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.

Social Security Changes Affecting the LGBT Community

o-SOCIAL-SECURITY-TAXES-facebookThe Social Security Administration (SSA) has made two announcements this year that affect the LGBT community.

First, the SSA announced it was changing its policy with regard to the ability of transgender individuals to receive benefits through their spouses.  Prior to yesterday’s announcement, any marriage-based claims filed by or involving a transgender individual was referred to the Regional Chief Counsel for a legal opinion, and were often denied.  Under the new policy, most claims will be processed in a straightforward manner, without the need for a legal opinion.  Presumably, this means most claims of this nature will not be summarily denied.

Lambda Legal, who had been advocating for this change on behalf of a 92-year-old transgender individual (and veteran) after the SSA denied her survivor benefits claim following the death of her husband, hailed the policy change, explaining, “This is a critical development for all married transgender people, but is especially important for transgender older adults, who rely on the safety net of Social Security benefits.”  To read more about the case that helped prompt this change, go here.

Second, the SSA announced in January that it would begin considering same-sex marriages when processing Social Security Supplemental Income claims.  SSI is a program based on financial need, and the SSA will now consider the income and resources of the recipient and his or her same-sex spouse when determining eligibility and monthly payment.  To read more about this policy change, go here.

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 Division of Insurance Addresses Sexual Orientation Discrimination

On March 19, 2013, the Colorado Division of Health Insurance released a bulletin declaring that Colorado insurers are prohibited from discriminating based on sexual orientation, this includes heterosexuality, homosexuality, bisexuality and transgender.  The Division of Insurance does not make state law but issues guidance or policy statements that interpret already existing state laws. Under Colorado statute, a Colorado insurer is prohibited from “inquiring about or making an investigation concerning, directly or indirectly, an applicant’s, an insured’s, or a beneficiary’s sexual orientation in … [a]n application for coverage.” Colo. Rev. Stat. § 10-3-1104(1)(f)(VI). Further, state law prohibits an insurance company from “using information about gender, marital status, medical history, occupation, . . . to determine sexual orientation”  Colo. Rev. Stat. § 10-3-1104(1)(f)(VII). Finally, it is unlawful for any insurance company to use “sexual orientation in the underwriting process or in the determination of insurability.”  Col. Rev. Stat. § 10-3-1104.   In reviewing these laws, it is clear the basic premise of the bulletin, that discrimination based on sexual orientation is prohibited, is not new but the bulletin serves to highlight for Colorado’s insurers exactly what types of actions are prohibited under these already existing laws.

Specifically, the bulletin states that under these laws, a Colorado insurer may not:

1). impose any differential in premium rates or charges with regard to an applicant or covered person’s sexual orientation;

2). designate an individual’s sexual orientation as a pre-existing condition for the purpose of denying or limiting coverage;

3). deny, exclude, or otherwise limit coverage for medically necessary services, as determined by an individual’s medical provider, if the item or service would be provided based on current standards of care to another individual without regard to their sexual orientation.

One of the most significant impacts this bulletin is expected to have is on the transgender community. Transgender individuals are often denied insurance coverage based on either their transgender status or for transgender-related services, in spite of the fact that the American Medical Association, American Psychological Association, American Psychiatric Association and the Colorado Medical Society have issued statements against discrimination in public and private organizations, including in relation to the medical care transgender people receive.

Some examples of specific insurance coverage requests that may be implicated by this bulletin is that an insurer who covers breast-reduction surgery to relieve back pain cannot deny the same coverage for a transgender person if the medical provider deems it medically necessary.  The American Medical Association has stated that it generally considers such treatment medically necessary for treatment of gender identity disorder.  Other examples that have arisen in the past are the inability of transgender patients who identify as male to receive insurance coverage for annual gynecological exams  and the inability of transgender patients to receive insurance coverage for hormone-therapy treatment while the same treatment is covered for conditions of non-transgender patients.

It is important to note, however, that the laws addressed in this bulletin only apply to Colorado insurers.  An employer who is based outside of Colorado likely also purchases their employees’ health insurance outside of Colorado and therefore, is not governed by Colorado’s insurance laws.  It also does not apply to self-funded insurance plans.  Even with these limitations, though, it remains an example of Colorado doing what is within its power to protect the LGBT community from discrimination, and this is an area in which existing laws have been lacking in their application and protection.

To read the bulletin in its entirety, go here.

To read an article about application of the bulletin, go here.