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.

Parental Rights for Same-Sex Couples

The Colorado Civil Union Act went into effect on May 1, 2013 (with the exception of certain provisions related to insurance).  Briefly addressed below are parental rights and options available to same-sex couples with relation to children, including children that have been in the family and children that are new to the family.

I.  STANDARD ADOPTION:

With the passage of the Civil Unions Act, same-sex couples can now jointly adopt children.  In order to do so, the couple must be parties to a civil union.  The process can be lengthy, and will include a home study and a parenting class.

Of note, one party to a Civil Union can not adopt a child on their own.  A party to a Civil Union is required to jointly adopt with the other party to the Civil Union, unless the parties are legally separated.

II. SECOND-PARENT ADOPTION:

This is a tool that was available to same-sex couples prior to the Civil Union Act, and continues to be available to same-sex couples where appropriate.

Second-parent adoptions encompass a variety of family circumstances in addition to same-sex couples.  For a second-parent adoption the sole legal parent must consent in writing to the adoption and must confirm that the child only has one legal parent.

The second-parent adoption process requires a home study and will also include a background check through three separate agencies.  Additionally, the adopting parent is now being required to also attend a parenting class.

III.  STEP-PARENT ADOPTION:

The step-parent adoption process has been available to opposite-sex couples for quite some time, but one requirement was that the parties be married.  The marriage requirement meant that this process was not available to same-sex couples.  However, with the passage of the Civil Union Act, this process became available to same-sex couples.  This process is generally less expensive and less invasive than the second-parent adoption process.

For a step-parent adoption, a legal parent (natural or adoptive) must be in a marriage or civil union with the potential adoptive parent, that same legal parent must consent to the adoption, and the child must be available for a step-parent adoption.

Available for adoption includes, but is not limited to:

  1. Other biological or adoptive parent is deceased;
  2. Other biological or adoptive parent’s parental rights have been relinquished or terminated;
  3. Other biological or adoptive parent consents to the termination of their rights and the adoption by the step-parent;
  4. Other biological or adoptive parent’s parental rights are being terminated as part of the adoption proceeding, but certain conditions must be met;
  5. The child was conceived and born out of wedlock (this includes when a child is conceived through assisted reproductive services).

Unlike the second-parent adoption process, a home study and parenting class are NOT generally required.  The process does require a background check through three agencies.

IV.  CHILDREN CONCEIVED BY ONE PARTNER:

If the child was conceived prior to the parties entering into a civil union, you will need to use the step-parent or second parent adoption process in order for both parties to have parental rights.

If the child was conceived after the parties entered into a civil union, then that child will be presumed to be the child of both parties to the civil union.  As such, no adoption is legally required in the State of Colorado.

In both situations, the parties are advised to consider obtaining a special Medical Power of Attorney in an effort to ensure the protection of the child and the non-birth parent in case the birth parent is unable or unavailable for medical decisions related to the birth parent or the child.

ADDITIONAL GENERAL ADOPTION INFORMATION

You will be required to file a specific Petition and other attendant legal documents for each adoption.  The Court will then schedule a hearing.  In step-parent adoptions, the hearing will be scheduled as soon as possible.  In other types of adoptions, the hearing will be scheduled for a date after the child has been in the adoptive home for at least 182 days.

Additionally, if the adoptive child is 12 years of age or older, their consent to the adoption will be required.

 

Disclaimer:   This post only offers general information and is not intended to provide legal advice regarding any person’s specific situation and does not create an attorney-client relationship of any kind.  The area of law discussed in this post 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. 

 

Kansas’ Attempt to Force Sperm Donor to Pay Child Support Raises Questions for Some CO Families

Several people have voiced concern recently after a case in Kansas began garnering media attention. A lesbian couple in Kansas conceived a child through the use of artificial insemination. Rather than use a physician, the couple chose their donor through private means. The parties entered into a formal agreement in which the donor waived any parental rights and the couple agreed to hold the donor harmless for any child support payments demanded of him by any other person or entity, public or private. The artificial insemination was done at home with the donor’s sperm and the couple conceived a baby girl.

Later, the couple broke up but continued to co-parent the child. Subsequently, one of the women became ill and could not work. At that point, the biological mother applied for state health insurance with the State of Kansas. The Kansas Department of Children and Families demanded that a father be listed on the application in order to provide the requested health insurance. At that point, the State of Kansas filed a claim against the sperm donor, requiring him to pay child support, though both of the child’s moms were, and remain, opposed.

Under Kansas law, a donor who provides semen to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman. Kan. Stat. Ann. § 23-2208(f).  Because there is no such provision for artificial insemination done through private means, the State of Kansas has refused to treat the donor as anything but the biological father of the child, regardless of the contract between the parties. The non-biological mother has offered to pay the child support that would be applicable if she were treated as the parent of the child. However, Kansas has refused because to do so would essentially recognize the couple as the legal parents and that Kansas will not do.

Questions have been raised as to whether the situation currently playing out in Kansas could happen here. Though Colorado law does offer more protection to couples similar to the Kansas couple, its law in this area does contain a measure of ambiguity.

Colorado has a statute similar to that of Kansas providing: “If, under the supervision of a licensed physician or advanced practice nurse and with the consent of her husband, a wife consents to assisted reproduction with sperm donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. … Both the husband’s and the wife’s consent must be in writing and signed by each of them. …” Colo. Rev. Stat. Ann. § 19-4-106(1). However, unlike Kansas, the Colorado statute also includes an additional provision: “A donor is not a parent of a child conceived by means of assisted reproduction….” Colo. Rev. Stat. Ann. § 19-4-106(2).

In interpreting this statute, Colorado courts have found that “[t]he primary purpose of section 19-4-106 is to provide a legal mechanism for married and unmarried women to obtain a supply of semen for use in artificial insemination and, in the case of married recipients, to make clear that legal rights and duties of fatherhood are borne by the recipient’s husband rather than the donor.” In the Interest of R.C., 775 P.2d 27, 30 (Colo. 1989) (emphasis provided). The court held that while subsection (2) precludes a finding of paternity toward the donor if the donor is anonymous, there is no per se finding if the recipient uses a known donor. Id. at 33. In the situation of a known donor, evidence regarding any pre-insemination agreement between the parties is relevant to determine whether the donor should be considered a legal parent of the conceived child. Id. at 35.

In the R.C. case, unlike the facts in Kansas, the donor brought suit attempting to establish his parental rights to the conceived child. Still, based on the reasoning in R.C., it would appear that if the same facts as the Kansas case occurred in Colorado, the parties would be able to assert their pre-insemination agreement as a defense to any finding that the donor was a legal parent and/or was under any parental financial obligations. What remains unclear, however, is whether and to what extent physician assistance/supervision is required in order for § 106(2) to apply. See id. at 37.

Significantly, Colorado law also allows for second parent adoptions, an option not available in Kansas. Using second parent adoption, when a child is born to a sole legal parent, the non-biological parent can be added to the child’s birth certificate, regardless of gender or relation, as the second legal parent. Colo. Rev. Stat. Ann. § 19-5-203. Those two individuals are then considered the legal parents of the child. Id.

It is clear that Colorado law certainly provides some protections to individuals and families considering assisted reproduction services. It is also equally clear that individuals and families must take advantage of those options in order to protect their own legal interests and ultimately, those of their conceived children.

For more information on the Kansas case, check out this article in Slate.