t adopt? 

No. It is possible this case (or a similar case down the road) could get appealed to the U.S. Supreme Court. Given that Chief Justice Roberts is an adoptive parent, I think he will find this decision repugnant and vote with the “liberal” arm of the court and overturn the decision. Even if this case does not go forward to the U.S. Supreme Court, hopefully it will be an anomaly. Adoptions are intentional acts by both parents. It speaks volumes about the intent of each parent and even if the adoptions isn’t allowed, a nonbioparent could argue in the alternative that they are a de facto or psychological parent (in states that have those doctrines) and the adoption decree could be evidence of the intent of the family to be a family.

This case also makes a distinction between stepparent and second parent adoptions. It is unpleasant to think that a parent who is there in the whole process of assisted reproduction and pregnancy or surrogacy and there in the child’s life is a “stepparent”, but if that is the hook that prevents a state like Alabama from invalidating a parent-child relationship, then so be it.

The Ugly Side of People

There are an unfortunate number of family law cases where one parent goes to great lengths to prevent the other parent from having access to the child(ren). Unfortunately the LGBTQ community is no exception. Even more unfortunate is that in the LGBTQ community biological parents also use homophobia or transphobia to assist in their battle to exclude the other parent. Chiefly the bioparent who now says they aren’t LGBTQ and doesn’t want their child to be around someone who is LGBTQ. (Side note in this case it isn’t clear that biomom made any statements that she was no longer LGBTQ, but given the public policy argument reference in the decision, it seems likely that is the case.)

This case will go down in my memory of one of the worst offenders along with Miller v. Jenkins (a 2006 case with proceedings in Vermont and Virginia where the bio mom used the court system to try and take her child a way from the other parent and when that failed she kdnapped the child and took the child to Central America), and In re L.B. (a 2005 case in Washington that created our de facto parentage doctrine – where a lesbian couple used a known sperm donor and when the couple split biomom married the sperm donor and tried to claim they were an in tact parent and nonbiomom should not be able to have residential time with the child).

This decision would not even exist but for a parent who was in a 16 year relationship with their co-parent trying to stop all legally-required contact with their three kids. While I believe the court should not have decided the case in the way it decided the case. I also believe that biomom should not have made these legal arguments. The trauma and damage that occurs in the lives of these children as a result of this huge legal battle to deny them one of the parents they’ve known their entire lives is tragic and completely unnecessary. This couple went to great lengths and expense to make sure that they were both parents of their children and now one parent is trying to undo all of that at great cost (monetary and emotional) to the whole family.

Obergefell -Same-Sex Marriage Equality Arrives- Short Discussion of Impact

There is so much to say about the Obergefell case. The beauty of Kennedy’s opinion is recognized by many who loved to hear his recognition of the discrimination of same-sex couples and the evolution from outlaws to outcasts, to now being able to participate fully in the institution of marriage.

The legal beauty of the decision requires some bright legal minds who are aware of what is happening in the federal courts of appeals. Kennedy’s opinion mentions “fundamental liberties” approximately 27 times. Also the combination of Windsor and Obergefell make it clear laws regarding at least lesbians and gays (and possibly bisexuals and trans* people) will not be presumed to be valid. This means that despite not discussing the level of scrutiny, it is clear that a heightened level of scrutiny must be applied and this is consistent with how the federal courts of appeal are handling cases.

The dissents are shamefully political and not based in solid legal theory. They set a new low on judicial writing, with Scalia writing “huh” in his opinion. They sound like toddlers throwing a tantrum in a sandbox (or a pundit without any valid credentials getting ready to speak on Fox news).

One of the most offensive aspects of the dissent is Roberts’ comparison to Dred Scott. Justice Roberts’ opinion states that ending the prohibition of marriage to same-sex couples in the states where it remained outlawed is as offensive as a decision stating that enslaved people are property.  It made this comparison in part because Justice Kennedy relied on a legal theory of Substantive Due Process and his sky is falling claim about the impact of the majority of a Supreme Court making decisions.

The dissent forgets that a core principal of constitutional protections is that discrete and insular minorities must be protected against the legislative power of the majority to infringe upon their rights.

Instead the dissent seems to have a focused solely on the post-decision politics of this decision and creating sound-bites and a road map for ways to continue to discriminate against LGBTQ people. I am intentionally not saying same-sex marriages and LGBTQ people, because I think it’s important to be clear that people who cite a religious objection to same-sex marriage have no basis to protesting same-sex marriage in their faith, there is no question that same-sex marriage is not in the bible, the questionable issue is whether the bible says anything about people who engage in same-sex sexual relations. Thus, the question would be whether a business or other entity can discriminate against LGBTQ individuals, which is perfectly legal in many states for business transactions, employment, and housing.

Obergefell Only Ended Marriage Discrimination 

This point on the dissent brings up a couple of things that should be clarified regarding the overall impact of Obergefell.

Marriage Equality does not Equal Parentage Equality

Biology creates a unique issue for many queer couples (note: I am using queer here because the issues are not simply unique to same-sex couples and may apply to couples where one or more partners is trans*). Many state laws recognize that married couples may use a alternative reproduction methods to have children and that when these methods are used the children born are the legal children of both people in the marriage. States very on their laws, even if they adopted a Uniform Parentage Act, the state may not have adopted it in its entirety. Many states do not have a statutory presumptions. This is why the advice of the experts is that same-sex couples should still do a second-parent adoption. 

Adoptions are a known regardless of where a couple may move or if the biological parent relocates with the intention of excluding the intended parent from the life of the child, an adoption will be recognized and enforced throughout the U.S.

California has recently passed a confirmatory adoption statute, which as I understand it, basically allows a presumed parent to easily be adjudicated as a legal parent. It also reduces the obstacles and costs of adoption to parents by eliminating the need to do a home study.

Concerns about Legal Protections for LGBTQ Parents  

Mississippi prohibits adoption of same-sex couples and a lawsuit has recently been filed to challenge this adoption ban. Some states do not have laws that allow for second parent adoption.

Parents that don’t do a second parent adoption may run into obstacles at divorce, especially if there is a biological or adoptive parent that does not want the parent without legal protections to have a relationship wit the child. In Washington, we have a statute that has protections based on the presumption of a child born of marriage being a legal child of both parents, we also have a holding out provision that is similar to the de facto parentage doctrine, both of which allow for a person who was an intended parent by both parents to be determined to be a legal parent. If a couple divorces in Washington, courts should recognize the right of both parents to be in the child’s life and not have their sexual orientation or gender identity held against them. That being said, recently a court in Washington denied a parent’s access to her children based on her sexual orientation (she was in a heterosexual marriage and came-out as a lesbian). That decision is being fought and that judge or commissioner should be sanctioned for acting in a discriminatory manner.

The moral of the story is that Marriage Equality does not equal Parentage Equality. LGBTQ parents still need to think about the protections available for both parents and use the family planning/protection tools to protect the child(ren)’s relationship with the intended parents.

 

Most States Do Not Have Laws Banning Discrimination Based on LGBTQ status

For many people in the U.S., they could get married on a Saturday and fired on Monday because there are not protections against discrimination in employment. There are also not protections in every state in housing or public services.

In Washington state we have those protections, but recently Arlene Flowers tried to challenge that and say that should be allowed to refuse to provide flowers for a same-sex couple who were getting married. This is a prime example of the poor logic involved because the florist provided flowers for this couple for holidays, birthdays, etc., so they were providing flowers that nurtured a same-sex relationship and a relationship outside of marriage, but suddenly when the couple wanted to get married they wanted to say that their religious beliefs would be violated for providing flowers for this event (it’s unclear if in the future they would have refused to provide flowers for anniversaries given that they had previously sold flowers for anniversaries).

The court rejected the florist’s claim. In Washington we have a nondiscrimination law (passed in 2006, only one year before our first domestic partnership law). This means that to do business in Washington a business must agree not to discriminate against the classes protected in the nondiscrimination law. Thus, the florist couldn’t discriminate. The ultra-conservative sky-is-falling crowd claim that religious institutions are threatened by marriage equality and priests, orthodox rabbis, etc. are going to be required to perform marriages. This is no more true than claiming that the state could require that they allow women to be allowed in religious leadership positions. Religions are allowed to continue to be as discriminatory as they want when they are engaging in religious activities.

 

 

Supreme Court’s Oral Arguments on Marriage

On April 28, 2015, the United States Supreme Court heard the marriage cases. There are essentially two cases being heard on marriage equality: (1) Should same-sex couples be able to be married in any state (i.e., no state can prohibit marriages of same-sex couples). There are basically two legal arguments for this, one is based on the Equal Protection Clause and one is the marriage is a fundamental right argument. (2) The second question before the court is, if the court says that states can discriminate against same-sex couples in their marriage laws, can those states refuse to recognize marriages performed in other states.

There are arguably three outcomes that could happen from this case (1) same-sex couples will be allowed get married in every state in the U.S. (2) same-sex couples will be able to get married in a state that recognizes same-sex marriage and when they travel to another state, that state must recognize their marriage (i.e., that state cannot effectively deny the existence of their marriage); or (3) the court comes down and says that marriage is meant to be an institution between opposite-sex couples, and while states may amend their laws and extend marriage to same-sex couples, because of the historic definition of marriage no other state has to recognize that marriage.

This third outcome would be a bit of a nightmare decision. In the time since the Windsor decision there have been a number of states and federal circuits who have interpreted the U.S. Constitution as requiring marriage equality. I have not been able to find anything that addresses what happens in these states if the third outcome occurs. Do all the marriages that occurred disappear? Do we wend up with a national version of California’s Proposition 8 where all of these people will stay married but no one else can get married? Or in jurisdictions where the decisions were not appealed, will marriage equality remain the law of the land? I suspect if the court goes the third way Lambda Legal, the National Center for Lesbian Rights, and the ACLU will have answers for us.

The positions against marriage equality are the same as they have always been. A state has an interest in supporting opposite-sex relationships for the purpose of procreation and of course, the argument that marriage has always been between opposite sex couples, and therefore it should always stay an institution between opposite sex couples.

I didn’t read the written briefing on this case, so my discussion is limited to oral arguments. One of the points I wish would have been made more clear was that civil marriage as it exists today is different from anything that existed a millennial ago. The female justices tried to get at this point, in a tribute to the importance of diversity, pointing out that women used to not be equal before the law and were not separate individuals but morphed into their husbands, but that has changed:

 JUSTICE GINSBURG:  But you wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago.  I mean, it wasn’t possible. Same­-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship.  Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him. There was a change in the institution of marriage to make it egalitarian when it wasn’t egalitarian.  And same­sex unions wouldn’t ­­ wouldn’t fit into what marriage was once.

To be fair, it is not only women or the “liberal wing of the court” that discussed the history of discrimination against women in marriage. Justice Roberts discussed the practice where a woman’s legal rights and obligations disappeared/were subsumed by those of her husband.

 CHIEF JUSTICE ROBERTS:  Coverture was not ­­ coverture was not a universal aspect of marriage around ­­ around the world.  And there again, if you look at the basic definition, it is between a man and a woman.  It does not always say between a man and a woman in which the woman is subordinate in legal respects.

Although I don’t think that Roberts’ point was to say that we used to have this unfair and presently unconstitutional practice where a woman had no legal identity separate from her husband to discuss how our definition of marriage has changed. Instead, I think he was trying to argue that this long-term theory of coverture was always about a man and a woman and so this supports a historical definition of marriage between men and women. I don’t think it’s a stretch to say that the most hardcore opponents of marriage equality would also be proponents of bringing back coverture and ending divorce, or at least no fault divorces. That’s not me taking the argument to an extreme, here’s a little snippet of the argument from the marriage opponents that provides the echo of that belief.

 MR. BURSCH ( Special Assistant Attorney General, Lansing, Mich.; on behalf of Respondents):  Well, let me give you an example.  We’re ­­ we’re talking about something that’s  going to change the meaning of the institution over generations.  And ­­ and, you know, you have things like no-fault divorce where we tweaked what marriage means, and it had consequences over the long term that some people didn’t expect.

Or a discussion of the history of miscegenation laws:

 JUSTICE KAGAN:  Well, they were dealing then with men and women coming together, but the question was, well, there might be a black woman and a ­­and a black man or a white woman or a black woman and a white man and ­­- and there was no inquiry into whether that was a traditional form of marriage.  If there had been such an inquiry in this country, they would have come up pretty short.

Then there was this bizarre discussion of marriage in the time that Plato lived – 428 B.C. No, I’m not joking. I would hate to be the attorney trying to respond to the marriage laws of the Athens in 428 B.C., and wondering how the opposition to marriage equality can make arguments with a straight face about god and Christianity and the fear that it will impinge on Christian morality and then talk about marriage as a pre-Christian idea.

This argument that history should dictate our present particularly disturbing. Perhaps it’s because I’m a woman and history has said that being a woman means I’m not a full and equal citizen. We didn’t get universal suffrage in the U.S. until 1920. Should our vote be taken away because of history? I believe most civilizations permitted slavery until the 1700 or 1800s. Should we go back to notions of slavery just because it existed for a long time. Absolutely not. We as a society struggles to overcome an unjust and unequal past, and that past should not be able to dictate our future. But I digress…

Oral arguments on the second issue (if states are allowed to define marriage as excluding same-sex couples are they allowed to refuse to recognize same-sex marriages validly entered into in other states) provide some satisfaction for a lot of people because there is some discussion of the Full Faith and Credit Clause. I have long heard people ask why states can refuse to recognize the marriage of same-sex couples performed in other states.

Justice Scalia brought up the issue of Full Faith and Credit to try and say that no one was making a Full Faith and Credit argument. Justice Sotomayor took the argument that Full Faith and Credit wouldn’t apply to task.

Basically the argument is that Full Faith and Credit applies to judgment but not to the overall laws for a state because that would allow one state to legislate for another and that would be bad. Justice Sotomayor takes issues with the idea that a marriage certificate is somehow different from a birth certificate or a divorce decree/judgment. Because of this she essentially arguments that the Full Faith and Credit Clause should apply to the recognition of valid marriages in states that would otherwise prohibit same-sex marriages.

Unfortunately, I think there were a couple of missed opportunities in this argument. One, whether or not every state would have to recognize an adoption decree that lists a same-sex couple is a question that was not explored.

Two, asking the question of whether a state that doesn’t not recognize marriage could be required to enforce a divorce decree. For example, if a couple was married and living in Washington but had property in Tennessee. They break up and the court awards the property to the spouse whose name is not on the property, can Tennessee refuse to honor the judgment because its based on a marriage that they don’t recognize or because it is a judgment are they required to enforce it?

What about parenting plans? Does the answer change if the child is presumed to be the parent of both parents (i.e. born during the marriage and therefor presumed to be the legal child of both parents – I believe this is universally true that if a married couple has a child through assisted reproduction the non-biological parent is presumed to be the legal parent by virtue of the marriage)? What about if the child was adopted by both parents?

As per usual, there was a lot of discussion that demonstrates the animus against same-sex couples. There were comparisons to child marriage and whether or not states can still have protections for children if another state says anytime after puberty marriage is allowed. There were also the kissing cousin analogies. My biggest problem with these arguments, is that typically when a couple enters into a marriage not allowed by another state, the marriage can be voidable. It’s not that you walk into another state and your marriage immediately dissolves or is deemed void. It’s that you can go to court and say I don’t want to be married to this person any more and by the way it isn’t/wasn’t a legal marriage. But there are even prohibitions against using this argument. For example, if an underage couple gets married and then try to claim in their 40s that there marriage was invalid, that argument won’t fly, basically because by not doing something about it earlier they affirmed their marriage.

Then there are the plural marriage arguments. The idea that if you alter the sex discrimination in our current statute, you open the door to plural marriage. The argument is if you allow same-sex couples to marry, what right would states have to limit marriage to two people. I think Petitioners did a solid job identifying the tangle that would exist in the rights and protections the states allow for two people versus more than two people.

Let me be clear, I believe that adults should be able to make arrangements in a variety of ways, including having consensual polyamorous relationships. But I think the proper way to do that is through contracts, not altering the marriage statute, in part because the rights conveyed through marriage are so linked to two people. If you have two spouses, which one would be the default for medical decisions, how do you divide up property? I don’t think our current structure can be adopted to the model of plural relationships.

I guess we can be grateful that there was not bestiality comparison.

Nevertheless, I find the claim that marriage laws, when first passed, were not intentionally discriminatory to be disingenuous. First, marriage laws when first passed in the U.S. were about the ownership of women. They were absolutely discriminatory. Second, until about 12 or 13 years ago, it was legal to throw people in jail in many states for engaging in same-sex consensual sex acts. That was back when we had a conduct versus identity argument. The idea that it was okay to be gay, you could just never act on it. Homosexuality wasn’t illegal just homosexual sex. When we have such a history of animus towards same-sex couples it’s hard to see how the laws could have been anything other than intentionally discriminatory. Perhaps it didn’t really occur to lawmakers that same-sex couples would ever want to get married since they could never consecrate their marriages without facing criminal penalties.

I also found the argument made by Justice Scalia that if there is a constitutional protection afforded to same-sex marriage that clergy would be required to perform same-sex marriages to be a specious and purely political argument, with no basis in constitutional law. His argument was essentially that because the state allow clergy to perform legal marriages, they would be required to perform same-sex marriages. Justice Kagan sought to clarify this, pointing out that rabbis can refuse to perform interfaith marriages and the state has never intervened despite constitutional protections against religious discrimination. To take it a step further than Kagan, we have never required any church to allow women in their highest positions because of the separation of church and state, even though that kind of sex based discrimination is considered an unconstitutional violation of equal protection laws and in violation of our civil rights laws.

All of the commentary following oral arguments is that we simply do not know how the court will decide. I think that the Republican party is hoping that the court will decide for marriage equality. It eliminates it from a campaign issue in a way that hurts them. They can get on their soapbox about judicial activism or try and argue that businesses should be able to discriminate, but they won’t have to come out with a position on marriage equality and defend a position of exclusion that has fallen out of favor with most Americans.

There was also an excellent discussion on Slate’s Amicus: The Politics of Law and if I remember correctly, some commentators believe that if this would be a 5-4 decision, Roberts may make it a 6-3 decision in order to write the opinion. That Roberts may be tired of this being considered the Kennedy court (as Kennedy is typically the swing vote) and may want to have an opportunity for a legacy as the Roberts court.

In the meantime, as a married lesbian and an attorney who works in the LGBTQ community, specifically in the area of family law, I will hope for marriage equality throughout the land. No state should have the right to take away my marriage just because they don’t like me being gay. It is also contrary to state interest in protecting families to create obstacles to family formation and family dissolution that the current hodgepodge of laws creates.

Badger Forum Presentation – Whose Religious Rights? Is it okay for business to discriminate against the LGBTQ Community?

On Friday, April 24, 2015, I had the privilege of speaking on the issue of discrimination in the context of public accommodations, businesses, etc. at the TriCities Badger Club civil discourse event. The essence of the question being addressed is whether a secular/non-religious business wants to deny service to someone because they are gay because being gay violates his/her religious doctrines.

There was a nice article about the event on the TriCity Herald website. At some point the video from the presentation will be available here.

 

This question is arising largely in part of marriage equality becoming the law of the land and the backlash of laws like Indiana’s Religious Freedom Restoration Act.

My main take-away points from the panel are:

  • U.S. history has a shameful past of discrimination and violence.
    • The genocide of Native Americans;
    • Slavery;
    • Segregation, including housing discrimination and covenants practiced throughout the U.S.;
    • An overtly racists Immigration Policy, including but not limited to historic policies like the Chinese Exclusion Act; and
    • The denial of women the full rights of citizenship and ability to own property or contract.
  • In addition to this history, we have a history of working against the history of discrimination and violence. There is a spirit and hope in America that we can create a whole that is better than the sum of its parts and have a society that truly embraces all of its people, examples include (on the federal level):
    • A Civil War, waged at least in part to end the slavery of African Americans, including the passage of the post-Civil War Amendments;
    • The Suffragist Movement, including the 19th Amendment;
    • The Civil Rights Movement;
    • The passage of nondiscrimination laws, including Title VI and Title IX;
    • The Voting Rights Act;
  • Some states also take the lead in creating greater social justice for its citizens, including passing nondiscrimination laws that protect a wider range of people than are protected under the federal law.
  • Washington State has a law that protects LGBTQ people from discrimination. Because of this, any business open to the public must provide services to the LGBTQ community.
  • The ability to have one’s own religious beliefs is an absolute, but religious actions are not guaranteed protection. Conduct remains subject to regulation for the protection of society. As the Ninth Circuit stated in a 2008 case, Actions based on religious beliefs cannot be superior to the law of the land and in effect permit every citizen to become a law unto him or herself.

I prepared a handout for this presentation that I’ve included below:

“Nor do I find the wisdom, foresight and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today.”

 

~Thurgood Marshall, former U.S. Supreme Court Justice and former civil rights attorney

 

 

What does religious freedom mean? What is the difference between being able to exercise your religion for yourself and being able to exercise your religion in respect to someone else?

First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance.

  • Federal Religious Freedom Restoration Act – Prohibits the federal governed from placing a “substantial burden” on religious exercise with a “compelling justification”[i] The act allows a person whose religious exercise has been substantially burdened to assert the RFRA as a claim or defense. Examples of protections protected:[ii]
    • Allowing a Native American to use his cultural practices and religion as defense to the charge of unpermitted possession of eagle feathers (carried a potential punishment of 15 years in prison and $250,000 fine).
    • Native American kindergartener was not required to cut his hair despite the schools general grooming policies, which prohibited long hair for boys.
    • Muslim prisoner in Arkansas allowed to grow the ½ inch beard his religion commands.
  • Approximately 19 states have a state version of the religious freedom restoration act.[iii]
  • Non-Discrimination Laws & Constitutional Protections-
    • Civil War Amendments: 13 (banning slavery), 14 (Privileges and Immunities and Equal Protection clauses), and 15 (right to vote shall not be abridged on account of race, color, or previous condition of servitude);
    • Federal laws typically prohibit discrimination based on a person’s national origin, race, color, religion, disability, sex, and familial status. Some of the specific areas protections are provided are
      • Education
      • Employment
      • Housing
      • Lending
      • Public Accommodations
      • Law Enforcement / Police Misconduct
      • Voting
    • Approximately 17-18 states and D.C.[iv] have laws that prohibit discrimination in public accommodations and housing based on sexual orientation and gender identity, and another 3-4 protect people based on sexual orientation only.
    • Approximately 18 states and D.C. have protections prohibiting employment discrimination based on sexual orientation and gender identity, another three have protections based on sexual orientation only, and another six states prohibit discrimination against public employees based on sexual orientation and gender identity.

What’s happening in Washington?

Washington Law Against Discrimination (WLAD) RCW 59.060.

Washington State Law creates the following “protected classes:”

race, creed, color, national origin, families with children, sex, marital status, sexual orientation, including gender identity, age, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability

Discrimination may not occur because of these protected classes in the area of employment, public resort, accommodation, assemblage, or amusement; real estate transactions, credit transactions, insurance transactions or transactions with health maintenance organizations, breastfeeding, and blacklists.

The remedy for discrimination involves a civil action to enjoin further violations, or to recover the actual damages sustained by the person, or both.

Washington does not currently have a state version of the Federal Religious Freedom Restoration Act

In the 2013 Legislative Session, a state bill was introduced by Kennewick Senator Brown. This bill sought to amend our state nondiscrimination law with the following:

  • Nothing in this section may burden a person or religious organization’s freed of religion including, but not limited to, the right of an individual or entity to deny services if providing those goods or services would be contrary to the individual’s or entity owner’s sincerely held religious beliefs, philosophical beliefs or matters of conscience. This subsection does not apply to the denial of services to individuals recognized as a protected class under federal services to individuals recognized as a protected class under federal law applicable to the state as of the effective date of this section. The right to act or refuse to act in a manner motivated by a sincerely held religious belief, philosophical belief, or matter of conscience may not be burdened unless the government proves that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest.

Issues concerning possible religious objections and jobs/businesses in the public sector

  • Arlene’s Flowers – and the question of being able to sell some flowers to a gay couple, but not flowers for their wedding.
  • There is a pharmacy case, regarding the requirement of pharmacy to dispense prescriptions ordered by a doctor in a non-discriminatory matter, including Plan B/the morning after pill.
  • Hobby Lobby Decision – U.S. Supreme Court case allowing employers to refuse to provide insurance to women that prevents or terminates pregnancy.

[i] The text of the Federal Religious Exemption Law can be found at https://www.law.cornell.edu/uscode/text/42/2000bb

[ii] Examples obtained from the Federalist.com website – http://thefederalist.com/2015/03/30/meet-10-americans-helped-by-religious-freedom-bills-like-indianas/

[iii] http://www.ncsl.org/research/civil-and-criminal-justice/state-rfra-statutes.aspx

[iv] See HRC State Issue Maps: http://www.hrc.org/state_maps

 

 

 

Surrogacy Panel at the University of Washington School of Law

Tonight, I attended a panel at the University of Washington School of Law on Compensated Surrogacy. Each of the panelists, Peter Nicholas, Sarah Ainsworth, and Terry Price, have published law review articles in the recent Washington Law Review on different aspects of compensated surrogacy. This blog post provides some of the highlights from the panel. I will note that I have not yet read their articles, so any errors are mine.

 

  • Terminology
    • Compensated Surrogacy happens when a woman acting as a surrogate voluntarily agrees to carry a child for another person or persons for payment.
    • Compassionate Surrogacy happens when woman acting as a surrogate voluntarily agrees to carry a child for another person or persons without payment.
    • Gestational Surrogacy is a type of surrogacy where the woman acting as a surrogate carries the child is not biologically related to the child. It is the most common form of surrogacy in the U.S. and it is believed to the most common form worldwide.
    • Traditional Surrogacy is a type of surrogacy where a woman acting as a surrogate carries the child is genetically related to the child.

 

  • In Washington State Compensated Surrogacy is a crime. It is a gross misdemeanor. Compassionate Surrogacy is allowed. As an aside, there are no known cases by the panelists of anyone being charged for a compensated surrogacy.

 

  • There are FDA regulations that discriminate against men who have sex with men. If a man has had sex with a man in the last five years, he is ineligible to have his sperm implanted in another woman – in contrast a man who has not had sex with another man within the last five years, but who have had sex with someone who is HIV positive, so long as it has been a year, he can provide sperm.

 

  • A major motivating factor in a woman choosing to act as a compensated surrogate is altruistic, that they want to help a family have a child. This is true in the U.S. and internationally, including India.

 

  • There are no consistencies in state laws regarding surrogacy, whether allowed and regulated or not allowed.

 

  • In the absence of state or federal laws and regulations, surrogacy agencies and medical practitioners often have their own criteria around surrogacy to ensure protections for intended parents and women who act as surrogates.

Another Committed Intimate Relationship Case

A couple weeks ago, Division II issued an opinion regarding a Committed Intimate Relationship Case (CIR), which was blawged about here. In that case, the court said the a CIR cannot begin prior to a couple living together. On October 7, Division III addressed, whether a CIR has to be plead in  In re Neumiller

When a dissolution (divorce) is filed, a petition is filed, in Washington State, the Petition simply asks for the marriage date. For years, Jill Mullins-Cannon, has done presentations for attorneys representing same-sex couples and has advised practitioners to include the date the petitioner believes is the start date of the marriage-like relationship and list it separately so that there is no confusion about that date.

The Neumiller case presents the first discussion on whether the CIR date must be plead. At the trial level, the trial court said that it had to be plead earlier (in this case the petition was amended on date of the trail). The Court of Appeals disagreed and reversed this decision.

The Court of Appeals said that a CIR does not need to be in the pleading when it is “merely an evidentiary fact in a marriage dissolution proceeding.” The court said it’s an evidence issue and like evidence, it doesn’t have to be in the pleadings. It also wouldn’t be a discovery violation (when you don’t provide evidence to the other side that you should have provided) because the husband had knowledge of when they lived together and that the wife disagreed with his characterization of property as separate as opposed to community.

This case is important, especially for same-sex relationships that may have been in existence long before the law recognized those relationships. The CIR doctrine helps protect the community property and ensures a just and equitable distribution at the end of the relationship. This means that one partner does not become economically advantaged at the expense of the other other party. For same-sex couples in particular, it means that they won’t be put at a significant disadvantage from opposite-sex couples simply because the law didn’t recognize their relationship earlier. If they don’t file a petition that includes the start date of their CIR, that time will still be included in determining community and separate property.

It will be interesting to see whether the husband tries to appeal this case to the State Supreme Court. Regardless, best practice is still to include the CIR start date in pleadings. It is important to know upfront if there is going to be any disagreement about the start date of the CIR. Putting it in the pleadings will flag the possibility of a dispute at the outset of the case.

Supreme Court Postpones Marriage Equality Question

On October 6, 2014, the U.S. Supreme Court declined to hear any of the seven marriage cases that had been put before it.  See the articles in the NYT, The Advocate, Huffington Post, and Lambda Legal.

This means that Pride 2015, will not involve a mass celebration post-supreme court decisions that we can travel throughout the U.S. and be treated equally in every state. Maybe that will be 2016.

The Court’s decline to hear the case does not come as much of a surprise to court watchers. Ruth Bader Ginsberg tried to flag for the LGBT community that it wasn’t going to happen (see this too). This is because all of the Courts of Appeals have overturned marriage bans. This means there is no split in the circuits (a legal term of art – our federal courts are divided into 11 circuits plus the District of Columbia – when there are rulings/cases on the Federal Appellate level that conflict, the U.S. Supreme Court will sometimes step in to resolve the conflict). In the marriage context every Federal Court of Appeals has said that the marriage bans are unconstitutional. Without a split in the circuits, the U.S. Supreme Court will often not get involved. This is despite the fact that there are still many states where marriage is banned. Instead, the U.S. Supreme Court will wait and see whether the issues resolves itself on the state level/federal court of appeals level, or if a split occurs. In the event that a court of appeals upholds a marriage ban, then this increases the odds that the Supreme Court would hear a marriage case.

Where do we go from here?

Five states: Utah, Indiana, Wisconsin, Virginia, and Oklahoma are now going to have marriage equality. Couples in Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming – should be able to get married in the near future as they are in the same circuit as the five where the Courts of Appeals have already said the ban on same-sex marriage is unconstitutional. This would put the total at 30 states and the District of Columbia with marriage equality.

It also means that the fight continues. Lambda Legal has the best website tracking the wide array of state and federal cases pursuing marriage equality issues. At last count, there were 93 lawsuits pending in 33 states and Puerto Rico.

OSPI Nondiscrimination Guidelines for Trans* Students

Last week, JELS published a blawg about OSPI that expressed disapproval of their actions, both in the process they sought to modify the nondiscrimination WACs and in the overall result in the WACs. This week, we give a little praise. In 2012 OSPI created, “Prohibiting Discrimination in Public Schools: Guidelines for school districts to implement Chapters 28A.640 and 28A.642 and Chapter 392-190 WAC.” While this guide is not perfect, there was one section in the guide which I feel was done particularly well: Gender Identity and Gender Expression. In fact, they are done so well that I’m providing them below.

GENDER IDENTITY AND GENDER EXPRESSION
59. What terms are commonly used to describe gender identity or gender expression?
Individuals use a number of words to describe their gendered experiences. Some people may refer to themselves as trans, transsexual, transgender, male-to-female (MTF), female-to-male (FTM), two-spirit, and a variety of other terms. Terminology can differ based on region, language, race, ethnicity, age, culture, and many other factors. Some common terms are defined below.
 Gender identity is a person’s deeply felt internal sense of being male or female, regardless of their sex assigned at birth.
 Gender expression is the manner in which a person represents or expresses gender to others, often through behavior, clothing, hairstyles, activities, voice, or mannerisms.
 Transgender is a general term used to describe a person whose gender identity or expression is different from that traditionally associated with the person’s sex assigned at birth.
 Transitioning is the process in which a person changes their gender expression to better reflect their gender identity.
 Gender nonconforming is a term for people whose gender expression differs from stereotypical expectations about how they should look or act based on the sex they were assigned at birth. This includes people who identify outside traditional gender categories or identify as both genders.

60. Should transgender and gender nonconforming students have the right to express their gender identity in school?
Yes. Washington state law prohibits discrimination in public schools based on gender expression and identity (RCW 28A.642.010). Students must be permitted to dress according to the gender in which they consistently identify and should be addressed and treated using the name and pronouns of their choice (i.e., “he” and “him” or “she” and “her”). School districts are encouraged to adopt gender-neutral dress codes that do not restrict a student’s clothing choices on the basis of gender. Dress codes should be based on educationally relevant considerations, apply consistently to all students, include consistent discipline for violations, and make reasonable accommodations when the situation requires an exception.
61. How should school districts address a student’s name and sex on official records?
School districts maintain permanent student records that include a student’s legal name and legal gender. To the extent that the school district is not legally required to use a student’s legal name and gender on school records or documents, the district should use the name and gender by which the student identifies. School IDs, for example, are not legal documents and should use the student’s preferred name. The school district should change a student’s official record to reflect a change in the student’s legal name or gender upon receipt of documentation that such change has been made pursuant to a court order or through amendment of state- or federally-issued identification. In situations where school staff or administrators are required by law to use or report a student’s legal name or gender, such as for standardized testing, school staff should adopt practices to avoid the inadvertent disclosure of such confidential information.
62. Should schools inform staff, students, or parents about a student’s transgender status?
Information about a student’s transgender status, legal name, or gender assigned at birth may constitute confidential medical or education information. Disclosing this information to other students, their parents, or other third parties may violate privacy laws, such as the federal Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 C.F.R. Part 99). School staff should not disclose information that may reveal a student’s transgender status to others, including parents and other school staff, unless legally required to do so or unless the student has authorized such disclosure.

63. Should a school district require proof of medical treatments as a prerequisite for respecting
a student’s gender identity or expression?
No. School districts should not require proof of medical treatments in order to respect a student’s gender identity or expression. If a school district has an objective basis that would justify questioning whether a student’s asserted gender identity is genuine, it may ask for information to show that the student’s gender identity or expression is sincerely held. No particular type of information (such as medical history information) should be specifically required.
64. Should school districts allow transgender students to use the restroom of their choice?
Yes. School districts should allow students to use the restroom that is consistent with their gender identity consistently asserted at school. Any student – transgender or not – who has a need or desire for increased privacy, regardless of the underlying reason, should be provided access to an alternative restroom (e.g., staff restroom, health office restroom). This allows students who may feel uncomfortable sharing the facility with the transgender student(s) the option to make use of a separate restroom and have their concerns addressed without stigmatizing any individual student. No student, however, should be required to use an alternative restroom because they are transgender or gender nonconforming.
If school administrators have legitimate concerns about the safety or privacy of students as related to a transgender student’s use of the restroom, school administrators should bring these concerns to the school district compliance coordinator. Such privacy or safety issues should be immediate and reasonably foreseeable, not speculative. School administrators and/or compliance coordinator should meet with the student and/or parents to determine if there is a need for an alternative facility. Determination to provide an alternative facility for any student should be on a case-by-case basis.

63. Should a school district require proof of medical treatments as a prerequisite for respecting
a student’s gender identity or expression?
No. School districts should not require proof of medical treatments in order to respect a student’s gender identity or expression. If a school district has an objective basis that would justify questioning whether a student’s asserted gender identity is genuine, it may ask for information to show that the student’s gender identity or expression is sincerely held. No particular type of information (such as medical history information) should be specifically required.
64. Should school districts allow transgender students to use the restroom of their choice?
Yes. School districts should allow students to use the restroom that is consistent with their gender identity consistently asserted at school. Any student – transgender or not – who has a need or desire for increased privacy, regardless of the underlying reason, should be provided access to an alternative restroom (e.g., staff restroom, health office restroom). This allows students who may feel uncomfortable sharing the facility with the transgender student(s) the option to make use of a separate restroom and have their concerns addressed without stigmatizing any individual student. No student, however, should be required to use an alternative restroom because they are transgender or gender nonconforming.
If school administrators have legitimate concerns about the safety or privacy of students as related to a transgender student’s use of the restroom, school administrators should bring these concerns to the school district compliance coordinator. Such privacy or safety issues should be immediate and reasonably foreseeable, not speculative. School administrators and/or compliance coordinator should meet with the student and/or parents to determine if there is a need for an alternative facility. Determination to provide an alternative facility for any student should be on a case-by-case basis.

65. How should school districts address physical education and athletic participation by transgender students?
School districts should allow students the opportunity to participate in physical education and athletic activities in a manner that is consistent with their gender identity. For interscholastic athletics, should any questions arise as to whether a student’s request to participate in sex-segregated activity consist with his or her gender identity is bona fide, a student may seek review of his or her eligibility for participation by working through the Gender Identity procedures set forth by the Washington Interscholastic Athletic Association (WIAA) available at http://www.wiaa.com/subcontent.aspx?SecID=350.

66. Should school districts allow a transgender student to use the locker room of their choice? 
The use of locker rooms by transgender students should be assessed on a case-by-case basis, with the goals of maximizing the student’s social integration and equal opportunity to participate in physical education classes and sports, ensuring the student’s safety and comfort, and minimizing the stigmatization of the student. In most cases, transgender students should have access to the locker room that corresponds to their gender identity consistently asserted at school. Any student who has a need or desire for increased privacy, regardless of the underlying reason, should be provided with a reasonable alternative changing area, such as the use of a private area (e.g., a nearby restroom stall with a door), or a separate changing schedule. Any alternative arrangement should be provided in a way that protects the student’s ability to keep his or her transgender status private. No student, however, should be required to use a locker room that conflicts with his or her gender identity.