Trump Administration Eyes Defining Transgender Out of Existence

The Trump administration is considering narrowly defining gender as a biological, immutable condition determined by genitalia at birth, the most drastic move yet in a governmentwide effort to roll back recognition and protections of transgender people under federal civil rights law.

A series of decisions by the Obama administration loosened the legal concept of gender in federal programs, including in education and health care, recognizing gender largely as an individual’s choice and not determined by the sex assigned at birth. The policy prompted fights over bathrooms, dormitories, single-sex programs and other arenas where gender was once seen as a simple concept. Conservatives, especially evangelical Christians, were incensed.trans trump

Now the Department of Health and Human Services is spearheading an effort to establish a legal definition of sex under Title IX, the federal civil rights law that bans gender discrimination in education programs that receive government financial assistance, according to a memo obtained by The New York Times.

The department argued in its memo that key government agencies needed to adopt an explicit and uniform definition of gender as determined “on a biological basis that is clear, grounded in science, objective and administrable.” The agency’s proposed definition would define sex as either male or female, unchangeable, and determined by the genitals that a person is born with, according to a draft reviewed by The Times. Any dispute about one’s sex would have to be clarified using genetic testing.

“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth,” the department proposed in the memo, which was drafted and has been circulating since last spring. “The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”

The new definition would essentially eradicate federal recognition of the estimated 1.4 million Americans who have opted to recognize themselves — surgically or otherwise — as a gender other than the one they were born into.

“This takes a position that what the medical community understands about their patients — what people understand about themselves — is irrelevant because the government disagrees,” said Catherine E. Lhamon, who led the Education Department’s Office for Civil Rights in the Obama administration and helped write transgender guidance that is being undone.

The move would be the most significant of a series of maneuvers, large and small, to exclude the population from civil rights protections and roll back the Obama administration’s more fluid recognition of gender identity. The Trump administration has sought to bar transgender people from serving in the military and has legally challenged civil rights protections for the group embedded in the nation’s health care law.

Several agencies have withdrawn Obama-era policies that recognized gender identity in schools, prisons and homeless shelters. The administration even tried to remove questions about gender identity from a 2020 census survey and a national survey of elderly citizens.

By Erica L. Green, Katie Benner and Robert Pear, New York Times, October 21, 2018

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BUT, I’M ON THE BIRTH CERTIFICATE!

Why a Birth Certificate Alone Is Not Sufficient Protection for Your Legal Parentage Rights

A common misconception among LGBT parents is that being listed as a parent on a birth certificate is all that is needed to establish one’s legal parentage to their child.  If only it were so simple.birth certificate

I’d like to give you an example to illustrate the issue more queerly.  Close your eyes and hearken back to the days of yore… It’s late 2013, and the Supreme Court has required the federal government to recognize same sex marriages from the states that allow them.  Nevertheless, we were in a legal enigma: what happened to those marriages when they crossed state lines from a marriage equality state to a non-marriage equality state? Lauren Beth Czekala-Chatham and Dana Ann Melancon can tell you what happened to them…the state no longer recognized their marriage.  So, when they moved from California to Mississippi and decided to get divorced, they were in a bit of a pickle. Mississippi decided that their marriage was against the state’s public policy, and therefore, the divorce and division of marital assets that they sought was not available to them.

“How could this have happened?”  You may ask. “What about the Full Faith and Credit Clause from the US Constitution?”  Doesn’t it require that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State”?  Well, the Supreme Court has held that the Full Faith and Credit Clause is meant to apply to judgments and court orders from one state to the next, but it does not hold the same requirements for laws or administrative records, like marriage certificates.  So, their valid marriage certificate in California was worth the paper it was written on when they moved to Mississippi. Fast forward to Obergefell, and marriage equality is now the law of the land, and the Supreme Court has held that marriage cannot be denied to same sex couples, but that was an issue of individual rights under the Constitution, and not an issue of recognition of administrative records across states.  

So, the issue that existed for marriage certificates a few short years ago still exists for birth certificates today.  You and your co-parent may both be on the birth certificate in your child’s birth state. But, what happens if you get into a car accident on a cross country road trip in a state that decides that your birth certificate is against public policy and therefore need not be recognized?  Seems like a pretty tragic time to be left out in the cold and unable to make medical decisions for your child, especially if your co-parent is not with you or is incapacitated.

by Amira Hasenbush, LGBTBar.org, October 15, 2018

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Hawaii Supreme Court rules equal parental rights for same-sex couples

Ruling orders same-sex spouse to pay child support 

The Hawaii Supreme Court ruled Thursday that same-sex spouses must be treated like heterosexual spouses when it comes to parental rights.

This means that same-sex spouses must be recognized as the presumed parents for children born during their marriage.

This question was raised after a formerly married same sex couple fought each other over their parental rights over their child.

One of the women conceived the child through an anonymous sperm donor.

The other woman wanted the court to say that she is not obligated to pay child support because she’s not biologically related.

The court made their decision based on the Marriage Equality Act, which says laws regarding marriage must be applied to same sex and opposite sex couples equally.

by HawaiiNewsNow.com, October 5, 2018

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Trump Administration to Deny Visas to Same-Sex Partners of Diplomats, U.N. Officials

The new policy will insist they be married to obtain visas —even if they’re from countries that criminalize gay marriage.

The Trump administration on Monday began denying visas to same-sex domestic partners of foreign diplomats and United Nations employees, and requiring those already in the United States to get married by the end of the year or leave the country.visa

The U.S. Mission to the U.N. portrayed the decision—which foreign diplomats fear will increase hardships for same-sex couples in countries that don’t recognize same-sex marriage—as an effort to bring its international visa practices in line with current U.S. policy. In light of the landmark 2015 Supreme Court decision legalizing same-sex marriage, the U.S. extends diplomatic visas only to married spouses of U.S. diplomats.

“Same-sex spouses of U.S. diplomats now enjoy the same rights and benefits as opposite-sex spouses,” the U.S. mission wrote in a July 12 note to U.N.-based delegations. “Consistent with [State] Department policy, partners accompanying members of permanent missions or seeking to join the same must generally be married in order to be eligible” for a diplomatic visa.

But critics says the new policy will impose undue hardships on foreign couples from countries that criminalize same-sex marriages.

Samantha Power, a former U.S. ambassador to the United Nations, denounced the new policy on Twitter as “needlessly cruel & bigoted.”

“State Dept. will no longer let same-sex domestic partners of UN employees get visas unless they are married,” she tweeted, noting that “only 12% of UN member states allow same-sex marriage.”

By Colum Lynch, ForeignPolicy.com, October 1, 2018

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Judge again rules in favor of intersex passport applicant

A federal judge has once again ruled in favor of an intersex person who was denied a passport because they do not identify as male or female.

Judge R. Brooke Jackson of the U.S. District Court for the District of Colorado in Denver in his Sept. 19 ruling said the State Department was “in excess of statute authority” under the Passport Act of 1926 when it denied a passport to Dana Zzyym, an intersex person who requested to list their sex as “X.”

Zzyym, who lives in Colorado, is the associate director of the U.S. affiliate of Organization Intersex International. Zzyym is also a veteran who served in the U.S. Navy.

Zzyym applied for a passport in 2014 in order to attend a conference in Mexico City. The State Department told Zzyym it denied the application because it was “unable to fulfill your request to list your sex as ‘X.’

Jackson ruled in Zzyym’s favor in 2016, but the State Department appealed. Zzyym’s case was reopened in 2017 after the State Department once again denied them a passport.

Zzyym, who is represented by Lambda Legal, in a press release noted it has “been nearly four years since the State Department first denied me a critical identity document that I need to do my job and advocate for the rights of intersex people both in the United States and abroad.”

WashingtonBlade.com, by Michael K. Lavers, September 24, 2018

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New Supreme Court Term Potentially Momentous for LGBT Rights

The Supreme Court begins its October 2018 Term, which runs through June 2019, on October 1.

During the week of September 24, the Supreme Court holds its “long conference,” during which the Justices consider the long list of petitions for review filed with the Court since last spring, and assembles its docket of cases for argument after those granted late last term are heard.  While there are several petitions involving LGBT-related issues pending before the Court, it is unlikely that there will be any announcement about these cases until late October or November at the earliest.Anthony Kennedy retirement

Three of the pending petitions raise one of the most hotly contested LGBT issues being litigated in the lower federal courts: Whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of an individual’s sex, can be interpreted to extend to claims of discrimination because of sexual orientation or gender identity. One of the three cases also raises the question whether an employer with religious objections gender transition has a defense under the Religious Freedom Restoration Act.  Another petition presents the question whether a judge who has religious objections to conducting same-sex marriages has a 1st Amendment right to refuse to do so.

Although many state civil rights laws ban such discrimination, a majority of states do not, so the question whether the federal law applies is particularly significant in the Southeast and Midwest, where state courts are generally unavailable to redress such discrimination.

With President Donald J. Trump’s nomination of Brett Kavanaugh to fill the seat vacated by Justice Anthony M. Kennedy, Jr.’s, retirement, which was effective on July 31, petitions pending at the Supreme Court took on heightened significance while the Senate confirmation process was taking place. The Senate Republican leadership had hoped to speed the process so that Trump’s appointee would be seated on the Court by the time the term began on October 1, but accusations of long-ago sexual misconduct by Kavanaugh have caused the Judiciary Committee’s vote to be delayed.  Meanwhile, the eight-member Court had to confront the question during their long conference of whether to grant review on cases as to which the justices were likely to be evenly divided, when they were unsure when the ninth seat would be filled and who would fill it.  As of the end of September, they had already scheduled oral arguments on cases granted last spring running through the first week of November.

ArtLeonardObservations.com. September 24, 2018, by Art Leonard

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Federal court allows same-sex couples to challenge Michigan’s anti-gay adoption law

Two same-sex couples are challenging the state’s “license to discriminate.”

A federal judge ruled Friday that a lawsuit challenging Michigan’s “license to discriminate” for religiously affiliated adoption agencies can proceed.

Two same-sex couples, Kristy and Dana Dumont and Erin and Rebecca Busk-Sutton, are directly suing the state for contracting with religious child-placement agencies it knows will refuse service to same-sex couples. In 2015, the legislature approved a law that ensured that agencies receiving taxpayer funding could refuse to serve same-sex couples without endangering their contracts with the state. Both couples have since been denied service from such agencies.

The state, along with St. Vincent Catholic Charities (which has joined the case as an intervenor defendant), argued that the case should be dismissed. But in his opinion Friday, U.S. District Judge Paul Borman, a Clinton appointment, agreed that the couples have made a credible case that the government is improperly entangled in endorsing the anti-gay religious views of these agencies.

“The Plaintiffs allege that the State Defendants could not turn away a same-sex couple on the basis of religious objections, yet they acknowledge that they are permitting their delegated agencies, carrying out a State function, to do exactly what the Constitution forbids them to do,” he wrote.

ThinkProgress.com by Zack Ford, September 17, 2018

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Cuban president backs same-sex marriage

Cuban President Miguel Díaz-Canel has said he supports an amendment to his country’s new constitution that would extend marriage rights to same-sex couples.

“I defend that there should be no type of discrimination,” he told Telesur, a television station that is largely funded by the Venezuelan government, during an interview that aired on Sunday. “The will of the people and the people’s sovereignty will have the final word.”

A source in Havana told the Washington Blade the Telesur interview was broadcast on Cuban television on Sunday night.

Díaz-Canel took office in April after Cuba’s National Assembly chose him to succeed Raúl Castro.

Lawmakers in July approved the new constitution with the marriage amendment.

The Cuban government is currently holding meetings that allow members of the public to comment on the new constitution. The National Assembly later this year is expected to finalize it before a referendum that is scheduled to take place in February 2019.

The debate over whether to extend marriage rights to same-sex couples is taking place less than 60 years after gay men were among those sent to labor camps — known by the Spanish acronym UMAPs — after the 1959 revolution that brought Fidel Castro to power.

Fidel Castro in 2010 apologized for the UMAPs during an interview with a Mexican newspaper. His niece, Mariela Castro, a member of the National Assembly who directs the country’s National Center for Sexual Education, over the last decade has spearheaded LGBTI-specific issues in the Communist country.

Díaz-Canel, who was born after the revolution, supported an LGBTI cultural center in the city of Santa Clara when he was secretary of the Cuban Communist Party in Villa Clara Province. Díaz-Canel also defended Mariela Castro’s doctoral thesis that focused on the integration of transgender people in Cuban society.

Independent LGBTI activists with whom the Blade regularly speaks insist they continue to face harassment and even arrest if they publicly criticize Mariela Castro and/or the Cuban government.

Washington Blade, by Michael K. Lavers, September 17, 2018

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GOP lawmaker caught on tape: Orphanages better than gay adoption

In an exchange with high school students that was caught on tape, a Republican congressman from New Jersey was tongue-tied over the prospect of same-sex couples adopting children and suggested kids would be better off in orphanages than with LGBT families.

Rep. Chris Smith (R-N.J.) made the remarks May 29 when addressing student constituents in the auditorium of Colts Neck High School. They asked the congressman about his opposition to adoption by same-sex couples, according to a source familiar with the recording. A source familiar with the tape, who delivered the recording on Monday exclusively to the Washington Blade, said it was obtained in recent days.homophobia

The recording begins with Hannah Valdes, a senior at Colts Neck High School, telling Smith she has a gay sister who has said in the future she wants to adopt a child with her partner. The student asks the New Jersey Republican whether “based on household studies” her sister would be “less of a legitimate parent” than someone in a different-sex relationship and why she shouldn’t adopt a child.

In an apparent reference to the U.S. Supreme Court’s 2015 ruling for marriage equality, Smith says “the issue, legally, is moot at this point especially with the Supreme Court decision” and tells the student her sister is “free to adopt.”

Although the Supreme Court settled the issue of marriage, attempts are still underway to deprive LGBT families of the right to adopt. An increasing number of states have passed laws allowing religious-affiliated, taxpayer-funded agencies to refuse placement to LGBT homes for religious reasons. In the U.S. House, Republicans incorporated as a component of appropriations an amendment from Rep. Robert Aderholt (R-Ala.) that would penalize states and localities for having policies prohibiting anti-LGBT discrimination in adoption.

But that wasn’t enough for Valdes, who pressed Smith on why he thinks her sister shouldn’t be able to adopt. Smith, apparently having difficulty finding words for his response, said he believes “there are many others who would like to adopt who can acquire a child” and “the waiting periods are extremely long.”

Washington Blade, by Chris Johnson, September 12, 2018

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Guardianship for Children – Priceless Peace of Mind

Creating a guardianship for Children may be the most important reason for creating an estate plan.  With a thoughtfully chosen guardian, parents can rest assured that their children will be ok if something were to happen.

A guardianship for children in a Last Will and Testament is the only way to ensure that your children will be with whom you choose in the event of a death of a parent.  To dispel a common misconception, naming someone as a godparent through a church ritual has no legal weight when a guardian is required after the death of a parent or parents.  I would argue that the exercise of choosing that person is good for the parents as it has them thinking about why someone may be a good choice as a guardian for their children, but that exercise is just that until the choice is declared in a properly executed Last Will and Testament.guardianship for children

To be crystal clear, only a child guardian designation made in a properly executed Last Will and Testament is a valid designation of a guardianship for children

Becoming a parent forces that person to think in the long-term.  Imagining your children’s lives without you is certainly not easy but imagining their lives without you and without any clear direction as to where they should live or who they should live with is far worse.

Hypothetically, if no guardianship for children is established in a properly executed Last Will and Testament, the court will look to see if there are any family members who would petition the court to take on that responsibility.  That person, while being a close family member, may not be the person that a parent would choose for their child.  Also, the court prioritizes the closest living blood relatives, so if you have not made your wishes known through a properly executed guardianship for children in a Will, then a more distant family member who may be the better choice would have an uphill battle in court.

Another fact that most parents do not realize is that when there is a guardianship for children properly established in your Last Will and Testament, the designated guardian still must petition the court to be made the legal guardian of the child.  This process is streamlined when the deceased parent has made a clear guardianship for children designation, but that designee must still follow the protocols of having the guardianship established in court.

singleIf no guardianship for children has been properly executed, then the closest living blood relatives must petition the court to be named legal guardian, creating an often time consuming and emotional journey for all involved, especially the children.

While this article focuses on how to properly execute a guardianship for children, I also want to remind readers of the different ways that parents can provide financially for their children if a parent, or parents, die.  Basic estate planning is essentialEstate planning with children in the mix offers new options, and challenges.

Remember also that you can name a guardianship for children even before they are born.  Carefully crafted Wills may refer to “future born children,” as well as defining children to include adopted children, children in utero, children you are in the process of adopting and children who are created through assisted reproductive technology. 

Now that you understand the process, the real work begins.  Being able to have these conversations among parents is crucial. Agreeing upon an appropriate guardianship for children may take time and effort, but it may be the most important decision you will ever make for your family.

 

Anthony M. Brown, Esq. September 7, 2018

 

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