Recent wins for LGBTQ families

March arrived like the proverbial lion with a wave of good news for LGBTQ families.

LGBTQ Families

New Jersey Gov. Phil Murphy (D) signed a bill Feb. 19 expanding the state’s paid family leave law in a number of ways, including by expanding the definition of “family” to include chosen families and expanding the definition of “parent” to include foster parents and those who become parents via gestational surrogacy.

“New Jersey is now the first state in the nation to offer paid family leave that is inclusive of all families,” according to the Center for American Progress. 

A bill also passed the New York Assembly Judiciary Committee Feb. 27 that would more effectively protect families created through assisted reproductive technologies. The Child-Parent Security Act would legalize gestational surrogacy in the state and simplify the procedure for securing the legal rights of non-biological parents. It has yet to pass the full Assembly and Senate, but Gov. Andrew Cuomo (D) has expressed his support.

And in Virginia, the General Assembly on Feb. 22 passed an update to its surrogacy laws that will now give same-sex couples and single parents the same rights as different-sex couples. The legislation, known as Jacob’s Law, is named after the son of two dads who had to fight for their rights to him after he was born with the help of a surrogate. A Virginia court had refused to recognize their Wisconsin surrogate contract, precipitating a long legal battle.

On the federal level, Judge John F. Walter of the U.S. District Court for the Central District of California on Feb. 21 recognized the birthright citizenship of Ethan Dvash-Banks, the son of U.S.-citizen Andrew Dvash-Banks and his Israeli husband Elad Dvash-Banks. Two-year-old Ethan was previously denied recognition of his citizenship—even though his twin brother was granted it.

That means that at least one other family, that of U.S. citizen Allison Blixt and her spouse Stefania Zaccari, an Italian citizen, must continue to fight for their children’s right to be U.S. citizens. Like the Dvash-Banks’, they married abroad while the Defense of Marriage Act was still in effect, and then had two sons, Lucas and Massi. The U.S. State Department refused to recognize their marriage and said that Massi was Allison’s son because she had given birth to him, but Lucas, who was carried by Stefania, was not. It thus has refused to recognize Lucas’ citizenship. The Dvash-Banks victory is thus a step forward, but not the end of the story.

Washington Blade by Dana Rudolph, March 18, 2019

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The Right Way to Legalize Surrogacy in New York State


New York State is on the brink of replacing an outdated and prohibitive law that criminalizes the practice of compensated surrogacy, one of only two states that does so.

Legislation to reverse the law has been introduced in both houses of the state Legislature, and Governor Cuomo has demonstrated support for it by including it in his Executive Budget.

As a law professor who focuses on gender equity, I’ve taken great interest in issues related to surrogacy in the United States and abroad. I’ve closely reviewed laws in multiple states as well as internationally and I support New York’s legalization of surrogacy.

When a woman chooses to support a couple or individual by serving as a gestational surrogate (where she is not genetically connected to the child because she did not contribute her egg), I believe she must have the autonomy to do so – provided she is protected by the law to ensure that any power imbalance between her, on the one hand, and the intended parents, surrogacy agencies and doctors, on the other hand, is mitigated.

The proposal the New York Legislature is considering and that Governor Cuomo is advancing, the Child-Parent Security Act, does protect surrogates in many ways. While the bill clarifies the parentage of all children born through third-party reproduction, here I focus only on how it legalizes and regulates gestational surrogacy arrangements.

Protections provided by the bill include: giving the surrogate the sole right to make decisions regarding her own health or that of the fetus or embryo she is carrying; giving the surrogate the sole right to terminate the pregnancy; and ensuring that the surrogate is represented by her own legal counsel. These types of commonsense protections are critical to creating a successful and effective program. If the New York Legislature passed the Child-Parent Security Act, New York’s law would be more protective of women who choose to be surrogates than laws in many other states.

Reexamining current law is long past due as technological advances and changes in acceptance of various family structures have made surrogacy much more commonplace. When lawmakers first implemented a ban on surrogacy in New York in 1992, they did so for several reasons that are less relevant today.

For example, when the restrictive New York law was enacted, there were ethical concerns about what was then nascent medical treatment — in vitro fertilization (IVF). Today, IVF is commonly-accepted as treatment for infertility and is also used in the gestational surrogacy process.

Despite the ban, today New Yorkers do work with surrogates to build families. They are just required to employ surrogates living in other states. This results in legal challenges, risks, and costs for the intended parents, including confusion regarding what laws are applicable to the situation.

GothamGazzette.com, February 21, 2019 by Sital Kalantry

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Lingering flaws – Gendered Holdouts Nixed in NYS Marriage Equality Amendment

State Senate Republicans, after five years of resistance, support legislative fixes to lingering flaws in law

gay estate planning, family estate planning, estate planning NY

Roughly eight years after the passage of marriage equality in New York, the newly progressive State Senate finally overcame Republican obstruction to fix some lingering flaws in that law. 

The updated law, which unanimously sailed through the upper chamber and awaits another easy passage in the State Assembly, wipes out gendered language within the Estates, Powers, and Trusts Law (EPTL) and the Surrogate’s Court Procedure Act (SCPA) in order to reflect the intentions of the Marriage Equality Act. 

Spearheaded by out gay Manhattan State Senator Brad Hoylman, the lingering flaws included provisions to remove “paternal” and “maternal” from the EPTL and SCPA and replace those with the phrases “of one parental side” and “the other parental side.” 

Another section of the EPTL was changed to say “spouses, husbands, or wives,” while the SCPA made similar adjustments by swapping out “the father or mother” with “parents” or “either parent.”

“Marriage equality is the law of the land, and all provisions of the law ought to reflect that,” Holyman told Gay City News in a written statement. “I’m proud to see the Democratic Conference acting to advance the rights of LGBTQ New Yorkers after Senate Republicans blocked this bill for five years.”

The law’s passage was a long time coming for Hoylman. But after six IDC members were dethroned during the September primaries and eight new Democrats snagged Republican seats, the blue wave opened up doors to pass a series of bills that were previously blocked by conservatives to fix these lingering flaws.

by Matt Tracy, GAyCityNews.com, February 15, 2019

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Kansas bill seeks to define same-sex marriage as ‘parody’


Kansas state representatives introduced legislation Wednesday that would define same-sex marriage as “parody marriage” and would prohibit the state from recognizing same-sex marriages or transgender people.

The bill seeks to establish an “elevated marriage” for straight couples, according to the Wichita Eagle.

The legislation would also allow controversial gay “conversion therapy” which seeks to change a gay person’s sexual orientation. Critics of conversion therapy say it is often inhumane and does not work.

Two bills were introduced, one that says same-sex marriages “erode community standards of decency.” It argues that civil rights for gay people are different than civil rights for black people because it claims that there are “no ex-blacks but there are thousands of ex-gays.” 

The measures would also prohibit public schools and libraries from hosting or endorsing “drag queen storytime.”

The legislation has very little chance of becoming law, according to the Eagle. The state’s Democratic governor is supportive of gay marriage and is likely to veto the bill if it passes the state legislature.

In an interview with the Eagle, the bill’s sponsor state Rep. Randy Garber (R) admitted that the language in the legislation is “kind of harsh.”

“Their marriage probably doesn’t affect me — their union or whatever you want to call it,” he said. “But in my opinion, they’re trying to force their beliefs on society.”

BY RACHEL FRAZIN – 02/14/19 – TheHill.com

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The long wait for legalized surrogacy may soon end in New York


A bill legalizing the practice is backed by the governor, fertility groups and LGBTQ activists, but opposed by some feminists and the Roman Catholic Church.

On a September evening in 2015, six weeks before their twins’ due date, Michael and Melissa Musman got an urgent call from the surrogate carrying their children. The babies needed to come out, the surrogate said, and if the Musmans wanted to be there for their birth, they had to come right away.

The Musmans, both 43, live in New York, one of only three states that currently ban paid surrogacy contracts. As a result, residents of the state must look elsewhere if they want to hire a surrogate; the Musmans found theirs in Pennsylvania.

Hoping they could pull off the nearly 400-mile drive from Brooklyn to Pittsburgh in time, they quickly packed a suitcase, made arrangements for someone to watch their older child and started driving.

“We knew there would be a chance that we would not make the birth,” said Melissa Musman, a teacher who turned to surrogacy after radiation for tumors in her pelvis and abdomen compromised her fertility. “With Pittsburgh, it’s not around the corner.”

Still, the couple was hopeful. They were not new to surrogacy. Using an egg donor and Michael Musman’s sperm, they had their first child, Sean, via a surrogate in Peoria, Illinois, in October 2008. It took two planes to get to Peoria, but they had made it for his birth.

This time, as they drove through the night, their twins arrived via an emergency Cesarean section in an operating room hundreds of miles away.

Advocates say it’s a way of helping infertile and gay couples start families. But commercial surrogacy has a slew of detractors, many of whom say it amounts to women selling their bodies.

For decades, the detractors in New York prevented it from becoming legal. Now, New York is on the brink of changing its policy, with Gov. Andrew Cuomo, a Democrat, publicly declaring his support last weekend for a bill — called the Child-Parent Security Act — that would remove the ban. Cuomo also included the bill in his state budget proposal.

New York’s long-held resistance stems from a tumultuous surrogacy battle in neighboring New Jersey, known as the Baby M case. In 1985, a woman who was struggling financially, Mary Beth Whitehead, agreed to be a surrogate and be inseminated with sperm from William Stern, a man whose wife had multiple sclerosis, for $10,000.

by Elizabeth Chuck, NBCNews.com, February 7, 2019

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‘I Have to Stay Alive’: Gay Brazilian Lawmaker Gives Up Seat Amid Threats

An openly gay federal Brazilian lawmaker who has frequently clashed with the country’s new far-right president said on Thursday that he was giving up his seat because of death threats.

The lawmaker, Jean Wyllys, a fierce advocate for gay rights who was due to be sworn in for a third term in February, said in an interview with the newspaper Folha de S. Paulo that “this environment isn’t safe for me” after the assassination of a political ally last March and violence that followed the election of the president, Jair Bolsonaro, in October.

“For the future of this cause,” Mr. Wyllys said, “I have to stay alive. I don’t want to be a martyr.” He added that he was currently on vacation abroad and did not plan to return to Brazil.

Mr. Wyllys called Mr. Bolsonaro, a former colleague of his in the lower house of Congress, “a president who always vilified me, who always openly insulted me, who was always homophobic with me.”

In 2016, Mr. Wyllys responded by spitting at Mr. Bolsonaro during the hearing to impeach President Dilma Rousseff. Mr. Bolsonaro, before reinventing himself as a fighter of political corruption and rampant violence, was best known for delivering verbal attacks on women, black people and gay people from the congressional floor. 

Shortly after Mr. Wyllys’ interview was published, Mr. Bolsonaro, who was in Davos, Switzerland, for the World Economic Forum, tweeted “Great day!” and a thumbs-up emoticon. Supporters weighed in, many with homophobic comments.

Mr. Wyllys has been the target of death threats for years, but he said those threats had become more severe after Marielle Franco, a human rights advocate who was his friend and political ally, was assassinated.

NYTimes.com, January 25, 2019 by Shasta Darlington

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New York’s surrogacy laws may get a major update to be more inclusive of queer families – Child Parent Security Act

A broad coalition of organizations has come together to support the passage of the Child Parent Security Act this year.

The Child Parent Security Act would change New York law, allowing for better protections for those using modern reproductive strategies such as in vitro fertilization.

The law would legalize the right to use paid surrogates in the state. At current, New York only allows unpaid surrogacy while also declaring invalid any contracts between surrogates and parents. This puts both parents and surrogates at risk

“New York is known as a place where every type of family is welcome. Unfortunately, our state’s progressive ideals fall short when it comes to supporting LGBTQ people and so many others who want to become parents,” said Family Equality Council CEO Rev. Stan J. Sloan.

“New York’s outdated laws lag far behind most other states in easing the burden for families who rely on assisted reproductive technology to become parents. Fifty years after Stonewall, it’s time to protect all New York families.”

Calling themselves the Protecting Modern Families Coalition, the group is advocating on behalf of families who rely on medical advances to have families. The push to support the passage of the Child Parent Security Act is their first formal act.

The Family Equality Council formed the council. It is made up of eleven groups, including LGBTQ advocacy groups such as the Human Rights Campaign and Lambda Legal, plus other organizations like the American Society for Reproductive Medicine and the Union Theological Seminary. 

New York banned the use of paid surrogates in 1992, a reaction to New Jersey’s “Baby M.” case where a surrogate mother, Mary Beth Whitehead, had a change of heart and asserted her parental rights. The court ruled that the surrogacy contract Whitehead entered into with William and Elizabeth Stern was invalid. 

In the years since that case, both medical advances and societal change have driven a new look at surrogacy. The New York Department of Health’s Task Force on Life and the Laws recommended that the law be changed in December of 2017.

His husband died months after they were able to marry. He’s still fighting for Social Security benefits.

Before their wedding day, Michael Ely and James Taylor hardly ever held hands in public.

When they first started living together, more than four decades earlier and only two years after the Stonewall uprising, it was dangerous to be an openly gay couple. Homosexuality was still considered a mental illness by the American Psychiatric Association.Social Security Benefits

But surrounded by close friends on that day in November 2014, two weeks after Arizona began legally recognizing same-sex marriages, Ely and Taylor walked out of the Pima County courthouse holding hands as a married couple.

“I can’t even begin to tell you how that felt,” Ely said. “After that we started holding hands everywhere we went.”

Seven months later, Taylor died of liver cancer, and Ely was left mourning the loss of his partner of 43 years, a skilled guitarist who he always called “Spider.” Because Taylor, a structural mechanic for aerospace company Bombardier, was the main breadwinner for the couple, Ely was also left without an income.

And now, more than three years after his partner’s death, Ely still has not qualified for Social Security survivor’s benefits. The Social Security Administration requires that a couple be married for at least nine months before a spouse’s death for a widow to collect survivor’s benefits. Because Ely was only married to Taylor for seven months before he died, he is not eligible.

Last week, Lambda Legal, an LGBTQ legal advocacy organization, filed a lawsuit against the Social Security Administration on behalf of Ely, arguing that excluding surviving same-sex spouses from Social Security benefits based on the nine-month requirement violates their equal protection and due process rights under the Constitution.

“By denying same-sex couples an important benefit associated with marriage, that they paid for with their own taxes, the federal government is replicating the same harms of marriage inequality,” said Peter Renn, a lawyer with Lambda Legal. “They’re basically putting same-sex surviving spouses to an impossible test that they can’t meet.”

A spokesman with the Social Security Administration said the agency does not comment on pending litigation.

Ely is one of several same-sex surviving spouses across the country who have been denied social security benefits based on the nine-month requirement, Renn said. He could not estimate how many such cases exist, but said his office has received numerous calls from people in similar situations. He also anticipates more cases could emerge soon, now that spouses like Ely have exhausted all of their administrative options, appealing their cases through the Social Security Administration.

“People like Michael have been basically in administrative purgatory for a number of years,” Renn said.

Lambda Legal has also joined a lawsuit in New Mexico on behalf of Anthony Gonzales, whose husband Mark Johnson, a fifth-grade teacher, died of cancer in February 2014. Gonzales and Johnson were in a relationship for almost 16 years, and they got married on the first day they were legally allowed to do so in New Mexico — Aug. 27, 2013. But because their marriage lasted less than nine months, Gonzales has not been able to qualify for Social Security survivor’s benefits.

by Samantha Schmidt, Washingtonpost.com, November 28, 2018

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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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Sperm donor secrets emerge as Australia law erases anonymity

For Peter Peacock, fate arrived in the form of a registered letter.

The letter, at least initially, looked to be a bit of a letdown. Peacock had gone to the post office expecting the delivery of a big, furry aviator jacket he’d ordered online. And so it was with little fanfare that the Australian grandfather and retired cop tore the envelope open as he walked back to his car — at which point he stopped dead in his tracks.

“Dear Mr Peacock,” the letter began. “The Victorian Assisted Reproductive Treatment Authority (VARTA) has received an enquiry of a personal nature which may or may not relate to you. The matter concerns a record held in relation to a project you may have assisted with at Prince Henry’s Institute.”

Prince Henry’s? The Melbourne clinic where he’d donated sperm nearly 40 years ago?

There could be only one reason for such a letter, he thought. Someone out there had come to life through his donation.

His mind raced. How on earth was he going to tell everyone? How would he break it to his two grown daughters? And how could this person even know who he was? He had been promised that his donation would be anonymous.

And for decades it was, until a new law in one Australian state retroactively erased the anonymity of sperm and egg donors. Their offspring now have the legal right to know who they are.

Which is why a week after receiving that letter, Peacock found himself staring at a photograph of a woman named Gypsy Diamond, whose face looked so much like his own that he felt an instant and overwhelming connection. He gazed in wonder at her dark, almond-shaped eyes. His eyes.

“God almighty, I looked at it and I thought — ‘Bloody hell. I can’t deny that girl,’” he says. “She was my child from the start.”

By KRISTEN GELINEAU AP.com, August 2, 2018

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