Attorney Diane Walton answers questions about LGBT legal protections

Diane Walton is a graduate of the University of North Carolina at Asheville, where she received a B.A. in Political Science, and the University of Baltimore School of Law, where she received a JD. Diane is a member in good standing of the North Carolina State Bar.

Diane has worked countless hours volunteering her legal services for the Campaign for Southern Equality since 2011. Her volunteer efforts have ranged from running free legal clinics for LGBTQ folks across Mississippi to helping individuals complete Health Care Directives, Name Changes and other vital legal documents. She has also been an attorney of record on multiple federal court cases won by the Campaign for Southern Equality against anti-LGBT laws in Southern states.

In the aftermath of the 2016 election, we asked Diane a few questions about LGBTQ rights moving forward.

Can Trump overturn marriage equality with an executive order?

Trump cannot invalidate same-sex marriages via executive order.

How could marriages could be invalidated or prohibited in the future?

When the Supreme Court rules on whether or not a law is constitutional, the ruling becomes the law of the land. It’s unlikely the Supreme Court will reverse their decision in Obergefell that found the marriage is a fundamental right under the Constitution. The doctrine of stare decisis is strong. This doctrine means courts generally will follow their own prior ruling and the Supreme Court rarely overturns an important constitutional ruling so soon after issuing it.

The Constitution could be amended to ban same-sex marriage. The last time the U.S. Constitution was amended was in 1971 when the 26th Amendment was ratified. It lowered the voting age to 18. To amend the Constitution two thirds of Congress must vote in favor of the amendment and subsequently, three fourths (38) of State legislative bodies would have to ratify the amendment.

Should same-sex couples adopt their children?

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. 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. 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.

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

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 marital 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. 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.

It’s a difficult and nearly impossible process to undo an adoption but it’s much easier for state legislatures to make it more difficult for the LGBTQ community to adopt. Many thanks to Tiffany Palmer, who is my source for this information.

Do I need to adopt my children if they were born after October 2014 and non-bio parent is on the birth certificate?

Yes! Please read the above response. 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.

What about the Executive orders Trump says he will toss on day 1?

There are 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.)

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