LGBTQ Legal Concerns Following the 2016 Election

images-1We have been receiving a lot of questions from our clients and community members wondering what the recent election of Trump means to their legal rights.  The answers are complex and not entirely known at this point.  However, here is some of the information we can give you at this point:

Marriage

Trump has said that he would “strongly consider” appointing justices to overrule the decision on same-sex marriage.  Following that statement, Trump named Indiana Governor Mike Pence as his running mate.  Pence has a long history of taking anti-LGBT positions.  Both Trump and Pence have also repeatedly stated that they believe the right to marry should be a state’s rights issue, which is contrary to the Supreme Court’s ruling in Obergefell.  But it is important to understand that it would take a complex concurrence of events to challenge the Obergefell decision.

The President does not have the authority to overturn a Supreme Court decision, but he does have the ability to appoint Supreme Court Justices that would have that power.  Right now there is one opening on the Supreme Court, it was vacated by Justice Scalia.  The Obergefell decision was a 5 to 4 decision, with Justice Scalia being one of the 4 dissenting Justices.  This means that if Trump appoints a Justice to fill Scalia’s seat that is opposed to marriage equality, the make-up of the Court would be the same as it was when Obergefell was decided.  As such, there would not be sufficient votes to overrule the decision.

The difference comes if one of the other Justices were to retire or pass away.  The eldest Justices are Ruth Bader Ginsburg (age 83), Anthony Kennedy (age 80) and Stephen Breyer (age 78), and all three were part of the majority ruling in favor of marriage equality.  As such, if one of them leaves the bench, then Trump will nominate their replacement.  If he does nominate a Justice that is opposed to marriage equality and/or other LGBTQ issues, then the makeup of the Court will change and the majority would be opposed to marriage equality and other LGBTQ rights issues. (We are not going to get into the Supreme Court nominating process in this post, but we want to acknowledge that the nominee must go through an appointment process and the make-up of the Senate and the House at the time could be important to the outcome).

Even if Trump were to fill two seats on the Court, and both replacements were anti-LGBTQ rights, that does not mean that marriage equality will be overturned.  It is rare that the Court overturns a major decision, especially this soon after the ruling, as legal doctrine provides that the Court should respect and follow their own prior rulings.  That, however, does not mean that groups won’t try. Those groups would need a conflict on the issue of same-sex marriage sufficient to compel the Court to revisit the issue.  An example would be a state passing a law that inhibited or barred same-sex marriage in that state, something similar to what Tennessee attempted, to no avail, earlier this year.

What if the Obergefell decision was overruled? Well there is ample legal authority for the fact that a marriage that was valid when entered cannot be invalidated by a subsequent change in the law.  So people that are already married should not be concerned that their marriages will be invalidated.  For individuals that are not already married, but may want to do so in the future, if Obergefell was overruled then the right to marry would likely become a state’s rights issue, meaning it would depend on the state where you lived.  In Colorado we would likely lose the right to marry, in light of our Constitution, and would fall back to civil unions. Keep in mind, this is really an unlikely outcome and definitely not one that will happen in the immediate future.

The wrinkle that is FADA (the First Amendment Defense Act).  FADA was a federal bill introduced in 2015.  FADA is relevant to this discussion because in September of 2016 Trump vowed to sign FADA if passed by Congress (it has not passed Congress up to this point).  FADA essentially aims to prevent the federal government from enforcing marriage equality by preventing the federal government from taking punitive action against individuals, corporations, or organizations that discriminate against same-sex married couples.  FADA would effectively legalize discrimination against same-sex married couples. We are not going to get into all of the details of FADA here, but you can read more about it here.  For this discussion, understand it would not prevent or eliminate the right to marry, but it would give people and businesses the right to discriminate against same-sex married couples.

Children

Adoption laws, and other laws related to families, are state laws and not federal laws.  In the State of Colorado there are various ways to establish parental rights to children, to include adoption by both parties, second-parent adoption, step-parent adoption, and obtaining an Order under the Colorado Uniform Parentage Act.  If you have obtained parental rights over your child(ren) using any of these methods, neither the President or the Federal government can take your rights away.  Each of the above methods results in a Court decree or order, which is intended to be permanent and pursuant to Supreme Court case law must be recognized by Courts in all 50 states.

In the State of Colorado, our law also provides that if a child is born during a marriage (or conceived during a civil union) the child is presumed to be the child of both parties to that marriage/civil union.  As this is a state law, federal law cannot change it.  However, this law only creates a presumption.  So, if you are the non-birth or non-donor parent, and you are relying on this law for your parental rights, you should understand that not all states may recognize your parental rights.  So, if something were to happen while you are visiting another state, or if you should move to another state and then divorce or experience the death of the other parent, that presumption may not be recognized.  To eliminate this risk, it is important to consider obtaining a court order.  In this instance, we use Colorado’s Uniform Parentage Act to help our clients obtain an Order determining the parent-child relationship, which is a relatively simple process, but results in an Order that ensures your rights to your child.

Bottom line, if you have a Court order/decree there is no risk to your parental rights.  If you do not, then you should consider options for obtaining an order/decree.

Discrimination Laws

We can anticipate seeing more states and local communities considering bills to allow individuals, business, and organizations, to discriminate against people based upon “sincerely held religious beliefs and moral convictions,” as well as bills to impact bathroom use by transgender individuals.  These laws have yet to go before the Supreme Court, so the make-up of the Court will be critical to the outcome.  If upheld these laws would allow hotels, bakers, photographers, etc. to discriminate against same-sex couples seeking to get married or just use their services, and/or would require people to use the bathroom that corresponds with their biological sex.  These laws will need to be closely watched, as they were hot button issues last year for the anti-LGBTQ groups and will likely be even bigger issues this year in light of the new administration.

Right now, the law in Colorado is that people and businesses cannot discriminate against you based upon your sexual orientation or gender identity.  As such, businesses are not allowed to refuse to provide services to a same-sex couple seeking to get married, or refuse to serve anyone that is LGBTQ.  The law in Colorado also provides that individuals can use the bathroom which is consistent with their gender identity.  As such, any changes to these laws would have to come through the Colorado legislature or by way of a Court ruling that the laws are unconstitutional or violate constitutional rights of certain people.  An example of how a Court ruling could arise would be the Colorado case related to the baker that refused to bake a cake for a same-sex couple’s wedding.  That case is currently pending and the baker is asking the Supreme Court to review it to determine if the law infringes on the baker’s rights, as he does not want to bake cakes for same-sex marriages and claims forcing him to do so violates his religious freedoms.

Executive Orders and Policies at Risk

Trump has stated that he intends to void President Obama’s Executive Orders shortly after being sworn into office.  Whether this will occur, to what extent, and when, is still to be seen, but it is a risk worth understanding.  The executive actions at risk include rules that protect LGBTQ people from discrimination by federal contractors, discrimination in healthcare and insurance, discrimination in HUD-funded programs and housing, bathroom usage in public schools under Title IX, as well as prison rape elimination regulations, and guidance on immigration visa petitions.

Additionally, transgender individuals are currently able to change their gender markers on their passport and social security cards without being required to document sex reassignment surgery.  This was the result of policies from the State Department and the Social Security Administration.  These policies may also be at risk under a new administration.  I would note that if Trump were to void all of President Obama’s Executive Orders that would not eliminate these policies, instead what would have to occur are policy changes within both agencies.  That said, if you are considering changing your gender markers, you might want to get that taken care of sooner rather than later, or at least keep an eye on Trump’s appointments to these agencies. The name change process is a different matter, as that process is a matter of state law.  As such, the President and/or the Federal government cannot change this process.  Furthermore, the process results in a Decree of Name Change, which must be recognized and honored by all Federal agencies.

Refusing to Allow a Transgender Student to Use the Gender-Segregated Restroom that is Consistent with Their Gender Identity is Unlawful Discrimination

On June 17, 2013, the Colorado Civil Rights Division (“CCRD”) issued a Determination in the Charge of Discrimination filed by Coy Mathis (Ms. Mathis), by and through her parents, Jeremy and Kathryn Mathis, against Fountain-Fort Carson School District 8 (“School”).   CCRD found that the School had engaged in unlawful discrimination when they refused to allow Ms. Mathis, a transgender student, use of the girls’ restroom, which was consistent with her sex and gender identity.  This is a finding that is likely to impact not only schools, but also other public accommodation facilities.

On February 7, 2013, the parents of Coy Mathis, a Colorado first-grader, (normally we would not identify a minor by name; however, this individual has been identified by her parents in numerous media forums as well as in the ruling that is attached), filed a complaint with the CCRD.  The complaint alleged that Ms. Mathis’ school had “denied her equal terms and conditions of service of goods, services, benefits, or privileges; equal treatment based upon harassment; and the full and equal enjoyment of goods, services, facilities, privileges advantages or accommodations of a place of public accommodation due to her sex (female) and sexual orientation (transgender).” (see Determination, attached below).  The allegations were that Ms. Mathis was allowed to use the girls’ restroom during her kindergarten year and then again during the first part of her first-grade year; however, in December of 2012, Ms. Mathis’ parents were notified that Ms. Mathis would no longer be allowed to use the girls’ restroom and would instead need to use either the boys’ restroom or one of two single-user restrooms – the adult staff restroom or the health office restroom.  Ms. Mathis’ parents attempted to resolve the issue with the school, but the school refused to reconsider their decision.  As a result, the Mathis family filed their complaint with the CCRD, and that filing led to the June 17th determination.

The Colorado Anti-Discrimination Act (“CADA”) provides that discrimination in the areas of employment, housing, and public accommodations because of an individual’s or group’s protected class/characteristic is unlawful.  Sexual Orientation, whether actual or perceived, is a protected class/characteristic under Colorado law.  Furthermore, sexual orientation is defined as heterosexuality, homosexuality (lesbian or gay), bisexuality, and transgender status (transgender status means a gender identity or gender expression that differ from societal expectations based upon gender assigned at birth).  CADA also grants the Colorado Civil Rights Commission with authority to adopt regulations to interpret, implement, and aid in the enforcement of CADA.  As part of those efforts, the Commission has previously addressed restroom usage for transgender people by adopting Rule 81.11, which provides, in part:

  • (A) Nothing in the Act prohibits segregation of facilities on the basis of gender.
  • (B) All covered entities shall allow individuals the use of gender-segregated facilities that are consistent with their gender identity.  Gender-segregated facilities include, but are not limited to, restrooms, locker rooms, dressing roos, and dormitories.

In applying the provisions of CADA, as well as the regulations adopted by the Colorado Civil Rights Commission, the CCRD found that the actions of the School were discriminatory.  The CCRD noted that Ms. Mathis’ birth certificate identified her as “male,” but found that the “Division must weigh the totality of the evidence and rely on the most current legal documents to determine the Charging Party’s sex and gender.”  As such, the CCRD found that the weight of the evidence supported finding Ms. Mathis’ sex as female.  The CCRD then found that by not permitting Ms. Mathis to use the restroom with which she identified, the School was treating her less favorably than other students seeking the same service.  That finding established a case of discriminatory terms and conditions of services prohibited by the CADA.  The CCRD also found that a case of discriminatory harassment was established, noting that by telling Ms. Mathis “she must disregard her identity while performing one of the most essential human functions constitutes severe and pervasive treatment, and creates an environment that is objectively and subjectively hostile, intimidating or offensive.”  Finally, the CCRD also found that a case of discriminatory denial of services had been established.  For this claim the School’s argument was that they had provided an alternate restroom to Ms. Mathis by providing the use of one of two single-use restrooms.  The CCRD rejected that argument citing the “separate but equal” philosophy and noting that, “at least in terms of protected classes, [] separate is very rarely, if ever, equal.”  The CCRD found that offering alternate restrooms such as the School did in this case, does not constitute “services” sufficient to meet Ms. Mathis’ needs.

Now that the CCRD has reached a determination, the matter is referred to the CCRD’s mandatory conciliation program to see if an amicable resolution can be reached.  If there is an agreed resolution it is possible that the agreement will not be released to the public.  If no agreement is reached, the matter may head to the courts for a resolution. Either way, the CCRD’s Determination letter is likely to be extremely helpful in other cases of alleged discrimination based upon sexual orientation by public accommodations.

You can review the complete Determination letter here.

Colorado Civil Unions Presentations – On Video

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© jalcaraz – Fotolia.com

The Colorado Civil Union Act goes into effect (mostly) on May 1, 2013.  In fact, some of the Colorado County Clerks have announced that their offices will be open at 12:01 a.m. on May 1st to begin issuing Civil Union licenses to couples.  Both Denver and Boulder County Clerks have advised that they will be open at 12:01 a.m..

In advance of May 1st, we at Martin Law believe it is important for Colorado citizens to understand more about Civil Unions, i.e. what they are and are not, the process for obtaining a civil union, what rights, protections and responsibilities come with a Civil Union and what do not, etc.  As a result we joined with Out Boulder to present a program on March 27, 2013 titled Colorado Gets Civil-ized, which was a panel presentation from Martin Law attorney Jodi S. Martin and fellow Boulder attorney, Larry Hoyt.

If you missed the program, and would like to learn more about Colorado’s Civil Union Act, you can watch the webcast recording of the program right now.  The video is below.  Additionally, the slides used in the presentation can be viewed here, and the handouts distributed are available here.

If you have a group or business that is interested in coordinating a presentation on the Colorado Civil Union Act or any of its implications for same-sex couples, please feel free to contact Jodi S. Martin for information on scheduling.

Disclaimer:   This blog post and any attachments or links only offer general information and are not intended to provide legal advice regarding any person’s specific situation and do not create an attorney-client relationship of any kind.  The area of law discussed in this blog post and any attachments or links is new to Colorado and is an area of the law that is constantly evolving on a state and national level, as such there is bound to be uncertainty regarding this area.   If you have specific questions, encounter difficulties with your own relationship, or need other legal advice, you are encouraged to contact an attorney that practices in this area.

Supreme Court Oral Argument in Prop 8 case – full transcript and link to audio

This morning the Supreme Court heard oral arguments in Hollingsworth v. Perry, Case No. 12-144. In Hollingsworth, Respondents are challenging the constitutionality of Proposition 8, the voter passed initiative ending same-sex marriages in California.  Proposition 8 was found unconstitutional at both the trial court and the appellate court levels and at the end of 2012, the Supreme Court agreed to hear the case.

Read and/or download the transcript here.

Listen to the audio of the oral argument here.

We will post our thoughts on the arguments in the next few days.  Though all agree that it is nearly impossible to predict a ruling based solely on the oral arguments, thus far, many of those present have indicated they expect the Court to dismiss the case based upon  jurisdictional issues or to dismiss the case based on a conclusion that it ‘improvidently granted’ certiorari, meaning it should not have agreed to hear it in the first place.  If either of those occurs, then one of the two lower court rulings will stand, Prop 8 will be struck down as unconstitutional and same-sex marriages will begin again in California.  However, a ruling from the Supreme Court is not expected until late June 2013.

Answers to Frequently Asked Questions about the New Colorado Civil Unions Act

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© jalcaraz – Fotolia.com

Colorado’s legislature passed the Colorado Civil Unions Act (SB 2013-11) today, March 12,  2013.  Governor Hickenlooper will be signing the bill on Thursday, March 21, 2013 at the Colorado History Museum at 3 p.m. The law will be effective May 1, 2013.

With the passage of the Colorado Civil Unions Act many questions arise. To help answer some of the frequently asked questions, we put together the attached FAQ Sheet.

Questions answered in the attached FAQ Sheet include:

  • What is a civil union?
  • When can I get a civil union?
  • Who can enter into a civil union?
  • How do I get a civil union?
  • What impact does the Colorado Civil Union Act have on a domestic partnership agreement or civil contract that I previously entered into?
  • What if I have entered into a marriage, civil union, or registered domestic partnership elsewhere, do I have to enter into a civil union in Colorado?
  • Can I change my name after entering into a civil union?
  • How does a civil union impact my parent-child relationship with non-biological children I have with my partner?
  • What rights and responsibilities do I have as a result of my civil union?
  • What rights and responsibilities are withheld under civil unions that are granted under marriage?
  • How do I end a civil union, or obtain a divorce from a marriage to a same-sex spouse obtained in another state?
  • Are there any reasons why parties should not enter into a civil union?
  • Do we still need to do estate planning, such as medical powers of attorney and wills, to protect our rights now that we have civil unions?

To read the Act in its entirety, go here.

We will continue to update the FAQ sheet as the new law progresses.

Update on briefs filed in DOMA and Prop 8 cases

As the arguments set before the Supreme Court approach in both the DOMA and Prop 8 cases, several parties have filed amicus curiae briefs urging the Court to strike down both laws.  Notably, a group of 75 Republicans filed an amicus brief arguing that Prop 8 violated both the equal protection and due process rights of same-sex couples.  Even the State of California, which has refused to defend the law, submitted an amicus brief asking the Court to declare its own law unconstitutional.  Additionally, a group of 278 employers filed a brief in the DOMA case urging the Court to strike down the law as unconstitutional.  The employers included Apple, Facebook, Intel, AIG, Oracle, McGraw Hill, Verizon, Levi Strauss, Cisco, Morgan Stanley, Nike, Panasonic, Xerox and hundreds more.

The Department of Justice, on behalf of President Obama’s administration, has also weighed in by filing an amicus brief in each case. In the Prop. 8 case, President Obama filed an amicus brief arguing that Prop. 8 violated the equal protection rights of same-sex couples.  Stopping short of urging the Court to recognize same-sex marriage as a constitutional right for the entire nation, the administration endorsed the “eight-state solution” — that is, if a state already recognizes all the privileges and benefits for same-sex couples that married couples have (in reference to the eight states that currently do so through “civil unions,” including California) those states must go the final step and allow those couples to get married.  The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.

In the DOMA case, the DOJ argued that Section 3 of DOMA must be struck down as a violation of equal protection for same-sex couples.  “Section 3 of DOMA violates the fundamental constitutional guarantee of equal protection. The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples. Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional.”  To read the DOJ’s brief in its entirety, go here.

Significantly, there are unique jurisdictional questions presented that may prevent a ruling on the merits from the Supreme Court in either case.  However, the public will not know whether the Court is going to rule on only the jurisdictional questions or also the merits until the rulings are issued.  Oral arguments in the Prop 8 case are set for March 26, 2013 and arguments in the DOMA case are set for the following day, March 27, 2013. The rulings are expected to be issued in late June 2013.

U.S. State Department releases an LGBT Travel Advisory with detailed advice for safe international travel

The U.S. Department of State (“State Dept.”) recently held a roundtable discussion regarding the safety of U.S. LGBT citizens during global travel.  Notably, various studies indicate that U.S. LGBT travelers have an estimated $50 to $65 billion impact on the global economy.  “It is important for our LGBT citizens to travel safe and smart,” said Janice L. Jacobs, assistant secretary of state for consular affairs.  As part of the State Dept.’s effort to protect its LGBT citizens abroad, it recently issued its first LGBT travel advisory that addresses such issues as what documents LGBT individuals and families should carry when traveling abroad, the State Department’s policy regarding the passport identity of transgender travelers, and the HIV entry requirements of foreign countries.

In its advisory, the State Dept. noted that the LGBT community’s safety varies widely from country to country. Some countries offer specific legal protections, some countries’ laws are silent and some criminalize such relationships as punishable by fines, prison, flogging and/or death. As a result, it is imperative that all LGBT persons educate themselves on the local laws and customs before they depart for international travel. It noted several sources from which they can gain information about international regions.

1). Current guide books specializing in advice to LGBT travelers will usually include information about laws, customs and safety;

2). LGBT activist groups often have information on their websites or at their offices;

3). LGBT groups local to the destination city often have the same;

4). The State Department offers a Smart Traveler Enrollment Program (“STEP”), a free service to U.S. citizens living or traveling abroad that allows the enrollee to enter information about an upcoming trip or foreign domicile so that the State Dept. can provide current Travel Warnings, Alerts and Country Specific Information. STEP also provides U.S. citizens abroad with emergency and security messages from the nearest U.S. embassy or consulate. There is also a Smart Traveler app available for free download.;

5). On the Bureau of Consular Affairs’ website, the State Dept. publishes Country Specific Information for every country, which includes a section entitled “Special Circumstances” that may contain information about attitudes, harassment or arrest of LGBT travelers, depending on the country; and

6). The State Department publishes an annual Human Rights Report that includes a section specifically regarding sexual orientation and gender identity in each country.

The State Dept. also advises that when travelling, LGBT individuals or families should carry legal/health documents that facilitate authorization for medical treatment or access in the event of a medical emergency while abroad. LGBT parents should carry documents regarding parentage and/or custody for accompanying minor children. They should carry contact information for people in the United States, both legal and familial, who also have their travel itinerary. Finally, prior to travel, they should program the contact information for the U.S. embassy or consulate in each destination country and contact that country’s embassy or consulate in the U.S. to learn about any special documentation requirements.

Additionally, the State Department also issued some general suggestions to LGBT persons to keep in mind. While traveling, they should consider they are subject to the local laws and judicial process of the country they are visiting. They should avoid any excessive public displays of affection, particularly in conservative countries or regions. They should also avoid internet chat rooms as some local authorities are known for monitoring such rooms to carry out entrapment schemes. LGBT travelers are more likely to experience problems in rural areas and some hotels won’t accept bookings from same-sex couples so they should check before travelling. If a LGBT traveler runs into problems, they can contact the American Citizens Services (ACS) section of the U.S. embassy or consulate. The current State Department ensures that the consular officers will not make generalizations, assumptions or pass judgment.

Finally, the State Dept.’s Country Specific Information page also includes HIV/AIDS entry restrictions, or lack of restrictions, in the section entitled Entry/Exit Requirements for U.S. Citizens.  In some instances, it refers travelers to that country’s embassy or consulate for additional information.

For additional review of information pertaining to international travel for LGBT persons, below is a list of various sources of interest:

To read the State Dept.’s LGBT travel advisory in its entirety, go here.

The Bureau of Consular Affairs’ website contains extensive information regarding Tips for Traveling Abroad

International Lesbian and Gay Association – Provides information on gay rights around the world, and contains a map which highlights potentially dangerous regions and countries

For a review of the State Dept.’s efforts in protecting and promoting LGBT rights internationally, go here.

For a similar review of President Obama’s overall efforts to do the same, go here.

Non-Biological Lesbian Mother’s Parental Rights Upheld

iStock_000021310628_SmallOn Friday, February 22, 2013, the Kansas Supreme Court issued a ruling in Frazier v. Goudschaal, KS S.Ct. No. 103,487, which is significant both in Kansas and nationally.  After considering the matter for over two years, the Kansas Supreme Court addressed an issue that has only been addressed by a few other states.  In particular, the Court recognized the parental rights of a non-biological lesbian mother.

The parties’ relationship, which began in 1995, came to an end in 2008.  During the relationship, the women decided to have children.  The couple had two children, born in 2002 and 2004, utilizing artificial insemination.  Goudschaal was the biological mother of both children.  Before the birth of their first child, and again at the time of the birth of their second child, the women signed a co-parenting agreement.  At that time, a consent for medical authorization and a durable power of attorney for health care decisions were also executed.  Each woman also executed a last will and testament naming the other as the children’s guardian.  In 2008, after the couple split up, Goudschaal attempted to relocate with the children to Texas.  As a result, Frazier filed an action with the Court seeking to divide the couple’s assets equitably and resolve custody and parental responsibility issues.  The lower court divided the couple’s assets, awarded joint custody with residential custody in Goudschaal, granted Frazier parenting time and ordered her to pay child support.  Goudschaal appealed the lower court’s ruling.

The key in this decision was the planning tools utilized by the couple.  The Court cited to specific language in the co-parenting agreement which identified Frazier as a “de facto parent” and specified that her “relationship with the children should be protected and promoted.”

In highlighting the significance of the co-parenting agreement, the Court stated that a “parent should have the right to enter into a co-parenting agreement to share custody with another without having the government interfere by nullifying that agreement, so long as it is in the best interests of the children.”  In addressing the importance of the co-parenting agreement, the Court noted that without the agreement the children would have only one parent under Kansas law, and denying the children an opportunity to have two parents, impinges upon the children’s constitutional rights.  The Court stated that the co-parenting agreement contained “no element of immorality or illegality and did not violate public policy.”   “Consequently, the co-parenting agreement in this case does not violate public policy and is not unenforceable as a matter of law.”

Because the co-parenting agreement was enforceable, the lower court had authority to enter orders addressing child custody, parenting time and child support.  Further, the lower court had authority to equitably divide the parties’ property.

So does this legal argument have any relevance in the State of Colorado?  I believe the answer is that it does.  While Colorado offers additional protections to same-sex families, such as second-parent adoption and recognition of a “psychological parent’s” right to seek parental responsibilities, co-parenting agreements and other family and estate planning tools are still valuable tools.  Not all same-sex couples will, or can, utilize the second-parent adoption process.  For those couples, the non-biological parent is left relying on the “psychological parent” basis for parental responsibilities, which may apply but may also be more costly and time intensive to pursue.  Instead, utilizing planning tools, such as a co-parenting agreement, as well as various powers of attorneys, wills, and guardianship designations is a key way to insure that the rights of the parents and the children are protected both now and in the future.

For more information on the Kansas case, see this Wichita Eagle article and this Huffington Post article.

Proposed federal sex education bill includes requirement to avoid gender stereotypes

The federal Real Education for Healthy Youth Act (the “Act”), introduced on February 15, 2013, is a comprehensive and inclusive sex education bill, intended to replace what many studies indicate are ineffective and medically inaccurate abstinence-only programs.  If passed, the Act would provide five-year grants for comprehensive sex education to state and local education agencies, nonprofit organizations and nonprofit or public universities to fund sex-ed programs.  Funding would also be provided for teacher training on sex education.  Additionally, federal funding would be prohibited for any programs that withhold information about HIV, are medically inaccurate or proven ineffective, promote gender stereotypes, are insensitive and unresponsive to the needs of LGBT youth, or are inconsistent with ethical imperatives of medicine and public health.  Priority would go to programs serving communities with high rates of unintended pregnancy, sexually transmitted diseases or sexual assault.  Similar bills have been introduced in the past several years but have not passed.

Recent data shows that the United States still has the highest rate of teen pregnancy in the industrialized world, and recent reports have shown that teen birth rates are on the rise.  In 2009, there were approximately 19 million new cases of Sexually Transmitted Infections, almost half of them occurring in young people between 15 to 24 years old, and young people accounted for 39% of all new HIV infections in the same year.

The bill requires any programs funded under the Act to emphasize emotional skills and the development of “healthy attitudes and values” about issues like body image, gender identity and sexual orientation.  All teaching would be “age and developmentally appropriate.”  However, several provisions are likely to remain controversial, including a section requiring that curricula refer interested students to local clinics for more information about sexual and reproductive health.  In practice, those clinics could include Planned Parenthood centers as in many areas those are the only clinics available to young people looking for that type of information.

Additionally, the Act also requires that programs report certain gathered information from their students to federal health officials in order to evaluate programs and consider any additions/changes that need to be made in the future.  The requested information would include age of first intercourse, number of sexual partners and contraceptive use.

Congresswoman Barbara Lee (D-CA), one of the sponsors of the Act, explained that research has shown programs that teach abstinence along with contraception “effectively delay the onset of sexual intercourse, reduce the number of sexual partners, and increase contraceptive use among teens.  These programs also reduce unintended pregnancy and the transmission of sexually transmitted infections, including HIV.”

Further Progress After Don’t Ask, Don’t Tell: Certain Benefits Extended to Gay and Lesbian Servicemembers and Families

The Pentagon announced that it will extend certain benefits to the families of gay and lesbian servicemembers.  In the announcement, Leon Panetta, United States Secretary of Defense, explained that since the repeal of Don’t Ask Don’t Tell, the Pentagon has been reviewing benefits to determine those it could extend to gay and lesbian servicemembers and their families without violating the Defense of Marriage Act.

The new expansion allows servicemembers to designate specific protections to their partners including, but not limited to, life insurance and death gratuity benefits; notification if the service-member is wounded, killed or missing; transportation allowance if the service-member is hospitalized; hospital visitation privileges; presentation of the flag of the United States.  Additionally, once the servicemembers and their partners have signed a Declaration of Domestic Partnership attesting to the existence of their committed relationship, the partners of gay and lesbian service members will have access to commissary privileges; ID cards to get on base; family support initiatives, legal assistance and sexual assault counseling; ability to take emergency leave for family emergencies and joint duty assignment, in addition to other benefits.  The Declaration of Domestic Partnership is similar to the document same-sex families complete for many employers who offer benefits to same-sex families in states where gay marriage or civil unions are not yet legal.

The member designated protections are in immediate effect and the additional benefits offered to the families of gay and lesbian servicemembers will be in place no later than October 1, 2013.  The expansion does not address health care, housing, and survivor benefits due to the restrictions under the Defense of Marriage Act.  However, a memorandum released by Secretary Panetta detailing the benefits offered under the expansion specifically states that if at any time “the Defense of Marriage Act is no longer applicable to the Department of Defense, it will be the policy of this Department to construe the words ‘spouse’ and ‘marriage’ without regard to sexual orientation, and married couples, irrespective of their sexual orientation, and their dependents, will be granted full military benefits.”

To review Leon Panetta’s Memorandum detailing the benefits expansion, go here.

To review a good Q&A from OutServe regarding the same, go here.