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.

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.