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After the Election: Things LGBTQ Families Should Know Now

No one can take away your marriage.

If you are married, no President can “undo” that legal status. There is no realistic possibility that anyone’s marriage will be invalidated.  The law is strong that if a marriage is valid when entered, it cannot be invalidated by any subsequent change in the law. People who are already married should know that that their marriages cannot be invalidated or erased.

If you are LGBTQ and not married now, but concerned about your ability to marry in the future, it is highly unlikely the U.S. Supreme Court will reverse its very recent decision in Obergefell that found the marriage is a fundamental right under the Constitution, resulting in recognizing the right of all same-sex couples to marry. Yes, there will be at least one U.S. Supreme Court vacancy to fill in the new administration, but it is important to remember that slot was held by Antonin Scalia, the most conservative justice, and he was on the court when the same-sex marriage case was decided. The doctrine of stare decisis—which means that courts generally will respect and follow their own prior rulings—is also very strong, and the Supreme Court very rarely overturns an important constitutional ruling so soon after issuing it. In addition, while the new administration is very conservative, Donald Trump has not indicated any intention to try take away the freedom to marry.

No one can take away your adoption.

Adoption laws, like most family laws, are based on state law, not federal law, so the election should not impact adoption laws. If you are LGBTQ and have an adoption decree making you a legal parent to your children, no Presidential or federal government action can take that away. Adoption decrees are meant to be permanent court orders that cannot be changed or undone in the future. Whether you are a birth parent or an adoptive parent, you have constitutional rights and your rights cannot be removed without due process of law and a legal basis to do so (such as abuse or neglect). A recent U.S. Supreme Court's decision in V.L. v. E.L. held that adoption decrees will be given “full faith and credit” under the United States Constitution, meaning they must be recognized in all 50 states. So even if another state changes its law to deny adoptions to LGBTQ families and you then move there, your adoption decree will still be recognized.  This is why adoption decrees are so important and valuable to LGBTQ families. They provide permanency and security for your family.

Families who have adopted children from another country should confer with an adoption attorney to ensure that the immigration and citizenship status for their children is secure. Some international adoptions require a Registration of Foreign Adoption action or a re-finalization of the adoption in the United States to confer U.S. citizenship to the adoptee.

You cannot rely on a marriage or birth certificate alone to conclusively establish parental rights; secure your family through adoption.

Most family law is based on state law, not federal law, so there should be no impact from the federal election on state-based family laws. However, if the election results are causing you to evaluate steps you can take to protect your family – securing an adoption decree to establish legal parentage is one of the most crucial steps you can take right now.

The 50 states vary significantly as to the laws that apply to determine who is a legal parent, especially for children conceived through donors or assisted reproduction. While some states recognize a “marital presumption” that a non-genetically related spouse is a legal parent to a child, other states do not have this presumption or do not apply it to children conceived through assisted reproduction. And even if a state does recognize a “marital presumption,” it is just that – a presumption. In the law a “presumption” is a legal assumption that can be challenged with evidence that disproves the assumption or when the martial relationship is no longer intact. When it comes to securing your parental rights to your child, does relying on the marital presumption alone make sense? To be certain that you are BOTH deemed to be legal parents, it is critical to take certain steps to secure each of your parental rights permanently by finalizing an adoption for the non-genetic parent. An adoption decree securing the parental rights of a non-genetic parent must be obtained, even if the non-genetic parent’s name is already on the child’s birth certificate. A birth certificate alone is not a legal determination of parentage.

LGBTQ protections established through executive orders could be eliminated.

While Donald Trump cannot take away your marriages or adoptions, there are many other LGBTQ protections established through Executive Orders that are at risk. Here is a partial list of President Obama’s LGBTQ-related executive actions Trump could undo:

∙ Executive Order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity.

∙ Final rule in May 2016 that protected LGBTQ people from discrimination in healthcare and insurance under the Affordable Care Act.

∙ Prison Rape Elimination Act implementation regulations in May 2012 to directly protect LGBTQ people.

∙ Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity Rule in February 2012, protecting LGBTQ people in all HUD­-funded programs.

∙ Comprehensive guidance in May 2016 on their interpretation of Title IX, clarifying that public schools receiving federal funding must treat transgender students in accordance with their gender identity.

∙ Guidance in July 2013 that all immigration visa petitions filed on behalf of a same­-sex spouse would be reviewed in the same manner as those filed on behalf of an opposite­-sex spouse.

∙ The Global Equality Fund, launched in 2011, which supports programs that advance the human rights LGBTQ persons around the world.

∙ Public endorsement of the Equality Act in November 2015, supporting comprehensive federal nondiscrimination protections for LGBTQ people.

-List Source: Center for American Progress

For additional post-election information related to the trans community, click here.