Author: Cathy Sakimura, Esq.

The United States Department of Health and Human Services (HHS) issued new rules  today confirming that LGBT people are protected against healthcare discrimination under Section 1557 of the Affordable Care Act. These new rules confirm that healthcare services and coverage cannot be denied based on an individual’s sex, including their gender identity, nonconformity with sex stereotypes (including the stereotype that all people are, or should be, heterosexual), or the sex of the person with whom the individual is in a relationship. These provisions also provide important protections for women accessing healthcare services and coverage, ensuring that they cannot be charged more for services than men are charged, or denied coverage for preexisting conditions.

In addition to protecting against anti-LGBT discrimination, the new rules issued by HHS today also provide important protections for people of color and people with disabilities.  The rules explain that Section 1557 prohibits discrimination based on race and also importantly require healthcare providers to ensure that people with limited English proficiency can have meaningful access to healthcare. These requirements provide important and needed access to many Latinx, Asian American, Native American, Pacific Islander, and black patients seeking healthcare services. The rules also prohibit discrimination against people with disabilities and require a wide range of accessibility services to be available.

Unfortunately for many immigrants, however, these protections will not allow them to seek vital healthcare services because they are largely excluded from healthcare coverage and protections. Additionally, Immigration and Customs Enforcement revealed yesterday that they would begin a series of raids targeting immigrant families.  This is expected to be the largest such deportation effort during the Obama Administration, and will particularly affect women and children fleeing violence from Central America.

NCLR applauds the Obama Administration and HHS for providing vital protections against discrimination in healthcare based on gender, sexual orientation, race, disability, and age. But we urge the Administration to provide the same thoughtful and humane treatment to those who have fled their home countries seeking safety and security. 

Monday, in a ruling that will protect LGBT parents across the country, the U.S. Supreme Court sharply rebuked the Alabama Supreme Court for refusing to recognize a Georgia adoption by a lesbian mother, our client. The U.S. Supreme Court’s decision in our case was unusual in three ways. First, it reversed the Alabama Supreme Court’s decision “summarily”—that is, without any briefing or oral argument, relying solely on the initial petition asking the Court to hear the case. Second, the decision was attributed to the entire court, not to any individual justice. And third, it was unanimous, with no dissenting opinions from any justice. Taken together, these three factors send the strongest possible message rejecting the Alabama Supreme Court’s attempt to unsettle the stability of adoptions by LGBT parents.

The facts in this case are typical of those in many other families. A lesbian couple had children through donor insemination. The non-biological mother adopted the children in Georgia to ensure that both parents had legal recognition. Years later, when the couple’s relationship ended, the birth mother argued that Alabama, where the couple lived, did not have to recognize the adoption. The Alabama Supreme Court ruled that the adoption was void because it believed that Georgia law should not have allowed an unmarried same-sex couple to adopt.

From a family law perspective, that Alabama ruling was unprecedented, marking the first-ever decision by a state supreme court in our nation’s history refusing to honor an adoption from another state based on disagreement with the other state court’s interpretation of its own state law. If the U.S. Supreme Court had permitted that decision to stand, it would have caused unimaginable instability and chaos for our families, giving state courts permission to disregard the parental rights of adoptive LGBT parents. Instead, the U.S. Supreme Court unanimously reversed the Alabama Supreme Court’s decision. In no uncertain terms, the Court held that the Full Faith and Credit Clause of the U.S. Constitution requires states to honor adoptions granted in other states. As the U.S. Supreme Court explained: “A State may not disregard the judgment of a sister State because it disagrees with the reasoning underlying the judgment or deems it to be wrong on the merits.”

The U.S. Supreme Court’s decision safeguards the rights of millions of adoptive parents and children. It also protects all LGBT people facing backlash in the wake of last year’s ruling in favor of marriage equality. After the U.S. Supreme Court ruled in Obergerfell v. Hodges that same-sex couples have the freedom to marry, many states, including Alabama, have tried to turn back the clock by finding new ways to sanction and encourage bias against LGBT people, from bills targeting transgender students and condoning anti-LGBT discrimination by businesses to Alabama’s most recent attempt to strip away the rights of adoptive LGBT parents.

Monday’s unanimous decision from the U.S. Supreme Court sends a clear message that LGBT parents are entitled to equal protection. More broadly, it shows that states may not exclude LGBT people from the same rights and protections given to others.   As we continue to face backlash and escalating attempts by state legislatures to harm LGBT people, the U.S. Supreme Court’s ruling is a welcome reminder that our nation’s highest law—the federal Constitution—stands as a bulwark against inequality and injustice. We have a long way to go, but as we continue to battle reactionary measures in many states, the U.S. Supreme Court has sent a welcome and timely reminder that LGBT people must have basic equality under the law.

(Originally published in the Advocate.com)

The National Center for Lesbian Rights, Adam Unikowsky and Paul Smith of Jenner & Block, and Alabama attorneys Heather Fann of Boyd, Fernambucq, Dunn & Fann, P.C., and Traci Vella of Vella & King, Attorneys at Law represented the Alabama mother who challenged the Alabama Supreme Court’s refusal to recognize her out-of-state adoption.

Beginning January 1, 2016, California law will fully protect families conceiving children through assisted reproduction, regardless of how they conceive. California law already recognized many families using assisted reproduction, but it only provided protections to certain families. Assembly Bill 960—signed into law by California Gov. Jerry Brown in late 2015—provides several important new protections to ensure that all families are treated equally by the law.

First, California did not previously recognize that unmarried couples using assisted reproduction with a donor are both parents from birth, limiting this protection to married couples, although many unmarried couples conceive children in this way. Without this protection, unmarried parents using assisted reproduction have been at great risk. For example, if something happened to the biological parent during childbirth, the non-biological parent was not recognized as a parent and often had no right to take the child home from the hospital.

Second, California law also only protected sperm donors when a doctor or sperm bank was involved. However, many parents, including many same-sex parents, transgender parents, and intended single parents, use at-home insemination with a known donor to conceive. Parents choose to conceive with known donors for many reasons. For example, African-American parents looking for an African-American donor may have difficulty finding a donor in a sperm bank and may ask a friend to be their donor. Or a couple may want a donor who is related to the non-biological parent. Many families simply cannot afford to conceive using a sperm bank or doctor, which can costs hundreds or thousands of dollars per month.

Parents who have conceived through at-home insemination have faced serious consequences because of California’s previous laws. One family who testified in favor of the law had their sperm donor declared a parent and given visitation with their baby. Even in situations where the parents and the sperm donor were on the same page, the state forced sperm donors to pay child support in numerous cases.

Third, the law clarifies that egg donors are not parents while also protecting couples using ovum sharing–when one parent provides eggs that are fertilized and carried by the other parent.

Finally, California’s new law also provides sample forms that donors and parents using assisted reproduction can sign to protect their rights. These forms, found in California Family Code Section 7613.5, make it easier for parents to meet the requirements of the California law and prevent future disputes. For more information about this law and copies of these forms, read our facts and resource page.

California joins the growing trend across the country recognizing that many different families use assisted reproduction in different ways to have children, and that all families should be equally protected, including unmarried parents, parents using at-home insemination, and parents conceiving through ovum sharing.

AB 960 was authored by Assembly Member David Chiu, and co-sponsored by the National Center for Lesbian Rights, Equality California, and Our Family Coalition. Read our facts and resource page. Learn more about AB 960.

The U.S. Supreme Court’s recent marriage equality ruling has brought the freedom to marry to the entire country, recognizing the equal dignity of our families. However, there is a lot more we need to do to achieve true family equality that fully respects the rights of LGBT parents and their children.

Let me share the story of Marisol and her spouse, Elena (names have been changed to protect their family). They decided to have a child and asked one of Marisol’s friends to be their sperm donor. The thousands of dollars that it would cost to use a clinic would be too costly for them, so they inseminated at home. Marisol and Elena’s relationship began to break down not long after their daughter was born, and they separated when their child was a year old. In their divorce, the sperm donor came forward and asked to be treated as the child’s father. Marisol, hurt and angry about the breakup, supported the donor’s claim that Elena was not the mother.

Even though Elena was on their child’s birth certificate, it took her over two years to finally be recognized as her daughter’s parent. The National Center for Lesbian Rights was ultimately able to help Elena keep shared custody of her daughter. But, this outcome was far from certain for Elena and for other parents like her.

There are many states that still do not protect parents who conceive using a known sperm donor through at-home insemination without medical intervention, and not all states fully protect nonbiological parents. Being on your child’s birth certificate helps show that you are a parent in everyday life, but if you end up in court, it does not necessarily mean you will be recognized as a parent. Many families are woefully unprotected by out-of-date and incomplete state laws. More work is needed in these states to ensure that LGBT families enjoy full legal protections.

For instance, some LGBT parents are still at risk of losing their children because many states do not have adequate protections for nonbiological parents. This can be true even for married parents, especially if they married after their children were born. Unmarried parents and their children have very few protections in many states, and many children are at risk of losing one of their parents.

Because many states do not fully protect LGBT parents and their children, NCLR still strongly recommend that every nonbiological parent get an adoption or a court judgment recognizing them as a parent. Unfortunately, this is still the only way to make sure that parents will be fully legally recognized in every state if they move or travel.

This lack of legal recognition impacts LGBT families in many ways. In addition to being vulnerable if the family breaks up, children in these families are at risk of losing both their parents and ending up in foster care if something happens to their birth parent and their other parent is not legally recognized. In another NCLR case, after the birth mother died, the grandmother tried to take custody away from the surviving nonbiological mother. We succeeded in keeping the family together, but the trauma that the surviving parent and the child experienced from being separated just after losing their beloved partner and mother could not be erased.

In another case, two men who were not able to marry raised two children conceived through surrogacy, but the state they live in does not allow an unmarried couple to use surrogacy and both be recognized as parents. Now that the parents have separated, it is unclear whether both of their parental rights will be protected. In another, a transgender father who is having a child conceived through assisted reproduction is worried about his parental rights if something happens to his wife in childbirth because their state does not have any protections for parents using assisted reproduction.

In order to raise awareness about the need to reform state laws so that they fully protect parents’ rights to care for their children, NCLR launched the #Equality4Families campaign earlier this month. Since our start in 1977, we have worked tirelessly to ensure that every family in every state is fully protected by the law, launching projects and campaigns focused on parenting rights, transgender families, low-income families, and families of color.

It’s imperative that we achieve #Equality4Families across the country. We have momentum on our side to finish this chapter of our work. We will be here fighting for our families until all families, married or not, regardless of how they came together, are fully respected by the law in every state.

Learn more about #Equality4Families here.

Marriage equality across the nation has been moving at a breakneck speed and it shows no sign of stopping. Achieving this new legal benefit has been an incredible advancement for the rights and dignity of all LGBT people. But it’s also important to remember that even though marriage provides thousands of couples and their families with many new legal protections, marriage alone is not enough to fully protect all LGBT families.

Same-sex spouses and transgender spouses need to know that they still need to take other essential steps to fully protect their rights and those of their families. To help them navigate through the new maze of benefits and legal questions, The National Center for Lesbian Rights has put together a new guide on what LGBT couples still need to do, even after they get married.

Some of the topics discussed in the new guide include:

• Protect your children with an adoption or parentage judgment – All non-biological parents still need an adoption or court judgment of parentage to protect their rights, even if they are married, and even if they are on their child’s birth certificate.  Being married to a birth parent does not automatically protect the non-biological parent in every state.
• Protect your and your spouse’s property and decision making with estate planning – All married couples should make sure that they have planned for what will happen to their spouse if one of them passes away through estate planning. This could be through a will or trust, or designating your spouse as a beneficiary on your financial accounts.
• Protect your spouse’s ability to obtain public benefits – If you or your spouse are older, or if one of you has a disability, make sure you understand your rights under Social Security and Medicare. Your spouse may be able to receive more benefits as your spouse than on his or her own.
• Understand your rights under federal law. The federal government now recognizes same-sex spouses but there are still some benefits that have not yet begun to be fully available to same-sex spouses. In order to avoid losing out on a benefit that may be available to you, you should understand your rights under Social Security, Medicare, and other federal benefits.

The guide can be found here.

For more information about rights in your state, please contact the National Center for Lesbian Rights at dev.nclrights.org/gethelp or 800-528-6257.

Recently, a colleague at a legal aid organization told me about a client who came in for help because he had quit his job. It wasn’t until the attorney gave the client an overview of their legal programs, including their LGBT work, that the client opened up and said he had quit because he was being harassed at work for being gay. Without this kind of information, they would have never had a case.

This story reinforced what we, at the National Center for Lesbian Rights, had known—that even a small change in how providers talk to clients can make LGBT people feel safe enough to share their experiences and seek help. This is also the reason why I traveled to Tennessee a couple of weeks ago,  to train advocates representing low-income people in how to competently and respectfully serve low-income LGBT clients. Together with Lisa Cisneros, LGBT Program Director at the California Rural Legal Assistance (CRLA), we trained representatives from all of the state’s legal aid organizations serving low-income individuals. Our work is part of NCLR and CRLA’s joint project to improve these type of legal services across the country.

Unfortunately, there are thousands of low-income LGBT people in need of legal services but most local legal aid groups are not trained in serving LGBT clients. As a result, many LGBT people often feel discouraged from seeking legal advice and many lose their ability to enforce their rights. Our project provides the tools these groups need in order to provide respectful services to low-income LGBT clients and to create a welcoming environment for them in every office.

NCLR and CRLA have done similar trainings in Georgia, California, and Texas. One of our goals is to reach offices serving rural communities. We are pleased that in these states, the project has led to widespread changes that has help LGBT people access quality legal services, including:

• Rewriting procedures to show support for the LGBT community by never assuming clients are not LGBT and asking gender-neutral questions about family relationships
• Organizing legal trainings to ensure that legal representatives know how to effectively advocate for LGBT clients and their families
• Changing bathroom policies to allow everyone to use a safe and appropriate bathroom
• Changing how case information is recorded so that transgender clients are always referred to by their lived names, even if they have a different legal name
• Creating an LGBT task force to improve services for LGBT clients in all areas of the organization

We are proud that our work have been met with a lot of excitement. Legal advocates are eager for this type of training and want to provide the best possible representation to their LGBT clients.

Our goal is to spark a nationwide change in all legal services programs, so that every person can have equal access to justice.