One Year Later: How LGBTQ Parents Can Protect Their Families After Dobbs

Shortly after the U.S. Supreme Court decision that overturned abortion rights a year ago, I spoke with two leading LGBTQ family law experts about how LGBTQ families can protect themselves from the ruling’s impact. It’s still relevant, so I’m reposting it along with some new resources and information.

Since the U.S. Supreme Court decision that overturned abortion rights, “people are panicking” about its potential impact on LGBTQ families, said Polly Crozier, senior staff attorney [now director of family advocacy] at GLBTQ Legal Advocates and Defenders (GLAD). How justified are the fears, and how can we best protect LGBTQ families now? Crozier and Julie Gonen, federal policy director for the National Center for Lesbian Rights (NCLR), shared their thoughts with me.

Many are concerned right now that the court’s June 24th decision in Dobbs vs. Jackson Women’s Health could also be used to overturn other fundamental rights. Gonen said that while Justice Clarence Thomas, in his concurrence, was the only justice to explicitly say this should happen, the majority’s reasoning “could easily be applied in a future case about sexual intimacy or marriage equality. And we are already seeing officials in some states openly saying they do want to return to a time when LGBTQ people were criminalized and barred from marriage.”

For the moment, though, marriage equality “is the law of the land and we’re not going to yield an inch,” Crozier emphasized. “I feel like there’s a renewed strength and vigor to hold the line.”

Gonen said it was “very unlikely” that a challenge to these other rights would come before the court in its next term, because it would first need to move through the lower courts. Nevertheless, “We must take the threat seriously and be prepared to move aggressively in states that attempt to take us backwards.”

Right now, she asserted, “The most important thing LGBTQ parents can do to protect their families is to get a court order of adoption or parentage [for the nongenetic/nongestational parent]. That is essential, even for parents who are married and even for parents listed on a child’s birth certificate.” A birth certificate is not a court order and does not confer parentage, but merely records it, as LGBTQ legal organizations have long explained. “In some states,” Gonen continued, “LGBTQ parents can use voluntary acknowledgements of parentage (VAPs), which have the same legal effect as a court order.” VAPs are free forms that can be completed immediately after a child’s birth. Gonen cautioned, however, “It is important to consult an experienced, knowledgeable LGBTQ family law attorney to make sure you are eligible to use a VAP.”

Getting these protections is something that LGBTQ couples “should have been doing all along,” Crozier said. She warned, though, that “there’s still a lot of misinformation out there.” with some lawyers and states telling people they don’t need such court orders. If a court says that you don’t need one, Crozier recommends asking a local attorney to file a motion to reconsider, “really laying it out for the court.” You can also ask the lawyer to work with the local adoption bar to educate the court more systemically.

If you need a knowledgeable attorney, Crozier recommends searching the LGBTQ+ Bar Association’s Family Law Attorney Directory or reaching out to GLAD or NCLR for names. She said some lawyers are even willing to do “low bono” or pro bono work, adding, “I think the legal community is here to help people.”

You should also protect your family through estate planning documents like wills, powers of attorney, and health care proxies. While these can sometimes be expensive, “some of them can be very easy,” Crozier said. In many states, a health care proxy is a form that can be printed out and executed. These documents will protect couples of any genders or marital status.

”People need to be using those tools” for parentage and estate planning, she insisted. “It’s best practice to use these tools to provide the most protection and clarity as possible, regardless of marriage.”

Another fear is whether Dobbs will impact assisted reproductive technology (ART). The American Society for Reproductive Medicine (ASRM), in a recent report, said that Dobbs “does not necessarily restrict access” to ART, but “overly broad statutory language and definitions could, intentionally or not, implicate and even ban such procedures.”

Gonen agreed that some state abortion bans may “[call] into question certain methods of assisted reproduction,” but said, “Right now, LGBTQ people who are using ART to conceive should continue to do so, while keeping an eye on any potential legal obstacles. We will do our best to keep families informed, and we will certainly act to protect this essential means of creating families.”

Crozier agreed, “We aren’t seeing those curtailments on any assisted reproduction now and we will fight back really hard.” Such a fight would involve “a big coalition of people,” LGBTQ and not, because “so many people use assisted reproduction to build their families.” Fertility advocacy groups like ASRM and RESOLVE are working “to make sure that any restrictions on abortion care aren’t implicating access to fertility care and that we’re all in this one movement together.”

Whatever may transpire later, Dobbs is already restricting access to abortion in some states. And while many LGBTQ people get pregnant with planning worthy of chess masters, academic studies show that LGBTQ people who have been pregnant are also more likely than cisgender heterosexual women to have had unwanted or mistimed pregnancies and to need abortion services, according to a fact sheet (PDF) released in June from HRC. Additionally, it said, LGBTQ+ people “may be at increased risk of a pregnancy resulting from a non-consensual encounter.”

Currently, abortion remains legal in most states, note NCLR, GLAD, Family Equality, and COLAGE in “What LGBTQ+ Families Need to Know,” a guide they released July 1. The guide, available free at any of the organizations’ websites, also offers suggestions for finding LGBTQ-inclusive abortion care in your state or another, and goes into further detail about many of the topics above.

What more can we do? Crozier said, “There are ongoing efforts in the states to expand parentage protections and it’s a great kind of practical, nuts-and-bolts, child-centered way to secure not only LGBTQ families but all children.” She explained, “There’s so much common ground” between LGBTQ people and others who want to build their families through ART. “We want all of those people to have paths to parentage.”

Seven states (California, Colorado, Connecticut, Maine, Rhode Island, Vermont, and Washington) have already updated their parentage statutes based on the latest Uniform Parentage Act (UPA), a model legal framework created by the non-partisan Uniform Law Commission. The most recent version of the UPA, in 2017, was intended to help states ensure that parentage laws are constitutional and provide equality and paths to parentage for LGBTQ families, among other provisions. New Hampshire and New York also recently updated their parentage laws with substantially similar provisions, but other states (including marriage equality leader Massachusetts) have fallen behind.

“I don’t think people still fully appreciate what it means for so many children to live in a system that is completely unequal,” Crozier said. She encouraged people to get involved with their state efforts to update parentage laws.

Additionally, she said, “It’s so powerful for people to share the stories of their families…. For people who can be out, be out, be joyful, and show the world how great your family is and that we are neighbors just like everybody.” As for herself, she said, “I show up now to every event in some queer shirt. My children are like, ‘Rock on, Mom!’ My teenager thinks I’m cool again.”

That may be a small comfort in a difficult time, but Crozier asserted, “We’re going to figure this out. The only way is to fight.”