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News

GLAD Praises Senate Passage of Bill to Make HIV-Prevention Pill Available at Pharmacies Without a Prescription

Urges House to act quickly to advance the Commonwealth’s goal of ending the HIV epidemic

Today, the Massachusetts Senate took a crucial step toward ending the HIV epidemic by passing “An Act enabling pharmacists to prescribe, dispense and administer PrEP” (S.2480).

“We’re grateful to Senator Cyr and Senate President Spilka for their unwavering commitment to removing barriers to PrEP access,” said Ben Klein, Senior Director of Litigation and HIV Law at GLBTQ Legal Advocates & Defenders (GLAD). “S.2480 is life-saving legislation that opens a new avenue to obtaining PrEP quickly and easily for people who have difficulty accessing health care.”

Sponsored by Sen. Julian Cyr, S.2480 expands access to HIV pre-exposure prophylaxis (PrEP)—a simple, safe medication that reduces the risk of HIV by close to 100 percent yet remains underutilized—by permitting pharmacists to dispense a 60-day supply without a prescription. The bill also requires pharmacists to link customers who receive a limited supply of PrEP to primary care for ongoing medication and monitoring.

By addressing disparities in access to critical HIV services and increasing access to the best tool available for preventing HIV transmission, S.2480 significantly advances the Commonwealth’s goal of ending the HIV epidemic.

“PrEP is a game-changing tool for ending the HIV epidemic, but it remains extremely underutilized,” added Klein. “In Massachusetts, only about one-third of all those for whom PrEP is indicated are currently using it, and the racial disparities in access, particularly among Black and Latinx communities, are especially shocking. Nationally just 13 percent of eligible Black individuals currently have access to this effective and potentially life-saving preventative. We commend the Senate for today’s vote and look forward to working with Rep. Jack Lewis, sponsor of the House’s version of the bill (H.2225), on moving this legislation on to final passage.”

PrEP access is under attack nationally. S.2480 is one of two bills GLAD is advocating for to increase access to PrEP in Massachusetts. The second, An Act to address barriers to HIV prevention medication” (S.619/H.1085), also sponsored by Senator Cyr and Rep. Lewis, would remove insurance barriers that prevent people from receiving PrEP in a timely and consistent manner. S.619/H.1085 would eliminate onerous prior authorization requirements that delay access and can mean the difference between prevention or transmission of HIV.

“Copays, deductibles and pre-authorization requirements all decrease utilization of PrEP. That means more HIV cases, more significant HIV-related illness and even death, and ever-widening racial health disparities,” Klein said. “We must aggressively use every tool in our arsenal to reduce transmission and PrEP is the most potent tool we have. Access to PrEP is an essential public health measure and we’re grateful to legislative leaders including Senator Cyr and Rep. Lewis who are demonstrating their deep commitment to ending the HIV epidemic in Massachusetts.”

Learn more about the bill

News

Update on the federal challenge to Alabama’s law banning medical care for transgender minors and access to care:

The most important thing to know is that the preliminary injunction blocking enforcement of Alabama’s law is still in effect and will remain in effect at least for the next two to three months, and possibly longer.

As you likely are aware, on August 21, 2023, a three-judge panel of the Eleventh Circuit issued a decision disagreeing with a ruling by a federal district court judge in Alabama blocking enforcement of Alabama’s criminal ban on the prescription or administration of puberty blockers or hormone therapy for transgender adolescents.  

Judge Burke issued his preliminary injunction last May, blocking any enforcement of Alabama’s law since that time.

The most important thing to know is that the preliminary injunction blocking enforcement of Alabama’s law is still in effect and will remain in effect at least for the next two to three months, and possibly longer.

Based on the ordinary legal process, an appellate decision reversing a preliminary injunction by a federal district court judge does not take effect immediately. The federal rules of civil procedure require that the plaintiffs be given 21 days to ask the entire court to review the decision (this is known as seeking rehearing en banc). The legal team representing the plaintiffs in Alabama intends to do so.  

Our petition for rehearing en banc must be filed by September 11. The preliminary injunction must remain in place until the Eleventh Circuit either denies that request or, if they accept the request and agree to review the panel decision, until they issue a decision.

While this process unfolds, the preliminary injunction remains in effect, which means the Alabama ban cannot be enforced. Medical providers in Alabama are continuing to provide care to transgender adolescents and will continue to provide care as long as the preliminary injunction is in effect.    

That said, depending on how the Eleventh Circuit rules, there may come a point at which the preliminary injunction is no longer in effect, so parents of transgender adolescents in Alabama should be prepared for that possibility as one they may have to face down the road. If that were to happen, the law does not bar parents from taking their children out of state to seek care, from getting prescriptions filled in Alabama, or from administering medications to their children. The law in Alabama applies only to doctors and other healthcare providers.

Please stay tuned for more updates, and feel free to reach out with any questions to any of our legal team organizations:

GLBTQ Legal Advocates & Defenders
Legal Help Line: www.GLADAnswers.org
Contact
: Amanda Johnston, ajohnston@glad.org

National Center for Lesbian Rights
Legal Help Line: www.nclrights.org/get-help
Contact
: Shannon Minter, sminter@nclrights.org

Human Rights Campaign
Legal Help Line: www.thehrcfoundation.org/impact-litigation-and-advocacy
Contact: Aryn Fields, aryn.fields@hrc.org

Southern Poverty Law Center
Contact: Kimberly Allen, kimberly.allen@splcenter.org

For direct help navigating care in Alabama, including 1-on-1 conversations about your family’s situation and emergency funding, contact the Southern Transgender Youth Emergency Project, a project of the Campaign for Southern Equality, led in Alabama in partnership with the Magic City Acceptance Center and Prism United. 

Parentage | Maine

What is the Maine Parentage Act?

The Maine Parentage Act (MPA) is a set of state laws that was passed in 2016 and strengthened in 2021. It clarified and expanded the ways someone can legally establish that they are the parents of a child. The MPA addresses who is able to, and how to, establish legal parentage. See: Title 19-A, §1851: Establishment of parentage

Specifically, the MPA ensures greater protections and equal treatment for children of LGBTQ+ parents. The law allows many LGBTQ+ parents to establish parentage through a simple form, an Acknowledgement of Parentage (AOP), ensuring LGBTQ+ parents are able to establish their legal relationship to their child immediately at birth or any time before the child turns 18. 

The MPA also extends an accessible path to parentage for children born through assisted reproduction and for children born through surrogacy.

What does parentage mean?

“Parentage” means that you are a legal parent of a child for all purposes. Parentage comes with a host of rights (e.g., decision-making for medical care or education, parenting time in the event of separation from your child’s other parent) as well as responsibilities (e.g., providing health insurance, providing for basic needs, payment of child support). A secure legal parent-child relationship is core to a child’s long-term stability and well-being.

Why is it important to establish parentage quickly?

Establishing parentage soon after birth ensures that a child is secured to their parents for all purposes and increases clarity for all involved in a child’s life. For example, established parentage will allow a parent to make any early medical decisions in a child’s life, ensure that a child will receive insurance benefits or inheritance rights, and protect parents’ parental rights if they separate.

How can Maine families establish parentage under the MPA?

The MPA provides that Mainers can establish their parentage in the following ways:

  • Giving birth (except for people acting as surrogates)
  • Adoption
  • Acknowledgement (by signing an Acknowledgement of Parentage)
  • Presumption (including the marital presumption)
  • Genetic connection (except for sperm or egg donors)
  • De facto parentage
  • Intended parentage through assisted reproduction
  • Intended parentage through a gestational carrier agreement
  • Adjudication (an order from a court)

Also, the Court may accept an admission of parentage that is made under penalty of perjury, or the Court may assign parentage to a party in default as long as the party was properly served notice of the proceeding (see 19-A MRS §1841 and §1842).

Who is an intended parent?

An intended parent is a person who consents to assisted reproduction with the intent to be a parent of the child or is an intended parent under a gestational carrier agreement. Ideally, a person who consents to assisted reproduction with the intent to be a parent will memorialize that intent in writing, but the law does allow other ways to prove intent to be a parent.

Who is a presumed parent?

A presumed parent is a non-birth parent that the law recognizes because of certain circumstances or relationships. A presumed parent is established as a legal parent through the execution of a valid Acknowledgement of Parentage, by an adjudication, or as otherwise provided in the MPA.

You are a presumed parent if any of the below are true:

  • You are married to the child’s birth parent when the child is born;
  • You were married to the child’s birth parent, and the child is born within 300 days of the marriage being terminated by death, annulment, or divorce;
  • You attempted to marry the child’s birth parent and the child is born during the invalid marriage or within 300 days of it being terminated by death, annulment or divorce;
  • You married the child’s parent after the child was born, asserted parentage and are named as a parent on the birth certificate; or
  • You resided in the same household with the child and openly held out the child as your own from the time the child was born or adopted for at least two years and assumed personal, financial or custodial responsibilities for the child.

Who is a de facto parent?

A de facto parent is a parent based on their relationship with the child. Establishing de facto parentage requires a judgment from a court. You can petition a court to establish your de facto parentage by demonstrating, with clear and convincing evidence that you have fully and completely undertaken a permanent, unequivocal, committed and responsible parental role in the child’s life. To make that finding a court must determine all of the following:

  1. You lived with the child for a significant amount of time;
  2. You consistently took care of the child;
  3. A bonded and dependent relationship has been established between the child and you, the relationship was fostered or supported by another parent of the child, and you and the other parent have understood, acknowledged or accepted that or behaved as though you are a parent of the child.
  4. You took full and permanent responsibility for the child without expectation of financial compensation;
  5. Continuing a relationship with the child is in the best interests of the child.

What is an Acknowledgement of Parentage?

Federal law requires states to provide a simple civil process for acknowledging parentage upon the birth of a child. That simple civil process is the Acknowledgement of Parentage program.

Federal regulations require states to provide an Acknowledgement of Parentage program at hospitals and state birth record agencies. Acknowledgement of Parentage forms themselves are short affidavits in which the person signing affirms that they wish to be established as a legal parent with all of the rights and responsibilities of parentage. The person who gave birth to the child must also sign the form, and both parents have to provide some demographic information about themselves.

By signing an Acknowledgement of Parentage, a person is established as a legal parent, and the child’s birth certificate is issued or amended to reflect that legal parentage. Properly executed, an Acknowledgement of Parentage has the binding force of a court order and should be treated as valid in all states.

How do I establish my parentage through an Acknowledgement of Parentage?

You can voluntarily acknowledge the parentage of a child by signing a form from the Maine Department of Health and Human Services known as an Acknowledgement of Parentage (AOP). An Acknowledgement of Parentage must be signed by the birth parent and the other parent (i.e., the person establishing parentage through the Acknowledgement of Parentage). The other parent can be the genetic parent (except for sperm or egg donors), an intended parent of a child born through assisted reproduction or a gestational carrier agreement, or a presumed parent (see definition of presumed parent above).

Signing an Acknowledgement of Parentage form is voluntary, and it can be done at the hospital soon after birth or until the child turns 18 by contacting the Maine Department of Health and Human Services. Here is a sample of the form, VS-27-A:  Acknowledgement OF PARENTAGE (AOP).

An Acknowledgement of Parentage form must be notarized.  To be valid, the people signing the form must be given oral and written notice explaining the legal consequences, rights, and responsibilities that arise from signing an Acknowledgement of Parentage. If either the birth parent or the non-birth parent does not want to sign this form to establish parentage for the non-birth parent, then either of them can try to have a court determine parentage.

If you have any questions about whether to sign an Acknowledgement of Parentage form, you should consult with a lawyer before signing. An Acknowledgement of Parentage is the equivalent of a court judgment of parentage, and parentage is a considerable, life-long responsibility. 

When can I not establish parentage through an Acknowledgement of Parentage?

  • A presumed parent who seeks to establish parentage in situations in which the other parent is not the child’s birth parent, e.g., the child was adopted by the other parent, must establish parentage through an adjudication and cannot establish parentage through an Acknowledgement of Parentage.
  • Parentage cannot be established through an Acknowledgement of Parentage if there is a third person who is a presumed parent, unless that person has filed a Denial of Parentage. 
  • A person who is establishing parentage based on residing with the child and holding out the child as the person’s child for the first two years of the child’s life cannot establish parentage through an Acknowledgement of Parentage until the child is two.

When can a parent sign an Acknowledgement of Parentage?

Acknowledgements of Parentage can be signed after the birth of a child, up until the child’s 18th birthday. An Acknowledgement of Parentage can also be completed before the child’s birth but will not take effect until the child is born.

How can an Acknowledgement of Parentage be rescinded?

If you aren’t married, and you signed an Acknowledgement Parentage, you have sixty days to go to court and rescind, or take back, that acknowledgement. If it has been more than 60 days since you filed the acknowledgement, but less than two years, you can still go to court to challenge the acknowledgement if:

  • You were lied to about being the parent;
  • You were forced or coerced into signing the Acknowledgement; or
  • You or the other parent were wrong on the facts that made you think you were the parent.

These same rules apply if you believe you are the parent, but someone else has acknowledged that they are the parent of the child.

You can’t challenge an acknowledgement after the child is two years old.

You will need to prove to the court that the person who acknowledged paternity is NOT the parent.

If you believe you are the parent of a child, but you had no way of knowing it when the child was born, you can challenge an acknowledgement of parentage. You have two years from the time you found out you might be the parent to challenge an Acknowledgement. This is the only situation where someone can challenge an Acknowledgement of Parentage that is more than two years old.

What if I am a non-biological parent? How can I establish myself as a legal parent?

The MPA has many provisions that protect non-biological parents. If you are your child’s presumed parent, or if you are the intended parent of a child born through assisted reproduction or a gestational carrier agreement or have a genetic connection (except for sperm or egg donors), you can establish parentage by signing an Acknowledgement of Parentage.

Some non-biological parents can establish parentage through the MPA’s de facto parent provisions, which require a court to adjudicate the person to be the child’s de facto parent.

How does the MPA help people conceiving through assisted reproduction?

The MPA provides important clarity and protections for children born through assisted reproduction (i.e., you did not have sexual intercourse or use a gestational carrier to conceive). The MPA confirms that a gamete donor (e.g., sperm or egg donor) is not a parent of a child conceived through assisted reproduction. Also, the MPA affirms that a person who consents to assisted reproduction with the intent to be a parent of the resulting child is a legal parent and can establish that parentage by signing an Acknowledgement of Parentage.

Does Maine require private health plans to provide coverage for fertility care?

Yes, Governor Janet Mills signed LD 1539, An Act to Provide Access to Fertility Care, on May 2, 2022, and the law applies to private health plans which are regulated by the Maine Bureau of Insurance that are issued or renewed on or after January 1, 2023. This includes employers who offer insured health plans. Some employers have self-insured plans, and these are not regulated by the Maine Bureau of Insurance.

The law requires all carriers who offer health plans in Maine to provide coverage for medical interventions including fertility diagnostic care, fertility treatment, and medically necessary fertility preservation. 

What is the difference between joint, second-parent (also known as co-parent) and single-parent adoptions?

A joint adoption is when both partners adopt a child together at the same time. A second-parent or co-parent adoption is when one partner adopts the other partner’s child. A single-parent adoption is when a single individual adopts a child. All three of these are legal in Maine.

If I am a parent who has signed an Acknowledgement of Parentage, do I also need to do a second parent adoption?

No. A parent who has signed an Acknowledgement of Parentage should not need to do a second parent adoption to establish parentage. An Acknowledgement of Parentage establishes legal parentage under state law, is the equivalent of a court judgment of parentage under state law and gives you all the rights and duties of a parent. Under federal law, an Acknowledgement of Parentage is the equivalent of a judicial decree of parentage and should be recognized in all states.

Since expanded access to Acknowledgements of parentage is an emerging development, some parents might feel more comfortable completing a second parent adoption in addition to or instead of an Acknowledgement of Parentage. To understand what is best for your family, individualized legal advice is recommended.

How does the MPA address surrogacy?

The MPA has comprehensive provisions about how to establish parentage through gestational carrier agreements. Before starting any medical procedures to conceive a child through a carrier process, you must have a written and signed agreement that meets all of the requirements of the statute. This agreement is between you, any other intended parents, the person acting as the surrogate, and that person’s spouse (if applicable). This agreement will establish that you are the parent(s) of the child and that the surrogate and their spouse (if applicable) do not have parental rights or duties

To enter into a surrogacy agreement, all of the following must be true:

  1. The surrogate must be at least 21 and have previously given birth to a child.
  2. All intended parents and the person acting as the surrogate must have completed a medical evaluation and mental health consultation, 
  3. The intended parent(s) and the person acting as the surrogate must be represented by separate lawyers for the purposes of the agreement, and the attorney for the person acting as the surrogate must be paid for by the intended parent(s).

The law requires surrogacy agreements to incorporate several terms to be valid, such as allowing a person acting as a surrogate to make their own health and welfare decisions during pregnancy and requiring the intended parent(s) to pay all related healthcare costs.

Can Mainers use genetically related gestational carriers?

Yes. If a carrier is a family member, they can serve as a gestational carrier using their own gametes or genetic material. Someone who is not a family member cannot be a genetic gestational carrier. Otherwise, the same laws, including the need for a valid agreement, apply to genetic and non-genetic carriers.

What if I am not married?

The MPA explicitly provides that every child has the same rights as any other child without regard to the marital status of the parents, or the circumstances of the child’s birth. By not differentiating between parents based on their marital status, the MPA aims to treat all Maine families equally.

What if I am transgender or non-binary?

The MPA explicitly provides that every child has the same rights as any other child without regard to the gender of the parents or the circumstances of the child’s birth. The MPA, by not including gendered terms such as mother or father, is inclusive of all genders. By not differentiating between parents based on their gender, the MPA aims to treat all Maine families equally.

Can a child have more than two legal parents?

Yes. Under the MPA, a court may determine that a child has more than two legal parents if the failure to do so would be detrimental to the child. To determine detriment to the child, courts will consider factors such as the nature of the potential parent’s relationship with the child, the harm to the child if the parental relationship is not recognized, the basis for each person’s claim of parentage of the child, and other equitable factors.

Where can I go if I need help resolving a parentage issue?

As with any family law issue, individualized legal advice is recommended. GLAD Answers can provide information as well as referrals to local practitioners. If you have questions about how to protect your family, contact GLAD Answers by filling out the form at GLAD Answers or call 800.455.4523 (GLAD).

News

On LGBTQ Families Day a New Report Calls for Updating State Parentage Laws to Protect Children and LGBTQ Families

Especially as LGBTQ families face growing threats across the country, we urgently need more states to pass comprehensive parentage reform to recognize contemporary families and protect all children, regardless of the circumstances of their birth.

– Polly Crozier, Director of Family Advocacy at GLBTQ Legal Advocates & Defenders

Five leading national organizations that advocate for LGBTQ families joined forces on a new report, Relationships at Risk: Why We Need to Update State Parentage Laws to Protect Children and Families: Movement Advancement Project (MAP), COLAGE, Family Equality, GLBTQ Legal Advocates & Defenders (GLAD), and NCLR.

The report details how the current patchwork of parentage laws across the country – many of which haven’t been updated in decades – leaves LGBTQ parents and their children vulnerable. Nearly 1 in 3 LGBTQ adults in the U.S. are raising children under the age of 18, many of them in states that still have outdated laws. This means that far too many children in LGBTQ families are potentially at risk.

Why Parentage Is So Important to Children and LGBTQ Families

Parentage is the legal relationship between a child and their parents, which is essential to children’s security and well-being. Parentage is crucial so that parents can make critical healthcare and education decisions for their children, and so that children have access to important benefits including insurance coverage, social security survivor benefits, and inheritance. Legal parentage also ensures a child does not lose their important connection to a parent in circumstances such as the death of one parent or the end of the parents’ relationship.

“All children, regardless of who their parents are, should be able to establish a secure legal tie to the parents who love and care for them. Yet, many states’ parentage laws are more than 40 years out of date. This leaves too many LGBTQ families navigating complicated and costly systems to safeguard their connections to their children,” said Naomi Goldberg, Deputy Director of MAP and the lead author of the report. 

State-By-State Examination of Parentage Laws Shows Many Are Out of Date and Out of Step with How Families Form

The report reviews the ways in which legal parentage may be established, which states have updated their laws, and in which states LGBTQ families remain at risk. Families form in many different ways. Yet despite the increasing number of LGBTQ families and the increasing number of all families formed through assisted reproduction, to date fewer than a dozen states have comprehensively updated their parentage laws to reflect the diverse ways today’s families form.

More than half of states lack clear, accessible, and equitable pathways for LGBTQ parents to establish parentage. As a result, many families face complicated, time-consuming, and costly processes to establish legal ties between parents and children. LGBTQ parents in many states must still undergo demeaning and unnecessary “home studies” to adopt their own children and spend thousands in legal costs to secure their parentage. And for many parents that cost, and access to the courts, is completely out of reach, leaving them at tremendous risk because their state has not updated its parentage laws. In the most heart-wrenching cases, children have been pulled into the child welfare system because a parent who loves and cares for them wasn’t recognized as a legal parent, and non-birth parents who planned for and raised their kids have been stripped of their parental rights because a court relied on outdated laws that fail to acknowledge the existence of same-gender parents.

“LGBTQ families are a part of every community across the country, yet many LGBTQ families still face expensive and demeaning barriers to providing legal security for their children,” said Stacey Stevenson, CEO of Family Equality. “Parents shouldn’t have to navigate a complicated legal system just to ensure their kids are protected.”

“LGBTQ families form through love, intention and care and children of LGBTQ parents, like all children, need and deserve to know their families are secure. Our laws should protect families, not create barriers to their stability,” said Jordan Budd, Executive Director of COLAGE. 

“We are seeing far too many heart-breaking examples of the discrimination that LGBTQ+ parents continue to face in the United States. When states and courts refuse to give LGBTQ families the same protections as other families, it leaves parents at risk of being shut out of their child’s life and children at risk of losing a parent who loves and cares for them,” said Nesta Johnson, NCLR Family Law Staff Attorney. 

Progress is Happening Across the Country to Update State Parentage Laws and to Protect LGBTQ Families

While detailing the importance of legal parentage and outlining the risks to LGBTQ families, the report also shows the path forward. It highlights states that have taken crucial steps to update their parentage laws in recent years, including Colorado, Connecticut, and Rhode Island–and states like Massachusetts, which has the opportunity right now to protect LGBTQ families.

“Families form in many ways and our laws must reflect that so children have equality and security. States like Maine, Vermont, Rhode Island, Connecticut and Colorado have led the way by updating their laws to ensure child-centered, equal, and accessible paths to legal parentage for all families, including LGBTQ families. Especially as LGBTQ families face growing threats across the country, we urgently need more states to pass comprehensive parentage reform to recognize contemporary families and protect all children, regardless of the circumstances of their birth,” said Polly Crozier, Director of Family Advocacy at GLBTQ Legal Advocates & Defenders (GLAD). 

Story spotlight: parents should not be at the mercy of chance

Outdated parentage laws can mean children don’t have their parents when they need them most, like during a medical crisis, as happened to parents Moira and Hillary.

When Moira underwent an emergency c-section and their daughter June was immediately rushed to the NICU, Hillary had no legal standing as a parent because their second-parent adoption was still pending. With Moira incapacitated and Hillary’s parental status unclear, neither parent was able to make medical decisions for June and the NICU staff were left to do what they thought was best. Thankfully they were kind enough to let Hillary be with June, but she knows that was not guaranteed.

“Had we been at a different hospital, or had we interacted with different staff,” Hillary says,” I might have been shut out entirely. Even though things worked out, parents like us should not be at the mercy of chance.”

Moira, Hillary and June’s story helped encourage the Rhode Island legislature to update their state parentage laws in 2020 to ensure other families don’t face that same uncertainty at a time of crisis.

About the Report

The report was authored by the Movement Advancement Project, in partnership with COLAGE, Family Equality, GLAD, and NCLR, with support from the Robert Wood Johnson Foundation. It is available online at: www.mapresearch.org/2023-parentage-report

Know Your Rights: LGBTQ Rights in Maine

Discrimination

Public Accommodations

Employment (jump to section)

Credit, Lending & Services (jump to section)

Housing (jump to section)

Violence & Harassment

Hate Crimes & Harassment (jump to section)

Intimate Partner Violence (jump to section)

Discrimination | Public Accommodations | Maine

Maine Public Accommodations Q&A

What is a place of public accommodation?

A place of public accommodation means a facility operated by a private or public entity whose operations fall into categories such as lodging, restaurants, entertainment, public gathering, retail stores, service establishments, transportation, museums, libraries, recreation facilities, exercise or health facilities, schools and educational institutions, social service establishments, or government buildings. Generally, any establishment that caters to, or offers its goods, facilities or services to, or solicits or accepts patronage from the general public is a place of public accommodation (5 Me. Rev. Stat. sec. 4553 (8) (definition of “public accommodation”)).

Does Maine have an anti-discrimination law protecting LGBTQ+ individuals from discrimination in places of public accommodation?

Yes. On November 8, 2005, Maine voters agreed to keep in place a law, LD 1196, “An Act to Extend Civil Rights Protections to All People Regardless of Sexual Orientation”, passed by the Legislature and signed by the Governor in the spring of 2005. The law went into effect on December 28, 2005.

The law provides protection against discrimination based on sexual orientation which is defined as “… a person’s actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression” (5 Me. Rev. Stat. sec. 4553 (9-C)).

These laws also prohibit discrimination against people living with HIV based on disability. For more information, see: HIV/AIDS – Know Your Rights – GLAD.

Does it also protect people perceived as LGBTQ+ in places of public accommodation?

Yes. The non-discrimination law specifically covers people who are perceived to be lesbian, gay, bisexual or transgender.

What does the law say about discrimination in places of public accommodation?

The law makes it illegal for places of public accommodation to discriminate on the basis of sexual orientation or “… in any manner withhold from or deny the full and equal enjoyment … of the accommodations, advantages, facilities, goods, services or privileges of public accommodation.”  The law also makes it illegal to advertise that any place of public accommodation is restricted to people of a particular sexual orientation (5 Me. Rev. Stat. sec. 4592 (1)).

How do I file a complaint of discrimination? What happens after I file?

You should contact the Maine Human Rights Commission (MHRC) at (207) 624-6050, or at State House Station #51, Augusta, ME 04333-0051, or on the web at http://www.state.me.us/mhrc/index.shtml. The Commission prefers for people to file complaints in writing. For an FAQ about this process, see: https://www.maine.gov/mhrc/about/faq.

The complaint must be under oath, state the name and address of the individual making the complaint as well as the entity he or she is complaining against (called the “respondent”). The complaint must set out the particulars of the alleged unlawful acts and the times they occurred (5 Me. Rev. Stat. sec. 4611).

Once a complaint is timely filed, a Commissioner or investigator will seek to resolve the matter. If he or she cannot do so, the Commission will proceed with an investigation to determine if there are reasonable grounds to believe that unlawful discrimination has occurred. The Commission has extensive powers during the course of the investigation. Among other things, it can examine persons, places and documents, and require attendance at a fact finding hearing, and issue subpoenas for persons or documents.

If the Commissioner or investigator concludes:

  • there are no reasonable grounds, then it will dismiss the case, and the complainant may file a new case in the Superior Court (See generally 5 Me. Rev. Stat. sec. 4612);
  • there are reasonable grounds, then it will try to resolve the matter through settlement (5 Me. Rev. Stat. sec. 4612).

Once the Commission process is complete, and if settlement has failed, a person can file an action for relief in court. A person may also request a “right to sue” letter from the MHRC if there has been no court action filed and no conciliation agreement in place within 180 days of filing the complaint (5 Me. Rev. Stat. sec. 4612 (6)). The person may then file an action in the Superior Court (5 Me. Rev. Stat. sec. 4621). In some situations, the Commission may file an action in court on your behalf (See generally 5 Me. Rev. Stat. sec. 4612).

Do I need a lawyer?

Not necessarily. The process is designed to allow people to represent themselves. However, GLAD strongly encourages people to find a lawyer to represent them throughout the process. Not only are there many legal rules governing the MHRC process, but the respondents will almost certainly have legal representation. GLAD Answers can provide referrals to attorneys in GLAD’s Lawyer Referral Service.

What are the deadlines for filing a complaint of discrimination?

A complaint must be filed with the MHRC within 300 days of the discriminatory act or acts (5 Me. Rev. Stat. sec. 4611). There are virtually no exceptions for lateness, and GLAD encourages people to move promptly in filing claims. Actions filed in Superior Court must generally be filed “not more than 2 years after the act of unlawful discrimination complained of” (5 Me. Rev. Stat. sec. 4613(2)(C)).

What are the legal remedies for discrimination?

This is a complicated area and depends on a variety of factors, including the type of discrimination and its intersection with federal laws.

As a general matter, the MHRC tries to resolve cases in which reasonable cause is found. It is not empowered to award emotional distress damages or attorney’s fees, but the parties may agree to whatever terms are mutually satisfactory for resolving the issue (94-348 Rules of Maine Human Rights Com’n secs. 2.07, 2.08. 2.09. Available at http://www.maine.gov/mhrc/laws/index.html).

As a general matter, if a person has filed with the MHRC, completed the process there, and later files his or her case in court, then a full range of compensatory and injunctive relief is available (5 Me. Rev. Stat. secs. 4613, 4614). If a discrimination complainant takes his or her case to court without first filing at the MHRC, then only injunctive relief is available in court, such as a cease and desist order, or an order to do training or post notices (5 Me. Rev. Stat. sec. 4622).

The relief ordered by a court may include: (a) hiring, reinstatement and back pay in employment cases; (b) an order to rent or sell a specified housing accommodation (or one that is substantially identical), along with damages of up to three times any excessive price demanded, and civil penal damages, to the victim in housing cases; and (c) in all cases, where the individual has exhausted the MHRC process, an order for attorney’s fees, civil penal damages, cease and desist orders, and other relief that would fulfill the purposes of the anti-discrimination laws (e.g. training programs, posting of notices).

Can I claim discrimination on a basis other than sexual orientation?

Yes, but only if you are treated differently because of a personal characteristic protected by Maine law.

In public accommodations, it is illegal to discriminate on the basis of race, color, sex, physical or mental disability, religion, ancestry or national origin, as well as sexual orientation (5 Me. Rev. Stat. sec. 4553 (8) (definition), 4592 (prohibition)).

Are there other options for filing a complaint for discrimination?

Possibly yes, depending on the facts of your particular situation.

State or Federal Court: After filing with the MHRC, a person may decide to remove his or her discrimination case from those agencies and file in court. There are rules about when and how this must be done.

What can I do to prepare myself before filing a complaint of discrimination?

Contact GLAD Answers by filling out the email form at GLAD Answers or by phone at 800-455-4523 (GLAD) to discuss options.

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful if you bring to your attorney an outline or diary of what happened. It is best if the information is organized by date and explains who the various players are (and how to get in touch with them), as well as what happened, who said what, and who was present for any important conversations or incidents. GLAD Answers can provide referrals to attorneys in GLAD’s Lawyer Referral Service.

Resources

For more information about the MHRC complaint process see:

For information about discrimination protections for people living with HIV, see: HIV/AIDS – Know Your Rights – GLAD.

Cases & Advocacy

To see Discrimination cases or advocacy which GLAD has been directly involved with in Maine, go to: Cases and Advocacy – GLAD and under “By Issue” click on “Discrimination” and under “By Location” click on “Maine.”

News & Press Releases

To see news and press releases about Discrimination in Maine, go to: News & Press Releases – GLAD and under “By Issue” click on “Discrimination” and under “By Location” click on “Maine.”

Employment | Discrimination | Maine

Maine Discrimination Q&A

Does Maine have an anti-discrimination law protecting LGBT individuals from discrimination in employment?

Yes. On November 8, 2005, Maine voters agreed to keep in place a law, LD 1196, “An Act to Extend Civil Rights Protections to All People Regardless of Sexual Orientation”, passed by the Legislature and signed by the Governor in the spring of 2005. The law went into effect December 28, 2005.

The law provides protection against discrimination based on sexual orientation which is defined as “… a person’s actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression” (5 Me. Rev. Stat. sec. 4553 (9-C)).

These laws also prohibit discrimination against people living with HIV based on disability. For more information, see: HIV/AIDS – Know Your Rights – GLAD.

Does it also protect people perceived as LGBT in employment?

Yes. The non-discrimination law specifically covers people who are perceived to be lesbian, gay, bisexual or transgender.

To whom does the non-discrimination law apply and what does it forbid?

The non-discrimination law applies to governmental employers (local and state) and private employers with any number of employees (5 Me. Rev. Stat. sec. 4553 (4) (definition of employer)). It forbids employers from refusing to hire, or discharging, or discriminating against the employee with respect to any employment matter, including hiring, tenure, promotion, transfer, compensation, terms, conditions or privileges of employment. Nor may an employer use any employment agency that discriminates (5 Me. Rev. Stat. sec. 4572 (1)(A)). Harassment based on sexual orientation is included within “terms and conditions” of employment.

Employment agencies may not refuse to: classify properly; refer their customers for employment; or otherwise discriminate because of sexual orientation. Labor organizations (e.g. unions) may not deny apprenticeship, membership or any membership rights or otherwise penalize or discriminate against their members because of sexual orientation (5 Me. Rev. Stat. sec. 4572 (1)(B) & (C)).

The law also forbids any employer, employment agency, or labor organization, prior to employment or membership, from eliciting or recording information about a person’s sexual orientation, printing any advertisement indicating any preference or limitation based on sexual orientation, or having a system of denying or limiting employment or membership opportunities based on sexual orientation (5 Me. Rev. Stat. sec. 4572 (1)(D)).

Does the law apply to every employer?

No, there is a religious exemption that provides:

“Employer” does not include a religious or fraternal corporation or association, not organized for private profit and in fact not conducted for private profit, with respect to employment of its members of the same religion, sect or fraternity, except for purposes of disability-related discrimination, in which case the corporation or association is considered to be an employer (5 Me. Rev. Stat. sec. 4553 (4) (definition of “employer”)).

This appears to mean that certain non-profit religious entities (not individuals) are exempt from the law, and a religious organization may require all applicants and employees to conform to the religious tenets of that organization (5 Me. Rev. Stat. sec. 4573-A (2)). The full scope of this exemption may be sorted out in specific court cases.

Does Maine law forbid sexual harassment?

Yes, sexual harassment is expressly prohibited by state law.

“Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of sexual nature constitute sexual harassment when:

  1. submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
  2. submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
  3. such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment” (94-348 Rules of Maine Human Rights Com’n, 3.06 I (1). Available at: http://www.maine.gov/mhrc/laws/index.html).

Both the United States Supreme Court and several state courts have found same-sex sexual harassment to violate sexual harassment laws. Compare Oncale v. Sundowner Offshore Services (9523 U.S. 75 (1998), man can sue for sexual harassment by other men under federal sexual harassment laws)) to Melnychenko v. 84 Lumber Co. (424 Mass. 285, 676 N.E.2d 45 (1997), (same-sex sexual harassment forbidden under Massachusetts state law)).

Are there any protections from sexual orientation harassment?

Yes. In September 2007, the Maine Human Rights Commission (MHRC) adopted amendments to its employment and housing rules that expressly acknowledged the existence of sexual orientation harassment (see generally 94-348 Me. Hum Rights Comm’n Reg. Ch. 3, § 3.12. Available at: http://www.maine.gov/mhrc/laws/index.html). Under these rules, unwelcome comments, jokes, acts, and other verbal or physical conduct on the basis of sexual orientation constitute harassment when:

  1. submission to this conduct is a condition of employment or a term of membership in a union;
  2. submission to or rejection of this conduct is used as a basis for a decision made by unions or employers that affect the individual;
  3. such conduct interferes or attempts to interfere with the individual’s work performance or creates an intimidating, hostile, or offensive working or union environment (94-348 Me. Hum Rights Comm’n Reg. Ch. 3, § 3.12 (1) (a) – (c). Available at: http://www.maine.gov/mhrc/laws/index.html).

Employers or labor organizations are responsible for their actions and for those of their employees with respect to sexual orientation harassment (94-348 Me. Hum Rights Comm’n Reg. Ch. 3, § 3.12 (2). Available at: http://www.maine.gov/mhrc/laws/index.html).

How do I file a complaint of discrimination? What happens after I file?

You should contact the Maine Human Rights Commission (MHRC) at (207) 624-6050, or at State House Station #51, Augusta, ME 04333-0051, or on the web at http://www.state.me.us/mhrc/index.shtml. The Commission prefers for people to file complaints in writing. For an FAQ about this process, see: https://www.maine.gov/mhrc/about/faq.

The complaint must be under oath, state the name and address of the individual making the complaint as well as the entity he or she is complaining against (called the “respondent”). The complaint must set out the particulars of the alleged unlawful acts and the times they occurred (5 Me. Rev. Stat. sec. 4611).

Once a complaint is timely filed, a Commissioner or investigator will seek to resolve the matter. If he or she cannot do so, the Commission will proceed with an investigation to determine if there are reasonable grounds to believe that unlawful discrimination has occurred. The Commission has extensive powers during the course of the investigation. Among other things, it can examine persons, places and documents, and require attendance at a fact finding hearing, and issue subpoenas for persons or documents.

If the Commissioner or investigator concludes:

  • there are  no reasonable grounds, it will dismiss the case, and the complainant may file a new case in the Superior Court (See generally 5 Me. Rev. Stat. sec. 4612);
  • there are reasonable grounds, it will try to resolve the matter through settlement (5 Me. Rev. Stat. sec. 4612).

Once the Commission process is complete, and if settlement has failed, a person can file an action for relief in court. A person may also request a “right to sue” letter from the MHRC if there has been no court action filed and no conciliation agreement in place within 180 days of filing the complaint (5 Me. Rev. Stat. sec. 4612 (6)). The person may then file an action in the Superior Court (5 Me. Rev. Stat. sec. 4621). In some situations, the Commission may file an action in court on your behalf (See generally 5 Me. Rev. Stat. sec. 4612).

Do I need a lawyer?

Not necessarily. The process is designed to allow people to represent themselves. However, GLAD strongly encourages people to find a lawyer to represent them throughout the process. Not only are there many legal rules governing the MHRC process, but employers and other respondents will almost certainly have legal representation. 

GLAD Answers can provide referrals to attorneys in GLAD’s Lawyer Referral Service.

What are the deadlines for filing a complaint of discrimination?

A complaint must be filed with the MHRC within 300 days of the discriminatory act or acts (5 Me. Rev. Stat. sec. 4611). There are virtually no exceptions for lateness, and GLAD encourages people to move promptly in filing claims. Actions filed in Superior Court must generally be filed “not more than 2 years after the act of unlawful discrimination complained of” (5 Me. Rev. Stat. sec. 4613(2)(C)).

What are the legal remedies for discrimination?

This is a complicated area and depends on a variety of factors, including the type of discrimination and its intersection with federal laws.

As a general matter, the MHRC tries to resolve cases in which reasonable cause is found. It is not empowered to award emotional distress damages or attorney’s fees, but the parties may agree to whatever terms are mutually satisfactory for resolving the issue (94-348 Rules of Maine Human Rights Com’n secs. 2.07, 2.08. 2.09. Available at http://www.maine.gov/mhrc/laws/index.html).

As a general matter, if a person has filed with the MHRC, completed the process there, and later files his or her case in court, then a full range of compensatory and injunctive relief is available (5 Me. Rev. Stat. secs. 4613, 4614). If a discrimination complainant takes his or her case to court without first filing at the MHRC, then only injunctive relief is available in court, such as a cease and desist order, or an order to do training or post notices (5 Me. Rev. Stat. sec. 4622).

The relief ordered by a court may include: 

(a) hiring, reinstatement and back pay in employment cases; 

(b) an order to rent or sell a specified housing accommodation (or one that is substantially identical), along with damages of up to three times any excessive price demanded, and civil penal damages, to the victim in housing cases; and 

(c) in all cases, where the individual has exhausted the MHRC process, an order for attorney’s fees, civil penal damages, cease and desist orders, and other relief that would fulfill the purposes of the anti-discrimination laws (e.g. training programs, posting of notices).

Can I claim discrimination on a basis other than sexual orientation?

Yes, but only if you are treated differently because of a personal characteristic protected by Maine law.

The present non-discrimination laws for employment forbid taking action against someone because of race, color, sex, physical or mental disability, religion, ancestry, national origin, age, or because a person previously filed a worker’s compensation claim, as well as sexual orientation (5 Me. Rev. Stat. sec. 4572. 44).

Can I also file a complaint a discrimination complaint with a federal agency?

Yes. Federal employment non-discrimination law, called Title VII, applies to employers with at least 15 employees. 

Someone who brings a claim of discrimination may sometimes pursue protections under both state and federal law. This is true because there may be overlapping provisions of state and federal law. For example, Title VII forbids employment discrimination based on race, sex, age, religion, and disability (which includes HIV status), but does not expressly forbid discrimination based on “sexual orientation” or “gender identity.”

However, in Bostock v. Clayton County, Georgia, No. 17-1618 (S. Ct. June 15, 2020, see: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf), the Supreme Court held that firing individuals because of their sexual orientation or transgender status violates Title VII’s prohibition on sex-based discrimination. For more information on how the EEOC enforces discrimination against LGBT employees, see: https://www.eeoc.gov/sexual-orientation-and-gender-identity-sogi-discrimination.

GLAD recommends that, where there may be overlapping state and federal jurisdiction, you explore filing with MCAD first but keep in mind the possibility of pursuing a federal claim as well. If you have a sexual orientation or gender identity complaint, you should check off “sex” as well as “sexual orientation” or “gender identity” as the bases for your claim and request that MCAD cross-file your complaint with the EEOC.

Federal complaints must be filed within 180 days of the discriminatory act with the Equal Employment Opportunity Commission (EEOC). However, if you initially institute your complaint with MCAD and indicate that you wish to have the complaint cross-filed with the EEOC, then the time limit is extended to the earlier of 300 days or 30 days after MCAD has terminated the case (34 United States Code 42 sec. 2000e-5(e)(1)). (People who work for federal agencies are beyond the scope of this publication).

Are there other options for filing a complaint for discrimination?

Possibly yes, depending on the facts of your particular situation.

  1. Union: If you are a member of a union, your contract (collective bargaining agreement) may provide additional rights to you in the event of discipline, discharge or other job-related actions. In fact, if you obtain relief under your contract, you may decide not to pursue other remedies. Get and read a copy of your contract and contact a union steward about filing a grievance. Deadlines in contracts are strict. Bear in mind that if your union refuses to assist you with a complaint, you may have a discrimination action against it for its failure to work with you, or for failure of duty of fair representation.
  2. State or Federal Court: After filing with the MHRC or EEOC, a person may decide to remove his or her discrimination case from those agencies and file in court. There are rules about when and how this must be done.
  3. If you want to file a civil action directly in Superior Court, and not have the Maine Human Rights Commission investigate your complaint, and if your complaint has been filed with the Commission for 180 days or more, you may ask for a Right-to-Sue letter. The Commission will issue you the letter, and immediately stop investigation of your complaint of discrimination. The deadline for filing a court action is the greater of either 2 years after the act of alleged discrimination or 90 days from a dismissal, right-to-sue letter, or failed conciliation.

In addition, a person may file a court case to address other claims that are not appropriately handled by discrimination agencies. For example:

  • If a person is fired in violation of a contract or fired without the progressive discipline promised in a handbook, or fired for doing something the employer doesn’t like but which the law requires, then these matters are beyond the scope of what the agencies can investigate and the matter can be pursued in court.
  • If a person has a claim for a violation of constitutional rights, such as a teacher or other governmental employee who believes his or her free speech or equal protection rights were violated, then those matters must be heard in court.

What can I do if my employer fires me for filing a complaint of discrimination?

It is illegal to retaliate in these circumstances, and the employee could file an additional complaint against the employer for retaliation. “Retaliation” protections cover those who participate in MHRC proceedings or otherwise oppose unlawful conduct, whether as a complainant or as a witness. If the employer takes action against an employee because of that conduct, then the employee can state a claim of retaliation (5 Me. Rev. Stat. sec. 4572 (1)(E). See also Provencher v. CVS Pharmacy, 76 Fair Empl.Prac.Cas. (BNA) 1569 (1st Cir.(N.H.) 1998) (upholding federal retaliation claim of gay man)).

What can I do to prepare myself before filing a complaint of discrimination?

Contact GLAD Answers by filling out the email form at https://www.glad.org/know-your-rights/glad-answers/ or by phone at 800-455-4523 (GLAD) to discuss options.

In evaluating your potential claims, you have the right to request a complete copy of your personnel file at any time (5 Me. Rev. Stat. sec. 7071 (Employee right to request personnel file)). Personnel files are the official record of your employment and are an invaluable source of information (5 Me. Rev. Stat. sec. 7070 (Definition of personnel record)).

Whether you leave a job voluntarily or not, be cautious about signing any documents admitting to wrongdoing, or that waive your legal rights, or that are a supposed summary of what you said in an exit interview. Sometimes employees are upset or scared at the time they are terminating employment, but the documents will likely be enforceable against you later. Please be cautious.

As a general matter, people who are still working under discriminatory conditions have to evaluate how filing a case will affect their job, and if they are willing to assume those possible consequences. Of course, even if a person has been fired, he or she may decide it is not worth it to pursue a discrimination claim. This is an individual choice which should be made after gathering enough information and advice to make an informed decision.

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful if you bring to your attorney an outline or diary of what happened on the job that you are complaining about. It is best if the information is organized by date and explains who the various players are (and how to get in touch with them), as well as what happened, who said what, and who was present for any important conversations or incidents. Try to obtain and bring copies of your employee handbooks or personnel manuals, any contracts, job evaluations, memos, discharge letters and the like.

GLAD Answers can provide referrals to attorneys in GLAD’s Lawyer Referral Service.

Resources

For more information about the MHRC complaint process see:

For information about discrimination protections for people living with HIV, see: https://www.glad.org/issues/hivaids/.

For more https://www.eeoc.gov/how-file-charge-employment-discrimination

Cases & Advocacy

To see Discrimination cases or advocacy which GLAD has been directly involved with in Maine, go to: https://www.glad.org/our-impact/cases/ and under “By Issue” click on “Discrimination” and under “By Location” click on “Maine.”

News & Press Releases

To see news and press releases about Discrimination in Maine, go to: https://www.glad.org/news/news-press/ and under “By Issue” click on “Discrimination” and under “By Location” click on “Maine.”

Discrimination | Credit, Lending & Services | Maine

Maine Credit, Lending & Services Q&A

Does Maine have an anti-discrimination law protecting LGBTQ+ individuals from discrimination in credit, lending and services?

Yes. On November 8, 2005, Maine voters agreed to keep in place a law, LD 1196, “An Act to Extend Civil Rights Protections to All People Regardless of Sexual Orientation”, passed by the Legislature and signed by the Governor in the spring of 2005. The law went into effect on December 28, 2005.

The law provides protection against discrimination based on sexual orientation which is defined as “… a person’s actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression” (5 Me. Rev. Stat. sec. 4553 (9-C)).

These laws also prohibit discrimination against people living with HIV based on disability. For more information, see: HIV/AIDS – Know Your Rights – GLAD.

Does it also protect people perceived as LGBTQ+ in credit, lending and services?

Yes.The non-discrimination law specifically covers people who are perceived to be lesbian, gay, bisexual or transgender.

How does the Maine anti-discrimination law protect people with regard to credit?

It is unlawful credit discrimination for any creditor to refuse the extension of credit to any person solely on the basis of sexual orientation (5 Me. Rev. Stat. sec. 4596). The law requires that the Superintendent of Financial Institutions and the Superintendent of Consumer Credit Protection cooperate with the Maine Human Rights Commission in enforcing the credit anti-discrimination law (5 Me. Rev. Stat. sec. 4598).

How do I file a complaint of discrimination? What happens after I file?

You should contact the Maine Human Rights Commission (MHRC) at (207) 624-6050, or at State House Station #51, Augusta, ME 04333-0051, or on the web at http://www.state.me.us/mhrc/index.shtml. The Commission prefers for people to file complaints in writing. For an FAQ about this process see: https://www.maine.gov/mhrc/about/faq.

The complaint must be under oath, state the name and address of the individual making the complaint as well as the entity he or she is complaining against (called the “respondent”). The complaint must set out the particulars of the alleged unlawful acts and the times they occurred (5 Me. Rev. Stat. sec. 4611).

Once a complaint is timely filed, a Commissioner or investigator will seek to resolve the matter. If he or she cannot do so, the Commission will proceed with an investigation to determine if there are reasonable grounds to believe that unlawful discrimination has occurred. The Commission has extensive powers during the course of the investigation. Among other things, it can examine persons, places and documents, and require attendance at a fact finding hearing, and issue subpoenas for persons or documents.

If the Commissioner or investigator concludes:

  • there are no reasonable grounds, then it will dismiss the case, and the complainant may file a new case in the Superior Court (See generally 5 Me. Rev. Stat. sec. 4612);
  • there are reasonable grounds, then it will try to resolve the matter through settlement (5 Me. Rev. Stat. sec. 4612).

Once the Commission process is complete, and if settlement has failed, a person can file an action for relief in court. A person may also request a “right to sue” letter from the MHRC if there has been no court action filed and no conciliation agreement in place within 180 days of filing the complaint (5 Me. Rev. Stat. sec. 4612 (6)). The person may then file an action in the Superior Court (5 Me. Rev. Stat. sec. 4621). In some situations, the Commission may file an action in court on your behalf (See generally 5 Me. Rev. Stat. sec. 4612).

Do I need a lawyer?

Not necessarily. The process is designed to allow people to represent themselves. However, GLAD strongly encourages people to find a lawyer to represent them throughout the process. Not only are there many legal rules governing the MHRC process, but banks and other respondents will almost certainly have legal representation. GLAD Answers can provide referrals to attorneys in GLAD’s Lawyer Referral Service.

What are the deadlines for filing a complaint of discrimination?

A complaint must be filed with the MHRC within 300 days of the discriminatory act or acts (5 Me. Rev. Stat. sec. 4611). There are virtually no exceptions for lateness, and GLAD encourages people to move promptly in filing claims. Actions filed in Superior Court must generally be filed “not more than 2 years after the act of unlawful discrimination complained of” (5 Me. Rev. Stat. sec. 4613(2)(C)).

What are the legal remedies for discrimination?

This is a complicated area and depends on a variety of factors, including the type of discrimination and its intersection with federal laws.

As a general matter, the MHRC tries to resolve cases in which reasonable cause is found. It is not empowered to award emotional distress damages or attorney’s fees, but the parties may agree to whatever terms are mutually satisfactory for resolving the issue (94-348 Rules of Maine Human Rights Com’n secs. 2.07, 2.08. 2.09. Available at http://www.maine.gov/mhrc/laws/index.html).

As a general matter, if a person has filed with the MHRC, completed the process there, and later files his or her case in court, then a full range of compensatory and injunctive relief is available (5 Me. Rev. Stat. secs. 4613, 4614). If a discrimination complainant takes his or her case to court without first filing at the MHRC, then only injunctive relief is available in court, such as a cease and desist order, or an order to do training or post notices (5 Me. Rev. Stat. sec. 4622).

The relief ordered by a court may include an order for attorney’s fees, civil penal damages, cease and desist orders, and other relief that would fulfill the purposes of the anti-discrimination laws (e.g. training programs, posting of notices).

Can I claim discrimination on a basis other than sexual orientation?

Yes, but only if you are treated differently because of a personal characteristic protected by Maine law.

In credit, in addition to sexual orientation and gender identity and expression, the protected characteristics are age, race, color, sex, ancestry, religion, national origin and marital status.

Are there other options for filing a complaint for discrimination?

Possibly yes, depending on the facts of your particular situation.

State or Federal Court: After filing with the MHRC a person may decide to remove his or her discrimination case from those agencies and file in court. There are rules about when and how this must be done.

Consumer Complaint Division: File a complaint with the Maine Consumer Complaint Division. For more information see: Bureau of Consumer Credit Protection.

Bureau of Financial Institutions: File a complaint with the Maine Bureau of Financial Institutions. For more information see: Complaints : Bureau of Financial Institutions 

What can I do to prepare myself before filing a complaint of discrimination?

Contact GLAD Answers by filling out the email form at  GLAD Answers or by phone at 1-800-455-4523 (GLAD) to discuss options.

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful if you bring to your attorney an outline or diary of what happened on the job that you are complaining about. It is best if the information is organized by date and explains who the various players are (and how to get in touch with them), as well as what happened, who said what, and who was present for any important conversations or incidents. GLAD Answers can provide referrals to attorneys in GLAD’s Lawyer Referral Service.

Resources

For more information about the MHRC complaint process see:

For information about discrimination protections for people living with HIV, see: HIV/AIDS – Know Your Rights – GLAD.

Cases & Advocacy

To see Discrimination cases or advocacy which GLAD has been directly involved with in Maine, go to: Cases and Advocacy – GLAD and under “By Issue” click on “Discrimination” and under “By Location” click on “Maine.”

News & Press Releases

To see news and press releases about Discrimination in Maine, go to: News & Press Releases – GLAD and under “By Issue” click on “Discrimination” and under “By Location” click on “Maine.”

Discrimination | Housing | Maine

Maine Housing Q&A

Does Maine have an anti-discrimination law protecting LGBTQ+ individuals from discrimination in housing?

Yes. On November 8, 2005, Maine voters agreed to keep in place a law, LD 1196, “An Act to Extend Civil Rights Protections to All People Regardless of Sexual Orientation”, passed by the Legislature and signed by the Governor in the spring of 2005. The law went into effect December 28, 2005.

The law provides protection against discrimination based on sexual orientation which is defined as “a person’s actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression” (5 Me. Rev. Stat. sec. 4553 (9-C)).

These laws also prohibit discrimination against people living with HIV based on disability. For more information, see: HIV/AIDS – Know Your Rights – GLAD.

Does it also protect people perceived as LGBTQ+ in housing?

Yes. The non-discrimination law specifically covers people who are perceived to be lesbian, gay, bisexual or transgender.

What is prohibited by the housing anti-discrimination law in Maine?

The fair housing laws apply to any person with the right to sell, rent, lease or manage residential housing. It covers any transaction related to housing—including advertising, inquiring, showing, selling, renting, leasing, pricing, evicting, misrepresenting availability or asking price, or failing to communicate an offer (5 Me. Rev. Stat. sec. 4582. See also “Panel backs 2 men in housing complaint,” Bangor Daily News, Sept. 18, 2007 (discusses first case where the Maine Human Rights Commission “found reasonable grounds to a housing discrimination claim based on sexual orientation”))

The law declares that every individual has a basic civil right to secure decent housing in accordance with the individual’s right to pay and without discrimination because of sexual orientation (5 Me. Rev. Stat. sec. 4581).

Those who finance housing— whether financing for the acquisition, construction, rehabilitation, repair or maintenance of residential housing— are barred from discriminating.

Are any landlords exempt from the housing anti-discrimination law?

The following landlords are exempt from the law:

  • an owner-occupied 2-family dwelling;
  • an owner-occupied single family dwelling that rents not more than 4 rooms; and
  • a dwelling owned, controlled, or operated for other than a commercial purpose by a religious corporation that rents to its membership (5 Me. Rev. Stat. sec. 4553 (6)).

How do I file a complaint of discrimination? What happens after I file?

You should contact the Maine Human Rights Commission (MHRC) at (207) 624-6050, or at State House Station #51, Augusta, ME 04333-0051, or on the web at http://www.state.me.us/mhrc/index.shtml. The Commission prefers for people to file complaints in writing. For an FAQ about this process, see: https://www.maine.gov/mhrc/about/faq.

The complaint must be under oath, state the name and address of the individual making the complaint as well as the entity he or she is complaining against (called the “respondent”). The complaint must set out the particulars of the alleged unlawful acts and the times they occurred (5 Me. Rev. Stat. sec. 4611).

Once a complaint is timely filed, a Commissioner or investigator will seek to resolve the matter. If he or she cannot do so, the Commission will proceed with an investigation to determine if there are reasonable grounds to believe that unlawful discrimination has occurred. The Commission has extensive powers during the course of the investigation. Among other things, it can examine persons, places and documents, and require attendance at a fact finding hearing, and issue subpoenas for persons or documents.

If the Commissioner or investigator concludes:

  • there are no reasonable grounds, it will dismiss the case, and the complainant may file a new case in the Superior Court (See generally 5 Me. Rev. Stat. sec. 4612);
  • there are reasonable grounds, it will try to resolve the matter through settlement (5 Me. Rev. Stat. sec. 4612).

Once the Commission process is complete, and if settlement has failed, a person can file an action for relief in court. A person may also request a “right to sue” letter from the MHRC if there has been no court action filed and no conciliation agreement in place within 180 days of filing the complaint (5 Me. Rev. Stat. sec. 4612 (6)). The person may then file an action in the Superior Court (5 Me. Rev. Stat. sec. 4621). In some situations, the Commission may file an action in court on your behalf (See generally 5 Me. Rev. Stat. sec. 4612).

Do I need a lawyer?

Not necessarily. The process is designed to allow people to represent themselves. However, GLAD strongly encourages people to find a lawyer to represent them throughout the process. Not only are there many legal rules governing the MHRC process, but landlords and other respondents will almost certainly have legal representation. Please call the GLAD Answers for help or for an attorney referral. GLAD Answers can provide referrals to attorneys in GLAD’s Lawyer Referral Service.

What are the deadlines for filing a complaint of discrimination?

A complaint must be filed with the MHRC within 300 days of the discriminatory act or acts (5 Me. Rev. Stat. sec. 4611). There are virtually no exceptions for lateness, and GLAD encourages people to move promptly in filing claims. Actions filed in Superior Court must generally be filed “not more than 2 years after the act of unlawful discrimination complained of” (5 Me. Rev. Stat. sec. 4613(2)(C)).

What are the legal remedies for discrimination?

This is a complicated area and depends on a variety of factors, including the type of discrimination and its intersection with federal laws.

As a general matter, the MHRC tries to resolve cases in which reasonable cause is found. It is not empowered to award emotional distress damages or attorney’s fees, but the parties may agree to whatever terms are mutually satisfactory for resolving the issue (94-348 Rules of Maine Human Rights Com’n secs. 2.07, 2.08. 2.09. Available at http://www.maine.gov/mhrc/laws/index.html.

As a general matter, if a person has filed with the MHRC, completed the process there, and later files his or her case in court, then a full range of compensatory and injunctive relief is available (5 Me. Rev. Stat. secs. 4613, 4614). If a discrimination complainant takes his or her case to court without first filing at the MHRC, then only injunctive relief is available in court, such as a cease and desist order, or an order to do training or post notices (5 Me. Rev. Stat. sec. 4622).

The relief ordered by a court may include: (a) hiring, reinstatement and back pay in employment cases; (b) an order to rent or sell a specified housing accommodation (or one that is substantially identical), along with damages of up to three times any excessive price demanded, and civil penal damages, to the victim in housing cases; and (c) in all cases, where the individual has exhausted the MHRC process, an order for attorney’s fees, civil penal damages, cease and desist orders, and other relief that would fulfill the purposes of the anti-discrimination laws (e.g. training programs, posting of notices).

Can I claim discrimination on a basis other than sexual orientation?

Yes, but only if you are treated differently because of a personal characteristic protected by Maine law.

In housing, the protected characteristics are race, color, sex, physical or mental disability, religion, ancestry, national origin or familial status, as well as sexual orientation (5 Me. Rev. Stat. sec. 4582).

Can I also file a discrimination complaint with a federal agency?

Yes. Persons who identify as LGBTQ+ and believe they have experienced housing discrimination because of their actual or perceived sexual orientation or gender identity can assert their rights under the Fair Housing Act by filing a complaint with the U.S. Department of Housing and Urban Development (HUD). You can find more detailed information about the protections HUD provides to LGBTQ+ people here: https://www.hud.gov/program_offices/fair_housing_equal_opp/housing_discrimination_and_persons_identifying_LGBTQ+

There is information about filing a housing discrimination complaint with HUD here: File a Complaint – Main Page | HUD.gov / US Department of Housing and Urban Development (HUD).

The form for submitting a complaint can be found here: https://www.hud.gov/sites/documents/DOC_12150.PDF

HUD views LGBTQ+ discrimination as a form of “sex” discrimination, so if you have a sexual orientation or gender identity complaint, you should indicate “sex” as the discrimination factor.

A HUD complaint must be filed within one year of the last act of discrimination. The statute of limitations for bringing fair housing complaints in federal courts is not later than two years after the occurrence or the termination of an alleged discriminatory housing practice. However, if an administrative case is filed with HUD, the statute of limitations is tolled during the period of time in which HUD is evaluating the complaint. In English, what that means is that the time HUD has the case does not count when calculating the two year statute of limitations.

Are there other options for filing a complaint for discrimination?

Possibly yes, depending on the facts of your particular situation.

State or Federal Court: After filing with the CHRO, HUD, or both, you may decide to remove your discrimination case from those agencies and file in court. There are rules about when and how this must be done. In addition, you may wish to bring a court case to address other claims which are not appropriately handled by discrimination agencies, e.g. if you landlord is not meeting his obligation to provide a safe living space.

What can I do to prepare myself before filing a complaint of discrimination?

Contact GLAD Answers by filling out the email form at GLAD Answers or by phone at 800-455-4523 (GLAD) to discuss options.

As a general matter, people who are still living under discriminatory conditions have to evaluate how filing a case will affect their housing, and if they are willing to assume those possible consequences. Of course, even if a person has been evicted, he or she may decide it is not worth it to pursue a discrimination claim. This is an individual choice which should be made after gathering enough information and advice to make an informed decision.

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful if you bring to your attorney an outline or diary of what happened. It is best if the information is organized by date and explains who the various players are (and how to get in touch with them), as well as what happened, who said what, and who was present for any important conversations or incidents. Bring a copy of your lease, along with any notices and letters you have received from your landlord. GLAD Answers can provide referrals to attorneys in GLAD’s Lawyer Referral Service.

Resources

For more information about the MHRC complaint process see:

For information about discrimination protections for people living with HIV, see: HIV/AIDS – Know Your Rights – GLAD.

For information about the HUD complaint process see:

Learn About the FHEO Complaint and Investigation Process | HUD.gov / US Department of Housing and Urban Development (HUD)

Cases & Advocacy

To see Discrimination cases or advocacy which GLAD has been directly involved with in Maine, go to: Cases and Advocacy – GLAD and under “By Issue” click on “Discrimination” and under “By Location” click on “Maine.”

News & Press Releases

To see news and press releases about Discrimination in Maine, go to: News & Press Releases – GLAD and under “By Issue” click on “Discrimination” and under “By Location” click on “Maine.”

Violence & Harassment | Hate Crimes & Harassment | Maine

Maine Hate Crimes Q&A

Does Maine have a hate crimes law?

Maine has a hate crimes law that permits consideration of the nature of the crime during the sentencing phase (17-A Me. Rev. Stat. sec. 1151 (8)(B)). If the defendant selected a person or his or her property for criminal activity because of, among other things, sexual orientation, then that fact can be taken into account. The law, however, does not include gender identity or expression among the factors to be taken into consideration upon sentencing.

Where can I call if I think I’ve been a victim of a hate crime?

In addition to the local police, you may contact the Attorney General’s Civil Rights Unit at (207) 626-8800, or online at Office of the Maine AG: Civil Rights.

What additional protections against hate crimes and harassment exist in Maine law?

  1. General Criminal Laws: Hate crimes are prosecuted under existing criminal laws, such as assault and battery, assault and battery with a dangerous weapon, murder, and so on. These generic laws do nothing to address the fact that an assault was hate-motivated, but they provide for criminal accountability, and the selection of a person (or his or her property) because of sexual orientation can then be considered in the sentencing phase.
  2. “Civil Rights Law”: On the civil side, Maine law provides for civil remedies when a person violates another person’s state or federal rights in certain circumstances (5 Me. Rev. Stat. sec. 4682). This provision, known as the “Maine Civil Rights Act” specifically states that a “person has the right to engage in lawful activities” without being subject to the infliction or threat of physical force or violence or the damage, destruction or trespass of property, motivated by reason of sexual orientation (5 Me. Rev. Stat. sec. 4684-A). Contact local law enforcement or the Attorney General’s office if you have been a victim under this law as the State is the primary enforcer of this statute. More specifically, the law allows a person to bring a private action against someone who uses or threatens physical force or violence, damages, destroys or trespasses on property, or threatens to damage, destroy or trespass on property in a manner that intentionally interferes or attempts to interfere with another person’s exercise or enjoyment of their rights under state or federal law (5 Me. Rev. Stat. sec. 4681). If those elements are met, then a person may bring an action for legal and equitable relief. Aside from the possibility of recovering money damages, equitable relief means that the person suing can obtain an order forbidding the attacker from coming near him or her, whether at home, at work, in school, or even from telephoning him or her. Actions must be brought within 6 years, although moving promptly is always an advantage (14 Me. Rev. Stat. sec. 752). In addition to whatever relief a restraining order may provide, it is also important that violation of a restraining order is a criminal offense that can be prosecuted. You should report any violations of a restraining order to local police, and keep careful records of any and all violations. The Attorney General’s Office also has the power to bring civil rights actions on behalf of people who are harassed or threatened (5 Me. Rev. Stat. sec. 4681). The contact information is listed above.
  3. Harassment Law: Maine law permits people to petition the District or Superior Court for an order preventing harassment (5 Me. Rev. Stat. sec. 4652). You need to be able to document at least three serious incidents of harassment. “Harassment” is defined as “any repeated act of intimidation, harassment, physical force or threat of physical force directed against any person, family, or their property or advocate with the intention of causing fear or intimidation or to deter free exercise or enjoyment of any rights or privileges secured by” the Constitution or laws of Maine or the United States. Under this law, a person may seek emergency orders, and later seek temporary orders, and ultimately seek final orders of protection. In addition, with final orders, a successful plaintiff may be awarded damages for direct losses caused by the harassment (e.g., lost earnings, property repair or replacement), reasonable moving expenses and court costs and attorney’s fees (5 Me. Rev. Stat. sec. 4655). Violation of a court restraining order is a criminal offense (5 Me. Rev. Stat. sec. 4659).

In what ways might the federal hate crimes law help to investigate and prosecute hate crimes?

The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (see H.R. 2647 at Text – S.909 – 111th Congress (2009-2010): Matthew Shepard Hate Crimes Prevention Act) was passed by Congress on October 22, 2009 and was signed into law by President Obama on October 28, 2009. It expands the 1969 United States federal hate crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity or disability.

First, and perhaps foremost, the Act allows local and state law enforcement agencies to apply for the following federal assistance from the U.S. Attorney General:

  • investigative, technical, forensic or prosecutorial support for criminal investigations and prosecutions,
  • grants for extraordinary expenses associated with the investigation and prosecution of hate crimes, and
  • grants to combat hate crimes committed by juveniles.

In providing assistance to local and state authorities, the priorities are hate crimes:

  • where the offender(s) has committed crimes in more than one state, or
  • that occur in rural areas which do not have the resources needed to prosecute such crimes.

Second, for hate crimes that in some way involve crossing state or national borders, or involve or affect interstate commerce, and where a state does not have jurisdiction or has requested federal assumption of jurisdiction, or where the federal government feels that justice has not been served or that U.S. prosecution is in the public interest, the Act authorizes the federal government to prosecute the case.

The Act also requires the Federal Bureau of Investigation to track statistics on hate crimes on the basis of gender and gender identity (statistics for the other groups are already tracked) and on crimes committed by and against juveniles. This is the first federal law to explicitly extend legal protections to transgender persons.

Does Maine have an anti-bullying law that protects public school students?

Yes. See the topic area “Rights & Protections” in the Issue Area “Youth.”

Resources

U.S. Department of Justice information about Maine Hate Crimes: Maine | HATECRIMES | Department of Justice.

For more information about the enforcement of civil rights in Maine, see this FAQ from the Office of the Attorney General: Office of the Maine AG: Civil Rights FAQ.

Cases & Advocacy

To see Violence & Harassment cases or advocacy which GLAD has been directly involved with in Maine, go to: Cases and Advocacy – GLAD and under “By Issue” click on “Violence & Harassment” and under “By Location” click on “Maine.”

News & Press Releases

To see news and press releases about Violence & Harassment in Maine, go to: News & Press Releases – GLAD and under “By Issue” click on “Violence & Harassment” and under “By Location” click on “Maine.”

Violence & Harassment | Intimate Partner Violence | Maine

Maine Intimate Partner Violence Q&A

What is domestic violence?

Domestic violence may take many forms. Generally, domestic violence is a pattern of coercive behavior in which one person attempts to control another through threats or actual use of tactics, which may include any or all of the following: physical, sexual, verbal and psychological abuse.

Under the law, “abuse” means that any of the following have occurred between people who are “family, household members or dating partners”:

  • Attempting to cause or causing bodily injury or offensive physical contact;
  • Attempting to place or placing another in fear of bodily injury through any course of conduct, including, but not limited to, threatening, harassing or tormenting behavior;
  • Compelling, by force, threat of force, or intimidation, a person to engage in conduct, such as causing another to engage involuntarily in sexual relations by force, or to abstain from conduct in which they have a right to engage;
  • Restricting another person’s movement, by knowingly removing them from home, work or school, or moving them a substantial distance from where they were found, or confining the person;
  • Placing a person in reasonable fear that a crime will be committed by threatening them or another person that they will be committing a crime of violence against the person; or
  • Repeatedly and without reasonable cause following a person or being in the vicinity of their work, school or home (19-A Me. Rev. Stat. sec. 4002(1)).

Do the domestic violence laws apply to people in same-sex relationships?

Generally, yes. The definition of “family, household members and dating partners” includes married couples, domestic partners or former domestic partners, people who are or have “liv[ed] together as spouses”, people who are sexual partners or are living together (or did so previously), as well as individuals currently or formerly dating each other, whether or not the individuals are or were sexual partners (19-A Me. Rev. Stat. sec 4002). The law applies equally to all people, but the application depends upon the nature of the relationship of the people involved.

How do I get a court order protecting me from an abusive partner?

To get protection, go to the District Court in the community where you live or where the abuser lives. The court clerk will have a packet of information for you to complete. There is no fee, and there is a means of keeping your address confidential from the public. You will have to allege abuse as defined above, and indicate where you think the abuser/defendant can be found so that he or she can be served with (given a copy of) the court papers. If the courts are closed, contact your local police who will locate a judge to help. On this basis, you may receive a temporary order of protection good for up to 21 days. In order for those orders to be enforceable, the police must serve a copy on the defendant/abuser, and a defendant cannot be arrested for violating orders if he or she has not been given a copy of them. The orders can restrain the defendant from coming near you or your children, keep the defendant away from your home, and/or place of employment or contacting you at all, and determine child custody issues on a short-term basis.

Violation of a protection order is a criminal offense (see generally 19-A Me. Rev. Stat. sec. 4001 et seq).

The temporary orders will indicate the date set for the court hearing at which you can try to extend your court orders. At this point, the defendant will tell his or her side of the story as well, and you can be called upon to answer questions. At this stage, both parties often have attorneys. If the Court determines the defendant has made a credible threat to the physical safety of you or a child in your household, the relief may be extended for up to two years.

If for some reason you decide not to go through with the order, it is important to show up in court on your assigned date and ask that the case be dismissed.

In addition, Maine’s harassment law described below may be useful for people who are experiencing harassment from a partner of the same sex.  An order preventing harassment can be taken out against anyone (5 Me. Rev. Stat. sec. 4651.  See also http://www.courts.state.me.us/publications-other/pa_ph-1207.pdf)

Where can I go to get help?

In Maine, local domestic violence projects across the state provide direct services to victims of domestic violence. The Maine Coalition to End Domestic Violence (MCEDV) is a coalition of the nine domestic violence projects in the state. There is a statewide domestic violence helpline at 866-834-HELP (4357). This number will direct victims to support centers in their county. These support centers also provide court advocacy. MCEDV maintains information for same-sex partners on their website at Maine Coalition to End Domestic Violence. 

In addition to the local police, there are several other hotlines and on-line resources:

Does domestic violence play a role in parental rights and responsibilities decisions?

Yes. It is a factor the court must consider in allocating parental rights and responsibilities, and courts may provide conditions upon an abuser seeing his or her children (see generally 19-A Me. Rev. Stat. sec. 1653 (6)).

Resources

MCEDV Publications and Reports: Publications & Reports | MCEDV | Augusta, Maine

Sexual Assault in the LGBTQ+ Community: Sexual Assault in the LGBTQ+ Community in Maine: You can get help | Pine Tree Legal Assistance

Elder Domestic and Sexual Abuse: Sexual & Domestic Abuse

NCADV Fact Sheet: Domestic Violence in MAINE

Cases & Advocacy

To see Violence & Harassment cases or advocacy which GLAD has been directly involved with in Maine, go to: Cases and Advocacy – GLAD and under “By Issue” click on “Violence & Harassment” and under “By Location” click on “Maine.”

News & Press Releases

To see news and press releases about Violence & Harassment in Maine, go to: News & Press Releases – GLAD and under “By Issue” click on “Violence & Harassment” and under “By Location” click on “Maine.”

Know Your Rights: HIV/AIDS Rights in Maine

Discrimination

Testing & Privacy (jump to section)

Other HIV-Related Laws (jump to section)

HIV/AIDS | Discrimination | Maine

Maine Discrimination Q&A

Does Maine have laws protecting people with HIV from discrimination?

Yes, Maine has enacted anti-discrimination laws protecting people with HIV from discrimination in employment, housing and public accommodations. In addition, there are a number of federal laws that protect people from discrimination based on their HIV status.

People with HIV are protected under laws that prohibit discrimination on the basis of disability. This includes the federal Americans with Disabilities Act (ADA),  and Maine disability & anti-discrimination laws.

Who is protected under anti-discrimination laws?

The following people are protected under the Maine Human Rights Act (MHRA) and the Americans with Disabilities Act (ADA):

  • People with AIDS or who are HIV-positive, even if they are asymptomatic and have no outward or manifest signs of illness.
  • People who are regarded or perceived as having HIV.
  • A person who does not have HIV, but who has a “relationship” or “associates” with a person with HIV—such as friends, lovers, spouses, roommates, business associates, advocates, and caregivers of a person or persons with HIV.

What laws protect people with HIV from discrimination in employment?

People with HIV are protected from employment-related discrimination under the MHRA1 and the federal ADA. Both of these statutes, which are almost identical, prohibit discrimination in employment on the basis of a person’s disability. Maine law covers state and private employers with one or more persons. The ADA covers employers with 15 or more employees.

The Rehabilitation Act of 1973 prohibits discrimination on the basis of disability in programs conducted by federal agencies, in programs receiving federal financial assistance, in federal employment and in the employment practices of federal contractors.

For more information about employment discrimination in Maine, see: Discrimination | Employment | Maine 

What do these anti-discrimination laws prohibit?

An employer may not take adverse action against an applicant or employee simply on the basis that the person has a disability such as HIV or AIDS. This means that an employer may not terminate, refuse to hire, rehire, or promote, or otherwise discriminate in the terms or conditions of employment, based on an individual’s HIV/AIDS status.

The focus here is whether a person with AIDS or HIV was treated differently than other applicants or employees in similar situations.

The following are examples of unlawful discrimination:

  • An employer may not refuse to hire a person with HIV based on fear that HIV will be transmitted to other employees or to customers.
  • An employer may not refuse to hire or make an employment decision based on the possibility, or even probability, that a person will become sick and will not be able to do the job in the future.
  • An employer cannot refuse to hire a person because it will increase health or workers’ compensation insurance premiums.

Can an employer in Maine ever require an applicant or employee to take an HIV test?

No, an employer may not require an applicant or an employee to submit to an HIV test or disclose HIV status as a condition of employment or to maintain employment.

There is an exception, however, permitting an employer to require an HIV test when based on a “bona fide occupational qualification.” There are few, if any, employment settings in which an employer could prevail in its view that an HIV test is based on a “bona fide occupational qualification.”

Nevertheless, one recent legal development merits special attention here. Some courts have ruled that HIV-positive health care workers who perform invasive procedures can be terminated from employment because of the risk of HIV transmission posed to patients. The AIDS Law Project believes that these cases have been wrongly decided. In light of these cases, however, it is critical that a healthcare worker obtain legal advice or assistance if an employer requires an HIV test as a condition of employment.

What may an employer ask about an employee’s health during the application and interview process?

Under the ADA and Maine law, prior to employment, an employer cannot ask questions that are aimed at determining whether an employee has a disability. Examples of prohibited pre-employment questions are:

  • Have you ever been hospitalized or under the care of a physician?
  • Have you ever been on workers’ compensation or received disability benefits?
  • What medications do you take?

After an offer of employment, can an employer require a medical exam? What guidelines apply?

After a conditional offer of employment, the ADA and Maine Law permit an employer to require a physical examination or medical history. The job offer, however, may not be withdrawn unless the results demonstrate that the person cannot perform the essential functions of the job with or without reasonable accommodation. The same medical inquiries must be made of each person in the same job category. In addition, these physical examination and medical history records must be segregated from personnel records, and there are strict confidentiality protections. After employment has begun, the ADA and Maine Law permit an employer to require a physical examination, only if it is job-related and consistent with business necessity.

How have the courts addressed fears that health care employees who perform invasive procedures, such as surgeons, will transmit HIV to patients?

The risk of HIV transmission from a health care worker to a patient is considered so small that it approaches zero. Nevertheless, in cases where hospitals have sought to restrict or terminate the privileges of HIV-positive health care workers who perform invasive procedures, courts have reacted with tremendous fear and have insisted on an impossible “zero risk” standard. As a result, the small number of courts that have addressed this issue under the ADA have upheld such terminations.

The employment provisions in the ADA provide that an employee is not qualified to perform the job if he or she poses a “direct threat to the health or safety of others.” To determine whether an employee poses a “direct threat,” a court analyzes:

  • The nature, duration and severity of the risk;
  • The probability of the risk; and
  • Whether the risk can be eliminated by reasonable accommodation.

In the case of HIV-positive health care workers, courts have ignored the extremely remote probability of the risk and instead have focused on the nature, duration and severity of the risk. The following excerpt from a recent case is typical of courts’ approach:

“We hold that Dr. Doe does pose a significant risk to the health and safety of his patients that cannot be eliminated by reasonable accommodation. Although there may presently be no documented case of surgeon-to-patient transmission, such transmission clearly is possible. And, the risk of percutaneous injury can never be eliminated through reasonable accommodation … Thus, even if Dr. Doe takes extra precautions … some measure of risk will always exist …” (Doe v. University of Maryland Medical System Corporation, 50 F.3d 1261 (4th Cir. 1995)).

It is important to note that only a small number of courts have addressed the rights of HIV-positive health care workers. The AIDS Law Project believes that these cases have been incorrectly decided and are inconsistent with the intent of Congress in passing the ADA. Because of the unsettled nature of the law in this area, a health care worker who is confronted with potential employment discrimination should consult a lawyer or public health advocate.

Assessing Discrimination by an Employer

While it may be useful to consult with a lawyer, the following steps can be helpful in beginning to consider and assess a potential employment discrimination problem.

  1. Consider the difference between unfairness and illegal discrimination. The bottom line of employment law is that an employee can be fired for a good reason, a bad reason, or no reason at all. A person can be legally fired for a lot of reasons, including a bad “personality match.” What they cannot be fired for is a discriminatory reason specifically outlawed by a statute.
  2. To prove a discrimination claim (i.e., that you were fired, demoted, etc. because of discrimination and not because of some legitimate reason), you must be able to show the following:
  • The employer knew or figured out that you are HIV-positive or have AIDS;
  • You were qualified to perform the essential functions of the job with or without reasonable accommodation; and
  • Adverse action was taken against you because of your HIV or AIDS status and the pretextual reason given by the employer for the adverse action is false.
  1. If your employer knows that you have HIV or AIDS, identify exactly who knows, how they know, and when they found out. If you have not told your employer, is there any other way the employer would know or suspect your HIV status?
  2. Consider the reasons why you believe that you are being treated differently because of HIV status, including the following areas: 
  • Have other employees in similar situations been treated differently or the same?
  • Has your employer followed its personnel policies? 
  • Did the adverse treatment begin shortly after the employer learned of your HIV status?
  • Have you been out of work due to illness for any period of time and did the adverse treatment begin upon your return to work?
  • What will your employer’s version of events be? How will you prove that the employer’s version is false?
  1. Do you have any difficulty fulfilling the duties of your job because of any HIV-related health or medical issue? Does your condition prevent full-time work, or require time off for medical appointments, lighter duties or a less stressful position? You might want to brainstorm to create a reasonable accommodation that you can propose to your employer.

Here are some points to consider:

  • How does the company operate and how would the accommodation work in practice?
  • Put yourself in your supervisor’s shoes. What objections might be raised to the requested reasonable accommodation? For example, if you need to leave at a certain time for medical appointments, who would cover your duties?

What Maine laws prohibit discrimination in housing?

It is illegal under both Maine law14 and the National Fair Housing Amendments of 198815 to discriminate in the sale or rental of housing on the basis of HIV status. A person cannot be evicted from an apartment because of his or her HIV or AIDS status, or because he or she is regarded as having HIV or AIDS.

In addition, a person cannot be discriminated against in housing because of their “association” with a person with HIV. This means a person cannot be discriminated against because their roommate, lover, friend, relative, or business partner has HIV.

For more information about housing discrimination in Maine, see: Discrimination | Housing | Maine 

Are there any exceptions to these laws?

Yes, exceptions to Maine law exist for the rental of a room in an owner occupied building where not more than 4 rooms are rented; and for two family owner occupied buildings. In addition, the Fair Housing Act exempts, in some circumstances, ownership-occupied buildings with no more than four units, single-family housing sold or rented without the use of a broker and housing operated by organizations and private clubs that limit the occupancy to members.

Does Maine law protect against discrimination by health care providers, business, and other public places?

Under the ADA and MHRA, it is unlawful to exclude a person with HIV from a public place (what the law refers to as a “place of public accommodation”) or to provide unequal or restricted services to a person with HIV in a public place. Under both statutes, the term “public accommodation” includes any establishment or business that offers services to the public. In addition, the Federal Rehabilitation Act of 19738 prohibits discrimination on the basis of disability in any agency or program that receives federal funding, including hospitals, medical or dental offices, and educational institutions.

Therefore, people with HIV are protected from discrimination in virtually every public place or business, including bars, restaurants, hotels, schools, vocational or other educational programs, taxi cabs, buses, airplanes and other modes of transportation, health clubs, hospitals and medical and dental offices, as long as these facilities are generally open to the public.

In addition, Maine law specifically prohibits discrimination in education based on disability.

For more information about public accommodations discrimination in Maine, see: Discrimination | Public Accommodations | Maine 

Is discrimination by health care professionals against people with HIV still a problem?

Believe it or not, yes, people with HIV still face discrimination by hospitals, doctors, dentists, and other health care providers. This discrimination can take the form of an outright refusal to provide medical services or an illegal referral because of a patient’s HIV status.

What types of arguments do doctors who discriminate against people with HIV make, and are they legitimate?

Doctors typically try to justify discrimination against people with HIV with one of two arguments:

  1. “Treating People with HIV is Dangerous” (Some doctors refuse to treat people with HIV based on an irrational fear of HIV transmission); and
  2. “Treating People with HIV Requires Special Expertise” (Some doctors refer patients to other medical providers based on an inaccurate belief that general practitioners are not qualified to provide care to patients with HIV).

Both an outright refusal to provide medical treatment and unnecessary referrals on the basis of a person’s disability are unlawful under the ADA and Maine law.

How have courts and medical experts responded to these arguments?

Courts and medical experts have responded to these arguments in the following ways:

  1. “Treating People with HIV is Dangerous”

Doctors and dentists may claim that a refusal to treat a patient with HIV is legitimate because they fear they might contract HIV themselves through needle sticks or other exposures to blood. However, studies of health care workers have concluded that risk of contracting HIV from occupational exposure is minuscule, especially with the use of universal precautions.

For this reason, in 1998, the United States Supreme Court ruled in the case Bragdon v. Abbott that health care providers cannot refuse to treat people with HIV based on concerns or fears about HIV transmission (524 U.S. 624 (1998)).

In addition to the legal perspective, both the American Medical Association and the American Dental Association, and many other professional health care organizations, have issued policies that it is unethical to refuse treatment to a person with HIV.

  1. “Treating People with HIV Requires Special Expertise”

In these cases, the merits of a discrimination claim depend upon whether, based on objective medical evidence, the services or treatment needed by the patient require a referral to a specialist or are within the scope of services and competence of the provider.

In United States v. Morvant, a federal trial court rejected a dentist’s claim that patients with HIV require a specialist for routine dental care (898 F. Supp. 1157 (E.D. La 1995)). The court agreed with the testimony of experts who said that no special training or expertise, other than that possessed by a general dentist, is required to provide dental treatment to people with HIV. The court specifically rejected the dentist’s arguments that he was unqualified because he had not kept up with the literature and training necessary to treat patients with HIV. While this case arose in the context of dental care, it is applicable to other medical settings as well.

What are the specific provisions of the ADA that prohibit discrimination by health care providers?

Under Title III of the ADA (42 U.S.C. §§ 12181-12188), it is illegal for a health care provider to:

  1. Establish “eligibility criteria” for the privilege of receiving medical services, which tend to screen out patients who have tested positive for HIV.
  2. Deny an HIV-positive patient the “full and equal enjoyment” of medical services or to deny an HIV-positive patient the “opportunity to benefit” from medical services in the same manner as other patients.
  3. Provide “different or separate” services to patients who are HIV-positive or fail to provide services to patients in the “most integrated setting.”
  4. Deny equal medical services to a person who is known to have a “relationship” or “association” to a person with HIV, such as a spouse, partner, child, or friend.

What specific health care practices constitute illegal discrimination against people with HIV?

Applying the specific provisions of the ADA above to the practice of health care, the following practices are illegal:

  • A health care provider cannot decline to treat a person with HIV based on a perceived risk of HIV transmission or because the physician simply does not feel comfortable treating a person with HIV.
  • A health care provider cannot agree to treat a patient only in a treatment setting outside the physician’s regular office, such as a special hospital clinic, simply because the person is HIV-positive.
  • A health care provider cannot refer an HIV-positive patient to another clinic or specialist, unless the required treatment is outside the scope of the physician’s usual practice or specialty. The ADA requires that referrals of HIV-positive patients be made on the same basis as referrals of other patients. It is, however, permissible to refer a patient to specialized care if the patient has HIV-related medical conditions which are outside the realm of competence or scope of services of the provider.
  • A health care provider cannot increase the cost of services to an HIV-positive patient in order to use additional precautions beyond the mandated OSHA and CDC infection control procedures. Under certain circumstances, it may even be an ADA violation to use unnecessary additional precautions which tend to stigmatize a patient simply on the basis of HIV status.
  • A health care provider cannot limit the scheduled times for treating HIV-positive patients, such as insisting that an HIV-positive patient come in at the end of the day.

What are some potential remedies for discrimination under federal law?

To pursue a claim under the Americans with Disabilities Act for employment discrimination, the employer must have at least 15 employees. A person must file a claim with the Equal Employment Opportunity Commission (EEOC) within 180 days of the date of the discriminatory act. A person may remove an ADA claim from the EEOC and file a lawsuit in state or federal court.

To pursue a claim under the Americans with Disabilities Act for discrimination in a place of public accommodation, a person may, without first going to an administrative agency, file a claim in state or federal court for injunctive relief only (i.e., seeking a court order that the discriminatory conduct cease). Money damages are not available for violation of Title III of the ADA unless they are sought by the United States Department of Justice. However, a person may recover money damages under the Federal Rehabilitation Act in cases against entities that receive federal funding.

To pursue a claim under the Rehabilitation Act, a person may file an administrative complaint with the regional office of the federal Department of Health and Human Services and/or file a lawsuit directly in court.

To pursue a claim under the National Fair Housing Act for discrimination in housing, a person may file a complaint with the United States Office of Housing and Urban Development within one year of the violation. A person may also bring a lawsuit within two years of the violation. A lawsuit may be filed whether or not a person has filed a complaint with HUD.

Resources

For more information about the MHRC complaint process see:

For information about filing a discrimination complaint under the ADA, see: 

Cases & Advocacy

To see HIV/AIDS cases or advocacy which GLAD has been directly involved with in Maine, go to: Cases and Advocacy – GLAD and under “By Issue” click on “HIV/AIDS” and under “By Location” click on “Maine.”

News & Press Releases

To see news and press releases about HIV/AIDS in Maine, go to: News & Press Releases – GLAD and under “By Issue” click on “HIV/AIDS” and under “By Location” click on “Maine.”

HIV/AIDS | Testing & Privacy | Maine

Maine Testing & Privacy Q&A

Does Maine have a law for governing informed consent for HIV testing?

Yes. Maine law mandates that an HIV test must be “voluntary and undertaken only with the patient’s knowledge that an HIV test is planned” (5 M.R.S.A §19203-A).

Maine, however, has eliminated its requirement that no HIV test may be conducted without a patient’s specific written informed consent.

The law now requires only that “[a] patient must be informed orally or in writing that an HIV test will be performed unless the patient declines”(5. M.R.S.A. §19203-A). While the title of § 19203-A is “voluntary informed consent required,” Maine’s law is not an informed consent system. Informed consent, whether oral or written, requires that a patient affirmatively assent before a test can be done. Current Maine law simply requires that a patient be notified that a test will occur and places the burden on the patient to opt out.)

The law also requires that the information given to patients before the test include the meaning of positive and negative test results. In addition, the patient must have the opportunity to ask questions.

Maine law authorizes anonymous HIV testing sites (5 M.R.S.A. §19203-B).

Health insurers or healthcare plans requiring an HIV test must still obtain written informed consent to perform an HIV test (5 M.R.S.A. §19203-A (2)).

In addition, Maine law prohibits a health care provider from denying medical treatment solely because an individual has refused consent to an HIV test (5 M.R.S.A. § 19203-A (3)).

What information should a person receiving HIV testing be given?

In 2007, in order to streamline testing procedures, Maine eliminated mandatory pre-test counseling for an HIV test. Patients who test positive for HIV, however, must be offered post-test counseling, unless the patient declines by signing a waiver. The counseling must at a minimum include:

  • The reliability and significance of the test results.
  • Information about preventive practices and risk reduction.
  • Referrals for medical care and support services, as needed (5 M.R.S.A. § 19204-A).

A provider must offer face-to-face post-test counseling, but may provide an alternative means of providing the information if the client declines face-to-face counseling. In addition, a written memorandum summarizing the contents of the post-test counseling information must be provided to the client.

Can a physician test a minor for HIV without consent of a parent or guardian?

A physician may test a minor for HIV without obtaining the consent of the minor’s parent or guardian (32 MRSA § 3292 permits a physician to provide medical treatment for venereal disease to a minor without parental consent. The Maine Department of Human Services has classified HIV as a venereal disease).

In addition, a physician is not obligated to, but may, inform the minor’s guardian or parent of any medical treatment rendered, including HIV test results.

If confidentiality is important to you, it is a good idea to talk to your doctor up front and understand his or her policies on this issue.

Are there specific requirements for the testing of pregnant people?

All pregnant women must be informed orally or in writing that an HIV test will be included in the standard panel of prenatal medical tests, unless the woman declines HIV testing. In addition, a health care provider is mandated to test a newborn for HIV within 12 hours of birth if the health care provider does not know the mother’s HIV status or “believes that HIV testing is medically necessary.” There is an exception to such newborn testing if the parent asserts an objection based on religious or conscientious beliefs.(5 M.R.S.A. § 19203-A(6))

Are there circumstances where Maine law permits HIV testing a person against their wishes?

Yes, Maine law permits involuntary HIV testing in certain limited circumstances, such as testing of a person convicted of a sexual assault crime, and of the source of an occupational exposure.

Are there state laws that protect the privacy of medical information, including HIV?

Maine law prohibits the disclosure of HIV test results to anyone other than the subject of the test without the subject’s authorization. (5 M.R.S.A. § 19203.)

When a medical record contains a person’s HIV status, the patient must elect in writing whether to authorize the release of that portion of the medical record. (5 M.R.S.A. § 19203-D.)

A health care provider who has been designated by the subject of the test to receive HIV test result information may make the results available only to other health care providers working directly with the patient and only for purposes of providing direct medical or dental patient care (5 M.R.S.A. § 19203 (2)).

Are there exceptions to these privacy protections?

HIV status can still be shared in the event of a medical emergency or certain limited threats to others.

Does a person with HIV have a Constitutional right to privacy?

Yes, many courts have found that a person has a constitutional privacy right to the nondisclosure of HIV status. Courts have based this right on the Due Process Clause of the U.S. Constitution, which creates a privacy interest in avoiding disclosure of certain types of personal information.

The constitutional right to privacy can only be asserted when the person disclosing the information is a state or government actor— e.g. police, prison officials, or doctors at a state hospital.

How do courts determine if a person’s constitutional right to privacy has been violated?

To determine whether there has been a violation of this right to privacy, courts balance the nature of the intrusion into a person’s privacy against the weight to be given to the government’s legitimate reasons for a policy or practice that results in disclosure.

Remedy for Unlawful HIV Testing or Disclosure

A person who violates Maine law regarding HIV testing or the confidentiality of HIV test results is liable to the subject for actual damages and costs plus a civil penalty of up to $1,000 for a negligent violation and $5,000 for an intentional violation (5 M.R.S.A. § 19206).

Does Maine have reporting laws that require HIV or AIDS diagnoses to be reported to the Maine Department of Health and Human Services?

Yes. All states require that certain health conditions be reported to public health authorities in order to track epidemiological trends and develop effective prevention strategies. Maine requires that healthcare providers and facilities report the names of individuals diagnosed with AIDS or HIV to the Department of Health and Human Services within 48 hours of the diagnosis (Department of Health and Human Services, Maine Center for Disease Control & Prevention, Chapter 258 (Rules for the Control of Notifiable Disease Conditions), 10-144). Information is kept confidential and may not be disclosed except as permitted by 5 M.R.S.A. § 19203 (Maine’s law on confidentiality of HIV tests).

Cases & Advocacy

To see HIV/AIDS cases or advocacy which GLAD has been directly involved with in Maine, go to: Cases and Advocacy – GLAD and under “By Issue” click on “HIV/AIDS” and under “By Location” click on “Maine.”

News & Press Releases

To see news and press releases about HIV/AIDS in Maine, go to: News & Press Releases – GLAD and under “By Issue” click on “HIV/AIDS” and under “By Location” click on “Maine.”

HIV/AIDS | Other HIV-Related Laws | Maine

What does it mean that an employer may have to provide a “reasonable accommodation” for an employee with a disability?

Persons with disabilities, such as HIV/AIDS, may experience health-related problems that make it difficult to meet some job requirements or duties. For example, a person may be exhausted or fatigued and find it difficult to work a full-time schedule.

In certain circumstances, the employer has an obligation to modify or adjust job requirements or workplace policies in order to enable a person with a disability, such as HIV or AIDS, to perform the job duties. This is known as a “reasonable accommodation.”

Examples of reasonable accommodations include:

  • Modifying or changing job tasks or responsibilities;
  • Establishing a part-time or modified work schedule;
  • Permitting time off during regular work hours for medical appointments;
  • Reassigning an employee to a vacant job; or
  • Making modifications to the physical layout of a job site or acquiring devices such as a telephone amplifier to allow, for example, a person with a hearing impairment to do the job.

How can a person get a reasonable accommodation?

It is, with rare exception, the employee’s responsibility to initiate the request for an accommodation. In addition, an employer may request that an employee provide some information about the nature of the disability. Employees with concerns about disclosing HIV/AIDS status to a supervisor should contact GLAD Answers.

There is no fixed set of accommodations that an employee may request. The nature of a requested accommodation will depend on the particular needs of an individual employee’s circumstances.

Does an employer have to grant a request for a reasonable accommodation?

No, an employer is not obligated to grant each and every request for an accommodation. An employer does not have to grant a reasonable accommodation that will create an “undue burden” (i.e., significant difficulty or expense for the employer’s operation). In addition, the employer does not have to provide a reasonable accommodation if the employee cannot perform the job function even with the reasonable accommodation.

When is a “reasonable accommodation” for an employee an “undue burden” for an employer?

In determining whether a requested accommodation creates an undue burden or hardship for an employer, courts examine a number of factors, which include:

  • The employer’s size, budget and financial constraints;
  • The costs of implementing the requested accommodation; and
  • How the accommodation affects or disrupts the employer’s business.

Again, each situation is examined on a case-by-case basis.

An employer only has an obligation to grant the reasonable accommodation if, as a result of the accommodation, the employee is then qualified to perform the essential job duties. An employer does not have to hire or retain an employee who cannot perform the essential functions of the job, even with a reasonable accommodation.

Can a physician in Maine require an HIV test as a prerequisite for treatment?

No, a health care provider may not deny treatment or care based on the refusal to consent to HIV testing.

What are Maine laws regarding the purchase and possession of needles?

Under Maine law, a person who is 18 years of age or older may purchase a “hypodermic apparatus,” such as a hypodermic syringe and needle, from a pharmacist and other authorized sellers.

An individual, however, may not lawfully purchase or possess more than ten “hypodermic apparatuses” at any one time, unless otherwise authorized by law (such as a physician acting within the scope of employment).

Does Maine allow needle exchange programs?

Yes. Maine law authorizes the Maine Center for Disease Control and Prevention to certify needle exchange programs.  There is no limit on the number of hypodermic needles participants in these programs may possess.

Does Maine allow access to PrEP and PEP without a prescription?

Yes, in June 18, 2021, Governor Janet Mills signed LD 1115, An Act to Improve Access to HIV Prevention Medications, which expands access to a simple, safe, and effective medication known as HIV pre-exposure Prophylaxis (PrEP) that reduces the risk of HIV transmission by close to 100%. The new law authorizes pharmacists to dispense PrEP, as well as HIV Post- exposure Prophylaxis (PEP), without a prescription on a short-term basis.

For more information, see: Maine Becomes a Leader in Pharmacy Access to Effective HIV Prevention Drug – GLAD

Does Maine have a law that prohibits insurance companies from discriminating against some who is taking PrEP?

Yes, in 2019 the Maine Insurance Code was amended to prohibit discrimination under a life, disability income or long-term care insurance policy due to the fact that the individual has been prescribed preexposure prophylaxis medication to prevent HIV infection. For more information, see Title 24-A, §2159: Unfair discrimination — life insurance, annuities and health insurance .

Resources

Here is a list of HIV/AIDS organizations in Maine where you can get support and information: HIV Prevention, Outreach, and Education – HIV, STD, and Viral Hepatitis; MeCDC DHHS Maine 

Cases & Advocacy

To see HIV/AIDS cases or advocacy which GLAD has been directly involved with in Maine, go to: Cases and Advocacy – GLAD and under “By Issue” click on “HIV/AIDS” and under “By Location” click on “Maine.”

News & Press Releases

To see news and press releases about HIV/AIDS in Maine, go to: News & Press Releases – GLAD and under “By Issue” click on “HIV/AIDS” and under “By Location” click on “Maine.”

Know Your Rights: Family Rights in Maine

Parenting

Relationships (jump to section)

Family | Parenting | Maine

What is the Maine Parentage Act?

The Maine Parentage Act (MPA) is a set of state laws that was passed in 2016 and strengthened in 2021. It clarified and expanded the ways someone can legally establish that they are the parents of a child. The MPA addresses who is able to, and how to, establish legal parentage. See: Title 19-A, §1851: Establishment of parentage

Specifically, the MPA ensures greater protections and equal treatment for children of LGBTQ+ parents. The law allows many LGBTQ+ parents to establish parentage through a simple form, an Acknowledgement of Parentage (AOP), ensuring LGBTQ+ parents are able to establish their legal relationship to their child immediately at birth or any time before the child turns 18. 

The MPA also extends an accessible path to parentage for children born through assisted reproduction and for children born through surrogacy.

What does parentage mean?

“Parentage” means that you are a legal parent of a child for all purposes. Parentage comes with a host of rights (e.g., decision-making for medical care or education, parenting time in the event of separation from your child’s other parent) as well as responsibilities (e.g., providing health insurance, providing for basic needs, payment of child support). A secure legal parent-child relationship is core to a child’s long-term stability and well-being.

Why is it important to establish parentage quickly?

Establishing parentage soon after birth ensures that a child is secured to their parents for all purposes and increases clarity for all involved in a child’s life. For example, established parentage will allow a parent to make any early medical decisions in a child’s life, ensure that a child will receive insurance benefits or inheritance rights, and protect parents’ parental rights if they separate.

How can Maine families establish parentage under the MPA?

The MPA provides that Mainers can establish their parentage in the following ways:

  • Giving birth (except for people acting as surrogates)
  • Adoption
  • Acknowledgement (by signing an Acknowledgement of Parentage)
  • Presumption (including the marital presumption)
  • Genetic connection (except for sperm or egg donors)
  • De facto parentage
  • Intended parentage through assisted reproduction
  • Intended parentage through a gestational carrier agreement
  • Adjudication (an order from a court)

Also, the Court may accept an admission of parentage that is made under penalty of perjury, or the Court may assign parentage to a party in default as long as the party was properly served notice of the proceeding (see 19-A MRS §1841 and §1842).

Who is an intended parent?

An intended parent is a person who consents to assisted reproduction with the intent to be a parent of the child or is an intended parent under a gestational carrier agreement. Ideally, a person who consents to assisted reproduction with the intent to be a parent will memorialize that intent in writing, but the law does allow other ways to prove intent to be a parent.

Who is a presumed parent?

A presumed parent is a non-birth parent that the law recognizes because of certain circumstances or relationships. A presumed parent is established as a legal parent through the execution of a valid Acknowledgement of Parentage, by an adjudication, or as otherwise provided in the MPA.

You are a presumed parent if any of the below are true:

  • You are married to the child’s birth parent when the child is born;
  • You were married to the child’s birth parent, and the child is born within 300 days of the marriage being terminated by death, annulment, or divorce;
  • You attempted to marry the child’s birth parent and the child is born during the invalid marriage or within 300 days of it being terminated by death, annulment or divorce;
  • You married the child’s parent after the child was born, asserted parentage and are named as a parent on the birth certificate; or
  • You resided in the same household with the child and openly held out the child as your own from the time the child was born or adopted for at least two years and assumed personal, financial or custodial responsibilities for the child.

Who is a de facto parent?

A de facto parent is a parent based on their relationship with the child. Establishing de facto parentage requires a judgment from a court. You can petition a court to establish your de facto parentage by demonstrating, with clear and convincing evidence that you have fully and completely undertaken a permanent, unequivocal, committed and responsible parental role in the child’s life. To make that finding a court must determine all of the following:

  1. You lived with the child for a significant amount of time;
  2. You consistently took care of the child;
  3. A bonded and dependent relationship has been established between the child and you, the relationship was fostered or supported by another parent of the child, and you and the other parent have understood, acknowledged or accepted that or behaved as though you are a parent of the child.
  4. You took full and permanent responsibility for the child without expectation of financial compensation;
  5. Continuing a relationship with the child is in the best interests of the child.

What is an Acknowledgement of Parentage?

Federal law requires states to provide a simple civil process for acknowledging parentage upon the birth of a child. That simple civil process is the Acknowledgement of Parentage program.

Federal regulations require states to provide an Acknowledgement of Parentage program at hospitals and state birth record agencies. Acknowledgement of Parentage forms themselves are short affidavits in which the person signing affirms that they wish to be established as a legal parent with all of the rights and responsibilities of parentage. The person who gave birth to the child must also sign the form, and both parents have to provide some demographic information about themselves.

By signing an Acknowledgement of Parentage, a person is established as a legal parent, and the child’s birth certificate is issued or amended to reflect that legal parentage. Properly executed, an Acknowledgement of Parentage has the binding force of a court order and should be treated as valid in all states.

How do I establish my parentage through an Acknowledgement of Parentage?

You can voluntarily acknowledge the parentage of a child by signing a form from the Maine Department of Health and Human Services known as an Acknowledgement of Parentage (AOP). An Acknowledgement of Parentage must be signed by the birth parent and the other parent (i.e., the person establishing parentage through the Acknowledgement of Parentage). The other parent can be the genetic parent (except for sperm or egg donors), an intended parent of a child born through assisted reproduction or a gestational carrier agreement, or a presumed parent (see definition of presumed parent above).

Signing an Acknowledgement of Parentage form is voluntary, and it can be done at the hospital soon after birth or until the child turns 18 by contacting the Maine Department of Health and Human Services. Here is a sample of the form, VS-27-A:  Acknowledgement OF PARENTAGE (AOP).

An Acknowledgement of Parentage form must be notarized.  To be valid, the people signing the form must be given oral and written notice explaining the legal consequences, rights, and responsibilities that arise from signing an Acknowledgement of Parentage. If either the birth parent or the non-birth parent does not want to sign this form to establish parentage for the non-birth parent, then either of them can try to have a court determine parentage.

If you have any questions about whether to sign an Acknowledgement of Parentage form, you should consult with a lawyer before signing. An Acknowledgement of Parentage is the equivalent of a court judgment of parentage, and parentage is a considerable, life-long responsibility. 

When can I not establish parentage through an Acknowledgement of Parentage?

  • A presumed parent who seeks to establish parentage in situations in which the other parent is not the child’s birth parent, e.g., the child was adopted by the other parent, must establish parentage through an adjudication and cannot establish parentage through an Acknowledgement of Parentage.
  • Parentage cannot be established through an Acknowledgement of Parentage if there is a third person who is a presumed parent, unless that person has filed a Denial of Parentage. 
  • A person who is establishing parentage based on residing with the child and holding out the child as the person’s child for the first two years of the child’s life cannot establish parentage through an Acknowledgement of Parentage until the child is two.

When can a parent sign an Acknowledgement of Parentage?

Acknowledgements of Parentage can be signed after the birth of a child, up until the child’s 18th birthday. An Acknowledgement of Parentage can also be completed before the child’s birth but will not take effect until the child is born.

How can an Acknowledgement of Parentage be rescinded?

If you aren’t married, and you signed an Acknowledgement Parentage, you have sixty days to go to court and rescind, or take back, that acknowledgement. If it has been more than 60 days since you filed the acknowledgement, but less than two years, you can still go to court to challenge the acknowledgement if:

  • You were lied to about being the parent;
  • You were forced or coerced into signing the Acknowledgement; or
  • You or the other parent were wrong on the facts that made you think you were the parent.

These same rules apply if you believe you are the parent, but someone else has acknowledged that they are the parent of the child.

You can’t challenge an acknowledgement after the child is two years old.

You will need to prove to the court that the person who acknowledged paternity is NOT the parent.

If you believe you are the parent of a child, but you had no way of knowing it when the child was born, you can challenge an acknowledgement of parentage. You have two years from the time you found out you might be the parent to challenge an Acknowledgement. This is the only situation where someone can challenge an Acknowledgement of Parentage that is more than two years old.

What if I am a non-biological parent? How can I establish myself as a legal parent?

The MPA has many provisions that protect non-biological parents. If you are your child’s presumed parent, or if you are the intended parent of a child born through assisted reproduction or a gestational carrier agreement or have a genetic connection (except for sperm or egg donors), you can establish parentage by signing an Acknowledgement of Parentage.

Some non-biological parents can establish parentage through the MPA’s de facto parent provisions, which require a court to adjudicate the person to be the child’s de facto parent.

How does the MPA help people conceiving through assisted reproduction?

The MPA provides important clarity and protections for children born through assisted reproduction (i.e., you did not have sexual intercourse or use a gestational carrier to conceive). The MPA confirms that a gamete donor (e.g., sperm or egg donor) is not a parent of a child conceived through assisted reproduction. Also, the MPA affirms that a person who consents to assisted reproduction with the intent to be a parent of the resulting child is a legal parent and can establish that parentage by signing an Acknowledgement of Parentage.

Does Maine require private health plans to provide coverage for fertility care?

Yes, Governor Janet Mills signed LD 1539, An Act to Provide Access to Fertility Care, on May 2, 2022, and the law applies to private health plans which are regulated by the Maine Bureau of Insurance that are issued or renewed on or after January 1, 2023. This includes employers who offer insured health plans. Some employers have self-insured plans, and these are not regulated by the Maine Bureau of Insurance.

The law requires all carriers who offer health plans in Maine to provide coverage for medical interventions including fertility diagnostic care, fertility treatment, and medically necessary fertility preservation. 

What is the difference between joint, second-parent (also known as co-parent) and single-parent adoptions?

A joint adoption is when both partners adopt a child together at the same time. A second-parent or co-parent adoption is when one partner adopts the other partner’s child. A single-parent adoption is when a single individual adopts a child. All three of these are legal in Maine.

What is the advantage of doing a second-parent adoption or joint adoption?

Both joint adoptions and second-parent adoptions ensure your child has two legal parents, Both married and unmarried couples can do a joint or second-parent adoption. Adoption allows a non-legal parent to become a legal parent, entitled to make decisions for the child without special authorization. It also permits the adoptive parent to automatically assume custody of the child if their partner dies. Likewise, if the adoptive parent dies, the child will have the right to inherit from that parent even absent a will and may be able to collect Social Security survivor benefits.

Finally, if the couple separates, adoption ensures that both parents have the right to custody and visitation, and that any disputes will be decided based on what is in the best interests of the child rather than on who is the legal parent.

Do we need to do a second-parent adoption if we are married?

When a child is born into a marriage, Maine law and the law of all states presumes that both spouses are the parents of the child and both names are listed on the child’s birth certificate. However, this is only a presumption and can be challenged in court, so in the past GLAD recommended that married couples do a second parent adoption to ensure the parentage of the non-biological parent because adoption is a court judgment creating a parent-child relationship and must be respected by other states. 

Now Maine couples have a second way to protect the parentage of the non-biological partner by signing an Acknowledgement of Parentage.

If I am a parent who has signed an Acknowledgement of Parentage, do I also need to do a second parent adoption?

No. A parent who has signed an Acknowledgement of Parentage should not need to do a second parent adoption to establish parentage. An Acknowledgement of Parentage establishes legal parentage under state law, is the equivalent of a court judgment of parentage under state law and gives you all the rights and duties of a parent. Under federal law, an Acknowledgement of Parentage is the equivalent of a judicial decree of parentage and should be recognized in all states.

Since expanded access to Acknowledgements of parentage is an emerging development, some parents might feel more comfortable completing a second parent adoption in addition to or instead of an Acknowledgement of Parentage. To understand what is best for your family, individualized legal advice is recommended.

How does the MPA address surrogacy?

The MPA has comprehensive provisions about how to establish parentage through gestational carrier agreements. Before starting any medical procedures to conceive a child through a carrier process, you must have a written and signed agreement that meets all of the requirements of the statute. This agreement is between you, any other intended parents, the person acting as the surrogate, and that person’s spouse (if applicable). This agreement will establish that you are the parent(s) of the child and that the surrogate and their spouse (if applicable) do not have parental rights or duties

To enter into a surrogacy agreement, all of the following must be true:

  1. The surrogate must be at least 21 and have previously given birth to a child.
  2. All intended parents and the person acting as the surrogate must have completed a medical evaluation and mental health consultation, 
  3. The intended parent(s) and the person acting as the surrogate must be represented by separate lawyers for the purposes of the agreement, and the attorney for the person acting as the surrogate must be paid for by the intended parent(s).

The law requires surrogacy agreements to incorporate several terms to be valid, such as allowing a person acting as a surrogate to make their own health and welfare decisions during pregnancy and requiring the intended parent(s) to pay all related healthcare costs.

Can Mainers use genetically related gestational carriers?

Yes. If a carrier is a family member, they can serve as a gestational carrier using their own gametes or genetic material. Someone who is not a family member cannot be a genetic gestational carrier. Otherwise, the same laws, including the need for a valid agreement, apply to genetic and non-genetic carriers.

What if I am not married?

The MPA explicitly provides that every child has the same rights as any other child without regard to the marital status of the parents, or the circumstances of the child’s birth. By not differentiating between parents based on their marital status, the MPA aims to treat all Maine families equally.

What if I am transgender or non-binary?

The MPA explicitly provides that every child has the same rights as any other child without regard to the gender of the parents or the circumstances of the child’s birth. The MPA, by not including gendered terms such as mother or father, is inclusive of all genders. By not differentiating between parents based on their gender, the MPA aims to treat all Maine families equally.

Can a child have more than two legal parents?

Yes. Under the MPA, a court may determine that a child has more than two legal parents if the failure to do so would be detrimental to the child. To determine detriment to the child, courts will consider factors such as the nature of the potential parent’s relationship with the child, the harm to the child if the parental relationship is not recognized, the basis for each person’s claim of parentage of the child, and other equitable factors.

Where can I go if I need help resolving a parentage issue?

As with any family law issue, individualized legal advice is recommended. GLAD Answers can provide information as well as referrals to local practitioners. If you have questions about how to protect your family, contact GLAD Answers by filling out the form at GLAD Answers or call 800.455.4523 (GLAD).

Resources

For more information about Maine Parentage Act, see:

Protecting Families: Protecting Families: Standards for LGBTQ+ Families – GLAD.

Parenting a Transgender Child:  Parenting a Transgender or Gender-Expansive Child: How to Protect Your Family Against False Allegations of Child Abuse

Cases & Advocacy

To see Family cases or advocacy which GLAD has been directly involved with in Maine, go to: Cases and Advocacy – GLAD and under “By Issue” click on “Family” and under “By Location” click on “Maine.”

News & Press Releases

To see news and press releases about Family in Maine, go to: News & Press Releases – GLAD and under “By Issue” click on “Family” and under “By Location” click on “Maine.”

Family | Relationships | Maine

What role did GLAD play in the fight for marriage equality?

GLAD led the fight for marriage equality in the United States. In the beginning, many states, instead of offering marriage to same-sex couples, provided the exact same state rights, protections and responsibilities of marriage but called them civil unions or registered domestic partnerships.

GLAD’s fight for marriage equality began in Vermont with its lawsuit, Baker v. Vermont. GLAD won the case, but the Vermont Supreme Court allowed the legislature to decide how to implement the decision. Instead of offering marriage to same-sex couples, the Vermont legislature created civil unions. GLAD then won marriage rights for same-sex couples for the first time in the United States in 2004 in its lawsuit, Goodridge v. Department of Public Health

This was followed by:

  • Maine approved domestic partnerships in 2004, which provided some of the protections of marriage;
  • civil unions in Connecticut in 2005;
  • GLAD’s lawsuit, Kerrigan v. Commissioner of Public Health, won marriage rights for Connecticut same-sex couples in 2008; 
  • civil unions in New Hampshire in 2008;
  • Vermont provides marriage for same-sex couples in 2009;
  • Vermont no longer allows civil unions but does not convert its civil unions into marriage in 2009;
  • marriage in New Hampshire in 2010;
  • Connecticut converts all its civil unions into marriage in 2010;
  • conversion of New Hampshire civil unions to marriage in 2011;
  • civil unions in Rhode Island in 2011; 
  • marriage in Maine in 2012; 
  • marriage in Rhode Island in 2013;
  • civil unions in Rhode Island ended in 2013, but existing civil unions were not converted into marriage.

At the federal level, Congress passed the Defense of Marriage Act (DOMA) in 1996, which was a preemptive attack on same-sex couples stating that if same-sex couples were ever allowed to marry that those marriages would not be recognized by the federal government. On June 26, 2013, the U.S. Supreme Court decision in United States v. Windsor stated the DOMA was unconstitutional, and same-sex married couples were able to get federal benefits for the first time.

Finally, in Obergefell v. Hodges, on June 26, 2015, the U.S. Supreme Court made marriage equality a reality nationwide when it held that the U.S. Constitution guarantees same-sex couples the right to marry. GLAD’s own Mary Bonauto represented the plaintiffs at oral arguments. Post Obergefell, all 50 states are required to issue marriage licenses to same-sex couples; and all states must respect the marriages of same-sex couples performed in other jurisdictions.

Can same-sex couples marry in Maine?

Yes! On November 6, 2012, Maine became the first state to obtain marriage rights for same-sex couples through an initiative process rather than a court case or vote by a legislature. Maine Question 1, An Act To Allow Marriage Licenses For Same-Sex Couples And Protect Religious Freedom, was approved by the voters of Maine 53 to 47 percent.

For information about how to get married in Maine, see: Maine.gov: Residents: Getting Married in Maine

Will other states and the federal government respect my marriage?

Yes. The Obergefell v. Hodges decision guarantees that all states and the federal government must treat same-sex married couples in an identical way to different-sex married couples. That means that all the protections, rights and obligations that states and the federal government provide to different-sex married couples must also be provided to same-sex married couples.

Can I obtain Social Security survivor benefits if my spouse dies?

Yes, because as stated above, same-sex married couples are entitled to all the benefits provided to different-sex married couples.

However, until the Obergefell v. Hodges decision on June 26, 2015, many same-sex couples lived in states where unconstitutional marriage laws prevented same-sex couples from getting married. So when their spouse passed away, they were not able to meet the Social Security survivor benefit condition of having been married for 9 months.

To correct this unfairness, Lambda Legal filed two lawsuits, Ely v. Saul and Thornton v. Commissioner of Social Security and was successful in obtaining a way for same-sex couples to file for Social Security survivor benefits who either never married (Ely v. Saul) or were finally able to marry but were married less than 9 months when their spouse passed away (Thornton v. Commissioner of Social Security). 

These two rulings allow same-sex couples, who were excluded from marriage because of discriminatory state laws and consequently were not eligible to apply for Social Security survivor benefits, to submit an application. However, the success of that application rests on providing enough documentation to prove to Social Security that the only reason they did not meet the 9 month requirement was because of the discriminatory state laws.

The following link gives more detailed information and has FAQs for each lawsuit and lists some of the ways you might be able to provide the documentation needed to qualify for the survivor benefit: Information for Surviving Same-Sex Partners and Spouses Previously Excluded from Social Security Survivor’s Benefits Because of Unconstitutional State Marriage Laws | Lambda Legal

What happens if we need to end our marriage?

After Obergefell v. Hodges, same-sex spouses everywhere can dissolve their marriages on the same terms as different-sex spouses. Maine applies its divorce statutes to same-sex couples.

When you are getting divorced, the Court has the power to fairly divide up the property from the marriage. “Marital property” is property (land, homes, cars, appliances, etc.) that either of you got during your marriage. Even if something is only in one of your names, it is still “marital property” if you got it while you were married. The divorce order must include how all of your “marital property” is going to be divided.

Usually, property you got before you were married, and gifts made just to you during the marriage aren’t marital property. You can each claim your own “non-marital” property.

You may have committed to each other privately or through a domestic partnership or civil union before same-sex marriage was legal and then married later. One or both of you may want some of your non-marital property to be considered marital because of your earlier commitment. If this is an issue in your divorce or if you have pensions, retirement plans, or other property issues, you should seek legal advice. GLAD Answers can provide referrals to attorneys in GLAD’s Lawyer Referral Service.

What is domestic partnership?

Domestic Partnership is a term used in many contexts. In Maine, there is a state sanctioned domestic partner registry. In addition, some Maine employers offer “domestic partnership” benefits of their own to unmarried couples.

What is the Maine Domestic Partnership Registry?

In 2004, the Maine legislature approved and former Governor John Baldacci signed a domestic partnership law titled “An Act to Promote the Financial Security of Maine’s Families and Children.” This law creates a domestic partnership registry in Maine and affords certain rights to registered domestic partners in the event of a partner’s death or incapacity. It defines “domestic partners” as “2 unmarried adults who are domiciled together under long-term arrangements that evidence a commitment to remain responsible indefinitely for each other’s welfare.” The specific requirements for registration are set out below.

What protections do I obtain by registering as a domestic partner under the state law?

Inheritance Rights: In the absence of a will, registered domestic partners in Maine are given the same inheritance rights as a legally recognized spouse (although unequal tax burdens remain).

Legal Priority: The law provides that a domestic partner:

  • will be treated like a spouse when seeking to be a guardian of their partner in the event of that partner’s incapacity;
  • will have the same priority as legal spouses in seeking a protective order concerning the partner’s estate or the welfare of the partner;
  • is entitled to notice of hearings concerning the appointment of guardians in the event of the partner’s incapacity; and
  • is entitled to notice of the issuance of protective orders in the event of death.

Survivorship Rights: In the event of one partner’s death, the law makes the surviving domestic partner the first of the next of kin when determining who has the right to make funeral and burial arrangements. (As with surviving spouses, if a surviving domestic partner is estranged from the partner at the time of death, the domestic partner may not have custody and control of the deceased’s remains.)

  • Note: It is important to remember that in these matters, a written will and advance directive will supersede this law. Thus, if your partner has a written will or directive giving someone else any of these rights, that person will be given priority over you in asserting those rights, regardless of your registration as Domestic Partners.

Who can register?

Couples may become registered domestic partners in the State of Maine if they are “one of two unmarried adults who are domiciled under long-term arrangements that evidence a commitment to remain responsible indefinitely for each other’s welfare,” and they meet the following specific requirements:

  • each partner is a mentally competent adult and not closely related (e.g. close relatives);
  • the domestic partners have been living together in the state for at least 12 months before the filing;
  • neither domestic partner is married or in a registered domestic partnership with another person; AND
  • each domestic partner is the sole domestic partner of the other and expects to remain so.

How do you register in a registered domestic partnership?

All Domestic Partner registrations are filed with the Office of Health Data and Program Management. To become registered domestic partners, the partners must jointly file a notarized form and pay the required filing fee.

Forms can be accessed at municipal offices, probate courts, Department of Health and Human Services offices and on the Office of Vital Records webpage: Domestic Partner Registry – Division of Public Health Systems | MeCDC | Maine DHHS.

Once completed and notarized, the form needs to be returned to the Office of Vital Records in Augusta with the required filing fee, either by mail or in person. Once received, the registry will file the declaration and return two certified copies of it to the domestic partners at the address provided as their common residence.

How do you end a registered domestic partnership?

A registered domestic partnership is ended by:

  • the marriage of either registered partner;
  • the filing of a notice of termination indicating each partner’s consent to the termination, which must be signed by both registered domestic partners before a notary; OR
  • the filing of a notice under oath from either domestic partner that the other registered partner was directly given a notice of intent to terminate the partnership. If giving notice by hand is not feasible, then a different way of giving notice may be accomplished as provided by the Maine Rules of Civil Procedure for commencement of a civil action. Termination under this method is not effective until 60 days after the notice has been given. (Note: Failure to give notice could result in having to pay any loss suffered by the opposing partner due to lack of notice.)

What exists beyond the Statewide registry?

  • State law requires all insurers providing health coverage in the State of Maine to offer their policyholders the option of additional benefits for their “domestic partner.”
  • Maine’s Family Medical Leave Law was amended in June 2007 to include the employee’s “domestic partner” and child of the employee’s “domestic partner.” The law allows up to 10 weeks unpaid leave to care for a sick partner or the child of either the employee or partner. Also, family medical leave provides leave if an employee is a “domestic partner” of a member of the armed services.
  • In 2007, the Maine legislature passed an “Act Regarding Fairness for Families Regarding Workers Compensation Coverage” which added “domestic partners” of employers to the list of individuals who may waive worker’s compensation coverage in certain circumstances.
  • Also in 2007, the law concerning absentee ballot procedures was amended to include “domestic partners” under the definition of “immediate family” for the purpose of requesting an absentee ballot.

To access the above benefits, registration in the statewide domestic partnership registry is not required and the definition of “domestic partner” for these benefits is slightly different. Generally, to access these benefits, you may be required to sign an affidavit before a notary stating that:

  1. each partner is a mentally competent adult (not required for requesting an absentee ballot);
  2. the domestic partners have been legally living together for at least 12 months;
  3. neither domestic partner is legally married to or legally separated from another person;
  4. each domestic partner is the sole domestic partner of the other and expects to remain so;
  5. the domestic partners are jointly responsible for each other’s common welfare as evidenced by joint living arrangements, joint financial arrangements or joint ownership of real or personal property.

Same-sex couples can also execute a variety of estate planning documents and designate a non-legally related adult to have certain rights and responsibilities (see “Legal Protections for Same-Sex Couples” below).

Does the State of Maine provide domestic partner benefits to state employees, such as health insurance for the employees’ partners?

Yes. State employees can receive health insurance for their domestic partners.

  • The value of the state paid portion of the domestic partner health insurance coverage is income and taxable wages to the employee participant at both the federal and state level, unless the partner is also a tax dependent.
  • Domestic partners of employees of the University of Maine System can receive health insurance, tuition waiver, access to university facilities, and all spousal benefits not restricted by federal law.

Can cities and towns in Maine provide domestic partner health insurance benefits to their own employees?

Yes. Many lawyers also believe this result is required by the non- discrimination law if the city or town provides benefits to heterosexual couples.

It is also possible that under Maine’s mini-COBRA law for companies with fewer than 20 employees (domestic partnership is not covered by the Federal COBRA law), employees with domestic partners will have the same right as heterosexual couples to maintain health insurance coverage after employment ends.

What kinds of domestic partner benefits may private employers provide?

Private employers can provide to domestic partners many benefits, such as health insurance, family medical or bereavement leave, equal pension benefits, relocation expenses, or access to company facilities

Even when employers provide these benefits, federal and state laws require different tax treatment of the benefits for domestic partners as compared to spouses. For example, an employee must pay federal and state income tax on the value of their partner’s health insurance benefits (unless the partner is a tax dependent), but a spouse does not. Partners do not qualify as spouses under federally-controlled Flexible Spending Accounts unless the partner is also a tax dependent.

As for pensions, under the Federal Pension Protection Act of 2006, employers may amend their 401(k) plans so that non-spouse beneficiaries may retain the asset as a retirement asset. If a plan is amended, beneficiaries may “roll over” the 401(k) into an IRA depending upon the employee’s death whereas previous law required the beneficiary to take and pay income taxes on the 401(k) as a lump sum.

However, other discriminatory aspects of federal law remain regarding pensions. A domestic partner has no right to sign off if their partner decides to name someone else as the beneficiary of a pension, although a spouse would have that right. In addition, a domestic partner has no right comparable to that of a spouse to sign off on their partner’s designation of another person for survivor benefits.

What steps can a couple take to safeguard their relationship in Maine?

Whether the couple is married or in a Maine registered domestic partnership or does not have an legal relationship, they can protect their relationship through the following:

  1. Relationship Agreement or Contract: Agreements regarding property and finances should be respected and honored according to ordinary rules of contract law. The Maine Law Court has not yet specifically ruled on the subject, but that result comports with Maine contract law and the law of other states that have found such agreements to be enforceable.
  2. Durable Power of Attorney: Any competent person may appoint another person as their “attorney-in-fact” for financial and/or other matters in the event they become incapacitated or disabled. If no such appointment is made, then a “family” member will be empowered to make decisions for the disabled or incapacitated individual.

A person may also nominate their guardian or conservator in the same document. This is a longer-term appointment that takes priority over the attorney-in-fact. This choice can only be rejected by a court for “good cause or disqualification.” The mere fact that a family member is not named as the guardian or conservator does not constitute good cause.

  1. Durable Power of Attorney for Health Care: Medical care providers often look to next-of-kin to make health care decisions for an incapacitated individual. If an unmarried person wants someone other than their legal family to make these decisions, then a durable power of attorney for health care is a critical source of protection. In Maine, a person can appoint a health care agent to make decisions for him or her immediately, or upon incompetence. It must be signed by two witnesses (not including the person appointed as attorney-in-fact). It can only be revoked while they are still competent. Otherwise, it must be revoked in court.

While a written Durable Power of Attorney provides the most certainty that a person will be cared for by the person they want to make those decisions, Maine law also has a procedure by which “an adult who shares an emotional, physical and financial relationship with the patient similar to that of a spouse” can make health care decisions for an incapacitated person.

This provision might be cumbersome to enforce but provides a way for a partner to be involved in their incapacitated partner’s health care decisions absent documentation.

Within this Durable Power of Attorney for Health Care, or in a separate document called an “Advance Directive,” a person may address end of life issues like artificial nutrition and other life-sustaining treatments. The Attorney General’s Office has a model advance directive posted on their website, Advance Health-Care Directive Form | Maine.gov .

While a written Advance Directive provides the most certainty that a person’s wishes will be followed, Maine law also allows a procedure for a person to make end of life decisions for another if they can prove they are family members. Spouses are given first priority, followed by “an adult who shares an emotional, physical and financial relationship with the patient similar to that of a spouse. ”This provision might be cumbersome to enforce but provides a way for a partner to be involved in their partner’s end of life decision.

  1. Will: Without a will and without having registered as a domestic partner, a deceased unmarried person’s property passes to: (1) their children; (2) their family; (3) if next-of-kin cannot be located, to the state. If the person wishes to provide for others, such as their partner, a will is essential. Even if a person has few possessions, they can name in the will who will administer their estate. If a person has children, they can nominate a guardian of the child which will become effective upon death. Such nominations are highly regarded by courts although they are not binding on the court.
  2. Funeral Planning Documents: Upon death, a person’s next-of-kin is given control of the deceased’s body. This means that a person’s own partner has no automatic right to remove the body or make plans for a final resting place.

If a person has either (1) registered as a domestic partner under the state law; and/or (2) designated in writing that another person is to have custody and control of their remains (such as their partner or a friend), then that person will have control over the body as well as funeral arrangements and the selection of a final resting place.81 It is infinitely preferable to prepare funeral planning documents in advance than to leave instructions as part of a will since a will may not be found for days after death.

Does a person need an attorney to get these documents?

GLAD recommends working with an attorney on these documents.

Although some forms are available, the form may not be suited to your individual needs and wishes and may not conform to the specific requirements of Maine law, which would render them invalid and unenforceable.

Moreover, attorneys may be able to help effectuate your goals, for example, by drafting a will in a way which is more likely to deter a will contest by unhappy family members. In addition, many people find attorney assistance critical because same-sex couples are afforded different tax treatment from married heterosexual couples. Failure to consider tax consequences can lead to enormous difficulties upon death or separation.

If an unmarried couple separates, what is the legal status of a relationship or partnership agreement/contract?

Upon separation, the terms of a Relationship or Partnership Agreement/Contract will come into play if the couple has one.

Absent an agreement, generally applicable rules about jointly owned property and accounts come into play. Some couples can get involved in costly and protracted litigation about property and financial matters but without the predictable rules of the divorce system to help them sort through it. It is notable that the Law Court has respectfully handled the dissolution of a same-sex domestic partnership under equitable principles and the law of joint tenancy.

PLEASE NOTE: If a person has changed their mind about who should be their attorney-in-fact, or health care agent, or beneficiary or executor under a will, or funeral planner, then those documents should be revoked — with notice to all persons who were given copies of those documents, and new documents should be prepared which reflect the person’s present wishes.

What standards should same-sex couples with children who are breaking up maintain?

Same-sex couples with children who are breaking up should:

  1. Support the rights of LGBTQ+ parents;
  2. Honor existing relationships regardless of legal labels;
  3. Honor the children’s existing parental relationships after the break-up;
  4. Maintain continuity for the children;
  5. Seek a voluntary resolution;
  6. Remember that breaking up is hard to do;
  7. Investigate allegations of abuse;
  8. Not allow the absence of agreements or legal relationships to determine outcomes;
  9. Treat litigation as a last resort; and
  10. Refuse to resort to homophobic/transphobic laws and sentiments to achieve a desired result.

For more detailed information about these standards see the publication Protecting Families: Standards for LGBTQ+ Families at: Protecting Families: Standards for LGBTQ+ Families | GLAD

What are the factors for making parental rights and responsibilities determinations generally?

Courts consider the parents as equals, whether married or unmarried, and make orders based on the best interests of the children.

The permissible factors for consideration are set out by law. The factors focus on child welfare and none automatically advantages a non-gay parent over a gay parent.

The law provides: “In making decisions regarding the child’s residence and parent-child contact, the court shall consider as primary the safety and well- being of the child. In applying this standard, the court shall consider the following factors:

  1. The age of the child;
  2. The relationship of the child with the child’s parents and any other person who may significantly affect the child’s welfare;
  3. The preference of the child, if old enough to express a meaningful preference;
  4. The duration and adequacy of the child’s current living arrangements and the desirability of maintaining continuity;
  5. The stability of any proposed living arrangements for the child;
  6. The motivation of the parties involved and their capacities to give the child love, affection and guidance;
  7. The child’s adjustment to the child’s present home, school and community;
  8. The capacity of each parent to allow and encourage frequent and continuing contact between the child and the other parent, including physical access;
  9. The capacity of each parent to cooperate or to learn to cooperate in childcare;
  10. Methods for assisting parental cooperation and resolving disputes and each parent’s willingness to use those methods;
  11. The effect on the child if one parent has sole authority over the child’s upbringing;
  12. The existence of domestic abuse between the parents, in the past or currently, and how that abuse affects: 1. The child emotionally; and 2. The safety of the child;
  13. The existence of any history of child abuse by a parent;
  14. All other factors having a reasonable bearing on the physical and psychological well-being of the child; and
  15. A parent’s willful misuse of the protection from abuse process…”93

Are there different kinds of parental rights and responsibilities?

Yes, and the courts may allocate some particular rights to one parent and others to another parent. The rights that may be divided include primary physical residence, visitation, support, education, medical and dental care, religious upbringing or any other matter. Sometimes a parent will be solely responsible for the child in all aspects; this is called “sole parental rights and responsibilities.” Other times, the parents will share all of these issues; this is called “shared parental rights and responsibilities.”

If I have a child from a former straight relationship, and I am now involved with a same-sex partner, can my ex use my sexual orientation against me in custody proceedings?

The Maine Law Court has not yet addressed a case like this, but the majority rule in the country is “No.” Most states, and two Maine Superior Court cases, use the “nexus test” under which a parent’s sexual orientation is not relevant unless there is actual evidence of harm to the child. Speculation of harm or teasing is not enough.

In Whitehead v. Black, a case decided by the Superior Court, an ex- husband from Georgia petitioned for a change of custody when he learned that his ex-wife, who had since moved to Maine, was a lesbian. The court ruled that the children had always lived with the mother, that she was otherwise fit, and she “was aware that her homosexual lifestyle could have an impact on her children and was intelligently seeking to minimize, if not totally eliminate, that impact.” That reasoning from a court is good for its time.

Finally, many reputable attorneys have refused even to make the argument that a parent’s sexual orientation – standing alone – should be a factor in child welfare decisions.

Is it considered harm to the child if they are teased about having a gay or lesbian parent?

It shouldn’t be. One of the additional responsibilities of being a gay or lesbian parent is helping one’s children deal with this possibility or reality. Of course, children can be teased about everything from the size of their ears to their parents’ accent to their lack of fashion sense, so all parents need to help their children develop coping mechanisms and strategies when peer harassment arises.

As a legal matter, particularly instructive is the U.S. Supreme Court case, Palmore v. Sidoti, in which the U.S. Supreme Court reversed a Florida court’s change of custody from the mother to the father. The reason custody had been switched was because the white mother was involved with a black man whom she later married. The Supreme Court acknowledged the reality of bias and prejudice, and that the child might be teased, but refused to cater to those prejudices or give them the force of law by changing the custody arrangement that previously existed. In a statement of constitutional principle applicable to all, the Court unanimously stated, “The Constitution cannot control prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”

Does it matter if my ex knew or suspected I was LGBTQ+ before we separated?

It may but does not necessarily make a difference with respect to future modification of court orders for custody. People can seek to modify court orders for custody when there has been a “substantial change in circumstances.” If a spouse did not know of their spouse’s sexual orientation at the time of the initial court proceedings, but learns it later, they may argue that this is a substantial change of circumstances and that the custody issues should be reviewed. 

Of course, if one spouse or former heterosexual partner knew of the other’s same-sex sexual orientation at the time of the court proceedings establishing custody, a modification petition on those grounds would be pointless.

Can a court keep my kids from visiting when my partner is present?

This issue has not been decided by the Maine Law Court, but a Superior Court case, Stone v. Stone,98 applied the right test. A mother went back to court seeking a restriction on her ex-husband’s “overnight visitors,” as he was now partnered with a man. The Superior Court struck the restriction imposed by a lower court because the father was discreet and there was no evidence of harm to the children.

Moreover, visitation restrictions are inherently suspect. In Lawrence v. Texas, the U.S. Supreme Court did more than decriminalize sexual acts. It acknowledged the right of gay people to form and sustain loving personal relationships and lead their private lives free of government restrictions and legal condemnation. Since gay people may make “personal decisions relating to … family relationships [and] child rearing,” custody and visitation restrictions must be handled accordingly. Mere differences in moral values between a court and a parent, presumptions about a gay parent’s conduct, or “social condemnation” of their relationship should no longer be permissible factors, if they ever were. 

While courts have the power to do this, visitation should not be restricted unless there is actual evidence that the partner is causing harm to the child. The touchstone for these decisions is the best interests of the child.

Resources

History of Same-Sex Marriage in the United States: History of same-sex marriage in the United States – Wikipedia

Maine Estate Planning, Probate and Trusts Legal Resources: Estate Planning, Probate, and Trusts Legal Resources | Maine State Legislature.

Divorce: Divorce: Maine Judicial Branch

Decisions About Children: Decisions about Children: Maine Judicial Branch

Cases & Advocacy

To see Family cases or advocacy which GLAD has been directly involved with in Maine, go to: Cases and Advocacy – GLAD and under “By Issue” click on “Family” and under “By Location” click on “Maine.”

News & Press Releases

To see news and press releases about Family in Maine, go to: News & Press Releases – GLAD and under “By Issue” click on “Family” and under “By Location” click on “Maine.”

Know Your Rights: LGBTQ Rights in Vermont

Discrimination

Public Accommodations

Employment (jump to section)

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Violence & Harassment

Hate Crimes & Harassment (jump to section)

Intimate Partner Violence (jump to section)

Discrimination | Public Accommodations | Vermont

Vermont Public Accommodations Q&A

What is a “place of public accommodation”?

A “place of public accommodation” means “any school, restaurant, store, establishment or other facility at which services, facilities, goods, privileges, advantages, benefits, or accommodations are offered to the general public” (9 V.S.A. § 4501).

Does Vermont have an anti-discrimination law protecting LGBTQ+ individuals from discrimination in places of public accommodation?

Yes. Vermont was among the first states to pass a comprehensive statewide law prohibiting sexual orientation discrimination in 1992 (See, e.g., 21 V.S.A. § 495 (employment)). “Sexual orientation” is defined as “female or male homosexuality, heterosexuality or bisexuality (1 V.S.A. § 143).

In May 2007, Vermont became the third state in New England to explicitly prohibit discrimination on the basis of gender identity (Public Act 41, An Act Relating to Prohibiting Discrimination on the Basis of Gender Identity, 2007-2008 Leg., Reg. Sess. (Vt. 2007)). The law defines gender identity as “an individual’s actual or perceived gender identity, or gender-related characteristics intrinsically related to an individual’s gender or gender-identity, regardless of the individual’s assigned sex at birth” (1 V.S.A § 144).

These laws also prohibit discrimination against people living with HIV based on disability. For more information, see: HIV/AIDS – Know Your Rights – GLAD.

Does it also protect people perceived to be LGBTQ+ in places of public accommodation?

As to sexual orientation, maybe.  

As to gender identity, and as noted above, gender identity is defined as either “actual or perceived gender identity.” This language includes discrimination based upon perception.

What does the law say about discrimination in places of public accommodation?

Such places may not, on account of a person’s sexual orientation, gender identity, marital status, or other protected characteristic, “refuse, withhold from or deny to that person any of the accommodations, advantages, facilities and privileges of the place of public accommodation” (9 V.S.A. § 4502 (a)).

The protections based on marital status mean that a place of public accommodation may not discriminate against same-sex couples who are married or in a civil union (15 V.S.A. § 1204 (e)(7) (prohibitions against discrimination based on marital status apply equally to parties to a civil union). See also discussion of civil unions below). However, a religious organization or any nonprofit organization operated, supervised or controlled by a religious organization shall not be required to provide services, accommodations, advantages, facilities, goods or privileges relating to the solemnization or celebration of a marriage (9 V.S.A. § 4502(l)).

There is an exception to this rule, stating that this law does not prohibit an establishment that provides lodging to transient guests (i.e. hotels, inns) with five or fewer rooms from restricting its accommodations based on sex or marital status (9 V.S.A. § 4502 (d)).

Public, independent, and post-secondary schools in Vermont are considered public accommodations and so students are protected from discrimination on the basis of sexual orientation and gender identity. 

How do I file a complaint of discrimination?

Where you file a complaint depends on the type of discrimination you have experienced (i.e. employment, housing, credit, etc.) and whether the party you are complaining against is a state agency. Sometimes you have more that one option about where to file.

For Public Accommodations (as well as State Employment or Housing):

  • If you believe you have been discriminated against in employment by a state agency, or if you believe you have been discriminated against in public accommodations (for example, denial of service in a retail establishment or other business), or in housing, you may file a complaint with:

The Vermont Human Rights Commission
14-16 Baldwin Street
Montpelier, VT 05633-6301
(800) 416-2010
(802) 828-1625
(802) 828-2481 (fax)
human.rights@vermont.gov

A complaint may be filed under oath in person, in writing, by fax or by e-mail stating the facts concerning the alleged discrimination.

  • You may also file your case directly in the Superior Court of the county where the alleged discrimination occurred.

Do I need a lawyer?

Not necessarily. The processes at all of these agencies are designed to allow people to represent themselves. However, GLAD strongly encourages people to find lawyers to represent them throughout any of these proceedings, as well as if you choose to file a claim directly in the Superior Court. Not only are there many legal rules governing these processes, but employees and other defendants are likely to have legal representation.

What are the deadlines for filing a complaint of discrimination?

Complaints of discrimination with the Vermont Human Rights Commission must be filed within one year of the last discriminatory act or acts (Code of Vermont Rules 80-250-001, Rule 2). The Attorney General’s Civil Rights Unit also has a policy of requiring complaints to be filed within one year. If you are going to bring a case directly in Superior Court, you should file within three years of the last discriminatory act, although under certain circumstances you may be able to file after that time. There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.

What happens after a complaint is filed with the Commission or the Civil Rights Unit?

If you file with the Human Rights Commission, Commission staff will review your complaint to see if it meets the basic requirements for filing a discrimination claim. If they decide to investigate, a copy of your complaint is sent to the party against whom the complaint has been filed— the respondent— who has to respond to the allegations within fourteen (14) days (Code of Vermont Rules 80-250-001, Rule 10). The Commission then assigns an investigator, who will look into your claims to see if there are reasonable grounds to believe that you have been discriminated against. In doing so, the investigator may examine and copy records and documents, and conduct interviews of all relevant parties and witnesses. The five Commissioners appointed by the governor then decide whether there are reasonable grounds to credit your allegations (9 V.S.A. §§ 4551(a) and 4554(d) – (e)).

The Human Rights Commission allows the parties to engage in voluntary settlement discussions to resolve the case at any point during the investigative process. If these efforts fail, at the end of the investigation the Human Rights Commission issues findings stating whether there was a violation of law.

If reasonable grounds are found, the Commission will send the case for “conciliation” or settlement proceedings, unless the Commission finds an emergency. If negotiations fail to produce a settlement agreeable to all parties within six months, the Commission will either file a claim against the respondent in the Superior Court or dismiss the proceedings, unless the parties agree to an extension in order to complete ongoing negotiations (9 V.S.A. § 4554(e); Code of Vermont Rules 80-250-001, Rules 31-32).

If reasonable grounds of unlawful discrimination are not found, the case will be dismissed at the Commission (9 V.S.A. § 4554(d

At this point, or at any point in the process at the Commission, you may decide to file a case in court. It is crucial to always keep in mind the deadlines for filing such a case, as discussed above. If you do so while an investigation is pending at the Commission, the Commission will administratively dismiss the investigation although the Commission may file its own complaint regarding the matter or intervene in your court action (Code of Vermont Rules 80-250-001, Rule 27).

What are the legal remedies the court may award for discrimination if an individual wins his or her case there?

In public accommodations (and housing) cases, remedies may include injunctive relief, compensatory damages (expenses actually incurred because of unlawful action), and punitive damages (9 V.S.A. § 4506(a)). In addition, criminal penalties of fines up to $1000 may be imposed (9 V.S.A. § 4507).

In all of these cases, the court may grant attorney’s fees, cost (9 V.S.A. §4506(b)(public accommodations and housing); 21 V.S.A. §495b(2)(employment)) and other appropriate relief that is consistent with the purposes of the anti-discrimination laws (e.g. training programs, posting of notices, allowing person non-discriminatory access to and use of public accommodation).

Can I file more than one type of discrimination complaint at once, for example, if I believe I was discriminated against both because I am a lesbian and Latina?

Yes. The state anti-discrimination laws for employment forbid taking any action against someone because of sexual orientation and gender identity, as well as race, color, religion, national origin, sex, ancestry, place of birth, age, disability, HIV-related blood testing, family leave, and workers’ compensation. In public accommodations, the criteria are expanded to include marital status, but do not include age, ancestry and place of birth. In housing, the criteria are expanded to include intending to occupy a dwelling with one or more minor children and receipt of public assistance, but do not include ancestry and place of birth.

Are there other options for filing a complaint for discrimination?

Possibly, depending on the facts of your particular situation. This publication concerns only Vermont anti-discrimination law, and you may well have other rights.

State or Federal Court: After or instead of filing with the Commission, you may decide to file the case in court. You may file in state court at any point within the time limitations, as discussed above

What can I do to prepare myself before filing a complaint of discrimination?

Contact GLAD Answers by filling out the email form at GLAD Answers or by phone at 1-800-455-4523 (GLAD) to discuss options.

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful to bring the attorney an outline of what happened, organized by date and with an explanation of who the various players are (and how to get in touch with them). GLAD Answers can provide referrals to attorneys in GLAD’s Lawyer Referral Service.

Resources

For more information about the Human Rights Commission complaint process see: Filing a Complaint | Human Rights Commission

For information about discrimination protections for people living with HIV, see: HIV/AIDS – Know Your Rights – GLAD

Cases & Advocacy

To see Discrimination cases or advocacy which GLAD has been directly involved with in Vermont, go to: Cases and Advocacy – GLAD and under “By Issue” click on “Discrimination” and under “By Location” click on “Vermont.”

News & Press Releases

To see news and press releases about Discrimination in Vermont, go to: News & Press Releases – GLAD and under “By Issue” click on “Discrimination” and under “By Location” click on “Vermont.”

Discrimination | Employment | Vermont

Vermont Employment Q&A

Does Vermont have an anti-discrimination law protecting LGBTQ+ individuals from discrimination in employment?

Yes. Vermont was among the first states to pass a comprehensive statewide law prohibiting sexual orientation discrimination in 1992 (See, e.g., 21 V.S.A. § 495 (employment)). “Sexual orientation” is defined as “female or male homosexuality, heterosexuality or bisexuality (1 V.S.A. § 143).

In May 2007, Vermont became the third state in New England to explicitly prohibit discrimination on the basis of gender identity (Public Act 41, An Act Relating to Prohibiting Discrimination on the Basis of Gender Identity, 2007-2008 Leg., Reg. Sess. (Vt. 2007)). The law defines gender identity as “an individual’s actual or perceived gender identity, or gender-related characteristics intrinsically related to an individual’s gender or gender-identity, regardless of the individual’s assigned sex at birth” (1 V.S.A § 144).

These laws also prohibit discrimination against people living with HIV based on disability. For more information, see: HIV/AIDS – Know Your Rights – GLAD

Does it also protect people perceived to be LGBT in employment?

As to sexual orientation, maybe. Although the anti-discrimination laws themselves do not distinguish between actual and perceived sexual orientation, the questionnaire used by the Civil Rights Unit of the Attorney General’s Office allows people to complain of discrimination on account of both sexual orientation and perceived sexual orientation. However, the Human Rights Commission does not make this distinction in its employment complaint form. There is no case law on this.

As to gender identity, and as noted above, gender identity is defined as either “actual or perceived gender identity.” This language includes discrimination based upon perception.

To whom does the non-discrimination law apply and what does it forbid?

The non-discrimination law prohibits any employer, employment agency or labor organization from discriminating against any individual because of his or her sexual orientation or gender identity (21 V.S.A. § 495 (a)(1)). This applies to both private and government employers and covers most significant job actions, such as hiring, firing, failure to promote, demotion, excessive discipline, harassment and different treatment of the employee and similarly situated co-workers (21 V.S.A. § 495 (a); § 495d(1) (definition of employer)).

In addition, employment agencies may not participate in discrimination by refusing to classify or refer their customers for employment or otherwise discriminate because of sexual orientation or gender identity. Unions may not deny union membership or otherwise discriminate against its members because of sexual orientation or gender identity (21 V.S.A. § 495 (a)(4)).

The law also forbids these entities from advertising in such a way as to restrict employment or membership because of sexual orientation or gender identity (21 V.S.A. § 495 (a)(2)).

Does the law apply to every employer in Vermont?

No. As broad as the law is, there are exceptions to its application.

  • An employer, agency or labor organization may defend against a discrimination claim by arguing that a “bona fide occupational qualification” of the particular job to have a non-LGBT employee fill it (21 V.S.A. § 495(a)). There are no general occupational exemptions from the reach of the non-discrimination law, however, and this defense is very rarely successful.
  • As to sexual orientation and gender identity, religious organizations – and charitable or educational organizations operated, supervised or controlled by a religious organization – are exempt from the law to the extent that they give a “preference to persons of the same religion or denomination” or take “any action with respect to matters of which is calculated by the organization to promote the religious principles for which it is established or maintained (21 V.S.A. § 495(e)). This exemption, however, is not a carte blanche for an employer to use his or her religious beliefs as a justification for discriminating against persons because of their sexual orientation or actual or perceived gender identity.

Does the Vermont law prohibit sexual harassment?

Yes. Sexual harassment is specifically prohibited under the law. Vermont law defines sexual harassment as a form of sex discrimination that means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

  • submission to that conduct is made either explicitly or implicitly a term or condition of employment; or
  • submission to or rejection of such conduct by an individual is used as a component of the basis for employment decisions affecting that individual; or
  • the conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment (21 V.S.A. § 495d (13)).

Because sexual harassment is a form of sex discrimination, a claim of harassment can be pursued in the same ways as other discrimination claims, as discussed below.

In addition to prohibiting sexual harassment, Vermont law requires all employers, employment agencies and labor organizations to ensure a workplace free of sexual harassment by adopting a policy against sexual harassment, posting a notice outlining that policy, and providing all employees an individual written copy of the policy (21 V.S.A. § 495h).

It is as unlawful to sexually harass a gay, lesbian, bisexual or transgender person as it is to harass anyone else. Some harassment is specifically anti-gay and may be more fairly characterized as harassment on the basis of sexual orientation. Other harassment is because of the person’s actual or perceived gender identity and may be characterized as harassment on the basis of gender identity. Still other harassment is sexual in nature and more appropriately categorized as sexual harassment. All these types of harassment can happen to the same person, and all are forbidden under Vermont state law.

Both the United States Supreme Court and several state courts have found same-sex sexual harassment to violate sexual harassment laws (compare Oncale v. Sundowner Offshore Services, 523 U.S. 75, 118 S.Ct. 998 (1998) (man can sue for sexual harassment by other men under federal sexual harassment laws)).

How do I file a complaint of discrimination?

Where you file a complaint depends on the type of discrimination you have experienced (i.e. employment, housing, credit, etc.) and whether the party you are complaining against is a state agency. Sometimes you have more than one option about where to file.

State Employment (as well as Public Accommodations or Housing):

  • If you believe you have been discriminated against in employment by a state agency, or if you believe you have been discriminated against in public accommodations (for example, denial of service in a retail establishment or other business), or in housing, you may file a complaint with:

The Vermont Human Rights Commission
14-16 Baldwin Street
Montpelier, VT 05633-6301
(800) 416-2010
(802) 828-1625
(802) 828-2481 (fax)
human.rights@vermont.gov

A complaint may be filed under oath in person, in writing, by fax or by e-mail stating the facts concerning the alleged discrimination.

  • You may also file your case directly in the Superior Court of the county where the alleged discrimination occurred.

General Employment:

If you believe you have been discriminated against by a party other than the state (for example, a private business or a town), you may file a complaint under oath with the:

Civil Rights Unit
Vermont Attorney General’s Office
109 State Street
Montpelier, VT 05609-1001
(888) 745-9195 (Toll Free in Vermont Only)
(802) 828-3657
(802) 828-3665 (TTY)
(802) 828-2154 (fax)
ago.civilrights@vermont.gov

Complaining parties must complete a questionnaire, which the Civil Rights Unit will send to you or you can find at STATE OF VERMONT OFFICE OF THE ATTORNEY GENERAL EMPLOYMENT DISCRIMINATION QUESTIONNAIRE CIVIL RIGHTS UNIT 

  • You may also file your case directly in the Superior Court of the county where the alleged discrimination occurred.

Do I need a lawyer?

Not necessarily. The processes at all of these agencies are designed to allow people to represent themselves. However, GLAD strongly encourages people to find lawyers to represent them throughout any of these proceedings, as well as if you choose to file a claim directly in the Superior Court. Not only are there many legal riles governing these processes, but employees and other defendants are likely to have legal representation. GLAD Answers can provide referrals to attorneys in GLAD’s Lawyer Referral Service.

What are the deadlines for filing a complaint of discrimination?

Complaints of discrimination with the Vermont Human Rights Commission (HRC) must be filed within one year of the last discriminatory act or acts (Code of Vermont Rules 80-250-001, Rule 2). The Attorney General’s Civil Rights Unit (CRU) also has a policy of requiring complaints to be filed within one year. If you are going to bring a case directly in Superior Court, you should file within three years of the last discriminatory act, although under certain circumstances you may be able to file after that time. There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.

Can I file more than one type of discrimination complaint at once, for example, if I believe I was fired both because I am a lesbian and Latina?

Yes. The state anti-discrimination laws for employment forbid taking any action against someone because of sexual orientation and gender identity, as well as race, color, religion, national origin, sex, ancestry, place of birth, age, disability, HIV-related blood testing, family leave, and workers’ compensation. In public accommodations, the criteria are expanded to include marital status, but do not include age, ancestry and place of birth. In housing, the criteria are expanded to include intending to occupy a dwelling with one or more minor children and receipt of public assistance, but do not include ancestry and place of birth.

What happens after a complaint is filed with the Commission or the Civil Rights Unit?

If you file with the Human Rights Commission, Commission staff will review your complaint to see if it meets the basic requirements for filing a discrimination claim. If they decide to investigate, a copy of your complaint is sent to the party against whom the complaint has been filed — the respondent — who has to respond to the allegations within fourteen (14) days (Code of Vermont Rules 80-250-001, Rule 10). The Commission then assigns an investigator, who will look into your claims to see if there are reasonable grounds to believe that you have been discriminated against.  In doing so, the investigator may examine and copy records and documents, and conduct interviews of all relevant parties and witnesses.  The five Commissioners appointed by the governor then decide whether there are reasonable grounds to credit your allegations (9 V.S.A. §§ 4551(a) and 4554(d) – (e)).

If you file a complaint with the Civil Rights Unit (CRU), the process is very similar., and is described in detail on the CRU’s website: Civil Rights Unit Process – Office of the Vermont Attorney General

The Human Rights Commission and the CRU both allow the parties to engage in voluntary settlement discussions to resolve the case at any point during the investigative process. If these efforts fail, at the end of the investigation the Human Rights Commission or the CRU issues findings stating whether there was a violation of law.

If reasonable grounds are found, the Commission will send the case for “conciliation” or settlement proceedings, unless the Commission finds an emergency.  If negotiations fail to produce a settlement agreeable to all parties within six months, the Commission will either file a claim against the respondent in the Superior Court or dismiss the proceedings, unless the parties agree to an extension in order to complete ongoing negotiations (9 V.S.A. § 4554(e); Code of Vermont Rules 80-250-001, Rules 31-32).

Similarly, if the CRU finds a violation of law, the respondent will be asked to engage in settlement negotiations to try to resolve the case. If these negotiations fail, the CRU may file a complaint against the respondent in Superior Court. 

If reasonable grounds of unlawful discrimination are not found, the case will be dismissed at the Commission (9 V.S.A. § 4554(d)). If the CRU finds no violation of law, the file will be closed.

At this point, or at any point in the process at the Commission or the CRU, you may decide to file a case in court. It is crucial to always keep in mind the deadlines for filing such a case, as discussed above. If you do so while an investigation is pending at the Commission, the Commission will administratively dismiss the investigation although the Commission may file its own complaint regarding the matter or intervene in your court action (Code of Vermont Rules 80-250-001, Rule 27).

What are the legal remedies the court may award for discrimination if an individual wins his or her case there?

The remedies for a successful complainant may include, for employment cases, hiring, reinstatement or upgrading, back pay, front pay, restitution of wages or other benefits, damages, including those for emotional distress, civil penalties (where applicable), and punitive damages (21 V.S.A. § 495b).

Can I also file a discrimination complaint with a federal agency?

Yes. Federal employment non-discrimination law, called Title VII, applies to employers with at least 15 employees. 

Someone who brings a claim of discrimination may sometimes pursue protections under both state and federal law. This is true because there may be overlapping provisions of state and federal law. For example, Title VII forbids employment discrimination based on race, sex, age, religion, and disability (which includes HIV status), but does not expressly forbid discrimination based on “sexual orientation” or “gender identity.”

However, in Bostock v. Clayton County, Georgia, No. 17-1618 (S. Ct. June 15, 2020, see: 17-1618 Bostock v. Clayton County (06/15/2020), the Supreme Court held that firing individuals because of their sexual orientation or transgender status violates Title VII’s prohibition on discrimination because of sex. For more information on how the EEOC enforces discrimination against LGBT employees, see: Sexual Orientation and Gender Identity (SOGI) Discrimination | US Equal Employment Opportunity Commission.

GLAD recommends that, where there may be overlapping state and federal jurisdiction, you explore filing with the HRC or CRU first but keep in mind the possibility of pursuing a federal claim as well. If you have a sexual orientation or gender identity complaint, you should check off “sex” as well as “sexual orientation” or “gender identity” as the bases for your claim and request that the HRC or CRU cross-file your complaint with the EEOC.

Federal complaints must be filed within 180 days of the discriminatory act with the Equal Employment Opportunity Commission (EEOC). However, if you initially institute your complaint with HRC or CRU and indicate that you wish to have the complaint cross-filed with the EEOC, then the time limit is extended to the earlier of 300 days or 30 days after HRC or CRU has terminated the case (34 United States Code 42 sec. 2000e-5(e)(1)). If you want to cross-file with the EEOC, you submit your complaint to the HRC or CRU within 300 days and not the usual 1 year. (People who work for federal agencies are beyond the scope of this publication.)

Are there other options for filing a complaint for discrimination?

Possibly, depending on the facts of your particular situation.  This publication concerns only Vermont anti-discrimination law, and you may well have other rights.

  1. Union: If you are a member of a union, your contract (collective bargaining agreement) may provide additional rights to you in the event of discipline, discharge or other job-related actions. In fact, if you obtain relief under your contract, you may decide not to pursue other remedies. Get and read a copy of your contract and contact a union representative about filing a complaint. Deadlines in contracts are strict. Bear in mind that if your union refuses to assist you with a complaint, you may have a discrimination action against them for their failure to work with you, or for failure of duty of fair representation.
  2. State or Federal Court: After or instead of filing with the Commission, the CRU or the EEOC, you may decide to file the case in court. You may file in state court at any point within the time limitations, as discussed above. In order to file in federal court, however, you must remove your case from the EEOC, and there are rules about when and how you must do this that the EEOC can explain.

In addition, you may file a court case to address other claims that are not appropriately handled by discrimination agencies, such as when you are fired in violation of a contract, fired without the progressive discipline promised in an employee handbook, or fired for doing something the employer doesn’t like but that the law requires. Similarly, if you have a claim for a violation of constitutional rights – for instance, if you are a teacher or a governmental employee who believes his or her free speech or equal protection rights were violated – then those matters must also be heard in court.

What can I do if my employer fires me because I filed a complaint of discrimination?

It is illegal to retaliate against someone for filing a discrimination claim, and you could file an additional complaint against the employer or landlord for retaliation.  “Retaliation” protections cover those who participate in proceedings, or otherwise oppose unlawful conduct. If the employer or landlord takes action against an employee or tenant because of that conduct, then the employee or tenant can state a claim of retaliation (9 V.S.A. § 4506(e)(retaliation prohibited in public accommodations and housing); 21 V.S.A. § 495(a)(8) (retaliation prohibited in employment). See also Provencher v. CVS Pharmacy, 145 F.3d 5 (1st Cir. 1998) (upholding federal retaliation claim by a gay man who had brought a sexual harassment claim under Federal Title VII)).

What can I do to prepare myself before filing a complaint of discrimination?

Contact GLAD Answers by filling out the email form at GLAD Answers or by phone at 1-800-455-4523 (GLAD) to discuss options.

As a general matter, people who are still working under discriminatory conditions have to evaluate how filing a case will affect their job, and if they will be able to handle those possible consequences. Of course, even if a person has been fired, they may decide it is not worth it to pursue a discrimination claim. This is an individual choice, which should be made after gathering enough information and advice to make an informed decision.

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful to bring the attorney an outline of what happened, organized by date and with an explanation of who the various players are (and how to get in touch with them). Try to have on hand copies of your employee handbooks or personnel manuals, as well as any contracts, job evaluations, memos, discharge letters and the like. GLAD Answers can provide referrals to attorneys in GLAD’s Lawyer Referral Service. 

Resources

For more information about the employment complaint process see:

For information about discrimination protections for people living with HIV, see: https://www.glad.org/issues/hivaids/.

For more information about filing an EEOC discrimination complaint see: How to File a Charge of Employment Discrimination.

Cases & Advocacy

To see Discrimination cases or advocacy which GLAD has been directly involved with in Vermont, go to: Cases and Advocacy – GLAD and under “By Issue” click on “Discrimination” and under “By Location” click on “Vermont.”

News & Press Releases

To see news and press releases about Discrimination in Vermont, go to: News & Press Releases – GLAD and under “By Issue” click on “Discrimination” and under “By Location” click on “Vermont.”

Discrimination | Credit, Lending & Services | Vermont

Vermont Credit, Lending & Services Q&A

Does Vermont have an anti-discrimination law protecting LGBTQ+ individuals from discrimination in credit, lending and services?

Yes.  Vermont was among the first states to pass a comprehensive statewide law prohibiting sexual orientation discrimination in 1992 (See, e.g., 21 V.S.A. § 495 (employment)). “Sexual orientation” is defined as “female or male homosexuality, heterosexuality or bisexuality (1 V.S.A. § 143).

In May 2007, Vermont became the third state in New England to explicitly prohibit discrimination on the basis of gender identity (Public Act 41, An Act Relating to Prohibiting Discrimination on the Basis of Gender Identity, 2007-2008 Leg., Reg. Sess. (Vt. 2007)). The law defines gender identity as “an individual’s actual or perceived gender identity, or gender-related characteristics intrinsically related to an individual’s gender or gender-identity, regardless of the individual’s assigned sex at birth” (1 V.S.A § 144).

These laws also prohibit discrimination against people living with HIV based on disability. For more information, see: HIV/AIDS – Know Your Rights – GLAD.

Does it also protect people perceived LGBTQ+ in credit, lending and services?

As to sexual orientation, maybe.

As to gender identity, and as noted above, gender identity is defined as either “actual or perceived gender identity.” This language includes discrimination based upon perception.

How does Vermont anti-discrimination law protect people with regard to credit and loans?

Vermont 8 V.S.A. § 10403 prohibits discrimination by financial service providers based on sex, marital status, race, color, religion, national origin, age, sexual orientation, gender identity, or disability. 

The law applies to financial institutions regulated by the Vermont Department of Financial Regulation that deny, revoke or terminate “credit services” for a discriminatory reason. “Credit services” include credit cards, personal loans, mortgage loans and commercial loans.

To implement this law, the Department of Financial Regulation promulgated a rule (B-2015-01) that focuses on the notice that is required when adverse action is taken by a financial institution against an applicant. When adverse action is taken, the financial institution is required to provide the applicant with a written statement of reasons for the action. 

For commercial credit transactions, the statement of reasons must contain the specific reasons for the adverse action and must cite documentation or business judgment that supports the adverse action.

In addition, Vermont law provides specific non-discrimination provisions with regard to the issuance of motor vehicle retail installment contracts (9 V.S.A. § 2410), and agricultural finance leases (9 V.S.A. § 2362).

Example: GLAD brought and won a claim against a credit union that refused to allow a feminine appearing man to apply for a loan until he came back looking more masculine. A federal court ruled that this constituted a claim of sex discrimination in violation of the credit non-discrimination laws (9 V.S.A. § 2488).

How does Vermont anti-discrimination law protect people concerning insurance purchases?

Vermont law prohibits discrimination against an applicant for insurance or an insured person based on sexual orientation, gender identity, marital status, or sex with regard to underwriting standards and practices, eligibility requirements, and rates (8 V.S.A. § 4724(7)(B)(i) and (ii)).

Insurers are also prohibited from directly or indirectly investigating or inquiring as to an applicant’s, insured’s or beneficiary’s sexual orientation or gender identity in an application for insurance coverage or in connection with an application, as well as from using information about gender, marital status, medical history, occupation, living arrangements, beneficiaries, zip codes or other territorial designations to determine sexual orientation or gender identity (8 V.S.A. § 4724(7)(C)(i)).

Insurers may not use sexual orientation, gender identity, or beneficiary designation in the underwriting process or in determining eligibility for insurance (8 V.S.A. § 4724(7)(C)(ii)).

In addition, state-regulated insurers may not discriminate between married couples and parties to a civil union with regard to offering insurance benefits to a couple, a spouse, a party to a civil union, or their families (8 V.S.A. § 4724(7)(E)).

Can I file more than one type of discrimination complaint at once?

Yes, if you are discriminated against based on more than one of the protected characteristics, you can file a complaint based on all of those characteristics. For example, if you are discriminated against because you are transgender and a Latina, you can file a complaint based on both of those characteristics.

How do I file a complaint of discrimination?

Where you file a complaint depends on the type of discrimination you have experienced (i.e. employment, housing, credit, etc.) and whether the party you are complaining against is a state agency. Sometimes you have more than one option about where to file

If you believe you have been discriminated against in the provision of credit services or retail installment contracts by a bank, credit union, mortgage broker, sales finance company, debt adjuster or money service, OR

If you believe you have been discriminated against by an insurance company or agent, including auto, homeowners, life, annuity, major medical, dental, long-term care or Medicare supplement. 

You may file a complaint with the Vermont Department of Financial Regulation. There are links for filing a complaint at: File a Complaint or Ask for Help | Department of Financial Regulation or you can contact the Department at: 

Department of Financial Regulation

Consumer Services

89 Main Street

Montpelier, VT 05620-3101

802-828-3301

833-DFR-Hotline (toll free)

If you believe you have been discriminated against with regard to an agricultural finance lease, you may file a complaint at: Vermont Attorney General’s Consumer Assistance Program at UVM OR contact:

Office of the Attorney General
Consumer Assistance Program
109 State Street
Montpelier, VT 05609-1001
(802) 656-3183
(800) 649-2424 (toll free)
ago.civilrights@vermont.gov

OR you can file a lawsuit with the Superior Court of the county where the alleged discrimination occurred.

Do I need a lawyer?

Not necessarily. The processes at all of these agencies are designed to allow people to represent themselves. However, GLAD strongly encourages people to find lawyers to represent them throughout any of these proceedings, as well as if you choose to file a claim directly in the Superior Court. Not only are there many legal rules governing these processes, but banks and other defendants are likely to have legal representation. GLAD Answers can provide referrals to attorneys in GLAD’s Lawyer Referral Service.

What can I do to prepare myself before filing a complaint of discrimination?

Contact GLAD Answers by filling out the email form at GLAD Answers or by phone at 800-455-GLAD (4523) to talk about options.

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful to bring the attorney an outline of what happened, organized by date and with an explanation of who the various players are (and how to get in touch with them). GLAD Answers can provide referrals to attorneys in GLAD’s Lawyer Referral Service.

Resources

Discrimination in Banking & Insurance: 10403. Prohibition on discrimination based on sex, marital status, race, color, religion, national origin, age, sexual orientation, gender identity, or disability

Non-Discrimination in Financial Services: Non-Discrimination in Financial Services

Cases & Advocacy

To see Discrimination cases or advocacy which GLAD has been directly involved with in Vermont, go to: Cases and Advocacy – GLAD and under “By Issue” click on “Discrimination” and under “By Location” click on “Vermont.”

News & Press Releases

To see news and press releases about Discrimination in Vermont, go to: News & Press Releases – GLAD and under “By Issue” click on “Discrimination” and under “By Location” click on “Vermont.”

Discrimination | Housing | Vermont

Vermont Housing Q&A

Does Vermont have an anti-discrimination law protecting LGBTQ+ individuals from discrimination in housing?

Yes.  Vermont was among the first states to pass a comprehensive statewide law prohibiting sexual orientation discrimination in 1992 (See, e.g., 21 V.S.A. § 495 (employment)). “Sexual orientation” is defined as “female or male homosexuality, heterosexuality or bisexuality (1 V.S.A. § 143).

In May 2007, Vermont became the third state in New England to explicitly prohibit discrimination on the basis of gender identity (Public Act 41, An Act Relating to Prohibiting Discrimination on the Basis of Gender Identity, 2007-2008 Leg., Reg. Sess. (Vt. 2007)). The law defines gender identity as “an individual’s actual or perceived gender identity, or gender-related characteristics intrinsically related to an individual’s gender or gender-identity, regardless of the individual’s assigned sex at birth” (1 V.S.A § 144).

These laws also prohibit discrimination against people living with HIV based on disability. For more information, see: HIV/AIDS – Know Your Rights – GLAD.

Does it also protect people perceived to be LGBTQ+ in housing?

As to sexual orientation, maybe.  

As to gender identity, and as noted above, gender identity is defined as either “actual or perceived gender identity.” This language includes discrimination based upon perception.

What is prohibited by the housing anti-discrimination law in Vermont?

The housing laws prohibit discrimination based on sexual orientation or gender identity in transactions relating to residential housing— including buying, selling, renting, negotiating, listing, advertising, inspecting, or financing— and in the terms, conditions, privileges, services or facilities connected to those transactions (9 V.S.A. § 4501(5)(definition of “dwelling”) and § 4503(a)(setting forth unlawful practices). Also, mobile home park owners are prohibited from discriminating on the basis of sexual orientation or gender identity (10 V.S.A. § 6236 (e)(3)).

The housing law also prohibits discrimination based on marital status, and therefore applies to discrimination against same-sex couples who are married or in a civil union (15 V.S.A. § 1204 (e)(7)).

In addition, it is unlawful to coerce, intimidate, or threaten a person regarding a housing matter, or interfere with a person’s ability to exercise their rights to be free from discrimination in housing (9 V.S.A. § 4506(e)).

Are any landlords exempt from the housing anti-discrimination law?

There are two main exemptions from the law. One allows owners to disregard the law when the owner or a member of the owner’s immediate family resides in the building and the building has three units or less (9 V.S.A. § 4504 (2)).

The other exemption applies to religious institutions and the nonprofit institutes they operate, supervise or control. When such religious entities own or operate a dwelling for non-commercial purposes, they may give preference to persons of the same religion. These kinds of religious restrictions or preferences must be stated in the written policies and procedures of the religious entity (9 V.S.A. § 4504 (5)).

How do I file a complaint of discrimination?

Where you file a complaint depends on the type of discrimination you have experienced (i.e. employment, housing, credit, etc.) and whether the party you are complaining against is a state agency. Sometimes you have more than one option about where to file.

For Housing (as well as State Employment or Public Accommodations):

  • If you believe you have been discriminated against in employment by a state agency, or if you believe you have been discriminated against in public accommodations (for example, denial of service in a retail establishment or other business), or in housing, you may file a complaint with:

The Vermont Human Rights Commission
14-16 Baldwin Street
Montpelier, VT 05633-6301
(800) 416-2010
(802) 828-1625
(802) 828-2481 (fax)
human.rights@vermont.gov

A complaint may be filed under oath in person, in writing, by fax or by e-mail stating the facts concerning the alleged discrimination.

  • You may also file your case directly in the Superior Court of the county where the alleged discrimination occurred.

Do I need a lawyer?

Not necessarily. The processes at all of these agencies are designed to allow people to represent themselves. However, GLAD strongly encourages people to find lawyers to represent them throughout any of these proceedings, as well as if you choose to file a claim directly in the Superior Court. Not only are there many legal rules governing these processes, but landlords and other defendants are likely to have legal representation. GLAD Answers can provide referrals to attorneys in GLAD’s Lawyer Referral Service.

What are the deadlines for filing a complaint of discrimination?

Complaints of discrimination with the Vermont Human Rights Commission must be filed within one year of the last discriminatory act or acts (Code of Vermont Rules 80-250-001, Rule 2). If you are going to bring a case directly in Superior Court, you should file within three years of the last discriminatory act, although under certain circumstances you may be able to file after that time. There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.

What happens after a complaint is filed with the Commission?

If you file with the Human Rights Commission, Commission staff will review your complaint to see if it meets the basic requirements for filing a discrimination claim. If they decide to investigate, a copy of your complaint is sent to the party against whom the complaint has been filed— the respondent— who has to respond to the allegations within fourteen (14) days (Code of Vermont Rules 80-250-001, Rule 10). The Commission then assigns an investigator, who will look into your claims to see if there are reasonable grounds to believe that you have been discriminated against. In doing so, the investigator may examine and copy records and documents, and conduct interviews of all relevant parties and witnesses. The five Commissioners appointed by the governor then decide whether there are reasonable grounds to credit your allegations (9 V.S.A. §§ 4551(a) and 4554(d) – (e)).

The Human Rights Commission allows the parties to engage in voluntary settlement discussions to resolve the case at any point during the investigative process. If these efforts fail, at the end of the investigation the Human Rights Commission issues findings stating whether there was a violation of law.

If reasonable grounds are found, the Commission will send the case for “conciliation” or settlement proceedings, unless the Commission finds an emergency. If negotiations fail to produce a settlement agreeable to all parties within six months, the Commission will either file a claim against the respondent in the Superior Court or dismiss the proceedings, unless the parties agree to an extension in order to complete ongoing negotiations (9 V.S.A. § 4554(e); Code of Vermont Rules 80-250-001, Rules 31-32).

If reasonable grounds of unlawful discrimination are not found, the case will be dismissed at the Commission (9 V.S.A. § 4554(d)).

At this point, or at any point in the process at the Commission, you may decide to file a case in court. It is crucial to always keep in mind the deadlines for filing such a case, as discussed above. If you do so while an investigation is pending at the Commission, the Commission will administratively dismiss the investigation although the Commission may file its own complaint regarding the matter or intervene in your court action (Code of Vermont Rules 80-250-001, Rule 27).

What are the legal remedies the court may award for discrimination if an individual wins his or her case there?

In housing (and public accommodations) cases, remedies may include injunctive relief, compensatory damages (expenses actually incurred because of unlawful action), and punitive damages (9 V.S.A. § 4506(a)). In addition, criminal penalties of fines up to $1000 may be imposed (9 V.S.A. § 4507).

In all of these cases, the court may grant attorney’s fees, cost (9 V.S.A. §4506(b)(public accommodations and housing); 21 V.S.A. §495b(2)(employment)) and other appropriate relief that is consistent with the purposes of the anti-discrimination laws (e.g. training programs, posting of notices, allowing person non-discriminatory access to and use of public accommodation).

Can I file more than one type of discrimination complaint at once, for example, if I believe I was discriminated against both because I am a lesbian and Latina?

Yes. The state anti-discrimination laws for employment forbid taking any action against someone because of sexual orientation and gender identity, as well as race, color, religion, national origin, sex, ancestry, place of birth, age, disability, HIV-related blood testing, family leave, and workers’ compensation. In public accommodations, the criteria are expanded to include marital status, but do not include age, ancestry and place of birth. In housing, the criteria are expanded to include intending to occupy a dwelling with one or more minor children and receipt of public assistance, but do not include ancestry and place of birth.

Can I also file a discrimination complaint with a federal agency?

Yes. Persons who identify as LGBTQ+ and believe they have experienced housing discrimination because of their actual or perceived sexual orientation or gender identity can assert their rights under the Fair Housing Act by filing a complaint with the U.S. Department of Housing and Urban Development (HUD). You can find more detailed information about the protections HUD provides to LGBTQ+ people here: https://www.hud.gov/program_offices/fair_housing_equal_opp/housing_discrimination_and_persons_identifying_LGBTQ+

There is information about filing a housing discrimination complaint with HUD here: https://www.hud.gov/program_offices/fair_housing_equal_opp/online-complaint.

The form for submitting a complaint can be found here: https://www.hud.gov/sites/documents/DOC_12150.PDF

HUD views LGBTQ+ discrimination as a form of “sex” discrimination, so if you have a sexual orientation or gender identity complaint, you should indicate “sex” as the discrimination factor.

A HUD complaint must be filed within one year of the last act of discrimination. The statute of limitations for bringing fair housing complaints in federal courts is not later than two years after the occurrence or the termination of an alleged discriminatory housing practice. However, if an administrative case is filed with HUD, the statute of limitations is tolled during the period of time in which HUD is evaluating the complaint.  In English, what that means is that the time HUD has the case does not count when calculating the two year statute of limitations.

Are there other options for filing a complaint for discrimination?

Possibly, depending on the facts of your particular situation.  This publication concerns only Vermont anti-discrimination law, and you may well have other rights.

State or Federal Court: After or instead of filing with the Commission or HUD, you may decide to file the case in court. You may file in state court at any point within the time limitations, as discussed above.  

In addition, you may wish to bring a court case to address other claims which are not appropriately handled by discrimination agencies, e.g., if you landlord is not meeting his obligation to provide a safe living space. 

What can I do if my landlord evicts me because I filed a complaint of discrimination?

It is illegal to retaliate against someone for filing a discrimination claim, and you could file an additional complaint against the employer or landlord for retaliation.  “Retaliation” protections cover those who participate in proceedings, or otherwise oppose unlawful conduct. If the employer or landlord takes action against an employee or tenant because of that conduct, then the employee or tenant can state a claim of retaliation (9 V.S.A. § 4506(e)(retaliation prohibited in public accommodations and housing); 21 V.S.A. § 495(a)(8) (retaliation prohibited in employment).  See also Provencher v. CVS Pharmacy, 145 F.3d 5 (1st Cir. 1998) (upholding federal retaliation claim by a gay man who had brought a sexual harassment claim under Federal Title VII)).

What can I do to prepare myself before filing a complaint of discrimination?

Contact GLAD Answers by filling out the email form at GLAD Answers or by phone at 1-800-455-4523 (GLAD) to discuss options.

As a general matter, people who are still residing under discriminatory conditions have to evaluate how filing a case will affect their housing, and if they will be able to handle those possible consequences. Of course, even if a person has been evicted, they may decide it is not worth it to pursue a discrimination claim. This is an individual choice, which should be made after gathering enough information and advice to make an informed decision.

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful to bring the attorney an outline of what happened, organized by date and with an explanation of who the various players are (and how to get in touch with them). Bring a copy of your lease, along with any notices and letters you have received from your landlord. GLAD Answers can provide referrals to attorneys in GLAD’s Lawyer Referral Service.

Resources

For more information about the Human Rights Commission complaint process see: Filing a Complaint | Human Rights Commission

For information about discrimination protections for people living with HIV, see: https://www.glad.org/issues/hivaids/.

For information about the HUD complaint process see:

Learn About the FHEO Complaint and Investigation Process | HUD.gov / US Department of Housing and Urban Development (HUD)

Cases & Advocacy

To see Discrimination cases or advocacy which GLAD has been directly involved with in Vermont, go to: Cases and Advocacy – GLAD and under “By Issue” click on “Discrimination” and under “By Location” click on “Vermont.”

News & Press Releases

To see news and press releases about Discrimination in Vermont, go to: News & Press Releases – GLAD and under “By Issue” click on “Discrimination” and under “By Location” click on “Vermont.”

Violence & Harassment | Hate Crimes & Harassment | Vermont

Vermont Hate Crimes Q&A

Does Vermont have a hate crimes law?

Yes. Vermont law imposes increased penalties for crimes committed because of hatred or animus toward the victim’s actual or perceived race, color, religion, national origin, sex, ancestry, age, service in the U.S. armed forces, disability, sexual orientation, or gender identity (13 V.S.A. § 1455).

In addition to being subject to criminal prosecution, the Attorney General’s office may seek civil penalties from a perpetrator of up to $5000 (payable to the state) plus costs and attorney’s fees for every violation of the criminal hate crimes statute and for violations of any injunctions imposed (see discussion below) (13 V.S.A. § 1466).

How does the law define what is a hate crime?

The hate crimes law applies to “[a] person who commits, causes to be committed or attempts to commit any crime and whose conduct is maliciously motivated by the victim’s actual or perceived race, color, religion, national origin, sex, ancestry, age, service in the U.S. armed forces, disability…, sexual orientation or gender identity” (13 V.S.A. § 1455).

According to the Attorney General’s office, assaults, unlawful mischief (damage or destruction of property), telephone harassment and disorderly conduct (by public yelling of threats and abuse) are the most common hate crimes in Vermont (www.ago.vermont.gov/divisions/civil-rights/hate-crimes.php).

Besides the police, who can I call if I think I’ve been a victim of a hate crime?

In addition to contacting the local police, you may contact the Civil Rights Unit of the Attorney General’s Office toll-free (in Vermont) at (888) 745-9195 or at (802) 828-3657 or AGO.CivilRights@vermont.gov.

What other options do I have if I think I have been the victim of a hate crime?

Victims of hate crimes can also file a civil claim in the Superior Court of the county where they live or where the crime occurred (13 V.S.A. § 1457). These claims can seek:

  • an order to stop the hate-motivated behavior and restrict the perpetrator’s ability to contact you in any way;
  • money damages to compensate for the injury caused by the crime;
  • money damages to punish the perpetrator;
  • costs and attorney’s fees; and
  • any other relief the court thinks is appropriate.

Through this process, you have the right to obtain very similar protections to those available to domestic violence victims.  (See discussion above).  If you have been the victim of a hate crime or of a stalker, you can go to Superior Court and quickly obtain a preliminary order providing protection from the perpetrator of the hate crimes.  This order may:

  • prohibit the perpetrator from committing any crime against you or other people;
  • prohibit the perpetrator from contacting you; and
  • prohibit the perpetrator from coming near you, your home, or other places where you are likely to be (i.e. workplace, homes of family members, etc.).

This preliminary order will remain in effect for a period of time set by the court up to 120 days, or until there is a final decision in the case (13 V.S.A. § 1461).

A final order can be issued for up to two years, but the court can extend the order for any amount of time if it finds it is necessary to protect the victim.  Violating these kinds of orders is a crime, subject to immediate arrest, imprisonment and fines (13 V.S.A. § 1461(c), 1465(a-b)).

In what ways might the federal hate crimes law help to investigate and prosecute hate crimes?

The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (see 18 U.S.C. § 249) was passed by Congress on October 22, 2009 and was signed into law by President Obama on October 28, 2009.  It expands the 1969 United States federal hate crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity or disability.

First, and perhaps foremost, the Act allows local and state law enforcement agencies to apply for the following federal assistance from the U.S. Attorney General:

  • investigative, technical, forensic or prosecutorial support for criminal investigations and prosecutions,
  • grants for extraordinary expenses associated with the investigation and prosecution of hate crimes, and
  • grants to combat hate crimes committed by juveniles.

In providing assistance to local and state authorities, the priorities are hate crimes:

  • where the offender(s) has committed crimes in more than one state, or
  • that occur in rural areas which do not have the resources needed to prosecute such crimes.

Second, for hate crimes that in some way involve crossing state or national borders, or involve or affect interstate commerce, and where a state does not have jurisdiction or has requested federal assumption of jurisdiction, or where the federal government feels that justice has not been served or that U.S. prosecution is in the public interest,  the Act authorizes the federal government to prosecute the case.

The Act also requires the Federal Bureau of Investigation to track statistics on hate crimes on the basis of gender and gender identity (statistics for the other groups are already tracked) and on crimes committed by and against juveniles. This is the first federal law to explicitly extend legal protections to transgender persons.

Does Vermont have an anti-bullying law that protects public, independent and postsecondary students?

Yes. See the topic area “Rights & Protections” in the Issue Area “Youth.”

Resources

U.S. Department of Justice information about Vermont Hate Crimes: 2020 Hate Crime Statistics for Vermont.

Information from the Vermont Attorney General: Hate Crimes – Office of the Vermont Attorney General

Vermont’s hate crime law was amended in 2021 to make it easier to prosecute hate crimes, see: 1455. Hate-motivated crimes 

Cases & Advocacy

To see Violence & Harassment cases or advocacy which GLAD has been directly involved with in Vermont, go to: Cases and Advocacy – GLAD and under “By Issue” click on “Violence & Harassment” and under “By Location” click on “Vermont.”

News & Press Releases

To see news and press releases about Violence & Harassment in Vermont, go to: News & Press Releases – GLAD and under “By Issue” click on “Violence & Harassment” and under “By Location” click on “Vermont.”

Violence & Harassment | Intimate Partner Violence | Vermont

Vermont Intimate Partner Violence Q&A

What is domestic violence?

Under the laws of domestic relations, “abuse” includes causing or trying to cause physical harm; causing fear of imminent serious physical harm; or abuse to children, which includes physical injury, neglect, emotional maltreatment or sexual abuse; stalking; and sexual assault (see 15 V.S.A. § 1101(1)).

Do the domestic violence laws apply to people in same-sex relationships?

In most situations, yes. These laws apply to abuse between family members, which includes civil union spouses, as well as between “household members,” which includes people who are living or have lived together, but also those who have or had a sexual relationship, or who are dating or have dated. To determine whether a dating relationship exists or existed, the court looks to whether the relationship is/was of a romantic nature, how long it has been/was going on, how often the parties interact/ed, and, if the parties have broken up, how long ago the relationship ended (15 V.S.A. § 1101(2)).

How do I get a court order protecting me from an abusive partner?

You can file a complaint seeking relief from abuse in the family division of the superior court in the county in which you live, or, if you have just fled your home, in either your new or old county. There is no fee (15 V.S.A. § 1103(f)).

If you are in immediate danger from harm, you can file an application for a temporary order (15 V.S.A. § 1104). That application can be filed in the criminal, civil or family division of the superior court (15 V.S.A. § 1102(b)). All of the courts are required to have procedures for people to file these applications after regular court hours, or on weekends and holidays (15 V.S.A. § 1106(b)). Temporary orders are generally issued upon request, based on the existence of a relationship between victim and offender that is covered by the law and a credible allegation of abuse or threats of abuse.

The order, a copy of which must be given to the abuser, will state a time within ten days of its being issued for the defendant to contest it (15 V.S.A. § 1104(b)). At the hearing, if the victim proves the abuse, the court will keep the order in effect and make other orders it deems necessary to keep the victim safe (15 V.S.A. § 1104(b)). Once an order is issued, it is filed with the Department of Public Safety’s abuse database. Police and sheriff’s departments, as well as state police district offices are also required to maintain procedures to make personnel aware of the existence and contents of abuse prevention orders (15 V.S.A. § 1107).

The order will stay in effect for a fixed period of time, at the end of which the court may extend it for as long as it deems necessary to protect the victim. The court does not have to find that abuse took place during the time covered by the order to extend it (15 V.S.A. § 1103(e)).

You don’t need a lawyer to get the temporary order, but it may be helpful to have one for later hearings if you think the abuser will contest the order. The court administrators may be able to connect you with agencies that help victims seek relief and gain access to the courts (15 V.S.A. § 1106(b)).

If for some reason you decide not to go through with the legal process, you should show up in court anyway and ask that the order be dismissed. Failure to show up might make the court think you are unreliable if you need legal help in the future.

Violation of an abuse order is a criminal offense and can result in the immediate arrest of the abuser, as well as imprisonment of up to six months and a fine of up to $1000 (15 V.S.A. § 1108(e)). It is worth noting that restraining orders do not restrict the abuse victim’s activities or contacts.

A victim may participate in an address confidentiality program, through which the Secretary of State gives the victim another address to use in order to keep the actual address confidential from the public (15 V.S.A. § 1152).

There are other laws that prohibit stalking, harassing and trespassing that may also apply to your situation, but are beyond the scope of this document. For more information, you may wish to consult the Vermont Center for Crime Victim Services at 1-800-750-1213 (Toll Free in Vermont Only) or (803) 241-1250 or Vermont Center for Crime Victim Services.

If I go to court, will I “out” myself for all purposes?

Not necessarily. The courts try to be sensitive to the fact that some people seeking orders may be closeted or may be in a same-sex relationship that they do not want revealed. A relief-from-abuse order is a public record, however.

Where can I go to get help?

In addition to the local police and district attorney, you can contact the Vermont Network Against Domestic Violence and Sexual Assault at Vermont Network, at vtnetwork@vtnetwork.org (email) or 1-800-228-7395. They can provide you with information and assistance and connect you to resources in your area.

Does domestic violence play a role in custody decisions?

Yes. Evidence that a parent has in the past, or is presently, abusing the other parent or the child is a factor showing that that parent is not acting in the best interests of the child (15 V.S.A. § 665(b)(9)).

Resources

Information from Vermont Network Against Domestic Violence: Vermont Network.

Domestic Violence Resources: Domestic Violence Resources | Department for Children and Families.

Prevent Domestic Violence and Sexual Violence: Prevent Domestic and Sexual Violence | Vermont Department of Health

Cases & Advocacy

To see Violence & Harassment cases or advocacy which GLAD has been directly involved with in Vermont, go to: Cases and Advocacy – GLAD and under “By Issue” click on “Violence & Harassment” and under “By Location” click on “Vermont.”

News & Press Releases

To see news and press releases about Violence & Harassment in Vermont, go to: News & Press Releases – GLAD and under “By Issue” click on “Violence & Harassment” and under “By Location” click on “Vermont.”

Know Your Rights: Family Rights in Vermont

Relationships

Parenting (jump to section)

Family | Relationships | Vermont

What role did GLAD play in the fight for marriage equality?

GLAD led the fight for marriage equality in the United States. In the beginning, many states, instead of offering marriage to same-sex couples, provided the exact same state rights, protections, and responsibilities of marriage but called them civil unions or registered domestic partnerships.

GLAD’s fight for marriage equality began in Vermont with its lawsuit, Baker v. Vermont. GLAD won the case, but the Vermont Supreme Court allowed the legislature to decide how to implement the decision. Instead of offering marriage to same-sex couples, the Vermont legislature created civil unions. GLAD then won marriage rights for same-sex couples for the first time in the United States in 2004 in its lawsuit, Goodridge v. Department of Public Health

This was followed by:

  • Maine approved domestic partnerships in 2004, which provided some of the protections of marriage;
  • civil unions in Connecticut in 2005;
  • GLAD’s lawsuit, Kerrigan v. Commissioner of Public Health, won marriage rights for Connecticut same-sex couples in 2008; 
  • civil unions in New Hampshire in 2008;
  • Vermont provides marriage for same-sex couples in 2009;
  • Vermont no longer allows civil unions but does not convert its civil unions into marriage in 2009;
  • marriage in New Hampshire in 2010;
  • Connecticut converts all its civil unions into marriage in 2010;
  • conversion of New Hampshire civil unions to marriage in 2011;
  • civil unions in Rhode Island in 2011; 
  • marriage in Maine in 2012; 
  • marriage in Rhode Island in 2013;
  • civil unions in Rhode Island ended in 2013, but existing civil unions were not converted into marriage.

At the federal level, Congress passed the Defense of Marriage Act (DOMA) in 1996, which was a preemptive attack on same-sex couples stating that if same-sex couples were ever allowed to marry that those marriages would not be recognized by the federal government. On June 26, 2013, the U.S. Supreme Court decision in United States v. Windsor stated the DOMA was unconstitutional, and same-sex married couples were able to get federal benefits for the first time.

Finally, in Obergefell v. Hodges, on June 26, 2015, the U.S. Supreme Court made marriage equality a reality nationwide when it held that the U.S. Constitution guarantees same-sex couples the right to marry. GLAD’s own Mary Bonauto represented the plaintiffs at oral arguments. Post Obergefell, all 50 states are required to issue marriage licenses to same-sex couples; and all states must respect the marriages of same-sex couples performed in other jurisdictions.

Can same-sex couples marry in Vermont?

Yes. On April 7, 2009, Vermont became the first state to authorize marriage rights for same-sex couples through a legislative process rather than a court case. The bill, S.115 An Act to Protect Religious Freedom and Recognize Equality in Civil Marriage (the “Marriage Act”), was passed by the legislature on April 3, 2009; vetoed by the Governor on April 6, 2009; and the veto was overridden by the Senate (23-5) and the House (100-49) on April 7, 2009. The Marriage Act took effect on September 1, 2009.

To find out how to get married in Vermont, see: Getting Married in Vermont

Will other states and the federal government respect my marriage?

Yes. The Obergefell v. Hodges decision guarantees that all states and the federal government must treat same-sex married couples in an identical way to different-sex married couples. That means that all the protections, rights, and obligations that states and the federal government provide to different-sex married couples must also be provided to same-sex married couples.

Can I obtain Social Security survivor benefits if my spouse dies?

Yes, because as stated above, same-sex married couples are entitled to all the benefits provided to different-sex married couples.

However, until the Obergefell v. Hodges decision on June 26, 2015, many same-sex couples lived in states where unconstitutional marriage laws prevented same-sex couples from getting married. So when their spouse passed away, they were not able to meet the Social Security survivor benefit condition of having been married for 9 months.

To correct this unfairness, Lambda Legal filed two lawsuits, Ely v. Saul and Thornton v. Commissioner of Social Security, and was successful in obtaining a way for same-sex couples to file for Social Security survivor benefits who either never married (Ely v. Saul) or were finally able to marry but were married less than 9 months when their spouse passed away (Thornton v. Commissioner of Social Security). 

These two rulings allow same-sex couples, who were excluded from marriage because of discriminatory state laws and consequently were not eligible to apply for Social Security survivor benefits, to submit an application. However, the success of that application rests on providing enough documentation to prove to Social Security that the only reason they did not meet the 9-month requirement was because of the discriminatory state laws.

The following link gives more detailed information and has FAQs for each lawsuit and lists some of the ways you might be able to provide the documentation needed to qualify for the survivor benefit:

Information for Surviving Same-Sex Partners and Spouses Previously Excluded from Social Security Survivor’s Benefits Because of Unconstitutional State Marriage Laws | Lambda Legal

What happens if we need to end our marriage or our Vermont civil union?

After Obergefell v. Hodges, same-sex spouses everywhere can dissolve their marriages on the same terms as different-sex spouses. Vermont applies its divorce statutes to same-sex couples.

However, spouses should note that when Vermont courts divide marital property and award alimony/maintenance, one of the factors a judge considers is the length of the marriage. Nonetheless, the court does include as marital property all property owned by “either or both of the parties, however or whenever acquired…” So, for spouses whose partnership pre-dates marriage equality, the length of the marriage may not accurately reflect the true length of the relationship, resulting in an unbalanced division of assets.

If you are going through divorce proceedings in Vermont and believe your division of assets may be unfairly affected by the length of the marriage, contact GLAD Answers.

If you have a Vermont civil union and live in Vermont, and you need to end it, you follow the exact same process as married couples do when they are divorcing.

If you do not have a Vermont civil union and DO NOT live in Vermont, if you meet the following criteria, you can end it in Vermont without needing to establish residency:

  1. The civil union was established in Vermont.
  2. Neither party’s state of residence recognizes the civil union for purposes of dissolution.
  3. No minor children were born or adopted during the civil union.
  4. The parties together file a complaint for dissolution along with a stipulation, or agreement, that resolves all issues in the dissolution.

Can same-sex couples obtain any other legal recognition of their relationships in Vermont?

Until September 1, 2009, same-sex couples were able to enter into a civil union in Vermont. However, effective September 1, 2009, Vermont no longer issues civil union licenses; but it will continue to recognize civil unions from Vermont and other states and provide those couples with all of the protections and responsibilities of marriage under Vermont state law. Couples who have a Vermont civil union, and wish to be married, will need to go through the process of getting married.

When the legislature enacted the civil union law in 2000, it also established “reciprocal beneficiary” relationships. These allow people who were at least 18 years old, not parties to a marriage, civil union, or other reciprocal beneficiary relationship, and not related by blood or adoption, to receive the protections and responsibilities granted to spouses in the areas relating to medical decision-making, end-of-life decisions, and abuse prevention. The reciprocal beneficiary law was repealed effective May 28, 2014, because, over the course of 14 years, no reciprocal beneficiary relationship had ever been established in Vermont.

What steps can a couple take to legally safeguard their relationship in Vermont?

There are various legal documents that can protect a couple’s relationship, regardless of whether the couple has no formal legal relationship or is already in a marriage.

1. Relationship Agreement or Contract: Cohabitation agreements regarding property and finances provide a way for couples to sort out their affairs in writing before a separation. This kind of document serves a similar function to a prenuptial agreement. As long as the contract is not about sexual services and complies with the requisites for a valid contract, it has a good chance of being upheld as valid. Bear in mind that, as in any state, specific provisions concerning children may not be enforced according to their terms because it is always in the court’s power to determine the best interests of children. (See discussion below concerning parenting agreements)

2. Power of Attorney: Any competent person may appoint another person (such as one’s partner) as their “attorney-in-fact” for financial matters in the event the person becomes incapacitated or disabled.

This power of attorney can be extended to the time when the person is incapacitated if the power of attorney says, “This power of attorney shall not be affected by the subsequent disability or incapacity of the principal.” If no such appointment is made, then a “family” member will be empowered to make decisions for the disabled or incapacitated individual. A power of attorney does not include authority to make health care decisions.

A person may also indicate their preference regarding the appointment of a guardian — a longer-term appointment that applies to all areas of a mentally incapacitated person’s personal care and financial affairs (and courts consider the preference of the incapacitated person in appointing a guardian). The document indicating this preference should be executed with all of the formalities of a will and should be updated to keep track of all aspects of a person’s personal and financial situation.

3. Advance Directives for Health Care and Disposition of Remains: Under Vermont law, an individual may appoint an agent to make health care decisions for them upon incompetence, incapacity, or death and provide the agent with an advance directive that, for example, can:

a. direct the type of health care desired or not desired;

b. direct which life-sustaining treatments are desired or not desired;

c. identify persons with whom the agent should not consult or share information;

d. authorize the release of health information to other persons in addition to the agent;

e. make an anatomical gift pursuant to Vermont law;

f. nominate persons to serve (or not serve) as the individual’s guardian should that be needed;

g. direct the disposition of the person’s remains and the funeral arrangements.

Without an advance directive, medical providers and funeral directors look to a spouse or next of kin to make decisions. The advance directive can be revoked at any time by creating a new advance directive or by a clear expression of revocation. People often give a copy of their advance directive to their doctors and sometimes to family members.

4. Will: If a person who is neither married nor joined in a civil union, dies without a will, their property passes to: (1) their children or (2) their family. If the person wishes to provide for others, such as their partner, a will is essential. Even if a person has few possessions, they can name in the will who will administer their estate. If a person has children, they can nominate the future guardian of the children in a will.

Does a person need an attorney to get these documents?

GLAD recommends working with an attorney on these documents.

Although forms are available, the form may not be suited to your individual needs and wishes. Moreover, an attorney may be able to better help effectuate your goals, for example, by drafting a will in a way that is more likely to deter a will contest by unhappy family members, or an appointment of a health care agent with very specific instructions. In addition, an attorney may help to navigate the legal uncertainties flowing from the areas of overlap between these documents. GLAD Answers can provide referrals to attorneys who are members of GLAD’s Lawyer Referral Service.

If an unmarried couple separates, what is the legal status of a relationship or partnership agreement/contract?

Upon separation, the terms of a Relationship or Partnership Agreement/Contract will come into play if the couple has one. Absent an agreement, couples can get involved in costly and protracted litigation about property and financial matters, with no divorce system to help them sort through it. It is likely that Vermont courts will, under some circumstances, recognize contract theories and equitable principles to address the property and financial matters of a separating same-sex couple even without a written agreement. However, written agreements provide for greater security.

PLEASE NOTE: If you have changed your mind about who should be your “attorney-in-fact,” health care representative, beneficiary or executor under a will, funeral planner, conservator, or designee under a designation document, then those documents should be revoked—with notice to all persons who were given copies of those documents—and new documents should be prepared which reflect your present wishes.

What is domestic partnership?

Although it is a term used in many contexts, “domestic partnership” most often means a status that recognizes an unmarried couple and their children as a family for certain limited purposes. In the workplace context, domestic partnership plans allow an employee to obtain certain fringe benefits for their partner and family which were previously limited to married spouses. Some states, cities and towns have also enacted domestic partner laws. In other contexts, “domestic partner” is also a shorthand term for family, replacing “lover,” “friend,” and “roommate.” Some people call cohabitation agreements “domestic partner agreements.”

Does Vermont provide domestic partner benefits to state employees?

Yes. The State’s Personnel Policies and Procedures extend domestic partnership benefits to state employees. The benefits include medical and dental benefits, bereavement, and visitation rights. State employees interested in receiving health and dental insurance for their partners should contact the Department of Human Resources at (802) 828-3491 for an application, which can also be found on the state website.

To qualify as a domestic partner, a couple must:

  1. be each other’s sole domestic partner in an “exclusive and enduring domestic relationship”
  2. share a residence for at least six months prior to applying
  3. be 18 years of age or older
  4. not be married to anyone
  5. not be related by blood such they could not marry
  6. be competent to enter a contract, and
  7. have agreed to be responsible for each other’s welfare

Can cities and towns in Vermont provide domestic partner health insurance benefits to their own employees?

Yes. Some of the cities that offer medical benefits for domestic partners of municipal employees include Burlington and Middlebury.

What kinds of domestic partner benefits may private employers provide?

Private employers can provide domestic partners with many benefits, such as health insurance, family medical or bereavement leave, equal pension benefits, relocation expenses, or access to company facilities

Even when employers provide these benefits, federal and state laws require different tax treatment of the benefits for domestic partners as compared to spouses. For example, an employee must pay federal and state income tax on the value of their partner’s health insurance benefits (unless the partner is a tax dependent), but a spouse does not. Partners do not qualify as spouses under federally-controlled Flexible Spending Accounts unless the partner is also a tax dependent.

As for pensions, under the Federal Pension Protection Act of 2006, employers may amend their 401(k) plans so that non-spouse beneficiaries may retain the asset as a retirement asset. If a plan is amended, beneficiaries may “roll over” the 401(k) into an IRA depending upon the employee’s death whereas previous law required the beneficiary to take and pay income taxes on the 401(k) as a lump sum.

However, other discriminatory aspects of federal law remain regarding pensions. A domestic partner has no right to sign off if their partner decides to name someone else as the beneficiary of a pension, although a spouse would have that right. In addition, a domestic partner has no right comparable to that of a spouse to sign off on their partner’s designation of another person for survivor benefits.

What standards should same-sex couples with children who are breaking up maintain?

Same-sex couples with children who are breaking up should:

  1. Support the rights of LGBTQ+ parents;
  2. Honor existing relationships regardless of legal labels;
  3. Honor the children’s existing parental relationships after the breakup;
  4. Maintain continuity for the children;
  5. Seek a voluntary resolution;
  6. Remember that breaking up is hard to do;
  7. Investigate allegations of abuse;
  8. Not allow the absence of agreements or legal relationships to determine outcomes;
  9. Treat litigation as a last resort; and
  10. Refuse to resort to homophobic/transphobic laws and sentiments to achieve a desired result.

For more detailed information about these standards see the publication Protecting Families: Standards for LGBTQ+ Families.

How does a court generally go about making custody determinations?

Upon divorce or civil union dissolution, a court makes an order concerning parental rights and responsibilities of any minor child of the parties based on the best interests of the child. If the parties make an agreement about custody and visitation, the court will presume that agreement to be in the best interests of the child. If parents cannot agree, the court determines the way that parental rights and responsibilities will be divided or shared between them. In considering the best interests of the child, the court examines the following factors:

  • the relationship of the child with each parent and each parent’s ability to provide the child with love, affection, and guidance;
  • each parent’s ability to ensure that the child receives adequate food, clothing, medical care, other material needs, and a safe environment;
  • each parent’s ability to meet the child’s present and future developmental needs;
  • the quality of the child’s adjustment to the child’s present housing, school, and community and the potential effect of any change;
  • each parent’s ability to foster a positive relationship and frequent and continuing contact with the other parent;
  • the quality of the child’s relationship with the primary care provider, if appropriate given the child’s age and development;
  • the relationship of the child with any other person who may significantly affect the child;
  • the parents’ ability to communicate, cooperate with each other, and make joint decisions concerning the children where parental rights and responsibilities are to be shared or divided; and
  • evidence of abuse, and the impact of the abuse on the child and on the relationship between the child and the abusing parent.

In addition, the court may not prefer one parent over the other because of the sex of the child, the sex of a parent, or the financial resources of a parent.

Are there different kinds of custody?

Yes, four kinds:

  1. “Sole legal custody” means that only one parent has the right to make major life decisions for the child, including matters of education, medical care, and emotional, moral, and religious development.
  2. “Shared legal custody” means that both parents are involved in and make these decisions.
  3. “Sole physical custody” means that a child lives with and is under the supervision of only one parent, subject to reasonable visitation with the other parent unless a court finds that visitation is not in the child’s best interests.
  4. “Shared physical custody” means that the child resides with both parents in a way that ensures frequent contact with both.

The court may also award custody to a third party if it finds it to be in the child’s best interests.

If I have a child from a former straight relationship, and I am now involved with a same-sex partner, can my ex use my sexual orientation against me in custody proceedings?

As stated above, Vermont courts base custody arrangements on the best interests of the child. As a general rule, a parent’s sexual orientation or marital status should have no bearing on a child’s best interests.

Nevertheless, your former partner may try to argue that your sexual orientation is detrimental to your child. Any number of reasons can be cited, such as that the LGBTQ+ parent’s sexual orientation is causing other people to tease or ostracize the child, that the parent is a bad role model, or that the parent’s new partner is not good for the child. In the overwhelming majority of circumstances, these matters can be answered to the satisfaction of a judge in a way that does not penalize the gay parent or the child. Contact GLAD for further resources for dealing with such a situation.

Is it considered harm to the child if they are teased about having a gay or lesbian parent?

It shouldn’t be. One of the additional responsibilities of being a gay or lesbian parent is helping one’s children deal with this possibility or reality. Of course, children can be teased about everything from the size of their ears to their parents’ accent to their lack of fashion sense, so all parents need to help their children develop coping mechanisms and strategies when peer harassment arises.

As a legal matter, particularly instructive is a U.S. Supreme Court case, Palmore v. Sidoti, in which the U.S. Supreme Court reversed a Florida court’s change of custody from the mother to the father. The reason custody had been switched was because the white mother was involved with a black man whom she later married. The Supreme Court acknowledged the reality of bias and prejudice, and that the child might be teased, but refused to cater to those prejudices or give them the force of law by changing the custody arrangement that previously existed. In a statement of constitutional principle applicable to all, the Court unanimously stated, “The Constitution cannot control prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”

Does it matter if my ex knew or suspected I was LGBTQ+ before we separated?

It may make a difference with respect to future modification of court orders for custody. People can seek to modify court orders for custody when there has been a real, substantial, and unanticipated change in circumstances that alter the child’s best interests. If a spouse did not know of your sexual orientation at the time of the court proceedings but learns it later, they may argue that this is a substantial change of circumstances and that the custody issues should be litigated anew.

Of course, if one spouse or former heterosexual partner knew of the other’s same-sex sexual orientation at the time of the court proceedings establishing custody, a modification petition on those grounds would be pointless.

Can a court keep my kids from visiting when my partner is present?

The standard for restrictions on visitation, and in all matters, is what is in the best interests of the child with no concern for the adults. Courts have enormous discretion in visitation matters and certainly have the power to restrict visitation, but unless the partner is causing harm to the child— a very high standard— visitation should not be restricted.

Visitation restrictions are inherently suspect. In Lawrence v. Texas, the U.S. Supreme Court did more than decriminalize sexual acts. It acknowledged the right of gay people to form and sustain loving personal relationships and lead their private lives free of government restrictions and legal condemnation. Since gay people may make “personal decisions relating to… family relationships [and] child rearing,” custody and visitation restrictions must be handled accordingly. Mere differences in moral values between a court and a parent, presumptions about a gay parent’s conduct, or “social condemnation” of their relationship should no longer be permissible factors, if they ever were.

Resources

History of Same-Sex Marriage in the United States: History of same-sex marriage in the United States – Wikipedia

Vermont Estate Planning Laws: Vermont Estate Planning Laws – FindLaw.

Divorce: Divorce | Vermont Judiciary

Parental Rights & Responsibilities: Parental Rights and Responsibilities and Parent-Child Contact | Vermont Judiciary

Cases & Advocacy

To see Family cases or advocacy in which GLAD has been directly involved in Vermont, go to Cases and Advocacy – GLAD and under “By Issue” click on “Family” and under “By Location” click on “Vermont.”

News & Press Releases

To see news and press releases about Family in Vermont, go to: News & Press Releases – GLAD and under “By Issue” click on “Family” and under “By Location” click on “Vermont.”

Family | Parenting | Vermont

What is the Vermont Parentage Act?

The Vermont Parentage Act, or VPA, is a new set of state laws that expand the ways someone can legally establish that they are the parent of a child (also known as parentage). 

On July 1, 2018, the new Vermont Parentage Act (VPA) went into effect. Through the VPA, the Vermont Legislature rewrote Vermont’s laws on parentage to be modern and reflective of the great diversity of families in Vermont. What this means for children and families in Vermont is that there is greater clarity on who can establish parentage and how to establish parentage. Securing a child’s relationship to their parent(s) is one of the most important components of stability and security for a child.

What does parentage mean?

“Parentage” means that you are a legal parent of a child for all purposes. Parentage comes with a host of rights (e.g., decision-making for medical care or education, parenting time in the event of separation from your child’s other parent) as well as responsibilities (e.g., providing health insurance, providing for basic needs, payment of child support). A secure legal parent-child relationship is core to a child’s long-term stability and well-being.

Why was the VPA passed now?

For years, Vermont courts have called upon the legislature to modernize the state’s parentage laws as they were forced to decide cases without clear statutory guidance. In response, the legislature established a Parentage Study Commission during the 2016-2017 legislative session. The Parentage Study Commission was comprised of a broad array of stakeholders. The Commission studied the existing parentage laws and case law, and it made recommendations about necessary changes. Their work culminated in a report issued in October 2017 which included the proposed legislation that would become the VPA.

Why is it important to establish parentage quickly?

Establishing parentage soon after birth ensures that a child is secured to their parents for all purposes and increases clarity for all involved in a child’s life. For example, established parentage will allow a parent to make any early medical decisions in a child’s life, ensure that a child will receive insurance benefits or inheritance rights, and protect parents’ parental rights if they separate.

How can Vermonters establish parentage under the VPA?

The VPA provides that Vermonters can establish their parentage in the following ways:

  • Giving birth (excluding surrogates)
  • Adoption
  • Acknowledgment
  • Adjudication
  • Presumption
  • De facto parentage
  • Genetic parentage (excluding donors)
  • Assisted reproduction
  • Gestational carrier agreement

Who is an intended parent?

An intended parent is a person who consents to assisted reproduction with the intent to be a parent of the child or is an intended parent under a gestational carrier agreement. Ideally, a person who consents to assisted reproduction with the intent to be a parent will memorialize that intent in writing, but the law does allow other ways to prove intent to be a parent.

Who is a presumed parent?

A presumed parent is a non-birth parent that the law recognizes because of certain circumstances or relationships. A presumed parent is established as a legal parent through the execution of a valid Voluntary Acknowledgement of Parentage (VAP), by an adjudication, or as otherwise provided in the VPA.

You are a presumed parent if any of the below are true:

  • You are married to the child’s birth parent when the child is born;
  • You were married to the child’s birth parent, and the child is born within 300 days of the marriage that was terminated by death, annulment, or divorce;
  • You married the child’s birth parent after the child was born, asserted parentage, and are named as a parent on the birth certificate;
  • You resided with the child in the same household, and you and another parent held the child out as your child for two years after birth or adoption and assumed personal, financial, or custodial responsibilities for the child.

Who is a de facto parent?

A de facto parent is a parent based on their relationship with the child. Establishing de facto parentage requires a judgment from a court. You can petition a court to establish your de facto parentage by demonstrating, with clear and convincing evidence, all of the following:

  1. You lived with the child as a regular member of the household for a significant amount of time;
  2. You consistently took care of the child;
  3. You took full and permanent responsibility for the child without expectation of financial compensation;
  4. You held the child out as your child;
  5. You established a bonded and dependent relationship that is parental in nature;
  6. You had a parental relationship with the child that was supported by another parent;
  7. Continuing a relationship with the child is in the child’s best interest.

What is an Acknowledgment of Parentage?

Federal law requires states to provide a simple civil process for acknowledging parentage upon the birth of a child. That simple civil process is the Acknowledgment of Parentage program.

Federal regulations require states to provide an Acknowledgment of Parentage program at hospitals and state birth record agencies. Acknowledgment of Parentage forms themselves are short affidavits in which the person signing affirms that they wish to be established as a legal parent with all of the rights and responsibilities of parentage. The person who gave birth to the child must also sign the form, and both parents have to provide some demographic information about themselves.

By signing an Acknowledgment of Parentage, a person is established as a legal parent, and the child’s birth certificate is issued or amended to reflect that legal parentage. Properly executed, an Acknowledgment of Parentage has the binding force of a court order and should be treated as valid in all states.

How do I establish my parentage through a Vermont Voluntary Acknowledgment of Parentage (VAP)?

You can voluntarily acknowledge the parentage of a child by signing a form from the Vermont Department of Health known as a “Voluntary Acknowledgement of Parentage” or VAP. A VAP must be signed by the birth parent and the other parent. 

If you are the non-birth parent, you can sign a VAP if you are a genetic parent, an intended parent of a child born by assisted reproduction or by a gestational carrier agreement, or a presumed parent of the child. 

Signing a VAP form is voluntary, and it can be done at the hospital soon after birth or at another time. A VAP form must be witnessed and signed by at least one other person. If one person does not want to sign this form, then the other parent can try to adjudicate parentage through the courts.

When can I not establish parentage through a VAP?

  • A presumed parent who seeks to establish parentage in situations in which the other parent is not the child’s birth parent, e.g., the child was adopted by the other parent, must establish parentage through an adjudication and cannot establish parentage through an Acknowledgement of Parentage.
  • Parentage cannot be established through an Acknowledgment of Parentage if there is a third person who is a presumed parent, unless that person has filed a Denial of Parentage. 
  • A person who establishes parentage based on residing with the child and holding out the child as the person’s child for the first two years of the child’s life cannot establish parentage through an Acknowledgment of Parentage until the child is two.

When can a parent sign a VAP?

A VAP can be signed after the birth of a child, up until the child’s 18th birthday. An Acknowledgment of Parentage can also be completed before the child’s birth but will not take effect until the child is born.

How can a VAP be rescinded?

A party who signed the VAP may rescind an acknowledgment of parentage or denial of parentage by:

  1. Filing a rescission with the Department of Health within 60 days after the effective date of the acknowledgment or denial. The signing of the rescission shall be witnessed and signed by at least one other person.
  2. Commencing a court proceeding within 60 days after the effective date of the acknowledgment or denial.
  3. Challenging the acknowledgment or denial within the earlier of 60 days after the effective date of the acknowledgment or denial or within 60 days after the date of the first court hearing in a proceeding in which the signatory is a party to adjudicate an issue relating to the child.

What if I am a non-biological parent? How can I establish myself as a legal parent?

The VPA has many provisions that protect non-biological parents. If you are your child’s presumed parent, or if you are the intended parent of a child born through assisted reproduction or gestational surrogacy, you can establish parentage by signing a VAP.

All parents can establish parentage through a court order. A presumed parent or an intended parent of a child conceived through assisted reproduction can seek a judgment declaring the person a parent of the child or do a co-parent or second parent adoption. Some non-biological parents can establish parentage through the VPA’s de facto parent provisions, which require a court to adjudicate the person to be the child’s de facto parent.

How does the VPA help people who conceive through assisted reproduction?

The VPA provides important clarity and protections for children born through assisted reproduction. The VPA confirms that a gamete donor (e.g., sperm or egg donor) is not a parent of a child conceived through assisted reproduction. Also, the VPA affirms that a person who consents to assisted reproduction with the intent to be a parent of the resulting child is a legal parent.

What is the difference between joint, second-parent (also known as co-parent), and single-parent adoptions?

A joint adoption is when both partners adopt a child together at the same time. A second-parent adoption is when one partner adopts the other partner’s child. Single-parent adoption is when a single individual adopts a child. All three of these are legal in Vermont.

What is the advantage of doing a second-parent adoption or joint adoption?

Both joint adoptions and second-parent adoptions ensure your child has two legal parents, Both married and unmarried couples can do a joint or second-parent adoption. Adoption allows a non-legal parent to become a legal parent, entitled to make decisions for the child without special authorization. It also permits the adoptive parent to automatically assume custody of the child if their partner dies. Likewise, if the adoptive parent dies, the child will have the right to inherit from that parent even absent a will, and may be able to collect Social Security survivor benefits.

Finally, if the couple separates, adoption ensures that both parents have the right to custody and visitation, and that any disputes will be decided based on what is in the best interests of the child rather than on who is the legal parent.

Do we need to do a second-parent adoption if we are married?

When a child is born into a marriage, Vermont law and the law of all states presume that both spouses are the parents of the child and both names are listed on the child’s birth certificate. However, this is only a presumption and can be challenged in court, so in the past GLAD recommended that married couples do a second-parent adoption to ensure the parentage of the non-biological parent because adoption is a court judgment creating a parent-child relationship and must be respected by other states.

Now Vermont couples have a second way to protect the parentage of the non-biological partner by signing a Voluntary Acknowledgment of Parentage.

If I am a parent who has signed a VAP, do I also need to do a second-parent adoption?

No. A parent who has signed a VAP should not need to do a co-parent adoption to establish parentage. A VAP establishes legal parentage under state law, is the equivalent of a judgment of parentage under state law, and gives you all the rights and duties of a parent. Under federal law, an Acknowledgement of Parentage is the equivalent of a judicial decree of parentage and should be recognized in all states.

Since expanded access to acknowledgments of parentage is an emerging development, some parents might feel more comfortable also completing a second-parent adoption in addition to or instead of a VAP. To understand what is best for your family, individualized legal advice is recommended.

How does the VPA address surrogacy?

The VPA has comprehensive provisions about how to establish parentage through a gestational carrier agreement. All parties to a gestational carrier agreement must have independent counsel throughout the process.  This is a brief overview of the law for informational purposes.

Before starting any medical procedures to conceive a child through a carrier process, you must have a written and signed agreement. This agreement is between you, any other intended parents, the person acting as a carrier, and the spouses of any of those parties (if applicable). This agreement will establish that you are the parent(s) of the child and that the carrier and their spouse, if applicable, do not have parental rights or duties. To enter into a gestational carrier agreement, the following must be true:

  1. All intended parents and the carrier must be at least 21;
  2. All intended parents and the carrier must have completed a medical evaluation and mental health consultation; and
  3. The intended parent(s) and the carrier must be represented by separate lawyers for the purposes of the agreement, and the carrier’s attorney must be paid for by the parent(s).

The law requires carrier agreements to incorporate several terms to be valid, such as allowing a surrogate to make their own health and welfare decisions during pregnancy and requiring the parent(s) to pay all related healthcare costs.

What does Vermont law say about traditional or genetic surrogacy? 

The VPA only allows traditional or genetic surrogacy if the surrogate is a family member. Someone who is not a family member cannot act in this role. Even with a family member, the law’s requirements for a valid agreement, and all of the other protections of the statute outlined above, apply.

What if I am not married?

The VPA explicitly provides that every child has the same rights as any other child without regard to the marital status of the parents or the circumstances of the child’s birth. By not differentiating between parents based on their marital status, the VPA aims to treat all Vermont families equally.

What if I am transgender or non-binary?

The VPA explicitly provides that every child has the same rights as any other child without regard to the gender of the parents or the circumstances of the child’s birth. The VPA, by not including gendered terms such as mother or father, is inclusive of all genders. By not differentiating between parents based on their gender, the VPA aims to treat all Vermont families equally.

Can a child have more than two legal parents?

Yes. Under the VPA, a court may determine that a child has more than two legal parents if the failure to do so would be detrimental to the child. To determine detriment to the child, courts will consider factors such as the age of the child, the nature of the potential parent’s relationship with the child, the harm to the child if the parental relationship is not recognized, the basis for each person’s claim of parentage of the child, and other equitable factors.

What protections are there for survivors of domestic violence so that they are not pressured into establishing legal parentage?

The VPA aims to ensure that the establishment of parentage is fair, clear, efficient, and child-centered. Some legal parentage— such as the non-marital presumption and de facto parentage–can arise by consent. No one should ever be pressured to consent to parentage. 

The VPA contains provisions that allow parents to challenge another person’s parentage if the other person claims to be a presumed parent or a de facto parent but satisfies the requirements for parentage through duress, coercion, or threat of harm.

Where can I go if I need help resolving a parentage issue?

As with any family law issue, individualized legal advice is recommended. GLAD Answers can provide information as well as referrals to local practitioners. If you have questions about how to protect your family, contact GLAD Answers by completing the form at GLAD Answers or calling 800.455.4523 (GLAD).

Resources

Vermont Voluntary Acknowledgment of Parentage information and form: Acknowledging Parentage in VT

Vermont Parentage Act: Title 15C: Parentage Proceedings.

More information about VPA: 

Parenting a Transgender Child:  Parenting a Transgender or Gender-Expansive Child: How to Protect Your Family Against False Allegations of Child Abuse

Cases & Advocacy

To see Family cases or advocacy which GLAD has been directly involved with in Vermont, go to: Cases and Advocacy – GLAD and under “By Issue” click on “Family” and under “By Location” click on “Vermont.”

News & Press Releases

To see news and press releases about Family in Vermont, go to: News & Press Releases – GLAD and under “By Issue” click on “Family” and under “By Location” click on “Vermont.”

News

On April 6, 2023, the federal Department of Education proposed a regulation regarding the inclusion of transgender students in school sports under Title IX. Check out the resources below to learn more.

Here’s what to know (Download the PDF):

https://www.glad.org/wp-content/uploads/2023/04/Title-IX-Rule-2023_What-to-Know.pdf

The Fact Sheet (Download the PDF):

https://www.glad.org/wp-content/uploads/2023/04/Athletic-NPRM-FS-4.14.23-v1.pdf

Read GLAD’s statement on the proposed regulation.

Updated 4/14/2023

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