June 12th is the anniversary of the 1967 US Supreme Court decision in Loving v. Virginia, which struck down laws in 16 U.S. states banning interracial marriage – mainly between blacks and whites. The US Supreme Court found that such laws restricting the freedom to marry solely based on racial classifications violated the equal protection clause of the United States Constitution. Loving Day is the biggest multiracial celebration in the United States, and there is a movement to make it an official US government holiday. (See Make Loving Day Official.)Loving Day letters

Mildred and Richard Loving, a black woman and a white man, married in Washington D.C. in 1958, and were arrested a few weeks after they returned home to Virginia. They pleaded guilty to charges of “cohabiting as man and wife, against the peace and dignity of Virginia”, and avoided jail time by agreeing to leave Virginia. They moved to Washington D.C. and wrote to US Attorney General Robert F. Kennedy. Kennedy referred the case to the American Civil Liberties Union. The US Supreme Court, headed by Chief Justice Warren, unanimously ruled in favor of the young couple. Afterwards, the couple lived together with their three children.

See The Loving Story trailer of the HBO movie.

Mildred and Richard LovingWhat Mildred Loving says mirrors what many of us say today, “I say that marrying who you want to is a right that no man should have anything to do with. It’s a God-given right, I think.”

The US Supreme Court currently considers another landmark decision in the field of marriage equality – Obergefell v. Hodges. The decision in that case is expected prior to the end of the Court’s term this month. They are scheduled to release opinions each Monday and Thursday this month through June 29th. Opinions are released at 10:00 am EST on those days. Where the Loving opinion was unanimous, no one dares to believe that the Obergefell decision will be the same. With a Court sharply divided on liberal versus conservative grounds, the swing vote will likely fall to Justice Anthony Kennedy, widely known to be the moderate middle vote. He authored opinions siding with gay rights in several prior cases, so the hope is that he will likewise author this opinion on the side of the right of same sex couples to marry.

The effect of the Obergefell decision here in Dallas, Texas remains to be seen. The Dallas County Clerk has announced the intention to be the first to issue marriage licenses to same sex couples when the opinion is released, and has requested budget money from Dallas County to staff clerks working overtime to accommodate the rush of couples to marry. “If the court rules in favor of same-sex marriage, within an hour and a half of the opinion, we’ll start issuing licenses,” said Dallas County District Clerk John Warren. (See Dallas County set to issue licenses if ruling favors gay marriage)

Hat tip to my favorite pastor Eric Folkerth for his blog It’s All About Loving. If you don’t read his blog, you should.)

Jenner vanity fair
Vanity Fair magazine features Caitlyn Jenner on the cover of the July 2015 edition.

The news of the week this week was Caitlyn Jenner (formerly known as Bruce Jenner) gracing the cover of Vanity Fair Magazine. This sparked quite the debate in the country – and especially on Facebook – about whether she is a man, woman, hero, brave person, role model, or something worse. Some on Facebook saw fit to denigrate Caitlyn’s journey as compared to the heroic soldiers of war – as if she or anyone else in the LGBT community was trying to put her in that category. (Can’t there be more than one type of “hero”, people?)  However, the best article of the week on the topic was the educational piece put out by GLAAD (a gay and lesbian advocacy organization) – Tip Sheet: Transgender Terminology and Tips for Covering Caitlyn Jenner.

The GLAAD article is a very important step in educating the public about correct terminology. Some people won’t care enough about the human interest to use the correct terminology. After all, we do live in Texas here and there are some uninspired Texans who will insist that Caitlyn should be called “he” because he was born a man. (Well, some Texas may even be more crass than that, but we don’t have to jump in that mud pit, do we?) I even heard one so-called Christian gentleman here in Dallas, Texas comment that calling Caitlyn “she” somehow insulted ME as a woman. Just preposterous!

So here are GLAAD’s “do’s” and “don’ts” to create respectful, accurate stories about Caitlyn Jenner transgender people:

DO describe people who transition as transgender, and use transgender as an adjective. Caitlyn Jenner is a transgender woman. DON’T use transgender as a noun. For example, don’t say: “Caitlyn Jenner is a transgender.” DON’T use “transgendered.” Transgender never needs an extraneous “-ed” at the end. DON’T use “transsexual” or “transvestite.”

DO refer to her as Caitlyn Jenner. DON’T refer to her by her former name. She has changed it, and should be accorded the same respect received by anyone who has changed their name. Since Caitlyn Jenner was known to the public by her prior name, it may be necessary initially to say “Caitlyn Jenner, formerly known as Bruce Jenner…” However, once the public has learned Jenner’s new name, do not continually refer to it in stories.

DO use female pronouns (she, her, hers) when referring to Caitlyn Jenner.

DO avoid male pronouns and Caitlyn’s prior name, even when referring to events in her past. For example, “Prior to her transition, Caitlyn Jenner won the gold medal in the men’s decathlon at the Summer Olympics held in Montreal in 1976.”

DO refer to Caitlyn Jenner’s female identity as her gender identity, not her sexual orientation. Gender identity is one’s own internal, deeply held sense of being male or female. Sexual orientation is who one is attracted to. They are not the same thing and should not be conflated or confused.

AVOID the phrase “born a man” when referring to Jenner. If it is necessary to describe for your audience what it means to be transgender, consider: “While Caitlyn Jenner was designated male on her birth certificate, as a young child she knew that she was a girl.”

DON’T speculate about medical procedures transgender people may or may not choose to undertake as part of their transition. This is private medical information, and a transgender identity is not dependent on medical procedures. Overemphasizing the medical aspects of a person’s transition objectifies transgender people, and prevents the public from seeing the transgender person as a whole person.

DON’T imply that someone who comes out as transgender (regardless of their age) was lying or being deceptive because he or she chose to keep that information private. Transgender people face extremely high rates of family rejection, employment and housing discrimination, and physical violence. Every transgender person has to prepare to face the possible consequences of coming out and living as their authentic selves. That caution does not mean that they were deceptive or lying. It simply means they felt it necessary to keep their authentic self private until they were safely able to disclose it to others.

DON’T indulge in superficial critiques of a transgender person’s femininity or masculinity. Commenting on how well a transgender person conforms to conventional standards of femininity or masculinity is reductive and insulting.

Caitlyn Jenner is the highest profile person to bring transgender issues to the forefront of the American attention span. GLAAD’s article does a good job of educating the uninformed in proper terminology. Ignorance promotes intolerance, where education promotes tolerance. Thank you GLAAD for helping the American public and media learn about these issues and, in doing, become more tolerant.

Read additional educational information on transgender issues at GLAAD’s website here.

Read the Vanity Fair article on Caitlyn Jenner here.

Michelle May O'Neil, LGBT Ally and Advocate, www.lgbttexasfamilylaw.com
Michelle May O’Neil, LGBT Ally and Advocate, www.lgbttexasfamilylaw.com

Today marks the official launch day for my new family law blog focusing on LGBT issues in Texas. This month we expect a ruling from the Supreme Court of the United States in the Obergefell case, which will, one way or another, be a landmark decision in the history of gay rights in America. Whatever that decision, it will impact the lives of gay and lesbians right here in Dallas and in Texas. But, the ruling won’t magically solve all of the issues related to same-sex marriage, gay parenting, or other family law issues affecting members of the LGBT community. In fact, it will only open the doors to many new issues that gay and lesbians will have to face. What are some examples? Informal marriage based on prior commitment ceremonies, presumed parents versus nonbiological parents, community property laws, alimony, premarital agreements, and much more. This blog is designed to be a place for education on the intersection of LGBT issues and Texas family law. It cannot be considered legal advice, as you should get legal advice based on your specific set of circumstances from a lawyer qualified to assist you. If you need a lawyer, we are happy to help. But, don’t rely on our posts here as a substitute for the in-person, real time advice from a lawyer. Laws in different states vary, so if you aren’t from Texas, take what we say here with a grain of salt and get advice in your own state. This is an exciting time for the LGBT community and we will be here to educate and guide readers through it. Enter your email address in the subscription bar on the blog website so you will receive our updates via email. Share our posts on Facebook or other social media. Let’s get the word out and educate the public on this important time.

Special thanks to Kevin O’Keefe, Collin O’Keefe, and all the members of LexBlog for your support in getting this blog created in record time and in promoting our message through your network. Here’s the link to LexBlog’s post about our launch. Looks like we are the only LGBT family law blog on their network right now.

presump of maternityTexas Family Code section 160.106 says that the provisions of Chapter 160 relating to the determination of paternity apply to a determination of maternity in Texas. So, when a heterosexual couple is married, the father is presumed to be the father of the child. The law provides other instances when a man is presumed to be a father in a heterosexual relationship such as when the father signs an acknowledgement of parentage or allows himself to be named on the birth certificate. Interestingly, paragraph 5 of 160.202 allows for a presumption of paternity for a man who, during the first 2 years of a child’s life, resides in the household with the child and represents to others that the child was his own. Could this section be applied to a lesbian couple (married or not), when a child is born during the marriage to one mother, but the non-biological mother holds out to the world that the child is her own as well?According to 160.106, the same paternity presumption would apply to the maternity issues.

However, the Houston 14th Court of Appeals in 2014 questioned the application of 160.106 in the case of In re MMM. The MMM case involved an issue of assisted reproductive technology, so not exactly the same as a same sex relationship. The birth mother was undisputedly not the genetic mother of the children because the children were conceived through reproductive technology using donated sperm and egg. After the children’s birth, the biological father sued to establish his paternity. The Houston Court distinguished between a “presumption” of maternity versus a “determination” of maternity in 160.106, and restricted that statute’s interpretation to the strict wording. However, this case has to be viewed from the very narrow factual lens presented.

In other states, the similar statute from the Uniform Parentage Act has been interpreted to apply to lesbian non-biological mothers. So, if a nonbiological mother held out to the world that she was the mother of the child as if the child was her own, then the paternity presumptions might arguably apply to such situation. Likewise, in the event that Texas begins to recognize same sex marriages, the same parentage presumptions related to men – such as the presumption of paternity for a child born during a marriage – might be held to apply to a Texas nonbiological mother.

See Presumption of MATERNITY in Texas? at my other blog Dallas Divorce Law Blog.

The American College of Physicians released a new position paper with recommendations on how to achieve health care equality for lesbian, gay, bisexual, or transgender LGBT patients. The ACP calls for comprehensive transgender health care services to be included in health benefit plans. And, they advocate for civil marriage rights for same sex couples. Certain policies in the current health care system reinforce the social stigma, marginalization or discrimination against LGBT people, which keep them from obtaining the care needed.

Some of ACP’s key statements and recommendations include the following:

*Print ACP recommends that gender identity, independent and fundamentally different from sexual orientation, be included as part of nondiscrimination and anti-harassment policies.

* ACP recommends that public and private health benefit plans include comprehensive transgender health care services and provide all covered services to transgender persons as they would other beneficiaries.

* ACP supports same-sex civil marriage rights and also recommends that the definition of family be inclusive of those who maintain an ongoing emotional relationship with a person, regardless of their legal or biological relationship. As such, patients should be able to determine who may visit and who may act on their behalf during their stay, without stipulation.

* ACP opposes the use of “conversion,” “reorientation,” or “reparative” therapy for the treatment of LGBT persons.

For more information, read about the statement from the American College of Physicians here.

hotel california
Texas is the Hotel California of same sex marriage.

The Eagles sang about the Hotel California in their 1977 song: “You can check-out any time you like, but you can never leave!”. The current state of same sex marriage in Texas is similar. Couples can go to other states and get married, but if they live in Texas, dissolving the marriage is impossible.

Currently, 36 states plus the District of Columbia, and certain counties in Missouri allow same sex couples the freedom to marry. An NBC News/Wall Street Journal poll released in March 2015 found that 59% of Americans favored same sex marriages and only 30% opposed them. Never the less, Texas denies same sex couples not only the right to marry, but also the ability to get a divorce from a marriage legally entered into in a sister state.

As author Joan Jenkins said in her article Texas Conundrum: Married With No Way Out (Texas Lawyer, April 20, 2015), this creates a conundrum. Without the ability to divorce, same sex married couples living in Texas cannot equitably divide their jointly owned property the way that heterosexual married couples can. They cannot address jointly created debts in the same way. And, there is no option for alimony between same sex couples, as when a heterosexual married couple might need it.

Similarly, LGBT couples who are married from another state cannot inherit property through Texas inheritance laws as a married couple, cannot make decisions for their spouse, and do not have the same parenting presumptions as heterosexual couples.

So, at least for the time being, LGBT couples who get married in other states face the “Hotel California” situation where they can physically check out of the marriage by separating but they can never leave with a divorce. Maybe this summer the Supreme Court will change this and force Texas to recognize the same sex marriages and also give LGBT couples the ability to get a divorce.

On April 2obergefell graphic8, 2015, the Supreme Court of the United States held oral arguments in Obergefell v. Hodges – the combined group of 6 cases addressing the constitutionality of various states’ bans against same sex. Most Court watchers expect a ruling to come out by the end of June when the Court’s term ends. The next date when the Court will release opinions is May 26th.

Many speculate that Justice Ginsberg was hinting at the result when she officiated at a same sex wedding on Sunday May 17, 2015. At the end of the vows between the two grooms, Justice Ginsberg said she pronounced the two men marriage by the powers vested in her by the Constitution of the United States, giving special emphasis to the word “Constitution“.

Justice Ginsberg is known to be among the liberal wing of the Court, with Justices Sotomayor, Breyer, and Kagan. On the other side, Justices Scalia, Thomas, and Alito typically vote along conservative lines. Justice Roberts usually votes with the conservative block, leaving Justice Kennedy as the moderate middle swing vote.   The Obergefell case will probably fall along those voting lines as well.

Justice Kennedy’s legacy has been very strongly in favor of the rights of the LGBT community. As early as 1996, Justice Kennedy wrote the Court’s opinion in Romer v. Evans, invalidating a Colorado law against homosexual rights. He also wrote the Court’s landmark opinion in Lawrence v. Texas, extending Due Process protection to homosexual people and banning laws that made such conduct criminal. On the other hand, Justice Kennedy tends to be a states’ rights advocate. So, in Obergefell, Justice Kennedy could be conflicted between the right of each state to make its own laws about marriages versus the right of same sex couples to marry and enjoy the benefits of a legally sanctioned relationship as heterosexual couples.

By June, the country should have a better idea of what the law of the land will be.