December 22, 2016
A major part of GLAD’s work throughout our organizational life has focused on families. That has been true before, during, and after our success on marriage equality in the United States Supreme Court with the Obergefell decision. And throughout that time, two critical tenets of our work have emerged: (1) honor family relationships regardless of any official status; and (2) put children’s interests first. In fact, marriage equality, rather than being any kind of pinnacle of that work, has been but one example of it. And, true to GLAD’s mission, the ways in which we have been achieving protections for families has been to bring cases of first impression which establishes some right, status, or outcome for one family which changes the law for others who follow.
Marriage is one important way that people form families. And, as the Supreme Court has fully and finally recognized, along with that status come literally over a thousand protections that families formed by same-sex couples need and deserve to protect themselves and their children. The Obergefell decision brings dignity, respect, and concrete legal rights to the couples who take on the responsibility that marriage commands, as Mary Bonauto so effectively argued to the Court last April.
But as Mary and all of us at GLAD know from our decades of work on family law issues, families come in all different forms. Some are headed by couples who desire to marry. Many others are not. So with or without marriage equality, GLAD’s commitment to ensuring equality for all families headed by LGBTQ people – regardless of government labels put on them – remains steadfast.
Equality is, of course, a major driving force behind this concern. But the other major driving concern is the children being raised in these families. Through a child’s eyes, the labels government puts on family – like married or unmarried – and the people who form it – like de facto, birth, or genetic parent – are not as important as the loving relationships formed within the family structure.
So, the second key commitment GLAD has long had driving its family work has been this – put children’s interests first. Respect family relationships. Honor the role of parent that an adult has filled in a child’s life regardless of what the law calls that person and regardless of whether the person has a genetic or birth connection to the child. GLAD’s goal is to ensure that the law honors and respects relationships forged between children and their committed, loving caregivers no matter the legal label available to them.
A number of cases currently on GLAD’s docket highlight these commitments.
GLAD is working with Massachusetts family attorneys Patience Crozier, Elizabeth Roberts and Teresa LaVita to represent a woman who together with her female partner of 13 years, agreed to bring two children into their family with assisted reproduction. They have jointly and joyfully raised the children from the beginning. Now that the couple has separated, the legal question is whether Massachusetts law ensures protection for the relationship forged between a non-birth parent like Karen and her children where the couple was not married and did not go through the formal process of legal adoption. We think the answer must be yes. So GLAD is representing Karen on appeal arguing the simple truth that Karen is a parent. Period. We believe we are long past the time when a child is assured legal protections only when the child’s parents are married or adopt.
GLAD is working on this issue in Vermont as well. In a decision that long pre-dates Obergefell, the Vermont Supreme Court urged couples to adopt children who they jointly raise. And married couples automatically enjoy the right to jointly parent children brought into their families. But those two options don’t reflect every family’s reality. And, as GLAD will argue, children’s interests should come first.
Consistent with its goal of recognizing families based on function and not technicalities, GLAD is back in the Vermont Supreme Court in a case seeking to protect the relationship between a woman and her children where a lesbian couple neither married nor jointly adopted their children but where the children’s connection to our client is every bit as real, serious, loving, and bonded as it is to the parent who went through the formal legal process of adopting the children. No matter the legal name put on it, GLAD sees a family and is striving to ensure that the parental relationship forged between our client and the children she raised for nearly a decade is preserved.
Shockingly, even where parents have a formal legal relationship with their children, we have not seen the last of anti-gay arguments being used to defeat relationships forged between non-birth parents and the children they raise. In a friend-of-the-court brief, GLAD is supporting a petition by our colleagues at NCLR for U.S. Supreme Court review in just such a heartbreaking case from Alabama. In a custody dispute between former lesbian partners, the Alabama Supreme Court recently refused to recognize the non-birth mother as a legal parent and denied her visitation – despite the fact that, with the birth mother’s consent, she lawfully adopted their three children in Georgia in 2007.
GLAD’s goal of preserving family relationships and putting children first is also at the heart of our family law work focused on ensuring that transgender children get the social, emotional, and medical support that they need. We have received a growing number of calls from parents of transgender children in which an absent or less involved parent seeks to undermine support the custodial parent is providing for a transgender child.
For example, GLAD’s Transgender Rights Project found and provided technical assistance to a Rhode Island attorney who was able to secure a court order authorizing hormone therapy for a transgender teenager whose father refused to consent to the treatment. Similarly, GLAD worked with attorneys Liz Monnin-Browder, of Ropes & Gray, and Austin Batalden, to fight off a challenge to a custodial parent’s legal relationship with her transgender child. Our client faced opposition to the affirmation she was providing her child because of the father’s refusal – contrary to professional guidance received by the mother – to recognize and support the child as the girl she knows herself to be.
As there is more visibility around transgender people’s, including transgender young people’s, lives, GLAD expects to receive more calls like these. True to our commitment to honor families however they are formed and to put children’s interests first, these cases will continue to be a central part of our work.