No one can take away your marriage.
If you are married, no President can “undo” that legal status. There is no realistic possibility that anyone’s marriage will be invalidated. The law is strong that if a marriage is valid when entered, it cannot be invalidated by any subsequent change in the law. People who are already married should know that that their marriages cannot be invalidated or erased.
If you are LGBTQ and not married now, but concerned about your ability to marry in the future, it is highly unlikely the U.S. Supreme Court will reverse its very recent decision in Obergefell that found the marriage is a fundamental right under the Constitution, resulting in recognizing the right of all same-sex couples to marry. Yes, there will be at least one U.S. Supreme Court vacancy to fill in the new administration, but it is important to remember that slot was held by Antonin Scalia, the most conservative justice, and he was on the court when the same-sex marriage case was decided. The doctrine of stare decisis—which means that courts generally will respect and follow their own prior rulings—is also very strong, and the Supreme Court very rarely overturns an important constitutional ruling so soon after issuing it. In addition, while the new administration is very conservative, Donald Trump has not indicated any intention to try take away the freedom to marry.
No one can take away your adoption.
Adoption laws, like most family laws, are based on state law, not federal law, so the election should not impact adoption laws. If you are LGBTQ and have an adoption decree making you a legal parent to your children, no Presidential or federal government action can take that away. Adoption decrees are meant to be permanent court orders that cannot be changed or undone in the future. Whether you are a birth parent or an adoptive parent, you have constitutional rights and your rights cannot be removed without due process of law and a legal basis to do so (such as abuse or neglect). A recent U.S. Supreme Court's decision in V.L. v. E.L. held that adoption decrees will be given “full faith and credit” under the United States Constitution, meaning they must be recognized in all 50 states. So even if another state changes its law to deny adoptions to LGBTQ families and you then move there, your adoption decree will still be recognized. This is why adoption decrees are so important and valuable to LGBTQ families. They provide permanency and security for your family.
Families who have adopted children from another country should confer with an adoption attorney to ensure that the immigration and citizenship status for their children is secure. Some international adoptions require a Registration of Foreign Adoption action or a re-finalization of the adoption in the United States to confer U.S. citizenship to the adoptee.
You cannot rely on a marriage or birth certificate alone to conclusively establish parental rights; secure your family through adoption.
Most family law is based on state law, not federal law, so there should be no impact from the federal election on state-based family laws. However, if the election results are causing you to evaluate steps you can take to protect your family – securing an adoption decree to establish legal parentage is one of the most crucial steps you can take right now.
The 50 states vary significantly as to the laws that apply to determine who is a legal parent, especially for children conceived through donors or assisted reproduction. While some states recognize a “marital presumption” that a non-genetically related spouse is a legal parent to a child, other states do not have this presumption or do not apply it to children conceived through assisted reproduction. And even if a state does recognize a “marital presumption,” it is just that – a presumption. In the law a “presumption” is a legal assumption that can be challenged with evidence that disproves the assumption or when the martial relationship is no longer intact. When it comes to securing your parental rights to your child, does relying on the marital presumption alone make sense? To be certain that you are BOTH deemed to be legal parents, it is critical to take certain steps to secure each of your parental rights permanently by finalizing an adoption for the non-genetic parent. An adoption decree securing the parental rights of a non-genetic parent must be obtained, even if the non-genetic parent’s name is already on the child’s birth certificate. A birth certificate alone is not a legal determination of parentage.
LGBTQ protections established through executive orders could be eliminated.
While Donald Trump cannot take away your marriages or adoptions, there are many other LGBTQ protections established through Executive Orders that are at risk. Here is a partial list of President Obama’s LGBTQ-related executive actions Trump could undo:
∙ Executive Order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity.
∙ Final rule in May 2016 that protected LGBTQ people from discrimination in healthcare and insurance under the Affordable Care Act.
∙ Prison Rape Elimination Act implementation regulations in May 2012 to directly protect LGBTQ people.
∙ Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity Rule in February 2012, protecting LGBTQ people in all HUD-funded programs.
∙ Comprehensive guidance in May 2016 on their interpretation of Title IX, clarifying that public schools receiving federal funding must treat transgender students in accordance with their gender identity.
∙ Guidance in July 2013 that all immigration visa petitions filed on behalf of a same-sex spouse would be reviewed in the same manner as those filed on behalf of an opposite-sex spouse.
∙ The Global Equality Fund, launched in 2011, which supports programs that advance the human rights LGBTQ persons around the world.
∙ Public endorsement of the Equality Act in November 2015, supporting comprehensive federal nondiscrimination protections for LGBTQ people.
-List Source: Center for American Progress
If you are married, no President can “undo” that legal status. There is no realistic possibility that anyone’s marriage will be invalidated. The law is strong that if a marriage is valid when entered, it cannot be invalidated by any subsequent change in the law. People who are already married should know that that their marriages cannot be invalidated or erased.
If you are LGBTQ and not married now, but concerned about your ability to marry in the future, it is highly unlikely the U.S. Supreme Court will reverse its very recent decision in Obergefell that found the marriage is a fundamental right under the Constitution, resulting in recognizing the right of all same-sex couples to marry. Yes, there will be at least one U.S. Supreme Court vacancy to fill in the new administration, but it is important to remember that slot was held by Antonin Scalia, the most conservative justice, and he was on the court when the same-sex marriage case was decided. The doctrine of stare decisis—which means that courts generally will respect and follow their own prior rulings—is also very strong, and the Supreme Court very rarely overturns an important constitutional ruling so soon after issuing it. In addition, while the new administration is very conservative, Donald Trump has not indicated any intention to try take away the freedom to marry.
No one can take away your adoption.
Adoption laws, like most family laws, are based on state law, not federal law, so the election should not impact adoption laws. If you are LGBTQ and have an adoption decree making you a legal parent to your children, no Presidential or federal government action can take that away. Adoption decrees are meant to be permanent court orders that cannot be changed or undone in the future. Whether you are a birth parent or an adoptive parent, you have constitutional rights and your rights cannot be removed without due process of law and a legal basis to do so (such as abuse or neglect). A recent U.S. Supreme Court's decision in V.L. v. E.L. held that adoption decrees will be given “full faith and credit” under the United States Constitution, meaning they must be recognized in all 50 states. So even if another state changes its law to deny adoptions to LGBTQ families and you then move there, your adoption decree will still be recognized. This is why adoption decrees are so important and valuable to LGBTQ families. They provide permanency and security for your family.
Families who have adopted children from another country should confer with an adoption attorney to ensure that the immigration and citizenship status for their children is secure. Some international adoptions require a Registration of Foreign Adoption action or a re-finalization of the adoption in the United States to confer U.S. citizenship to the adoptee.
You cannot rely on a marriage or birth certificate alone to conclusively establish parental rights; secure your family through adoption.
Most family law is based on state law, not federal law, so there should be no impact from the federal election on state-based family laws. However, if the election results are causing you to evaluate steps you can take to protect your family – securing an adoption decree to establish legal parentage is one of the most crucial steps you can take right now.
The 50 states vary significantly as to the laws that apply to determine who is a legal parent, especially for children conceived through donors or assisted reproduction. While some states recognize a “marital presumption” that a non-genetically related spouse is a legal parent to a child, other states do not have this presumption or do not apply it to children conceived through assisted reproduction. And even if a state does recognize a “marital presumption,” it is just that – a presumption. In the law a “presumption” is a legal assumption that can be challenged with evidence that disproves the assumption or when the martial relationship is no longer intact. When it comes to securing your parental rights to your child, does relying on the marital presumption alone make sense? To be certain that you are BOTH deemed to be legal parents, it is critical to take certain steps to secure each of your parental rights permanently by finalizing an adoption for the non-genetic parent. An adoption decree securing the parental rights of a non-genetic parent must be obtained, even if the non-genetic parent’s name is already on the child’s birth certificate. A birth certificate alone is not a legal determination of parentage.
LGBTQ protections established through executive orders could be eliminated.
While Donald Trump cannot take away your marriages or adoptions, there are many other LGBTQ protections established through Executive Orders that are at risk. Here is a partial list of President Obama’s LGBTQ-related executive actions Trump could undo:
∙ Executive Order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity.
∙ Final rule in May 2016 that protected LGBTQ people from discrimination in healthcare and insurance under the Affordable Care Act.
∙ Prison Rape Elimination Act implementation regulations in May 2012 to directly protect LGBTQ people.
∙ Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity Rule in February 2012, protecting LGBTQ people in all HUD-funded programs.
∙ Comprehensive guidance in May 2016 on their interpretation of Title IX, clarifying that public schools receiving federal funding must treat transgender students in accordance with their gender identity.
∙ Guidance in July 2013 that all immigration visa petitions filed on behalf of a same-sex spouse would be reviewed in the same manner as those filed on behalf of an opposite-sex spouse.
∙ The Global Equality Fund, launched in 2011, which supports programs that advance the human rights LGBTQ persons around the world.
∙ Public endorsement of the Equality Act in November 2015, supporting comprehensive federal nondiscrimination protections for LGBTQ people.
-List Source: Center for American Progress
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After the Election: Things Trans People Should Know Now
________________________________________________________________________________
Rules and policies that may change (and not for the better):
Rules governing corrections to gender markers on U.S. passports
The new administration may alter the requirements for changing gender markers on U.S. passports. Under Secretary Clinton, the State Department did away with the rule that a person had to have undergone sex reassignment surgery before the person's gender marker could be changed. The current policy requires only that the individual's doctor certify that the person has had “appropriate clinical treatment” for gender transition.
It is possible that the new administration will change this policy.
If you have been planning to modify your gender marker on your passport, you should do so as soon as possible. For more information on changing your gender marker under the current policy, see the discussion starting on page 7 of Legal Name Changes and Changes to Identity Documents in Pennsylvania.
Health care laws
The incoming administration has promised to repeal the Affordable Care Act “on day 1”. While it is extremely unlikely that the ACA will (or could be) shut down in a day, it seems certain that the ACA will be repealed in the near future.
It is difficult to predict how drastically health care for trans people and health care coverage for trans people will be affected. However, once the ACA is repealed, it seems likely that existing federal protections for trans people will be lost.
Section 1557 of the ACA prohibits covered entities from discriminating on the basis of race, color, national origin, sex, age, or disability. As of July 18, 2016, a federal rule implementing Section 1557 of the ACA went into effect. This rule prohibits discrimination against LGBTQ individuals, including transgender and gender non-conforming people. Thus, covered medical providers cannot refuse to treat trans people or refuse to recognize an individual’s gender identity with respect to pronoun usage and room placement. Covered insurers cannot categorically exclude coverage for specific health services related to gender transition.
Covered entities include:
- entities operating a health program or activity, any part of which receives funding from HHS;
- federal and state health insurance marketplaces; and
- employee health benefit programs that receive HHS funding.
When the new administration repeals the ACA, these protections will likely be lost and trans people will again face increased difficulty accessing mental health care, hormone therapy, and surgical treatment.
If your insurer or medical provider is covered by Section 1557, we recommend that you proceed with obtaining medically necessary care as soon as possible.
More information regarding the ACA’s current protections can be found at the Transgender Law Center’s website.
School protections for trans children
It is anticipated that the incoming administration will roll back the directive issued by the U.S. Department of Justice and the U.S. Education Department clarifying that public schools receiving federal funding must treat transgender students in accordance with their gender identity.
Vice-President elect, Mike Pence, confirmed on Wednesday morning in a radio interview that “Washington has no business intruding on the operation of our local schools.” This means that decisions regarding protections for trans students will be left to local school boards.
Some localities, such as Philadelphia, have adopted policies that allow students to use their bathroom of choice, be referred to their chosen names and pronouns, and participate in groups that correspond with their gender identity- and these policies will not be at risk. But it is likely that districts without these policies will no longer be directed to adopt them in accordance with Title IX.
Other LGBTQ protections established through executive orders or federal regulations could be eliminated
There are many LGBTQ protections established through executive orders or federal regulations that are at risk. Here is a list of some of the LGBTQ-related protections that are at risk:
∙ Executive Order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity.
∙ Prison Rape Elimination Act implementation regulations in May 2012 to directly protect LGBTQ people.
∙ Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity Rule in February 2012, protecting LGBTQ people in all HUD-funded programs.
∙ Comprehensive guidance in May 2016 on their interpretation of Title IX, clarifying that public schools receiving federal funding must treat transgender students in accordance with their gender identity.
∙ Guidance in July 2013 that all immigration visa petitions filed on behalf of a same-sex spouse would be reviewed in the same manner as those filed on behalf of an opposite-sex spouse.
∙ The Global Equality Fund, launched in 2011, which supports programs that advance the human rights LGBTQ persons around the world.
∙ Public endorsement of the Equality Act in November 2015, supporting comprehensive federal nondiscrimination protections for LGBTQ people.
-List Source: Center for American Progress
Now for the good news:
Rules governing state issued identity documents will not change
State-issued identity documents, such as driver’s licenses, non-driver’s identification cards and birth certificates, are governed by state, not federal, law. Therefore, the result of the presidential election should not impact the procedures for name and gender modifications on these documents. Our handbook, Legal Name Changes and Changes to Identity Documents in Pennsylvania, covers name changes and changes to identity documents. Sections in the handbook regarding changes to Social Security Administration gender markers and Passport gender markers also apply to non-Pennsylvanians.
Laws and procedures for legal name changes will not change
Name change procedures are governed by state laws, so the result of the presidential election will not impact name changes for trans people.
We continue to recommend that trans people retain trans-competent legal counsel when pursuing a name change, particularly those who wish to seek waiver of the publication requirement. And we cannot stress strongly enough how important it is that parents seeking name changes for their trans children retain trans-competent, experienced legal counsel.
A president cannot “undo” an existing marriage or adoption decree
Laws regarding marriage, adoption, and parental rights are controlled by states, not the federal government. Therefore, if you are legally married, your marriage cannot be “undone” by the incoming administration. Likewise, if you have adopted a child, the new administration cannot change your status as a legal parent. For more information about post-election LGBTQ family law issues, please visit our blog post here.
Rules governing corrections to gender markers on U.S. passports
The new administration may alter the requirements for changing gender markers on U.S. passports. Under Secretary Clinton, the State Department did away with the rule that a person had to have undergone sex reassignment surgery before the person's gender marker could be changed. The current policy requires only that the individual's doctor certify that the person has had “appropriate clinical treatment” for gender transition.
It is possible that the new administration will change this policy.
If you have been planning to modify your gender marker on your passport, you should do so as soon as possible. For more information on changing your gender marker under the current policy, see the discussion starting on page 7 of Legal Name Changes and Changes to Identity Documents in Pennsylvania.
Health care laws
The incoming administration has promised to repeal the Affordable Care Act “on day 1”. While it is extremely unlikely that the ACA will (or could be) shut down in a day, it seems certain that the ACA will be repealed in the near future.
It is difficult to predict how drastically health care for trans people and health care coverage for trans people will be affected. However, once the ACA is repealed, it seems likely that existing federal protections for trans people will be lost.
Section 1557 of the ACA prohibits covered entities from discriminating on the basis of race, color, national origin, sex, age, or disability. As of July 18, 2016, a federal rule implementing Section 1557 of the ACA went into effect. This rule prohibits discrimination against LGBTQ individuals, including transgender and gender non-conforming people. Thus, covered medical providers cannot refuse to treat trans people or refuse to recognize an individual’s gender identity with respect to pronoun usage and room placement. Covered insurers cannot categorically exclude coverage for specific health services related to gender transition.
Covered entities include:
- entities operating a health program or activity, any part of which receives funding from HHS;
- federal and state health insurance marketplaces; and
- employee health benefit programs that receive HHS funding.
When the new administration repeals the ACA, these protections will likely be lost and trans people will again face increased difficulty accessing mental health care, hormone therapy, and surgical treatment.
If your insurer or medical provider is covered by Section 1557, we recommend that you proceed with obtaining medically necessary care as soon as possible.
More information regarding the ACA’s current protections can be found at the Transgender Law Center’s website.
School protections for trans children
It is anticipated that the incoming administration will roll back the directive issued by the U.S. Department of Justice and the U.S. Education Department clarifying that public schools receiving federal funding must treat transgender students in accordance with their gender identity.
Vice-President elect, Mike Pence, confirmed on Wednesday morning in a radio interview that “Washington has no business intruding on the operation of our local schools.” This means that decisions regarding protections for trans students will be left to local school boards.
Some localities, such as Philadelphia, have adopted policies that allow students to use their bathroom of choice, be referred to their chosen names and pronouns, and participate in groups that correspond with their gender identity- and these policies will not be at risk. But it is likely that districts without these policies will no longer be directed to adopt them in accordance with Title IX.
Other LGBTQ protections established through executive orders or federal regulations could be eliminated
There are many LGBTQ protections established through executive orders or federal regulations that are at risk. Here is a list of some of the LGBTQ-related protections that are at risk:
∙ Executive Order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity.
∙ Prison Rape Elimination Act implementation regulations in May 2012 to directly protect LGBTQ people.
∙ Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity Rule in February 2012, protecting LGBTQ people in all HUD-funded programs.
∙ Comprehensive guidance in May 2016 on their interpretation of Title IX, clarifying that public schools receiving federal funding must treat transgender students in accordance with their gender identity.
∙ Guidance in July 2013 that all immigration visa petitions filed on behalf of a same-sex spouse would be reviewed in the same manner as those filed on behalf of an opposite-sex spouse.
∙ The Global Equality Fund, launched in 2011, which supports programs that advance the human rights LGBTQ persons around the world.
∙ Public endorsement of the Equality Act in November 2015, supporting comprehensive federal nondiscrimination protections for LGBTQ people.
-List Source: Center for American Progress
Now for the good news:
Rules governing state issued identity documents will not change
State-issued identity documents, such as driver’s licenses, non-driver’s identification cards and birth certificates, are governed by state, not federal, law. Therefore, the result of the presidential election should not impact the procedures for name and gender modifications on these documents. Our handbook, Legal Name Changes and Changes to Identity Documents in Pennsylvania, covers name changes and changes to identity documents. Sections in the handbook regarding changes to Social Security Administration gender markers and Passport gender markers also apply to non-Pennsylvanians.
Laws and procedures for legal name changes will not change
Name change procedures are governed by state laws, so the result of the presidential election will not impact name changes for trans people.
We continue to recommend that trans people retain trans-competent legal counsel when pursuing a name change, particularly those who wish to seek waiver of the publication requirement. And we cannot stress strongly enough how important it is that parents seeking name changes for their trans children retain trans-competent, experienced legal counsel.
A president cannot “undo” an existing marriage or adoption decree
Laws regarding marriage, adoption, and parental rights are controlled by states, not the federal government. Therefore, if you are legally married, your marriage cannot be “undone” by the incoming administration. Likewise, if you have adopted a child, the new administration cannot change your status as a legal parent. For more information about post-election LGBTQ family law issues, please visit our blog post here.
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