November 17, 2022
With Some on the Supreme Court Questioning Individual Rights, Our Work Continues to Ensure Recognition and Protection for Our Families
The U.S. Supreme Court’s ruling this summer overturning Roe v. Wade is already having devastating consequences for millions across the country who need access to abortion care. The impacts of restricting or altogether banning abortion, as some states are doing, will fall hardest on people and families of color and those without the financial resources to travel out of state or seek alternative routes to care.
The LGBTQ+ and reproductive justice movements are fundamentally connected, and GLAD is working with our partners in the reproductive equity movement to fight for access to abortion for all who need it. This summer in Massachusetts, under the legislative leadership of LGBTQ+ caucus members such as Sen. Joanne Comerford, Sen. Julian Cyr, and Rep. Kate Hogan, we helped secure the passage of a new law to increase protections for access to both abortion and gender-affirming care. We are consulting with other New England states on similar measures.
The impact of the Dobbs ruling extended beyond harmful restrictions on abortion. Justice Clarence Thomas suggested in a concurring opinion that critical decisions impacting LGBTQ+ people’s relationships, family-building, and the freedom to marry – including Lawrence (affirming the right to consensual same-gender intimacy) and Obergefell (affirming the freedom to marry) – should also be reconsidered.
To be clear: Lawrence and Obergefell remain the law of the land – and GLAD will defend those decisions against any challenges as both good for our country and rightly decided. And we are confident we will win because constitutional guarantees of both liberty and equal protection underpin those rulings. Millions of Americans count on their own ability, or that of family members, to be able to marry the person they love and build a family. No possible government interest would justify destabilizing families by dismantling marriage equality.
The federal Respect for Marriage Act
Congress also has a rightful role to play in ensuring continued recognition of marriages and assuring families that it will protect their most important relationships. GLAD is a leader in the effort to pass the Respect for Marriage Act, long overdue federal legislation that will officially repeal the entire Defense of Marriage Act (DOMA). GLAD led the first multi-plaintiff legal challenges to Section 3 of DOMA (recognition of marriages across the US) and coordinated an amicus effort in the Windsor Supreme Court case. The decision in Windsor resulted in Section 3 being declared unconstitutional. The Respect for Marriage Act will ensure federal and state governments continue to recognize and respect all marriages without discrimination based on gender, sexual orientation, national origin, ethnicity, or race – no matter what.
The bipartisan bill passed the House this summer, and we must all call on the Senate to pass it as soon as they return to session in November. Take action now to protect marriage equality.
Advancing state-level protections for families
Protecting our children and our families, however they are formed, has been a pillar of GLAD’s LGBTQ+ justice work for over four decades. Parentage – the legal relationship between a child and their parent or parents – is fundamental to children’s security and well-being. For several years, GLAD has led efforts to update state laws determining who is recognized as a legal parent. GLAD has worked in numerous states, including Vermont, Rhode Island, Connecticut, Maine, New Hampshire, and Colorado, to increase family protections through parentage reform legislation.
The ongoing work to fully secure our LGBTQ+ families is even more urgent now, in the wake of the Dobbs ruling.
In recent months, we’ve seen a trial court in Maine strip a child of her LGBTQ+ married mother because of a lack of biological relationship. We’ve seen the Idaho Supreme Court refuse to recognize an LGBTQ+ married parent as a parent because she had no genetic relationship with her child. In New Hampshire, the state child support agency recently tried establishing a known gamete donor as a legal parent and demanding financial support from him. GLAD represented the donor and coordinated with the mother’s counsel to spell out that she is the child’s sole legal parent and that it is critical for parents, children, donors, and the state to have clarity about who is a parent.
And in Massachusetts, almost 20 years after GLAD’s Goodridge victory made it possible for same-gender couples to marry legally, LGBTQ+ families still face harm because state laws have not been updated to reflect how families are formed today.
GLAD leads, along with Resolve New England, a coalition of families, attorneys, and partner organizations dedicated to passing the Massachusetts Parentage Act (MPA). The MPA will update state law to clarify who can be a parent and how to establish parentage and add important protections for children born to unmarried parents and through assisted reproduction and surrogacy. It will also enable LGBTQ+ parents to establish parentage the same way other families do, including through a voluntary acknowledgment of parentage.
Without the MPA, the current state of family law in Massachusetts renders LGBTQ+ families and their children second-class. Parents – married and unmarried – may still have to undergo the expensive, time-intensive, and disrespectful process of adopting their own children to fully secure their families. Without clear inclusion in our state parentage laws, parents and children face separation by the child welfare system. There are no protections for children born through surrogacy, meaning some children wait years to establish their parentage. And de facto parents, a status available through Massachusetts courts since 1999, have no access to full legal parentage, leaving them unable to provide health care to their children or make decisions for them.
De facto parentage prioritizes children by protecting their relationship to a person who has functioned as their parent, often when another parent is unable to care for the child. It protects children – particularly those from families facing economic insecurity – and keeps children out of the child welfare system. But currently in Massachusetts, de facto parentage allows only visitation, a second-class status that perpetuates harm to children and families. Only legal parentage allows access to the building blocks of stability and well-being – decision-making, child support, access to benefits, and more.
The Massachusetts Supreme Judicial Court has called on the legislature to update parentage laws to provide more clarity for family courts. The MPA will provide a clear standard for courts to resolve competing claims of parentage. It also creates a much more rigorous standard for establishing de facto parentage than exists under current law – including a standing requirement, seven factors that must each be proven by clear and convincing evidence, as well as explicit protections for survivors of domestic violence.
GLAD has worked on updating parentage laws in every other New England state. We must enact laws to protect children in Massachusetts and across the country. We will never stop working for the equality, safety, and dignity of our LGBTQ+ families – to defend our right to marry whom we choose, expand reproductive freedom, and protect parental relationships of all types. We aspire to a future where everyone can build and protect their family with the recognition and respect we all deserve.
J Shia and Audai
When MPA Coalition member J. Shia was 19, her girlfriend at the time got pregnant. Their relationship moved from romantic to friendship, but when Audai was born and his mother began to struggle with a number of issues, J stepped up to take care of him and has acted as his parent ever since.
J. shares a heartbreaking story of how Audai was placed in foster care because the state refused to recognize J’s parental status, even though she has raised Audai since birth. While obtaining legal guardianship enabled her son to return to her care, people still question their family relationship regularly.
“Every day I carry a notarized copy of my son’s guardianship form in my wallet. I need to present this for schools, his doctors’ and dentist appointments,” J. says. “I’m constantly being questioned. For someone who’s been Audai’s primary parent since the day he was born, this situation is wildly degrading. I am his parent, not just his guardian.”
J. has to get permission before traveling with Audai out of state, and she has to reapply for his health insurance every year. Beyond the day-to-day practical difficulties, J. lives knowing that, at any moment, her guardianship could be revoked. The MPA would allow parents like J to seek de facto parent status that is equal, legal parentage, with all the rights and responsibilities of parentage. And this status would not require terminating Audai’s birth mother’s rights or excluding her from his life. Massachusetts has fallen behind other states in protecting children of de facto parents, and the MPA will remedy this vulnerability.
FAQ: steps to protect your LGBTQ+ family in the wake of Dobbs
The Dobbs decision landing at a time when LGBTQ+ people are already facing staggering legislative attacks around the country has rocked our community. GLAD worked with COLAGE, Family Equality, and NCLR to publish an FAQ to provide information on steps LGBTQ+ people can take now to protect their spousal and parenting relationships. We also encourage anyone to contact GLAD Answers with specific questions.