Healing Homophobia
Healing Homophobia Neil Patrick Harris

Homophobia is defined by Merriam Webster dictionary as “an irrational fear of, aversion to, or discrimination against homosexuality or homosexuals.” So, someone who denies being homophobic but has an irrational aversion to homosexuals raising children is, by definition, homophobic.

Discrimination against homosexual parents raising children is irrational because the overwhelming scientific evidence supports the consensus that children of gay and lesbian parents are as healthy and well-adjusted as children of heterosexual parents.

It does no good, however, to call out a Facebook friends as a “homophobe”. Instead, using positive influence can heal the negative influence like an infection. It is not homosexuality that needs healing, but the homophobia. But, how? Reverend Susan Russell opines on HuffPost that having brave men and women with the courage to live their example openly and honestly, showing good, real example of homosexual couples. And, having those same people embrace those outside of their community to educate and influence those people to a more enlightened outlook will do more to heal homophobia than labeling others as “homophobes”. Positive experiences, including those depicted on television and in movies will have a greater effect than negative name-calling. In this way, Ellen Degeneres and Neil Patrick Harris have done more by example to heal homophobia in our society than any court opinion ever could.

How do you think we can heal homophobia?

LGBT domestic abuse We don’t generally think of domestic violence in same-sex relationships. Society views the stereotypic domestic violence victim as a passive small woman being assaulted by a large overbearing man. But, domestic violence occurs in same-sex relationships too, and LGBT domestic abuse  victims are generally more isolated than victims in other walks of life.

What does LGBT domestic abuse look like?

As with heterosexual relationships, a gay couple may start their relationship happy and loving. Over time, one partner may become emotionally manipulative, which leads to physical aggression. Behaviors like wrist-twisting while holding hands, pinching an arm during a fight, or hitting are all forms of domestic violence that a person in a same-sex relationship may suffer the same as a person in a heterosexual relationship.

One victim stated, “How do you say to your friends, ‘My girlfriend rapes me’ when their only mental definition of rape is a man forcing his penis inside a woman’s vaina? How do you say you were assaulted when it comes back to the idea of ‘that doesn’t count’? Well, it does count.” (See This is what domestic violence is like when you’re LGBT by Patrick Strudwick, BuzzFeed News.)

A 2010 study from the Centers for Disease Control and Prevention, released again in 2013 with new analysis discovered that the lifetime prevalence of rape, physical violence, and/or stalking by an intimate partner was 43.8% for lesbians and 61.1% for bisexual women. For gay men, the statistics showed 26% for gay men and 37.3% for bisexual men. In the same study, the CDC determined that lesbians and gay men experience rates of domestic violence and sexual violence equal to or higher than those in heterosexual relationships.

Hurdles to getting help for LGBT domestic abuse victims?

The abuse is hard to spot, says May Krukiel, director of residential services for domestic violence shelter Hope’s Door in New York, because with same-sex couples, the partners frequently have the same social network, which can lead to the abuser alienating the victim from the social supports. A gay person may also feel isolation and vulnerability from social support and from mainstream society in general, making it hard to seek help. Also, Krukiel says, many gay and lesbian people feel pressure to have their relationships appear perfect to avoid criticism from outside the community.

Coming out is also a key issue. “How do you tell anyone you are living in fear from your partner if no one knows you’re gay?” questions Jo Harvey Barringer, CEO of Broken Rainbow, formerly a national LGBT domestic abuse charity, which recently closed due to lack of funding. “About 85% of callers to our [domestic abuse] helpline have a partner that will use the threat of outing them to colleagues, family, or kids as a form of control,” says Barringer. And, to make it more difficult, to seek services in the mainstream, the victim must also come out.

One area of domestic abuse unique to the LGBT community is the trend of threatening to reveal HIV status or withhold HIV medication between gay male partners or withholding of hormone treatment in transsexual couples.

What can we do to help LGBT domestic abuse victims?

Local police departments need to be trained to handle such reports of domestic violence, as they are often the first responders that victims meet. Also domestic violence awareness campaigns and service providers could expand their reach to be more inclusive of victims that do not match the stereotype by refocusing educational and outreach campaigns away from linking masculinity with violence and acknowledging that violence crosses all gender, sexual orientation, and economic lines.

For more reading on this topic, see:

UPDATE: The LexBlog Network gave this post a Top 10 blog post of the day award! Thanks LXBN for the recognition! Check out their post Top 10 in Law Blogs: Brexit, Online Accounts, Labor Union.

The San Antonio court of appeals recently decided a case about transgender parenting, including paternity, conservatorship and possession. In re N.I.V.S., 2015 WL 1120913 (Tex. App. – San Antonio 2015, ___).

In that case, the Father was born female but self-identified as male and had been raised as a boy. When Father and Mother met, Mother knew that Father was born female.case pic

The two began a romantic relationship, and during the relationship, Mother adopted two. The Children referred to Father as their father, and Father was known as the Children’s father to family, friends, school officials, and church officials. When the Children were six- and four-years old, Father quit his job to be a stay at home parent. Three years later, Mother and Father separated, and Father moved out of the family home.

He continued to care for the Children after school, in the mornings, and on weekends. Nearly three years later, Mother refused to allow any contact between Father and the Children. About a week later, Father obtained an order to legally change his female birth name to the masculine name he had gone by since he was a Child. A few weeks later, Father filed a paternity suit seeking to be named the father of the child and seeking joint managing conservatorship and equal periods of possession and access. At the time he filed suit regarding the children, he was still legally a female, but he obtained an order changing his identity from female to male after the suit was filed.

Mother filed a motion to dismiss Father’s petition for lack of standing, which the trial court granted. Father appealed, asserting standing under Tex. Fam. Code § 160.602(a)(3), § 102.003(a)(8) and (9), and under the common law doctrines of in loco parentis, unconscionability, estoppel, and psychological parent.

The San Antonio court of appeals affirmed the dismissal of the case. The court found that he lacked standing to sue at the time the suit was filed as well as thereafter.

One reason for the ruling is that a paternity suit may only be filed by a man. The Texas Family Code § 160.602(a)(3) gives standing to maintain a proceeding to adjudicate parentage to “a man whose paternity of the child is to be adjudicated.” Additionally, The Texas Family Code § 102.003(a)(8) gives standing to file an original SAPCR to “a man alleging himself to be the father of a child filing in accordance with Chapter 160….”

The Texas Family Code defines a man as a male of any age, but the Family Code does not define “male.” The court cited to Webster’s definition of a male as an individual with “gametes…which fertilize the eggs of a female.” Black’s defines male as “of the masculine sex.”

The order changing Father’s identity was signed about a month after his petition to adjudicate parentage. Thus, at the time Father filed his petition, he lacked standing under both Tex. Fam. Code § 160.602(a)(3) and § 102.003(a)(8) because on that date, Father was still legally a female and could not be defined as “a man” under the Texas Family Code.

The other ground for standing under Texas Family Code § 102.003(a)(9) is that he is a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition.

Here, Father had an active role in the Children’s lives while he was still in a relationship with Mother. However, after their separation, which occurred almost three years before he filed suit, Father was not as involved with the actual care, control, and possession of the Children. The Children resided with Mother. Father attended some doctor’s appointments, but Mother was always also present. Father did not authorize any medical treatment or make educational decision for the Children after he and Mother separated. So, the court of appeals held that he did not exercise “actual care, control, and possession” of the child to provide standing.

Last, Father claimed standing under common law parenting theories, including that he was a psychological parent of the child. However, no Texas cases have ever allowed a person to have standing based on these common law doctrines.

So, the court of appeals dismissed his suit because he lacked the initial requirement of standing to sue.

The hard part of the analysis in this case is that, even if he had won standing to sue, his likelihood of success in obtaining court ordered possession is slim. The reason is that even if he had standing to sue, at the final trial, he would have to show the biological parent unfit to parent the child in order to impose court-ordered access over the objection of the parent. This is the doctrine of the constitutional right to parent without interference from third parties provided by the US Supreme Court in Troxel v. Granville. It is a very very large hurdle to overcome for most nonbiological parents.

The lesson to learn from this case for all nonbiological psychological parents is to adopt the child of your partner before the relationship between you and your partner ends. The courts cannot sever a legally adopted parent/child relationship. Otherwise, you are not a parent and likely have a hard road to impose an involuntary relationship against the parent’s wishes.

 

It has been a year since the US Supreme Court legalized same sex marriage across the country. At the time, many people, gay and straight, thought the gay community had “arrived” in acceptance. Is that necessarily true for gay parents in our Texas family law courts?

lin manuel mirandaThis weekend, during LGBTQ pride month, an awful person reigned hate and terror down on a nightclub in Orlando, Florida, killing and injuring and traumatizing scores of people. Why did this awful thing happen? As best as we can tell at this point, the shooter had a well-known hatred of gay people and was also reported to be an abusive horrible person by his ex-wife.

But, it is not these two events singularly that shape the LGBT community. Remember President Ronald Reagan refused to acknowledge the AIDS crisis until almost a million people died from it. On the night of October 6, 1998, Matthew Wayne “Matt” Shepard, an American student at the University of Wyoming, was beaten, tortured, and left to die near Laramie, Wyoming by two men who posed to be gay men and got enraged when Shepard hit on them. His death brought attention to hate crime legislation which passed Congress in 2009. Or, as portrayed in the movie Boys Don’t Cry, Brandon Teena who was a trans man, raped and murdered in 1993, illustrating the systematic discrimination by the legal and hospital authorities who he encountered prior to his death.

And then we cannot minimize all of the LGBTQ youth who have taken their own lives due to the bullying, harassment, and rejection they have suffered. And, of course, the recent controversy that has captured the nation over what bathroom transgender persons use.

People in the LGBTQ community are still discriminated against and victimized on a daily basis. Same-sex marriage does not change that. Every day in courtrooms across America, judges and juries hold gay parents to a higher, more cumbersome standard to have the same relationship with their children as a straight parent. I’ve heard with my own ears judges and jurors opine that a gay parent’s lifestyle isn’t fit for parenting. I’ve experienced the systemic discrimination against a gay parent even from  people who are convinced of their own tolerance.

As a blogger posted today on Huffington Post, An Open Letter To Straight People On The Pulse Massacre, “This mass shooting was not an isolated event, or remnants of antiquated homophobia, or just religious extremism. It stemmed from the very real homophobic culture that exists in our country….”

To be a true ally to the gay community, it isn’t enough to love Ellen Degeneres or Neil Patrick Harris. It isn’t enough to look the other way when a transgender person enters the bathroom. It isn’t enough to attend a gay wedding, have a play date with the child of a gay parent, or #PrayForOrlando on social media.

To be a true ally to the gay community, as the Huffington Post blogger puts it:

“You must be an active ally and truly combat homophobia and transphobia when you see it. This means calling someone out when they say something hurtful or ugly. It means caring more about what you feel is right than what other people think of you. It means not tokenizing LGBTQ+ people, or dismissing their struggles, or spouting “liberal” thoughts just to score social brownie points.”

This means for the family law community that we must advocate for judges and juries to truly treat gay and straight parents as equals. Should we assume that gay parents are less moral, less responsible, or less loving as parents than straight people? Of course they are not. There are imperfect straight parents, but there may also be perfect gay parents. Straight parents do not corner the market on parenting skills. I know many gay parents who are morally, ethically, and responsibly good parents who raise productive, well adjusted, contributing adults. Some fear that gay parents will “raise gay children” or will fail to instill values associated with “real men of genius” (ala Bud Light). The family law community should evolve to the point of treating gay parents the same as straight. Judge each parent and each case by its own facts and circumstances. Hold gay and straight parents to the same standard of care for their children.

Over 40 years ago, we Texans passed legislation that removed the presumption that mothers were somehow better parents than fathers simply because of their gender. See No Mommy Presumption for Custody in Texas. Our citizens recognized that such presumptions were false and harmful and violated the Equal Protection Clause of the United States Constitution, guarantying to treat all citizens equally. Why shouldn’t the same presumptions apply to sexual orientation as gender? Can we presume that gay parents and straight parents love their children? Can we presume that gay parents and straight parents can both be good, mediocre, or bad parents without regard to the gender of the person they choose as their significant other? Or, maybe we need a new Texas law on the books that spells it out that our family law system cannot discriminate against a parent solely based on their sexual orientation? Or can we all just agree that gay parents and straight parents love their children equally, or at least that is our starting presumption before the facts of a particular situation show something else? As a member of the Texas family law community, I challenge each of you to fight the systemic discrimination against our brothers and sisters in the gay community. Let Orlando stand for a new recognition of equality of gay parents that goes beyond just a right to marry and divorce. But also a right to equal treatment as parents without regard to sexual orientation.

And, whether it is the dialogue surrounding Orlando or the plight of gay parents in a particular Texas court, let love combat the hatred. As the actor Lin-Manuel Miranda recited in his sonnet at the Tony Awards on Sunday, “And love is love is love is love is love is love is love is love cannot be killed or swept aside.”

The legal debate wages on for gay parentsgay parent as to what constitutes a “parent”. Is it biology? Legal status? Or, in the case of many gay and lesbian same-sex couples, emotional attachment? The question is whether the definition of “parenthood” should include people who have played a key parenting role in the child’s upbringing even if not the biological or adoptive parent.

New York’s highest court will soon tackle this issue, according to an article in the Wall Street Journal Gay Custody Fights Redefine Legal Parenthood. The New York Court of Appeals heard argument last week in a case brought by a gay woman seeking visitation rights for a young boy she helped raise. The suit challenges a New York state law that limits the scope of parental rights to those with a clear biological or adoptive tie to a child. These issues are seen more frequently with lesbian couples who were together when one of the women had a child through artificial insemination.

The plaintiff in the New York case argues that “parenthood” should include those who played a key role in a child’s upbringing with the support of a birth parent, even when not connected through biology or adoption.

Opponents say expanding the scope of persons who can seek parental rights could lead to bogus challenges – such as aunts/uncles, friends, teachers or nannies – leading to contentious custody battles that aren’t in the best interest of children.

Also problematic for establishing a broader view of “parenthood” is the U.S. Supreme Court’s decision in Troxel v. Granville. This case established that a biological or adoptive parent has a constitutional right to parent their child without interference from any outsiders. The only exception allows governmental or third party intervention if the parent is causing harm to the child’s welfare. Without proof that a parent is unfit, third parties cannot trample a parent’s constitutional right to parent freely.

Research from the University of California, Los Angeles School of Law estimates that in 2013, 15% of unmarried, same sex couples nationwide are raising children.

The New York appeal centers around the broken relationship of Brooke Barone, 33 years old, and Elizabeth Cleland, 31, who were dating in western New York almost seven years ago when Ms. Cleland had a son through artificial insemination. The two later split up.

Ms. Barone says she played the role of doting parent, cutting the baby’s umbilical cord, and caring for him through bath times, meals and doctor’s appointments until Ms. Cleland cut off contact in 2013. “I was his Mamma B,” Ms. Barone says. “I live for the day I get to wrap my arms around him and tell him how much I missed him.”

Ms. Cleland says the two had a tumultuous relationship and that she stopped feeling safe leaving her son with Ms. Barone. “I look at my son, and I’m the only mom he’s ever known,” said Ms. Cleland, who married four years ago.

Some caught up in legal battles have argued that the sole fact a pregnant woman was dating someone at the time a baby is born shouldn’t penalize her later if no other steps were taken to make the partner a legal parent.

While parental rights can typically be secured through marriage or adoption, for many gay and lesbian couples, marriage only became possible after last year’s landmark Supreme Court decision backing gay marriage. Legally adopting a partner’s child can sometimes be prohibitively expensive, lawyers say, and some couples don’t realize it is even necessary until a relationship ends.

top 10

UPDATE: Thank you to LexBlog and LXBN Network for recognizing this post with a Top 10 of the Day award for June 7, 2016! See their blog post about it here: Top 10 in Law Blogs: Cannabis Crowdfunding, Brexit, and Eighth Circuit

valentines candyValentine’s Day can be a time for the ultimate show of faith in co-parenting. The dreaded room party for the kids. Who should attend? Mom? Partner? Other Mom? Grandparents? New girlfriend? What if the Mom doesn’t like her ex’s new girlfriend and gets mad that she’s coming to the school function?

As the song says, to analyze anything, you have to start at the beginning. So who has the right to attend the school party? If there are custody orders in place and the parents are joint managing conservators, then both parents have the right to attend. If one parent doesn’t have the right to attend, then they shouldn’t. But that is unusual. If both parents have the right to attend, then both parents have the right to bring friends and family with them.

If there is no custody order, then the parents have the same and equal right to attend school functions and bring family and friends.

The most important thing to remember is to not make the child uncomfortable. Even if someone shows up that isn’t welcome by all present, act gracious and welcoming for the child. The child is probably excited about the party and his or her friends. The child is probably excited to have all of his family unit present. If one person there acts uncomfortable or mad, it could ruin it for the child.

Just always remember in any situation involving a dispute over a child or child custody, put the child’s interests first. Ask what would the child want you to do in this situation? That should help you come up with the best response.

 

lgbt flag pic2015 was a banner year for LGBT rights in America. Of course, legalization of same-sex marriage (now just known as Marriage) was the biggest victory. But Caitlyn Jenner was a hot topic. And there were some smaller victories in anti-discrimination laws. Here’s a rundown of the big events for LGBT rights in the US in 2015, according to Vox.com’s article The biggest moments in LGBTQ rights in 2015:

Marriage equality

The biggest news of the year for LGBT Americans was marriage equality. In June 2015, the US Supreme Court struck down all states’ bans against same-sex marriage because the laws violated Due Process and Equal Protection. Now, same-sex couples can marry anywhere in the country.

Read Marriage Equality – The Whole Enchilada

Read Rome Wasn’t Built in a day; neither will LGBT equality. But we have the cornerstones.

With same-sex marriage also came the right to dissolve those marriages – so all states now must allow same-sex couples to divorce. Before the US Supreme Court decision legalizing same-sex marriage, couples who were married in states that acknowledged same-sex marriages could not seek a divorce if they moved and lived in a state that did not recognize those marriage. (Many couples who married elsewhere and moved to Texas were in this position, but now Texas has to allow same-sex couples to divorce too.) This left many couples in limbo without recognition. The new decision from the US Supreme Court changed all of that.

The fight over religious freedom

The shifting tide toward same-sex marriage brought on a backlash from many religious conservatives, resulting in many political and legal battles over religious freedom in 2015. Who can forget Rowan County, Kentucky clerk Kim Davis who refused to issue same-sex marriage licenses, even after multiple orders telling her to do so, relying on her religious principles to justify her actions. Davis’ defiance led to her arrest and eventually she was released under a compromise that allowed her to abstain from issuing licenses while her staff at the clerk’s office continues to do so.

Caitlyn Jenner came out as transgender

Another big shift in LGBT rights came through the Kardashians – Caitlyn Jenner came out as transgender. Her very public reveal brought an opportunity to educate American society about gender identity and trans issues. Although trans-Americans make up a very small portion of the US population – less than 1% — the first step in advancing trans rights in the US is educating the public on the basics and exposing Americans to trans people.

Utah passed an anti-discrimination for LGBTQ people

Most states laws do not prohibit discrimination against LGBTQ people in workplace, housing, and public accommodations. But, in 2015, Utah – an unlikely state to embrace the LGBT community – was added to the list of states to protect LGBTQ people.

A federal agency applied the Civil Rights Act of1964 to protect gay, lesbian, and bisexual people

Many believe that, although most states do not have laws protecting LGBT people, the federal Civil Rights Act and Fair Housing Act already provide some protections. Since 2012, the Equal Employment Opportunity Commission, which oversees federal employees’ discrimination complaints, has prohibited discrimination based on gender identity under federal law. In 2015, the EEOC ruled that discrimination based on sexual orientation is prohibited too. While these rulings are not law, they can influence courts in favor of anti-LGBTQ discrimination.

 

Impact of Marriage Equality CLEYesterday I was honored to speak at the State Bar of Texas’ LGBT Section’s Impact of Marriage Equality on Texas Law continuing legal education seminar. My topic was Divorce, Custody, and Other Emerging Family Law Issues After Obergefell. My co-presenter was the most awesome Karen Langsley from Austin. One of the biggest issues that we discussed is the issue of retroactivity of the Obergefell decision. The US Supreme Court decided that the laws prohibiting same sex marriage were void ab initio. That means “void from the beginning” so it is as if the law never existed in the first place. (Here’s an interesting blogpost about the legal definition of void ab initio.) This is important in discussing the date of marriage, because the date of marriage impacts many issues in the context of divorce. Once issue would be when community property began accruing. Also, the date of marriage determines whether a spouse is entitled to post-divorce maintenance support — 10 year marriage is the key here.

Another issue we discussed in the presentation was the presumptions of parentage in the marriage between a same sex couple. This is particularly important for a lesbian couple, where one spouse is the biological parent of a child born during the marriage. There is a presumption that children born during a marriage are the children of both spouses. Of course presumptions are only that — they can be rebutted. But, it is a good starting place. We also discussed that for same sex couples — with or without a marriage — the presumptions applicable to paternity findings are equally applicable to maternity findings. So, for example, where a man might make a claim for paternity based on the holding out paternity findings during the first 2 years of the child’s life, a non-bio mom could make the same argument. My co-presenter had a great quote about this — “It is not apparent who is a parent!” Definitely muddied water…

Read our full article from the presentation yesterday here: Divorce, Custody and Other Emerging Texas Family Law Issues After Obergefell.

 

 

 

You have to see the adorable Campbell’s soup ad featuring two gay dads and their little boy. The commercial is called The Galaxy’s Best Dads.

Larry Sullivan, David Monahan and their adorable son, Cooper, are among the many real-life families featured in a new, heartfelt Campbell’s Soup campaign.  These two men have been together for over a decade and are professional actors.

The campaign is called “Made for Real, Real Life” and emphasizes Campbell’s efforts to produce “real food that matters for life’s moments”. In the clip, the men take turns feeding Cooper spoonfuls of Campbell’s Star Wars soup and reciting a famous line from the film.

The concept behind the campaign is to show how Campbell’s products “fit into people’s hectic everyday lives in an authentic, humorous and relatable way,” according to Yin Woon Rani, Campbell’s vice president of marketing activation. “We wanted to show actual families, which means families of different configurations, cultures, races and life choices,” Rani continued. “The American family is changing faster than at any time in recent history and it is now a true mosaic of shapes and sizes, all bonded through love, and love of good food.”

https://youtu.be/7rZOMY2sOnE

See more of the Campbell’s Soup Made for Real, Real Life ads on YouTube here.

See Campbell’s press release about the ad campaign here.

See Huffington Post’s article This Campbell’s Soup Ad Featuring Gay Dads Will Melt Your Heart.

 

dads adjustmentI found a good article from the American Psychological Association’s Society for the Study of Social Issues on Sexual Identity Development of Children Raised by Gay and Lesbian Parents.

The article points out that scientific studies confirm that the sexual identities of children who grow up with same sex parents develop in much the same way as children of heterosexual parents. The article summarizes numerous studies over many years and finds:

  • Studies show that children of same-sex couples show normal gender identity development and gender role behavior.
  • Children of same-sex couples were no more likely to have same-sex attractions than children of heterosexual couples.
  • No difference can be found among teenagers of same-sex and opposite-sex couples regarding teen sexual activity.
  • Lesbian mothers and heterosexual mothers do not differ in their perceptions of ideal gender role behavior.
  • No difference in sexual orientation between men with gay fathers or those with heterosexual fathers.

Read the Fact Sheet on Sexual Identity Development of Children Raised by Gay and Lesbian Parents here.