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GAY IN THE U.S.A.
In recent years there have been gradual changes in the law, slowly acknowledging, and beginning to accommodate members of the Gay, Lesbian, Bi-Sexual, and Transgender (GLBT) community. Change, however, is never fast enough. While there are adoption rights, civil unions in one state, and benefits from some employers, the changes have not been far-reaching enough to allow gays equal rights.

SODOMY STATUTES

The most common and blatantly anti-gay types of laws are sodomy statutes. Sodomy laws prohibit anal and sometimes oral intercourse (the laws vary by state) and make these private acts a crime. There is a perception among many straight people that these laws are not enforced or are only enforced in cases of forcible sodomy (as part of a rape or sexual assault). In fact, these laws are sometimes invoked against consenting adults (such as part of a police operation to stop solicitation) and have the effect of branding consenting adult sexual behavior as criminal and encouraging anti-gay discrim-ination. Enforcement of the laws has also been used as evidence to support employment discrimination and discrimination in custody proceedings.

Furthermore, those convicted of sodomy are considered sex crime offenders and have to comply with state sex offender registries (often known as Megan’s Law) and community notification. They also often feel as if their privacy has been completely violated and must deal with resulting feelings of anger, guilt, and resentment.

These laws stand as a clear sign to the GLBT community that they are not accepted by the straight establishment.

In 1986, the United States Supreme Court in Bowers v. Hardwick upheld Georgia’s law against sodomy and decided that there was no fundamental right to engage in consensual homosexual sodomy and that the right to privacy does not include the right to engage in this activity.

On June 26, 2003, the U.S. Supreme Court in a landmark case, ruled in Lawrence and Garner v. Texas that Texas’s “Homosexual Conduct” law was unconstitutional. The ruling effectively struck down the sodomy laws in every state that still had them and over-turned the Supreme Court’s earlier ruling in Bowers v. Hardwick.

The ruling gave lesbians and gay men a fundamental right to privacy for the first time. It also opened the door for new era of equal treatment for lesbians and gays and is expected to have far reaching implications.

CHANGING THE LAWS

Throughout this book we will look at the state of the current laws and how they impact your life. You probably will not agree with the way many laws are written (since there are not too many that are pro-gay) and probably will feel that gays are often treated as second class citizens. We can work to change this. Get involved on the local level with area pride organi-zations. Become a member of state and national pride and gay activist organizations (check the resource appendix for more information). Contact your state and federal representatives with your concerns about how your rights are being violated. Ask family members and friends to do the same. Things can only change if gay voices are heard and if public awareness is increased.

SUPPORTING THE COMMUNITY

Another way to increase awareness and stand for gay rights is to actively support your local gay community. Many communities have gay phone books, often referred to as the Alternative Phone Book, Lavender Phone Book, or Pink Pages, that list businesses that support gays. Seek out businesses, service providers, and suppliers who sup-port the GLBT community. In some communities, businesses will display rainbow stickers on their doors or windows as a signal that they are gay friendly. Check www.rainbowquery.com for local pride contact information.

When you support businesses that support the community, you add resources to the GLBT community. You show other businesses that they are missing out on the economic benefit the gay commu-nity can provide.

Gay communities can have a powerful economic impact simply by choosing to patronize businesses that support the GLBT com-munity. Advertising and media specialists are just beginning to understand the power of “DINK” (Double Income, No Kids—which is often an accurate way to describe gay couples). Use your resources to support your community and refuse to work with merchants who will not support it. Look for your local gay phone book, seek out local or regional gay magazines or newspapers and patronize the advertisers. In Britain, the financial effect of the GLBT community is called the “pink pound.”

VOTING WITH YOUR FEET

“Voting with your feet” is an old saying that means if your vote does not count, pick up and move to where it does. For example, since Vermont passed the civil union law, many gay couples have chosen to move to Vermont or at the very least, visited there to take advan-tage of the law.

Voting with your feet is a choice you have. However it is impor-tant to remember that you should not have to pick up and move because politicians in your local area have failed to recognize your rights. You should have access to equal rights wherever you live. Many gay couples do prefer to move to a locale where they feel more accepted. They often choose to first find personal comfort and then work to change laws throughout the rest of the country.

Canada is becoming an option for more and more people, as there are rapid changes happening there with regard to gay rights. Recently, the Ontario Superior Court ruled that marriage could include same sex couples, but suspended the ruling for two years to give the Canadian federal government time to rephrase its definition of marriage. The issue is far from decided, but steps have been taken in the right direction.

GETTING LEGAL HELP

Although this book is designed to give you the information you need to solve a lot of problems on your own, you may at some point find yourself in a situation where you need an attorney. Situations such as adoption, discrimination lawsuits, probate of wills, dissolu-tion of civil unions, and contested division of property after a break up will probably require an attorney. If you have an attorney that you have used for other matters, talk to him or her about the cur-rent situation. Find out if he or she can recommend another attorney qualified to handle this matter if he or she is not.

Lambda Legal is an organization dedicated to handling gay and lesbian cases, but you may find that the organization can help you only if your case will be an important one—one that sets new stan-dards. You can however contact their regional offices to see if they can provide you with a list of attorneys in your area to contact. The same holds true for the ACLU (American Civil Liberties Union). These and other GLBT resources are included in Appendix E.

To find legal help in your area, talk to local pride leaders and if your area has a gay phone book check there. Word of mouth is a good way to find an attorney who is experienced in handling cases that involve gay issues. If you are unable to find an attorney in this way, you can contact your local or state bar association for a referral to an attorney experienced in handling your type of case. If you do call for a referral, make it clear that you are specifically looking for a gay-friendly attorney.

If you cannot afford an attorney, contact your local legal aid office and find out if they will accept your case. In addition, many bar associations have volunteer lawyers programs. Your local bar association can offer information about this.

When you meet with an attorney, ask point blank if he or she is comfortable working with a gay client and if he or she can handle your case with enthusiasm. You have every right to find an attorney who supports and respects you.

PROTECTION FROM DISCRIMINATION

Unfortunately, discrimination is still a problem for the GLBT com-munity. Understanding your rights is your first line of defense and encouraging your state and federal representatives to introduce and support legislation preventing discrimination based upon sexual ori-entation is the way to make changes happen.

WHAT IS DISCRIMINATION?

Discrimination occurs when you are treated differently than other people because you are gay, lesbian, bisexual or transgender/transsexual. Any time someone treats you differently because of this, it is discrimination. However, legal protection exists only in certain circumstances.

Discrimination with

No Recourse

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The Federal Employment Non-Discrimination Act is a piece of pending legislation that would pre-vent employment discrimination based on sexual orientation. For more information about the Act, see www.hrc.org/issues/federal_leg/enda /index.asp. Talk or write to your rep-resentatives about support for this Act and voice your concern about the lack of federal protection for the GLBT community.

Jacques and Wil walk into a restaurant holding hands.

The hostess gives them a shocked look and asks them to wait a few minutes for a table. As they wait, they notice other peo-ple coming in and being seated. After ten minutes, Wil asks when their table will be ready. The hostess tells him they are quite backed up and it will be a few minutes more. They decide to wait. They are finally seated in the rear corner of the restaurant. The server is unfriendly and forgets to bring them napkins, doesn’t fill up their water glasses, and doesn’t stop by to check how their food is. Other servers stare at them as they are eating. They leave the restaurant feeling distinctly unwel-come.

Discrimination with legal recourse (in some states)

Suzanne and Brandy are looking for an apartment where they can live with their 4 year old son. They go to see an apartment with their son along one day. While the landlord is showing them the apartment, their son refers to one of them as “Mommy” and the other as “Mama.” The landlord asks, “What, are you gay or something?” They respond that they are. He immediately shows them out and tells them he does not rent to their kind.

To determine whether you have been legally discriminated against, you need to understand what specific protections your state offers and determine if your rights have been violated under those laws.

FEDERAL PROTECTION

There is no federal law that prevents or punishes discrimination on the basis of sexual orientation. While there are laws that prevent dis-crimination based on sex, this does not offer protection based on sexual orientation.

The Federal Fair Housing Act does prohibit housing discrimina-tion based on HIV status (defined as a “handicap” under the law), thus you cannot be denied a rental because you are HIV positive or have AIDS.

RAINBOW TIP
Information to record in case of housing discrimination:
• the ad you responded to;
• address of the property;
• name of landlord and/or person who showed you the unit;
• dates you viewed the unit;
• notes about questions you were asked at the time;
• notes about who was with you when you viewed the unit; and,
• information you shared about your-self.

STATE LAW PROTECTIONS

Where the federal government has failed to act, many states have stepped in and enacted laws offering protection against discrimina-tion. These are discussed in detail later in the chapter. Many municipalities and counties have enacted local laws prohibiting this kind of discrimination. For a list of these current municipalities, see www.lambdalegal.org/cgi-bin/iowa/documents/record?record=217.

If you have been the victim of discrimination and your state offers protection, contact your state human rights department or the state attorney general for information on how to file a complaint or

bring a lawsuit. You can also

contact Lambda Legal at www.lambdalegal.org or 212-809-8585 or contact any of the other GLBT legal organi-zations listed in Appendix E.

If your state does not offer protection, contact your state senator and state repre-sentative to express the need for such a law. If you have been discriminated against and your state does not offer protection, you may still be protected if some other basis for discrimination was pre-sent, such as sex, age, or national origin.

In the following sections,

we will look at the specific types of protections offered by various states. These laws can be found on your state legislature’s or attor-ney general’s web sites and also at www.findlaw.com. You can also find a list of state by state GLBT discrimination cases at www.bud-dybuddy.com/d-p-ngl.html.
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Housing Discrimination

Housing discrimination occurs when a GLBT person is denied hous-ing or is held to different standards or requirements—such as higher rent, a larger security deposit, or a rule about no overnight guests.

While the federal government does not offer protection from housing discrimination based on sexual orientation, the following states do:
◆ Connecticut;

◆ Hawaii;

◆ Maryland;

◆ Massachusetts;

◆ Minnesota;

◆ New Hampshire;

◆ New Jersey;

◆ Rhode Island;

◆ Vermont;

◆ Washington D.C.; and,

◆ Wisconsin.

NOTE: Connecticut, Minnesota, and Rhode Island also extend protec-tion to TG individuals.

If you experience housing discrimination in one of these states, contact your state’s housing department to report the incident. If your state does not offer protection, you should still contact your state’s housing department and make it clear that this form of dis-crimination is happening. Only by making people aware can things be changed.

Not all housing discrimination occurs at the time you attempt rent a unit. Sometimes a landlord learns or figures out that tenants are gay and attempts to terminate the lease. A lease can only be ter-minated for the reasons listed in it. Usually these reasons include nonpayment, creating a nuisance (being gay is NOT a nuisance), or violating one of the terms of the lease. If your state has anti-sodomy laws, being gay can possibly be used as a reason (since the landlord can say you are committing an illegal act).

If you do not have a lease and your agreement is month-to-month it means that either you or your landlord can decide to end the lease with one month’s notice. The landlord does not have to give you a reason for this. Even if he or she tells you it is because you are gay, you do not have much recourse, unless your state pro-hibits housing discrimination.

Credit Discrimination

Credit discrimination can include being denied credit, being sub-jected to additional scrutiny, higher interest rates, or different terms. The Federal Equal Opportunity Credit Act does not prohibit discrim-ination based on sexual orientation. The following states have laws that do prohibit this:
◆ Connecticut;

◆ Massachusetts;

◆ Minnesota;

◆ Rhode Island;

◆ Vermont;

◆ Washington, D.C.; and,

◆ Wisconsin.

If you have experienced credit discrimination in a state where there is protection, contact the state attorney general’s office or state consumer protection agency. If your state does not offer pro-tection, it is a good idea to still report it to one of these state agencies. Only patronize banks and financial institutions that do not discriminate on the basis of sexual orientation.

Employment Discrimination

Employment discrimination happens when a person is not hired, is fired, or is held to different standards or requirements while on the job because he or she is a member of the GLBT community. It can include being denied promotions or pay increases, being subjected to different standards or requirements, and being treated in a hostile or unfriendly manner.These states prohibit discrimination based on sexual orientation in public employment:
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◆ Illinois;

◆ Iowa;

◆ Maryland;

◆ New Mexico;

◆ Pennsylvania; and,

◆ Washington.

Discrimination is prohibited in both public and private employ-ment based sexual orientation in the following states:
◆ California;

◆ Connecticut;

◆ Hawaii;

◆ Massachusetts;

◆ Minnesota;

◆ Nevada;

◆ New Hampshire;

◆ New Jersey;

◆ New York;

◆ Rhode Island;

◆ Vermont;

◆ Washington, D.C.; and,

◆ Wisconsin.

Additionally there may be county or local laws that prohibit dis-crimination in your area. Many companies have also adopted company policies prohibiting discrimination. Check with your human resources department about your company’s policy.

If you are not protected by state or local laws, you can still sue an employer for emotional distress, harassment, defamation (saying bad things about you that damage your reputation) and wrongful termination (if you were fired just because you were gay and there was no other reason). It is important to talk with an employment law attorney who can help you put together a good case. Be sure to keep careful records of incidents and situations to help prove your case.

The Supreme Court recently held in Chevron U.S.A. vs. Eschazabal that employers can turn down applicants if they feel the job could endanger their health. Be aware that this may be used as a reason to turn down HIV-positive applicants. Additionally, there

are some states that require

HIV testing as a prerequisite to obtaining certain licenses (such as a massage therapist license, for example). These restrictions may be in viola-tion of the Americans With Disabilities Act. If you find yourself in this position, get an attorney.

Transgender Employment Discrimination

TG employees often encounter difficult situations at work when they begin to dress in clothing of the opposite sex. Employers have the right to require dress codes or set basic requirements for employee clothing. These rules must be applied evenly across the board to all employees in similar positions. Employers can require different types of clothing for men and women. Difficulties arise when a person begins to dress as the opposite sex as part of a trans-gender program or as a personal choice. Employers can require people to follow codes of dress for their gender. Many employers are willing to allow a transgendering individual to switch clothing before the actual gender change, but often documentation or con-tact from doctors or therapists is necessary to gain cooperation.

Another issue is that of rest rooms. Once a person adopts the dress of the other gender, he or she will wish to use the corre-sponding restroom. Some employers have unisex or handicap bathrooms that can be used by anyone. For facilities that do not, this can pose problems for other workers who are uncomfortable sharing a restroom with a person who is transitioning. Lambda Legal Services recommends that transgendering individuals place a sign on the restroom indicating that he or she is currently in the
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restroom, to alert those who may be uncomfortable. Employers can limit restroom usage by gender, but OSHA (Occupational Safety and Health Administration) requires that all employees have access nation based on sexual orientation. They include:

◆ California;

◆ Connecticut;

◆ Massachusetts;

◆ Minnesota;

◆ New Jersey;

◆ Vermont;

◆ Washington;

◆ Washington, D.C.; and,

◆ Wisconsin.

Only four states prohibit discrimination in schools based on gender identity:
◆ California;

◆ Minnesota;

HATE CRIME LAWS
Hate crimes are crimes against people or property committed because of the victim’s race, sexual orientation, ethnicity, religion or other minority status. The Matthew Shepard case brought a lot of media attention to these crimes.

Many public schools have developed safe school programs for children of GLBT families and for gay teens. See Chapter 12 for more information about these programs.
Many colleges and universities have instituted anti-discrimina-tion policies. If you or your child are planning to attend a college or university, find out what the school’s policy is. Check for conduct codes, anti-discrimination policies, and anti-harassment policies. Find out if your school has any gay Greek organizations, gay student organizations, or support and/or resource center for GLBT students.

Arizona, Montana, Maryland, and Utah have hate crime laws, but they do not impose penalties for those based on sexual orienta-tion, however they do collect data on these crimes. California, Minnesota, Michigan, Missouri, Pennsylvania, Vermont and Washington D.C. have hate crime laws that punish based on gender identity.

In general, these laws provide punishment in addition to the penalties that would normally apply to the specific act of violence when crimes are committed out of hate.

There is great debate about hate crime legislation. Many people feel that these laws are important in stopping the spread of bigotry and in making people aware that it is wrong to act out in hate against someone simply because of who he or she is. Other people believe that these laws are a way to limit freedom of thought and to single out people for extra protection who hold beliefs that are con-trary to those held by most Americans.

In 2000, Congress passed the federal Local Law Enforcement Enhancement Act (which was formerly called the Hate Crime Prevention Act), which gave the federal government expanded abil-ity to assist and intervene in cases involving hate crimes. It expanded the protection to include sexual orientation.

If you or someone you know is the victim of a crime that you believe is motivated by bias, your first step is to talk to the local police. Tell them you want to file a complaint under your state’s hate crime law and/or under the federal hate crimes law. If local law enforcement does not take you seriously, call your state attorney general and get in touch with local or national gay activist groups which can provide legal assistance. (See Appendix E for additional resources.)

DISCRIMINATION IN THE MILITARY

The U.S. military has a long standing aversion to homosexuals. This was supposed to turn around with the passage of the 1993 Executive Order signed by President Clinton, enacting the don’t ask, don’t tell policy. This policy is still in effect and prohibits the mili-tary from asking if an applicant or service person is gay. It prohibits harassment against those service people believed or suspected to be gay. However, if a service person discloses that he or she is gay, he or she will be discharged.

This policy was upheld by the Fourth Circuit Court of Appeals in Thomasson v. Perry in 1996. Earlier, in 1995, another Executive Order was signed removing sexual orientation as a basis for denying a person security clearance.

Despite these new regulations, discrimination against gays in the military continues with harassment, fear, and non-acceptance creat-ing a cold climate. In 2001, 1250 service personnel were discharged on the basis of being homosexual. The number of discharges con-tinues to grow every year. Improper investigations continue to proliferate—such as disclosures from therapists of confidential information. Females who report sexual harassment are often retal-iated against with allegations of being gay. Aside from the obvious violations of privacy and unnecessary discharges, the problem with the policy is that it sends mixed messages. It fails to fully support the rights of gays to serve in the military. (See Appendix E for support organizations for gays in the military.)
18 GAY & LESBIAN RIGHTS

RAINBOW TIP

Tips for getting help with discrimina-tion problems:
• report the incident to the state agency that deals with the situation in which it has occurred;

• report the incident in writing and keep a copy;
• follow up on your complaint and keep a record of your phone con-versations and contacts;
• contact local GLBT pride and advo-cacy organizations for assistance and support; and,
• if you have no legal protection in your area, write to your state repre-sentatives about your situation and the lack of legal protection.

DISCRIMINATION BY PRIVATE ORGANIZATIONS

When the Boy Scouts refused to allow gays to be troop leaders and this refusal was upheld by the U.S. Supreme Court in Boy Scouts of America v. Dale, it became clear that legal protection against discrimination by pri-vate organizations is not forthcoming. At this point, advocacy is the only way to change opinions and open minds.

HOME SWEET HOME

The time has come for your first (or next) apartment, or maybe you are looking to buy. Maybe you are thinking about moving in with your partner. When it comes to living arrangements, members of the GLBT community face some unique considerations. Renting can result in difficult situations if sexual orientation is an issue for the landlord. Buying a home involves complicated paperwork and finan-cial decision-making. Both of these situations become even more complicated if you and your partner decide to live together. This chapter will discuss some of the issues surrounding home renting and buying.

RENTING

Discrimination is a real problem with some landlords. In most places across the U.S. (see Chapter 2 for more details), there are no laws preventing housing discrimination against homosexuals. This means that there is very little legal protection. Besides the stress of needing a place to live, dealing with housing discrimination can be very emotional. It is insulting, stressful, and upsetting. It is impor-tant to know your options.

Potential Landlords

One option you have is to not reveal your personal life to prospec-tive or current landlords. If asked, you can lie or be circumspect. Your partner is your roommate, after all. You do not need to come out and announce we’re gay. Many gay rights activists will point out, however, that this answer is not going to help to change people’s
20 GAY & LESBIAN RIGHTS

misconceptions. You are free to tell a potential landlord anything you want about your personal life. This is the best way to get it all out up front and avoid an even more frustrating situation in an evic-tion action.

You can refuse to rent from someone who is bigoted. Hitting them in their wallet may lead to some sort of tolerance in certain circumstances. Sometimes though you have to make a choice based on personal needs and not on ideals. Balancing these two is a choice each individual must make for her or himself.

If you are fortunate to live in state that offers housing discrimi-nation protection and you are denied housing because you are GLBT, you need to contact your state attorney general’s office, state human rights agency, or state housing department. In order to prove the discrimination occurred because of your sexual or gender iden-tity, you need to be able to give actual proof—for example, a statement by the landlord or a showing that straight applicants who were less qualified were rented to instead of you. If you win your case you may be entitled to expenses (such as moving and storage fees), attorney’s fees, and other expenses you incurred.

Current Landlord

While you do not have many options if you are denied housing from a prospective landlord (unless you are lucky enough to live in a state where this is prohibited), you are in a different position with an existing landlord. If you have a lease, your landlord cannot simply decide to evict you because he or she discovers or suspects you are gay. You can only be evicted for reasons stated in the lease and for nonpayment. Of course, landlords have been known to try to find excuses to evict gay tenants. If this happens to you, be very vocal about what is happening. Make it clear to the housing court judge that you are being targeted because of your sexuality. Keep careful records of the problems you encounter.

If you are a month to month tenant (in other words, you have no written lease), your landlord can decide not to renew with one month’s notice. There is not much you can do about this situation, since you have no lease and no guarantee beyond a month. Even if

RAINBOW TIP
Before moving in with a partner, it is a good idea to get a sense for the other person’s habits, cleanliness, and hours. Living with someone is hard work. You can lay down some basic rules that will make it easier for both of you. Try this roommate com-patibility test:
www.hiram.edu/wizard_roommate /roomate_wiz.asp
HOME SWEET HOME 21

your state offers no protection, many municipalities have laws pro-hibiting housing discrimination against gays. Check your local laws or talk to gay activists in your area for more information about your rights under local law.

If you are being evicted because you are gay, usually the land-lord will come up with another reason for the eviction. You will need to prove that this reason (nonpayment, noisiness, extensive damage) is not true. Respond in court and bring evidence that sup-ports your argument.

Roommate Agreements

While co-habitating heterosexuals can face similar problems, gay couples deciding to move in together may face additional resistance from landlords. Many leases require that notice be given to your landlord before adding a roommate, and that the landlord must approve of the new person. While this may be as simple as a credit check to satisfy the landlord’s desire to protect his or her invest-ment, it can be used to keep your partner out, or to get rid of you if

you violate the lease terms. If you move in together

but do not formally tell the landlord, in addition to possi-bly violating your lease, you might be violating a notifica-tion law—some states require that tenants notify a landlord if they add a roommate. If the new roommate is known to the landlord, then his or her consent is implied. The roommate can become a ten-ant if he or she pays rent to the landlord (for example, you each pay half the rent directly to the landlord). If he

or she accepts it, then consent is implied.
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After passing the notification hurdle, some partners prefer to change the lease so both partners are listed. You will be able to add your partner to the lease only if the landlord agrees. Doing this is an important decision, because should you break up, you cannot sim-ply tell your roommate to get out. He or she will have a legal right to remain in the unit. Also, remember that when both of your names are on the lease, you are both responsible for the rent. For example, if your partner loses his or her job and has no income, you will be held responsible by the landlord for the entire rent if your partner does not pay his or her portion.

For this reason, it is often better to have a roommate agreement when one party is initially moving into the residence of the other. If you choose to become life partners, you can at that point discuss modifying the lease to add the roommate’s name to it or go out and rent a new apartment together.

The decision to live together is an important step. Because it is so significant emotionally, it is a good idea to be clear about how you will share expenses and space. Use the Roommate Agreement (form 3, p.230) to do this. Before moving in together, you need to have a clear understanding as to what expenses you each will be responsible for.

Some samples of expense sharing agreements include:

◆ Each partner will pay one half of the rent and utility bills;

◆ Partner A will pay the water and cable bill, Partner B will pay the electric and gas bill, both partners will pay half of the non-itemized phone bill and will pay portions of the itemized phone bill that each is responsible for;

◆ Partner A will pay all of the rent and Partner B will pay all util-ity bills. Grocery expenses will be shared evenly;

◆ Each partner will pay expenses in proportion to his or her income (total your incomes and then divide your individual

income by the total to find out what your percent of the total income is. You would then pay that percent of all expenses; or, ◆ Partner A will pay 25% of the rent, half of all utility bills and all of the grocery expenses. Partner B will pay 75% of the rent.
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It is important to remember that if you are entering a life part-nership, that the rent and utility expenses will be just part of your entire expense sharing plan. When you decide to enter a life part-nership, it makes more sense to create an all-encompassing Domestic Partnership Agreement. For more information, see Chapter 7. Also see Appendix F for a copy of a sample Domestic Partnership Agreement.

When first moving in together you also want to be clear on how the apartment will be shared. Will you each have a closet? Will you each have part of a room for a home office? Will the partner mov-ing in bring his or her furniture and fit it into the apartment? It is best to discuss these types of plans in advance so you do not run into a situation where suddenly the partner moving in clears out half of a closet to make room for his or her things, or expects to be able to put his or her large screen tv in a tiny bedroom. While there are legal ramifications to this new living arrangement, the emotion, stress, and impact may be the greater concern.

OWNING

Owning a home on your own is a wonderful kind of responsibility. If buying a home on your own, you may encounter some discrimi-nation, but it is not as likely as if you are purchasing a home with a partner (see below). Your state laws about credit discrimination will apply to mortgages, so make sure you are aware of your rights. (see Chapter 2.)

Buying a Home Together
Purchasing a home together
is an exciting step. You will RAINBOW TIP
want to meet with a mort-
gage banker prior to finding
the home of your dreams to For a referral to a GLBT friendly
get an idea of what size mort- real estate professional, visit:
gage your incomes will http://homelounge.com
qualify you for. Again, there
are no laws protecting you

24 GAY & LESBIAN RIGHTS

from discrimination while seeking credit. If you meet resistance from one banker, find another. You have money to spend and there are bankers out there who want it.

Find a real estate broker or agent you are comfortable with and start your house hunt. Though very rare, there are some places where you might encounter discriminatory zoning regulations pro-hibiting people who are not related from living together in the neighborhood. It is important to find out about this before making an offer on a home, so check with your real estate agent.

Once you find a home and decide to purchase it, you want to make sure that you purchase it as joint tenants with right of survivor-ship, which means that you will each own the home together in equal shares. This wording is specific and needs to be stated on the deed. In some states, joint tenancy means the same thing, but make sure you verify this. The seller’s attorney generally prepares the deed, so it is important he or she is informed as to how the owner-ship is to be described.

Joint tenancy also means that if one of you dies, the other will own the home. This can be a vital protection as the property will pass to the joint owner apart from your state’s inheritance rights. Neither one of you can pass ownership in this property through your will if it is jointly owned. Jointly owned property passes outside of probate. This applies to real property such as your home, as well as personal property, such as a joint checking account.

Another ownership option is tenants in common. This option does not transfer ownership to the other partner upon death, but you can pass this kind of ownership by a will. This kind of owner-ship allows you to own the home in unequal pieces. If one partner provides more of the financial resources for the purchase of the res-idence, he or she can own a larger “piece” of the home. You can also use this method to gradually up one partner’s level of ownership in the home as he or she contributes more.

For example, if Partner A provides the down payment, both partners will share the mortgage payments and Partner B will be doing remodeling to the home, you could start out with Partner A
HOME SWEET HOME 25

owning a larger percentage of the home. Once remodeling work has been done and you have both put an equal amount of money or resources into the home, you can then convert to a joint tenancy with some simple paperwork done by an attorney.

The lending institution holding your note and mortgage almost always will require all parties signing the documents and listed on the deed to be jointly responsible for making the mortgage payment regardless of your ownership levels. If one party becomes unable to meet his or her share of the obligation, the other one will be held responsible. Paying your half will not prevent the bank from fore-closing on the property.

HOME SHARING

If one of you owns a home and the other partner moves in, you might wish to approach your real estate relationship in stages. In the beginning, you might work out an agreement through which the partner moving in will pay the homeowner a certain amount each month towards the cost of the mort-gage and/or utilities as a kind of rent. The partner moving in will have no ownership right in the home, even if he lives there for many years and contributes toward the mortgage.

Should you reach a point where you would like to be joint owners of the home, it will be necessary to re-finance

RAINBOW TIP

If one partner has bad credit or a high debt to income ratio, you might consider making the purchase in one partner’s name and then adding the second partner’s name to the title at a later date (adding him or her to the mortgage later would involve a refi-nance). This will allow you to purchase the home if you would oth-erwise be denied.

However, it is important to under-stand that adding a partner’s name to the title is a gift and can result in a gift tax. An alternative to this problem is to maintain sole legal ownership and then include a provision in your will passing ownership to your part-ner if you should die first.
26 GAY & LESBIAN RIGHTS

your mortgage and file a deed in which the original homeowner part-ner transfers part of his or her ownership rights in the home, so that you can both become joint tenants with right of survivorship.
–4–

DEALING WITH FINANCES

Finances can be a real sticking point in some relationships, while for other couples they are no big deal. This chapter will help you learn how to create joint ownership in your accounts and help you weigh the pros and cons of doing so.

CONSIDERING JOINT OWNERSHIP

As with anything in life, there are pros and cons involved in creating joint ownership in accounts with a partner. A joint account can certainly make it easier to manage household finances as a couple. A joint account eliminates complicated cal-culations or arrangements. You don’t need to say, “You pay for dinner and I’ll pay for the movie.” You don’t need to sit down at the end of each month and add up how much each of you must pay for rent and utilities.

Having joint accounts can also help two partners

RAINBOW TIP

Some partners find that they prefer to set up one joint account for house-hold expenses and maintain separate accounts for personal spending. Partners with children often find that they place most of their money in joint accounts, keeping only some separate.

Do not forget that money is not just money—it is symbolic of a lot of things. Be sure to discuss financial arrangements with your partner. Be aware that joint accounts often are symbols of commitment and togeth-erness. For GLBT-friendly financial advice, visit:

www.domparts.com

RAINBOW TIP
Visit the Gay Financial Network at : www.gfn.com.
28 GAY & LESBIAN RIGHTS

feel as if their lives are more merged and shared. Joint accounts imply a certain amount of trust and commitment, since each part-ner is legally entitled to withdraw the entire balance from the account without the other’s permission.

However, joint accounts can raise some issues that may not be so easily dealt with. One problem is how to straighten it all out if you dissolve your partnership or break up. Trying to go back through possibly years of bank statements to create a detailed account of who deposited what, and who took out what, is a tedious process rife with frustration.

Another issue that arises is tax law. A married heterosexual cou-ple is basically free to transfer money back and forth with no adverse

tax consequence. However gay couples are not consid-ered legally married by the IRS and some transfers can be technically considered gifts, falling under gift tax provisions.

For example, if two part-

ners set up a joint account and Partner A deposits $20,000 and Partner B withdraws $12,000, technically Partner A has made a gift to Partner B.

You may transfer up to $11,000 (as of the date this book went to press) to a person each calendar year without activating gift tax, but once you exceed that, you have gift tax issues to cope with. While this may have a limited effect today, it can have a significant impact on future estate planning and dispositions of your property at death. (See Chapter 10 for more detail on estate planning.)

JOINT BANK ACCOUNTS

You and a partner can open a joint bank account with right of sur-vivorship (meaning if one dies, the other gets all the money without dealing with probate). Joint accounts are great for the convenience factor. When you have a joint account, you and partner can both withdraw all of the money at any time, so there has to be an element of trust.
DEALING WITH FINANCES 29

You can choose to place all of your money in joint accounts, or you can choose to have joint accounts and keep individual accounts as well. Some couples create a joint account which they use exclu-sively for joint expenses and then pay personal expenses with personal accounts. Others deposit all their funds in joint accounts and pay everything out of them.

Another option to consider is a Totten trust. This is a bank account in one name, which is set so that when that person dies, the account is transferred directly to his or her partner (or anyone else selected). Totten trusts have long been used with bank accounts. Their use has recently been expanding to include securities such as stocks, bonds, and mutual funds.

A Totten trust is created when property is set up in trust for a named beneficiary such as your partner. Your financial institution may use the letters POD (pay on death or payable on death) or TOD (transfer on death) on the account. Regardless of the designa-tion, you control the property during your lifetime, and upon your death, it immediately goes to your partner (beneficiary) without a will or probate proceeding. (See Chapter 10 on estate planning.)

JOINT INVESTMENTS

You and a partner can open joint investment accounts with the right of survivorship. Again you will need to decide if you want every-thing to be joint or if you want to keep some things separate. Another option is to set up your account under the Uniform Transfers on Death Securities Registration Act, which acts like a Totten trust for securities. It is best to discuss this with your financial advi-sor since there are some tax advantages available.

JOINT CREDIT CARDS AND DEBTS

Opening joint credit cards may make you feel more united as a cou-ple, but most of the time it is not a good idea. You are much better off maintaining separate credit cards. The most important reason for this is if you get into financial difficulties, only one of you is on the line with the credit card company. If both of you are co-signors on the account (meaning you applied for it as a joint account and both

RAINBOW TIP
If you’d like to share a credit card account, consider taking one of your single accounts and asking for a sec-ond card for your partner to use. This way you can share the account, but the second partner’s liability is lim-ited.
30 GAY & LESBIAN RIGHTS

signed the application), the company could (and certainly will try to) collect against both of you should the account become delin-quent. By maintaining separate accounts you could spot financial troubles on the horizon and make some financial changes leaving one partner with much less to lose. The same holds true for joint debts, such as personal loans.

If one of you has bad credit, it is tempting to place all debts in the other partner’s name. You need to be careful when doing this

though. The only way to fix bad credit is to first pay off what you owe and then prove you handle new debt. A partner with a bad credit record needs to first get up to date and then continue to use at least some credit so that he or she can start to re-build a good credit report.

Additionally you do not want the partner with good credit to become bogged

down by handling both partners’ debts. By the same token, make sure you do not put all of your assets in just one partner’s name. You want both partners to be able to show a history or having bank accounts and other items of value.

One financial advantage of being gay is that your credit report and your partner’s will not be linked. Married heterosexual couples’ credit reports are often linked and each other’s debts appear on each other’s reports.

Utility companies usually list the account in one person’s name. If you want to the account to be joint, tell them, but again realize that this mean both of you will be liable for the bill. Another alter-native is to have your partner listed as an authorized person who can contact them regarding billing, outages, or other problems.
DEALING WITH FINANCES 31

RETIREMENT

Gay partners are not entitled to receive Social Security benefits on behalf of their partners as married couples are. Some pension and retirement accounts permit employees to designate gay partners as beneficiaries. For example, with 401(k) plans, you can name your beneficiary. However, the tax consequences are different for gay couples than for married couples in some instances, adding further discrimination to the mix.

It is important to check the requirements of your specific plan and determine what forms you need to complete to name your part-ner as beneficiary. Generally, your partner must be considered a joint annuitant under the plan to receive payments. Most retirement plans do not allow gay partners to receive benefits, often referred to as the gay penalty, since hetero spouses can receive payments.

SAFETY DEPOSIT BOXES

Many people like to hold a safety deposit box at a bank to store important papers, such as stock and bond certificates, cash, and other valuables. You and your partner can take out a box jointly, but be aware this means that either of you can have access to the box and its contents at any time. You might also wish to consider purchasing a small fireproof safe (the small ones are very light and are about the size of a shoebox) to keep at home to store important documents.

LIFE INSURANCE

For a discussion of life insurance, see Chapter 6. Life insurance can be a useful estate planning tool, so be sure to discuss it as an option with your financial advisor.

TAXES

If you are part of a domestic partnership (see Chapter 7), you are not able to file your taxes jointly (except in Vermont, where state taxes can be filed jointly, but federal taxes must be filed separately). You and your partner will each have to file separately.

There are some ways to use this to your advantage. One approach is to have Partner A file itemized deductions and have
32 GAY & LESBIAN RIGHTS

Partner B file standardized deductions. To do this, Partner A may need to write all the checks and make all the payments that can be deducted in an itemized return.

Other strategies for minimizing your taxable income include one partner hiring the other, both partners starting their own busi-nesses (even if they are only part-time), one partner lending money to the other’s business and so on.

You should also consider what you can do to minimize your taxes through income shifting. If possible, the partner in the lower tax bracket should take on more income, while the partner in the higher tax bracket should take more of the couple’s deductions. Also, take a look at how you report charitable donations. The partner in the higher tax bracket should ideally report most of a couple’s donations.

The more complicated you make the transactions, the greater the need to discuss these and other ideas with your tax advisor or accountant. However, there are any number of perfectly legal arrangements that can be made to limit your tax liability. Documentation is the key where the IRS is concerned.

It is possible for a couple to file one tax return, but only if one partner is claiming the other as a dependent. To do so, the depen-dent partner must be unmarried and have a taxable income under $2900 (this amount can fluctuate from year to year). He or she must receive most of his or her support from the income earning partner.

If you have children, the legal parent of each child may claim him or her as dependent. If you are both legal parents of a child together, such as by adoption (discussed in Chapter 11), the parent with the highest income is the one who should probably take the exemption. Both of you cannot claim the child as a dependent in the same year. However, you can change who will claim the dependent each year if you wish, based on your income levels and tax benefits.

You are not allowed to split the exemption (each claiming only half for a single child), but you are allowed to divide multiple chil-dren, each taking one or more on either return. In any given year, only one of you may claim a particular dependent. Discuss with your tax advisor or accountant what makes the most sense in your case.

RAINBOW TIP
Certain joint accounts act in a similar manner to powers of attorney. However, joint accounts are limited as to what types of property they can cover. They can also have legal and tax problems that powers of attorney do not have.
DEALING WITH FINANCES 33

If one partner receives health insurance through the other partner’s health insurance program, this may be considered taxable income to the partner receiving the benefit. In California, the law states that it is not income, but federal tax law and tax laws in other states differ.

POWERS OF ATTORNEY

An important tool that couples should have is powers of attorney. It allows your partner to conduct business for you with your bank, utility company, broker, insurance company, mortgage lender, or any other individual or organization with whom you conduct business. The power of attorney can give your partner broad, comprehensive power to handle any business, legal or financial matter, or it can be quite limited, providing authority only over specific matters or situ-ations. Discuss these options with your attorney.

Some states will still classify a power of attorney as either spring-ing or durable. A springing power of attorney takes effect only upon the happening of a certain event—such as illness or incompetency.

A durable power of attorney is in effect from the time it is signed. In some states, the power of attorney will just be called a durable power of attorney, but you can make it take effect at a future time or event like a springing power of attorney.

If you and your partner want to give each other the ability to handle each other’s finances and make decisions

for each other, a durable power of attorney makes sense, as long as you truly trust one another. A springing power of attorney is a good idea if you do not want to give each other that authority now, but would like to be able to manage things for each other in the case of illness.
34 GAY & LESBIAN RIGHTS

The law allows others to rely on your power of attorney, so you will be bound by what your partner does. This means that you need to have a great deal of trust in the person you select as your agent. You are giving a tremendous amount of power to your partner, and these agreements should not be entered into lightly. Plus, you must ask yourself whether your partner can make the types of decisions you need. Not everybody has the same financial savvy as others and that can include your partner. Financial decisions are a source of stress in every relationship, so make sure you both are comfortable before entering into this arrangement. You can limit your power of attorney to make it fit your needs. It is important to discuss these issues together and create a plan that works for you both.

Most states have created an approved durable power of attorney form in their statutes. These statutory forms have some standard lan-guage, and a list of the various types of powers you may give to your agent. If you live in one of the states with a statutory financial power of attorney form, use the specific form for your state. (Check with your state’s attorney general’s website or go to www.findlaw.com and click on “states,” then “your state,” and then on the “forms” section.)

Some financial institutions prefer and may even require that you use their form. Generally that form will only be good at that finan-cial institution, so you will still need a general power of attorney everyplace else. Check with your bank or broker to see if they require a specific form.

A power of attorney avoids having to go through a guardianship proceeding in the event you become incapacitated. Having both a power of attorney for your finances and a health care power of attor-ney can allow your partner to take care of your affairs immediately in the event something should happen to you. Without these docu-ments, a lengthy and expensive court proceeding would have to take place to name a guardian. If contested by your family, it is unlikely that your partner would be named the guardian, and could be excluded from making any of the decisions. This is especially prob-lematic if you have intermingled belongs, which is very likely in a long-term relationship.
DEALING WITH FINANCES 35

Changes to Powers of Attorney

Once granted, you have the power to take back or change your power of attorney. There are specific ways to go about revoking a power of attorney.

Some provide a termination date in them. In other words, the power of attorney states it is only effective until some specific date. Otherwise, you must sign another document revoking the power of attorney. For the revocation to be effective, you must give a copy of the revocation to the person you named as your agent in the power of attorney if he or she knew about it, or to any financial institution or company that was acting in accordance with the power of attor-ney. You can also choose to destroy the document if it has not been filed or given to anyone.

Power of attorney forms are slightly different in each state, so you are best served by contacting an attorney or purchasing the forms at a legal stationery store in your area. You can also obtain a form from a paralegal service. Powers of attorney forms are usually fill-in-the-blank forms and can be completed without assistance. Most must be notarized, which you can do at your bank.

A healthcare power of attorney is a different type of document that allows your partner to discuss and make decisions about your health care with medical providers. Also called health care directives, health care powers of attorney are discussed more fully in Chapter 5.

LIVING TRUSTS

While a power of attorney is probably the best tool for same-sex couples, other alternatives exist, such as a revocable living trust. A liv-ing trust is a separate legal entity where you designate a trustee, usually yourself, to manage the property. Ownership of your prop-erty is transferred to the trust.

You then name your partner as your successor trustee. A succes-sor trustee takes over control of the trust should you become incapacitated. Like a springing power of attorney, he or she can only act if you become incapacitated. A living trust is complicated and more expensive to create and maintain than a springing power of
36 GAY & LESBIAN RIGHTS

attorney. It must have its own tax identification number and sepa-rate tax returns must be filed.

Since the trust is revocable, it can be cancelled at any time. If your relationship ends, you can change your successor trustee. The other benefit to a living trust is that when you die, the property in the trust passes outside of probate to the successor trustee. (See Chapter 10 for more information about wills and trusts.)
–5–

HEALTH AND
MEDICAL ISSUES

Dealing with health issues is one of the most important aspects of life in today’s world. Medical costs continue to skyrocket and health insurance availability and costs reflect this. Making decisions about health care can be difficult, and if you are in a committed relation-ship, planning so that you each will be able to make decisions for the other is very important. If you or your partner is dealing with AIDS or HIV, your health care decisions are even more complicated.

HEALTH INSURANCE

First it’s important to note that you cannot be denied health insur-ance because you are gay. If your employer offers health insurance, you must have access to it just as other employees do. If your employer does not offer family plans to GLBT couples, talk to your human resource contact. If enough people are interested, the employer may make family plans available to GLBT couples or switch to a carrier that has family plans for partners in place.

Coverage for Partners and Families

Your employer is not obligated to allow you to obtain a family plan to include your partner, unless you live in Vermont, have been unionized, and the insurance company is a Vermont company. However, there are many employers who do offer health insurance coverage to partners. See Chapter 6 for more information about this.

If you have children and you are their legal parent, you can obtain family coverage through your employer (although unfortu-nately many employers now require employees to contribute to the
38 GAY & LESBIAN RIGHTS

cost of the premiums). If your partner is the legal parent of a child and he or she is covered under your plan, his or her child should be covered as well.

Pre-Existing Conditions

You can be denied insurance if you have a pre-existing condition. However, the Health Insurance Portability and Accountability Act (HIPAA) permits you to obtain coverage with a pre-existing condi-tion if you previously had health insurance, but there may be waiting periods. A pre-existing condition is one for which you have received treatment within the last six months and includes HIV and AIDS. If you have a medical condition, but have not received treat-ment for it in the last six months, it cannot be considered a pre-existing condition. If you do have a pre-existing condition, you might have to wait up to twelve months before you become eligible for coverage for that condition.

COBRA

If you leave a job, COBRA (Consolidated Omnibus Budget Reconciliation Act) allows you to continue your health insurance through your previous employer for up to eighteen months. You are responsible for paying the premiums yourself, usually on a monthly basis.

Once you start a new job, you will qualify for new coverage as soon as you meet that employer’s waiting period. You can continue your COBRA coverage until your new insurance coverage starts. This will ensure that pre-existing conditions will be covered. You can continue to cover a pre-existing condition through COBRA even if hired for a new job.

NOTE: If your partner is covered under your insurance, COBRA does not apply to him or her and his or her insurance is not required to be offered. Some employers do offer this as an option, however.

RAINBOW TIP
For a list of gay-friendly senior housing, visit:
www.hrc.org/familynet /documents/3c62b.pdf
HEALTH AND MEDICAL ISSUES 39

FMLA Leaves

If you are caring for a partner who has AIDS or HIV (or another ill-ness or condition), you do not qualify for the federal Family and Medical Leave Act (FMLA), which allows people to take up to ten weeks of unpaid leave to care for an ill relative or to deal with one’s own illness. You are, however, entitled to FMLA time for your own illness.

If you have been employed by the company for over one year and have worked over 1250 hours in that year, you may take up to ten weeks of unpaid leave per calendar year. Your position, or an equivalent position, must be waiting for you when you return. You may be required to pay the premiums on your health insurance while you are gone. You can take the leave in one chunk, in small pieces, or you can use it to reduce your work time to part time.

If you are the one who is ill, check into getting state or employer sponsored disability as another way to take time off for illness.

If you are caring for a partner, you may qualify for a leave under your state family and medical leave act. Check with your state labor department for information on qualifying or with your employers’ human resource department. Even if your state does not provide for a leave, your employer may, so it is always a good idea to ask.

LONG-TERM CARE INSURANCE

Long-term care insurance is a type of insurance that will pay some (but usually not all) of a person’s nursing home expenses. Long-term care insurance can be a tremendous relief if you find yourself in a position where you need to

pay for nursing home care. It can also be a tremendous gamble, since you never know if you will receive a benefit that is worth more than the premiums you paid.

Long-term care insurance is an important issue for the GLBT community. Many
40 GAY & LESBIAN RIGHTS

gays find themselves in a situation where they need ongoing care, but have no children to care for them. Many in this situation look to the GLBT community for support, but find a that there is an age-phobia in some parts of the community.

MEDICAID

Another important issue for aging members of the GLBT commu-nity is Medicaid. Medicaid is a federally funded, but state run program, that pays for medical care for those who cannot afford it. To qualify for Medicaid you must meet certain financial require-ments and prove that you have little assets.

Medicaid has created a gay penalty of its own. To qualify for Medicaid, you must spend down—use up your assets before you can qualify. When a married person spends down to qualify, he or she does not have to sell his or her residence if his or her spouse lives in it (however a lien will be placed against a certain portion of the home). When a gay person spends down for Medicaid, even if he or she has a partner that jointly owns the home, the home must be sold or liquidated and that money spent down in order for the gay patient to qualify for Medicaid. This is why long-term care insurance is so very important for gay partners. Long term care insurance may prevent having to sell the home, because the long term care insur-ance will pay for a portion of the nursing home expenses.

HIV and AIDS

If you or your partner (or someone else you love) is dealing with HIV or AIDS, you are in a difficult position. While detailed infor-mation about AIDS and HIV is outside the scope of this book, you can consult the list of resources in Appendix E for detailed infor-mation.

Paying for medical care is an important issue for those dealing with HIV or AIDS. It’s important to understand that most health insurance has lifetime caps, so you or your loved one may be in a position where you run out of funding for health care. You may qualify for Medicaid, a federal program administered by individual states. To qualify for Medicaid you must meet certain income and

RAINBOW TIP
Health care is a very personal issue. It is your right to find health care providers who treat you and your family with respect and understand-ing. Contact some of the following organizations for assistance finding GLBT friendly health care providers:
• Association of Gay and Lesbian
Psychiatrists Referral Service 215-222-2800
www.aglp.org
• Gay and Lesbian Medical Association
Physician Referral Program 415-255-4547 www.glma.org
• Lesbian Community Cancer Project 773-561-4662
www.lccp.org
• Mary-Helen Mautner Project for Lesbians with Cancer 202-332-5536 www.mautnerproject.org
• National Association on HIV over 50 816-421-5263
www.hivoverfifty.org
HEALTH AND MEDICAL ISSUES 41

asset guidelines. Contact your local Social Security Department office for application and qualification information.

The United States Supreme Court in Bragdon v. Abbott, 524 US 624 (1998) ruled that HIV positive individuals can be protected under the Americans with Disabilities Act (ADA). (United States Code, Title 42, Section

12182(a).) This means that you cannot be discriminated against because you have HIV or AIDS.

There is also assistance available with HIV/AIDS medication costs through many different sources. Visit www.thebody.com for a list.

VIATICAL SETTLEMENTS

Viatical settlements are another way to finance health care. A person can sell his or her life insurance policy to a company which will collect the death benefit when the insured dies. The insured receives the benefit of getting the cash while still alive (although there are restric-tions on when and how you can cash-in such a policy).

EMERGENCY CONTACT CARDS

If you are in a committed relationship, you probably want your partner to be one
42 GAY & LESBIAN RIGHTS

of the first people notified if you are ill or injured. Create a small card to keep in your wallet or purse with the heading Emergency Contact at the top. Include his or her name, address, and contact information. Add any other family members or close friends you want to list as alternate contacts. You may also have been asked to complete a form at work or school as well as at health care providers’ offices listing emergency contacts. Be sure to include your partner’s information there as well.

Listing each other as emergency contacts ensures that you will be contacted in emergencies, but will not give you rights to make medical decisions for each other, or even admittance into a hospital room.

HEALTH CARE DIRECTIVES, LIVING WILLS, AND HEALTH CARE POWERS OF ATTORNEY

Many gay couples have faced situations where one of them becomes ill and is unable to make medical decisions. His or her family mem-bers then take over and make all the medical decisions, effectively shutting out his or her life partner. This can be a very difficult situ-ation, but it can be avoided. You and your partner have the option of creating health care directives, which can dictate your decisions about medical issues in advance. You can name each other as the other about what your wishes are and the types of treatment you find acceptable. It can be hard to think about difficult decisions when you are both healthy, but talking about these choices in

RAINBOW TIP
Remember that each type of medical directive discussed does something different. While they may overlap, it is important to understand what each one can and cannot do and decide what is needed for your situation advance will help both of you be more comfortable making deci-sions should the time ever come.

When you name your partner in a health care directive, it’s important that you talk in advance about your wishes. Some state forms require you to specify your wishes, while others do not. You want to give your partner as much information as possible. Additionally, in some states, the form is only valid if in fact you have discussed your wishes with your partner and made it clear how he or she should make a decision. Be as specific as possible when dis-cussing the types of treatments you want or do not want. Think

about all the possibilities as

best you can and try to reach an understanding together about how these important decisions should be made.

Since different states require different documents, it is best to contact an attor-ney to help you prepare a document that meets the requirements of your state. Some states use a document

called a health care proxy, which allows you to name the person you choose to make your medical decisions and also to limit the types of treatment you wish to receive.

Other states call these forms health care powers of attorney. The forms accomplish the same thing, but vary from state to state. It is important that you execute a document that will be accepted by medical care professionals in your state.

Living Will

A living will is a document used in some states to specifically describe the types of medical treatment you consent to should you be unable to make a decision. Living wills are also referred to as a declaration regarding life-prolonging procedures, an advanced directive,
44 GAY & LESBIAN RIGHTS

or simply, declaration. They are limited to one of the following med-ical conditions:
◆ a terminal condition;

◆ a persistent vegetative state; or,

◆ an end-stage condition.

These documents are often long and quite detailed in regard to describing specific kinds of treatement that are consented to or requested. The law concerning living wills varies by state and releases a health care provider from liability for honoring your wishes. Without a living will, your doctor may be reluctant to remove life support, even if that is what you would want, for fear of being sued or because of medical ethical considerations.

In addition to life support, a living will can provide instruction regarding your wishes on other medical procedures you may or may not want, whether food and water should continue, or what mea-sures to take based on your likely recovery. Whatever your instructions may be, if you create a living will you must let people know. Since their use is limited to emergency situations or when you are unconscious, if you have not told somebody about your liv-ing will, it is too late.

No matter what kind of directive you complete, it is important to give copies of it to all of your health care providers. You don’t want your partner to have to dig through papers to find it when it is needed.

Health Care Power of Attorney

You need a health care power of attorney if you want someone else to be able to make decisions about your health care in the event you are unable to make, or communicate, such decisions. Without a health care agent, doctors and hospitals may be reluctant to provide certain medical care if you are unable to give consent or help make decisions about various treatment options. Your partner can only act if you are unable to make such decisions for yourself

A durable power of attorney for health care allows you to desig-nate your partner to make all decisions about your health care if you
HEALTH AND MEDICAL ISSUES 45

are unable to make these decisions yourself. This applies to all health care decisions and medical conditions. It is much broader than a liv-ing will, and while they should be used together, a health care power of attorney is generally the more important document to have.

Your partner, acting as your agent, is generally expected, or even required, to make decisions based upon what he or she believes you would decide under the circumstances. It is important for you and your partner to discuss possible situations and the types of treat-ments you would or would not want. If you know of a particular illness or condition, it is best to write down your desired course of treatment so your partner has written documentation of your wishes.

Revoking a Directive

To revoke a health care directive, you can either destroy all existing copies or you can sign a document which states that you revoke all previous directives. If you destroy a directive, make sure you destroy all copies of it. If you revoke it, make sure that everyone who had a copy of the directive has a copy of the revocation.

Do Not Resuscitate Orders

A do not resuscitate order is a physician order informing other health care providers that no resuscitation efforts are to be made in the event your heart stops beating. It is also referred to as DNR or a no code order.

Generally you will be able to discuss this with your treating physician and a notation will be made on your chart. Traditionally, DNR orders are issued when resuscitation will do nothing but delay death and prolong pain.

Most people do not enter DNR orders for themselves. Instead they are often put into place by the person who has decision mak-ing authority for the patient. Physicians can help you understand the conditions faced by you or your partner and can often help you decide whether or not a DNR order would be appropriate.
46 GAY & LESBIAN RIGHTS

HOSPITAL VISITATION AUTHORIZATION

Since in many states hospital visitors are limited to close relatives of the patient unless the patient provides specific consent otherwise, you need to make clear, in advance, that your partner has the right to visit you should you be hospitalized. If you are conscious and awake, you are able to give verbal authorization, but if you are unconscious, your partner might be denied admittance, particularly if your family does not want him or her there. You can use form 5, on page 233 for this, but be aware that different states have differ-ent requirements. Consult an attorney to be sure you are within your state’s requirements.

PARTNER NOTIFICATION LAWS

Unfortunately, sexually transmitted diseases (STDs) are a fact of life. STDs include:
◆ HIV/AIDS;

◆ Syphilis;

◆ Gonorrhea;

◆ Human Papilloma Virus (HPV or genital warts);

◆ Herpes (HSV-1 or HSV-2);

◆ Chlamydia;

◆ Hepatitis B;

◆ Pelvic Inflammatory Disease; and,

◆ Trichomoniasis.

RAINBOW TIP

Some employers and unions offer health insurance family plans to domestic partners. See Chapter 5 or the following website for more infor-mation:
http://www.gogay.net/insurlist.htm

If you are living with a sexually transmitted disease, you carry a great burden already. Exposing others who do not consent to your dis-ease can have serious ramifications. Many states have laws that make it a mis-demeanor or felony to infect someone else with an STD. In some states, there are

RAINBOW TIP
Medical records are private and can-not be accessed without the patient’s permission or court order. Thus infor-mation about a person’s HIV status, STD status, or other medical informa-tion is privileged and private.
HEALTH AND MEDICAL ISSUES 47

criminal laws that prohibit intentionally exposing another person to HIV or AIDS without their knowledge and consent. These kinds of laws are normally only enforced when the infected perpetrator actu-ally intends to infect the victim and are not normally used in cases of consensual sex.

Failing to reveal information about sexually transmitted diseases can expose you to civil liability as well. If you have unprotected sex

with someone and do not

inform him or her about your medical status, he or she can sue you and may be able to recover even if he or she is not infected. (Since there is a long waiting period with numerous tests for HIV, the other person could recover for the pain and suffering related to this waiting period.)

Currently, there are no laws that require people infected with HIV/AIDS to notify their partners, but there has been discussion about implementing them. Some advocates are in favor of what is called coercive partner notification, forcing those who are diagnosed with HIV to provide names of past partners so that notification can occur. In some states, medical providers are not required to ask HIV positive patients to list past partners. However, if a patient does pro-vide names of past partners voluntarily, the providers are required to notify the past partners that a person they had sexual contact with has been diagnosed with HIV. HIV/AIDS treatment programs nor-mally encourage this kind of notification, but cannot require it.

In 1988, the Center for Disease Control (CDC) mandated state health departments to establish partner notification programs, but this is done only with the consent of the patient. The CDC advo-cates partner notification, but realizes there would be a drastic reduction in the number of people participating in anonymous test-ing if notification became required. Some areas (Delaware, New

RAINBOW TIP
Sadly, there are now more than 44,000 panels in the AIDS Memorial Quilt Project. To learn more, call 404-688-5500 or visit:
www.aidsquilt.org

Jersey and Washington, D.C.) can notify partners against a patient’s will if a court order is obtained. In Indiana, failure to notify past partners is punishable by jail time or a fine.

Of course this notification is based on the presumption that the patient provided names of partners in the first place. Many state health departments use a system by which names of partners vol-untarily provided by patients are given to the state health department without linking them to a patient. The partners then receive a generic letter telling them that someone they had sexual contact with (no name given) has been diagnosed with HIV and advises them to be tested.

It should also be noted that despite a flurry of lawsuits in the 1990s, there has never been a proven case of HIV transmission from a health care worker to a patient. There is no requirement that a healthcare worker disclose his or her HIV status to a patient as long as he or she uses universal precautions (such as gloves, masks, etc). A federal court in Oregon recently held that a health care worker cannot be discriminated against based on HIV status. (John Doe v. An Oregon Resort.)

If you have an STD, talk to your health care provider about the best ways to prevent spread of the disease. If you have an STD, it makes sense to warn all sexual partners before you have sexual con-tact, since it could protect the other person’s health and protect you from legal liability.

END OF LIFE ISSUES

Unfortunately, we are still losing members of the GLBT community to AIDS. Partners, lovers, and friends are lost to other med-

ical problems as well. If someone you love is seriously ill or has recently passed away, you are in a position where you need a lot of sup-port.
HEALTH AND MEDICAL ISSUES 49

In facing the end of life, it is important to make sure there is a will (see Chapter 10), as well as health care directives in place. Should you or your loved one face the end of life, get help from a local hospice organization. For local hospice care information.

Physician assisted suicide is illegal in most states, though the movement to legalize it continues to remain viable. If this is some-thing you are interested in, visit the Euthanasia World Directory at www.finalexit.org.

Organ Donor Agreement

Should you wish to donate any of your organs or leave your body to researchers, you need to complete an organ donor agreement. In many states, you can sign the release on the back of your driver’s license or fill out an organ donation card. If you do not do so, your next of kin will be permitted to make the choice, not your partner (unless you are in Vermont). You may use form 7, page 236, appointing your partner as the person who will make this decision, but be aware that it may not be accepted in all states. If you do com-plete an organ donor agreement, it is important to discuss it with your partner and next of kin. Visit www.organdonor.gov for more information about organ donation.

Unfortunately, many gay donors’ organs are disposed of and not used, simply because the donors are gay. There is fear that a donor could be HIV positive and not know it. Since HIV testing is a lengthy process, United National Organ Sharing (UNOS, the agency the coordinates organ donation in the United States) will not accept them. Also, many medical centers will not place donated organs into HIV positive patients.

RAINBOW TIP
There is a Federal Funeral Rule that governs the type and amount of infor-mation a funeral home must give family members seeking funeral and body disposition services. You can read it at.

Some people choose to donate their entire bodies to research. To do so, contact a medical school in your vicinity and ask them for information about the program. They will provide you with forms and releases to ensure that your wishes are carried out.

Autopsy, Burial, and Cremation

The next of kin is normally given the authority to decide if an autopsy will be performed after a person dies. You can use your health care directive to authorize your partner to make this decision for you, but this may not be valid in all states.

Next of kin also have the authority to make decisions about how to dispose of the deceased’s remains. If you wish to give your partner authority to make this deci-sion, include a provision in your will authorizing him or her to do so and make sure you talk about this with him or her in advance. If you include this in your will, but tell no one, by the time your will is read, it will be too late. You can also write these instruc-tions as a separate document. In most states, these instructions are upheld by courts. Specify in your instructions that you would like your partner to be the one handling the arrangements. You want to be sure your partner is not excluded by family members.

Grief

Whether someone you loved died of AIDS or other reasons, coping with grief is a big part of your life. Look for local AIDS bereavement groups or general bereavement groups to help yourself cope. Contact your local gay pride organization or gay community orga-nization for information about local groups. Local hospitals also often grief support groups.
–6–

BENEFITS, INSURANCE, AND LEGAL PROTECTIONS

Unfortunately at this time, GLBT partners are usually not eligible to receive the same kinds of benefits and legal protections offered to married, heterosexual couples. This chapter will help you under-stand how to enforce your rights and avoid pitfalls.

EMPLOYMENT PROTECTION

As previously mentioned, there is no federal protection for discrim-ination in the workplace based on sexual orientation or gender identity. Some states and municipalities do however provide varying levels of protection. As an employee, it is important to know what rights you have and what you can do to protect yourself and your partner.

Chapter 2 contains information for finding out whether your local community offers workplace protection. In these communi-ties, a company violating or not meeting its requirements in regards to protecting GLBT workers or providing domestic partnership ben-efits can be found liable and forced to implement changes. If you are not fortunate enough to live in one of these communities, you may still have protections you otherwise did not consider. Look to your company’s non-discrimination policy. If one is in place that pro-hibits discrimination on the basis of sexual orientation or gender issues, the company should be required to protect you from harass-ment and be forbidden from refusing to hire you or from firing you on account of your sexual orientation. Check with your HR depart-ment and company handbook to see what your company’s non-discrimination policy is.
52 GAY & LESBIAN RIGHTS

Also, if you work for an organization that is unionized, more and more major unions are pushing for contracts that contain terms to protect its members from harassment and discrimination based on sexual orientation, and provide benefits for domestic partners. Review your contract and see your union steward or representative for more information about what your contract contains.

Some employers and unions offer health insurance family plans to domestic partners. See Chapter 5 for more information, as well as www.gogay.net/insurlist.htm.

DOMESTIC PARTNER BENEFITS

If you are lucky enough to work for an organization that offers domes-tic partner benefits, there are some important considerations that you must make before enrolling your partner in these benefits. To under-stand these ramifications, it is important to review the general framework employers offering domestic partnership benefits impose.

Domestic partners will generally have to provide the employer with an affidavit specifying that they are domestic partners and out-lining their relationship. The information on the affidavit may include information about the financial support they provide to each other and state that they live in a relationship equivalent to a marriage. Additionally, companies often require proof of commin-gled finances, common residence, and decision-making authority. Proof of a joint checking account, mortgage or lease agreements, wills or powers of attorney may have to be submitted when apply-ing for domestic partnership benefits. If your company has a program in place, your human resource department will be able to provide you with information regarding exactly what they will need.

If you take the benefits offered, you will face important legal and tax consequences. If you signed an affidavit regarding your eli-gibility for benefits, and the information you provided is false, your company could require you to repay it for the costs of the benefits. It would also be grounds for terminating your employment in most circumstances of any fringe benefits extended

to the domestic partner. For example, many major airlines offer free or reduced flying to its employees, and their dependents. However when the employee’s domestic partners take advantage of these benefits, the employee will see additional income on his her pay stub reflecting the value of the benefit received. Depending on the costs of these benefits, the employee can see a dramatic rise in his or her taxable income, with-out seeing any additional dollars in pay. The additional taxes owed can be significant so it is important to consult with tax professionals or accounts to determine the true financial impact of these benefits.

For a list of employers with domestic partnership benefits visit: www.hrc.org/worknet, which also contains copies of sample poli-cies. To learn more about imputed income visit the IRS’s website at www.irs.gov.

RAINBOW TIP
As a last resort, you can take out a policy and name a parent or child as your beneficiary and then submit a change of beneficiary form a few months later naming your partner. There is rarely little attention paid to these changes.
54 GAY & LESBIAN RIGHTS

LIFE INSURANCE

When you name a person as the beneficiary on your life insurance policy, he or she will receive the face amount of the policy in the event of your natural or accidental death. A beneficiary must be someone who has an insurable interest in your life—in other words, it

has to be someone who would suffer some financial loss if you die. Spouses, children, parents or other family mem-bers are commonly named beneficiaries.

Many life insurance com-panies do not believe that gay couples have insurable inter-ests in each other’s lives. If you and your partner own a home together, insurance companies may consider you

to have insurable interests in each other. If one of you dies, the other will be fully responsible for the mortgage. Because of this, policies are generally limited to the amount of the mortgage. You can also obtain a policy if you and your partner are in a joint business ven-ture together. This is one of the arguments behind forming an LLC instead of a domestic partnership. (See page 66 for more informa-tion on this.)

There are some insurance companies that are beginning to see the light about this. Check the list of companies referred to in the resource appendix or talk to an insurance broker in your area who can place you with a company interested in your business.

In the past, being diagnosed with HIV or having AIDS would prevent you from obtaining life insurance. This is not the case any-more. While premiums may be higher since life insurance rates are usually based in part on life expectancy, coverage is available. You may need to take out what is called impaired risk life insurance.

As the name implies, these policies are written for individuals at higher risk of an earlier than average death. It is expensive coverage,

RAINBOW TIP
Shop around for insurance and make sure your agent knows you are in a same-sex relationship. More and more insurance companies are offer-ing multi-policy discounts to same-sex couples.
BENEFITS, INSURANCE, AND LEGAL PROTECTIONS 55

but as new and better treatments are developed and life expectancy increases, the cost of the premiums should go down.

Other types of policies may be available also, but additional drawbacks may exist not making them a good choice. For example, in some states, guaranteed issue life insurance is available, regardless of health status. However, these policies are very expensive, limited

in coverage, and impose a

three-year waiting period from issuance to death before they will pay out. Discuss with your agent what is avail-able for your situation and shop around to see what you can afford.

If you already have a life insurance policy, but would like to take out more insur-ance, but are worried that

you will be denied coverage, ask about purchasing a guaranteed insurability rider. This is a clause added your existing policy (for an extra fee) which allows you to purchase additional insurance with-out having to go through a medical exam.

When a life insurance company considers a person for insurance, the underwriting process usually requires a medical exam and the company will search the Medical Information Bureau (MIB) for information on your past medical history. This databank will show if you have been tested for HIV (but not the result), as well as any medications you are taking. You can pay to see your MIB file at www.mib.com.

Some insurance companies ask single men to complete lifestyle questionnaires in an attempt to determine if they are gay. It’s impor-tant to understand that once an insurance company decides you are gay (and accordingly raises your premiums—sometimes to twice or three times as much as policies offered to heteros), your name is added to a database which can be accessed by most life insurance companies. If you believe you have been denied life insurance or dis-
56 GAY & LESBIAN RIGHTS

criminated against during the application and underwriting process, contact your state insurance department. For information about HIV and life insurance, see www.HIVpositive.com.

Lastly, before purchasing life insurance, be clear on why you think you need it. Life insurance can be a good part of an investment plan if you have children or want to provide for your partner. However, if you are single you might want to only consider a small burial policy.

AUTO INSURANCE

If you and your partner live together and drive each other’s cars, be sure to list each other as secondary drivers on your insurance poli-cies. If you do not and one of you has an accident while driving the other’s car, the insurance company can deny the claim.

If you want to avoid having separate insurance policies (and get a multi-car discount), you need to either transfer title so that one of you owns both vehicles and is the primary insured person on the policy and the other person is listed as a secondary driver, or regis-ter the vehicles in both names so that you both own the vehicles. This will reduce your insurance costs (unless one of you has a terri-ble driving record—it might make more sense to insure separately so that the good driver can get a low rate). Having both partners on the policy will also make resolving any claim easier since either part-ner can deal with the adjustor.

Some insurance companies will not allow you to put a non-rel-ative on your policy as a secondary driver though, so discuss fully with your agent what is available. If you do transfer ownership of your vehicle, include a section in your domestic partnership agree-ment about who gets which car if there should be a break up. (All the information in this section also applies to boat or motorcycle insurance.)

HOMEOWNER’S AND RENTER’S INSURANCE

If you rent a unit together, make sure you include both names on a renter’s insurance policy. You want to make sure that everyone’s belongings are protected. In the event of a loss, you do not want the
BENEFITS, INSURANCE, AND LEGAL PROTECTIONS 57

insurance company denying part of your claim (or possibly all of it) because of a dispute over who owned the destroyed property. While you may see everything as joint, the insurance company probably will not agree.

If possible, you should get one policy to cover both of you. It is more expensive to take out two policies. Most insurance companies do not have a problem doing this.

If you own a home together, you will need to include both names on the homeowner’s insurance policy. If one partner owns the home and the other partner lives there but has no ownership interest, the homeowner would be listed on the homeowner’s pol-icy and the other partner would need to obtain a renter’s policy to be certain that his or her belongings are covered. If not, the home-owner’s policy might refuse to cover the non-owner’s belongings if there should be a claim.

If one of you owns the home and the other does not have an ownership interest, you can have the homeowner’s policy endorsed to include coverage for the non-owner’s belongings. Often this is less expensive than purchasing a separate renter’s policy. It also helps avoid confusion and red tape if a claim is ever made.

Another insurance issue to consider is liability to third parties. Homeowner’s insurance will pay the claims of people who are injured on your property, such as if someone slips and falls on your driveway. If only one partner is listed on the homeowner’s policy, only that partner is covered in the case of a lawsuit like this. The person injured could sue the uninsured partner separately. Additionally, the homeowner’s insurance company could seek con-tribution from the uninsured partner to help pay the claim.

You might wish to consider purchasing an umbrella policy which offers extended liability coverage for personal injury that occurs on your property. Talk to your insurance agent about the types of cov-erage available.

Consult with your agent and review your policy to make sure each party will be covered if a loss occurs. Additional discounts may apply as well if both auto and home are insured together.
58 GAY & LESBIAN RIGHTS

PENSIONS AND RETIREMENT PROGRAMS

Gay couples are not entitled to receive Social Security benefits on each other’s behalf like married couples are, but children (legal chil-dren only, or those that can prove they are biological children) of gay couples are entitled to receive benefits on behalf of both par-ents.

If you participate in a pension or retirement investment program through your employer, check with your human resources manager to determine if the specific account permits you to name your part-ner as beneficiary of the account. More and more employers are recognizing the need to provide this benefit.

IMMIGRATION

The Netherlands and Belgium grant same-sex couples the right to legally marry. Many European countries also have registries similar to those found in some municipalities in the United States. At pre-sent, the United States does not recognize these marriages and does not confer the rights to foreign same-sex married couples that it rently under debate. The Permanent Partners Immigration Act (PPIA) is a bill that will allow U.S. citizens and permanent residents to sponsor their same-sex partners for immigration to the U.S. The PPIA would provide same-sex partners of U.S. citizens and lawful permanent residents the same immigration rights that legal spouses of U.S. residents enjoy.
BENEFITS, INSURANCE, AND LEGAL PROTECTIONS 59

Countries presently recognizing same-sex couples for the pur-poses of immigration are:
◆ Australia;

◆ Belgium;

◆ Canada;

◆ Denmark;

◆ Finland;

◆ France;

◆ Germany;

◆ Iceland;

◆ Israel;

◆ The Netherlands;

◆ New Zealand;

◆ Norway;

◆ South Africa;

◆ Sweden; and,

◆ the United Kingdom.

Immigration and HIV

Gays cannot be refused entry into the U.S. or denied citizenship based on their sexual orientation. There is, however, a ban on entry for people who are HIV positive (Immigration Act of 1990), but there are exclusions to this. It is important to talk with an immigra-tion attorney to determine your own or your partner’s rights if one of you is immigrating and has HIV. Waivers are available, but not easily obtained. Carrying HIV related medication could be enough to prevent entry.

Another major concern for HIV positive individuals already legally in the United States is fear of deportation. Immigrants seek-ing their green card to establish permanent residency must submit to an HIV test. If positive, the Immigration and Naturalization Service (INS) uses this information to begin deportation proceed-ings. HIV positive people can obtain political asylum if they can prove they are being persecuted because of their HIV status.
60 GAY & LESBIAN RIGHTS

If deported, many individuals fear persecution and/or prosecu-tion from their home country, since many countries still view homosexuality as a sin, and make it illegal. Penalties can range from harassment, confinement, quarantine, and denial of medical care, to imprisonment, physical abuse, and torture.

If you are facing deportation and come from a country where these civil rights atrocities still occur, you can seek asylum to avoid the deportation. Unfortunately there are tremendous inconsisten-cies in the way asylum cases are dealt with and decided by the INS. (Problems of this magnitude are beyond the scope of this book. You should seek the counsel of an experienced immigration attorney.)

Citizenship

There are several ways to become a U.S. citizen, one of which involves being sponsored by a U.S. relative—a spouse, child, or par-ent. Same-sex partners are not considered to be relatives by the INS, so one partner cannot sponsor another. Marrying a heterosexual just for the purpose of obtaining citizenship is reason for deportment and the person you marry could face huge fines. Partners who have adopted their adult same-sex partners cannot sponsor them for cit-izenship. (A child must be under age 16 to be sponsored by a parent.)

The United States is not the only country that restricts entry into the country based on HIV status. Countries such as Russia, Qatar, and the United Arab Emirates have a complete ban on entry for HIV positive people. Other countries allow HIV positive people in for a restricted amount of time, or if they plan on becoming citi-zens. Countries like France, Britain, Costa Rica, South Africa, and Thailand have no restrictions. The U.S. State Department maintains a current list of requirements from other countries. You can view the list at:

DOMESTIC VIOLENCE

It is illegal to physically harm another person, regardless of their gender. Thus, laws about battery and domestic violence apply to gays as well as straights. Domestic violence is a difficult issue. Some law enforcement officers are reluctant to get involved in domestic disputes and are even more reluctant to do so when the people involved are the same sex. There is sometimes the mistaken impres-sion that if domestic violence occurs within a gay couple, that it must be mutual, or even consensual.

Getting help in a domestic violence situation can be difficult. Some shelters do not welcome gays. Going to a shelter places the victim in the position of having to come out of the closet or lie about his or her abuser. Additionally, very few shelters are welcom-

ing to men in general.

If you find yourself in an abusive situation, you have every right to call the police. Even if you are met with resistance, this can at least offer an opportunity to stop the violence and get away. You can also call one of the domestic violence hotlines listed in Appendix E. These numbers can tell you where the nearest shelter is located. (These are not gay organiza-tions, but they are supposed to help any victim of domes-tic violence.)

Getting to safety is always the first step. Once you are

out of the situation, you can decide to seek a restraining order against your abuser. Again, this places you in the position of having to reveal your sexuality and you may meet with some opposition from court personnel. However, it is your right to seek protection from the court and no one can stop you.

A restraining order will direct your abuser to stay away from you. If he or she does not, you are likely to receive a better response
62 GAY & LESBIAN RIGHTS

from law enforcement than if you did not have an order. Make sure your order is on file with local law enforcement, so that if you call for help they will understand that you are under the protection of a court order.

Domestic violence laws tend to impose harsher punishment and afford victims greater protections than normal assault laws. Many domestic violence laws allow the abused party certain protections such as exclusive possession of the residence for a certain time period without the other party even being heard by the court. While these laws provide a means for victims to regain control, they can easily be abused. As more and more jurisdictions include same-sex couples under domestic violence laws, GLBT couples should be aware of this potentially dangerous tool.

It is important to understand that domestic violence is not a gay or straight issue and is instead an issue about violence, not about sexuality. There is very little local community support available out-side of large cities for GLBT domestic violence victims, particularly for men. Talk to your local organizations about this lack of support and what can be done about it.

PUBLIC ASSISTANCE

If you or your partner is receiving public assistance and you live together, your relationship can impact eligibility. Benefits such as SSD (Social Security Disability) that are based on physical/mental conditions are not impacted by your living arrangements. However, benefits that are income based are affected. Income is calculated by household and a partner is presumed to contribute to the other’s support. If the partner’s income is not reported, there could be wel-fare fraud problems. However if you and your partner are legally roommates and have a roommate agreement, then the working part-ner is not expected to contribute to the other’s support. If public assistance is a possibility for either of you, complete the Roommate Agreement (form 3, p.230).
BENEFITS, INSURANCE, AND LEGAL PROTECTIONS 63

PRIVACY

We are all familiar with the outing of gay celebrities. Making some-one’s private life public is a cruel invasion, however celebrities place themselves in the public eye and their privacy rights are slightly cur-tailed. However, the average GLBT person does have a right to privacy and revealing a person’s private sexual orientation can be an invasion of privacy. The right to privacy comes from the 14th Amendment to the Constitution.

If someone does reveal your sexual orientation, you may be able to sue. Two important cases illustrate this right to privacy.

In an Ohio case, a man listed his partner as his beneficiary in the company insurance and benefit plan. The human resources department told his superiors and he was fired. The court held that he had no case in terms of discrimination, but that he could sue for invasion of privacy. (Greenwood v. Taft, Stettinus & Hollister.)

A federal court in 1997 held that when a police officer threatened to tell a teen’s grandparent he was gay, the teen’s right to privacy was violated. The court held that the 14th Amendment protects a person’s sexual orientation from forced disclosure and allowed the teen’s mother to sue for damages when the teen committed suicide after he was released. (Sterling v. Borough of Minersville, et al.)
–7–

DOMESTIC PARTNERSHIPS

Formalizing your relationship is an important and meaningful step. Vermont civil unions are discussed in the next chapter, but there are other choices for formalizing your relationship.

ADULT ADOPTION

Before domestic partnership registries gained in popularity, adult adoption was an option some couples considered. Essentially, one partner adopts the other. This allows partners to have a legal kinship relationship to each other. However, there are several problems with this option.

The first is that it can be expensive to hire an attorney to han-dle an adoption. Secondly, in order to be adopted in some states, a person’s legal parents must consent to legally terminating their parental rights. This can be a huge emotional hurdle, not to mention a legal one.

Adoption creates a legal status between the partners, for such purposes of inheritance or to obtain victim’s compensation or other payments. However, it also destroys that same legal status with the adopted person’s natural parents. Therefore, unless they have a will, the adopted person can no longer automatically inherit from his or her parents and his or her parents cannot inherit from him or her. Parents are also precluded from receiving benefits such as victim’s compensation for an adult child who has been adopted by a partner.

Additionally if the adopting partner already has children and dies, his or her estate would be split equally among the adopted
66 GAY & LESBIAN RIGHTS

partner and the other children. This can lead to protracted court battles and bad feelings.

The legal relationship that is created if one partner adopts the other is a parent-child relationship. This is not really what you are looking to do when you want to legalize a partnership. It can also be a problem if your state has an incest law, prohibiting sexual contact between a parent and child. More importantly, if you break up, you are stuck with this legal relationship. There is no way to un-adopt someone.

Florida prohibits any adoption by gays, while Alabama, Arizona, Hawaii, Michigan, Nebraska and Ohio do not permit any kind of adult adoption.

LLCS

Another option some couples have considered is forming an LLC (limited liability company) together. This is a business entity that can file a tax return, obtain health insurance, pay expenses, and own real property. While this choice does allow couples to get some of the benefits of marriage, the simple fact is that it is a business rela-tionship, not a personal one. Forming an LLC will not give you inheritance rights, health care decision rights, parenting rights, and other aspects of legal marriage. Additionally, there is a fair amount of expense that goes into setting up and maintaining an LLC and doing so may require an attorney.

CALIFORNIA DOMESTIC PARTNERSHIPS

California has a domestic partnership registry that offers some legal rights to those using it.

Requirements

To register a domestic partnership in California you must meet these requirements:

◆ share a residence with your partner (this does not require joint ownership or joint leasing);

◆ not be married or part of another current domestic partner-ship;
DOMESTIC PARTNERSHIPS 67

◆ not be related by blood in a way that would prohibit marriage in California;
◆ be over age 18;

◆ be members of the same sex; and,

◆ be capable of consenting to the partnership (meaning that you are mentally competent).

Filing

To file a Domestic Partnership, you and your partner must complete the Declaration of Domestic Partnership (form 12, p.244) and file it with a $10 fee with the California Secretary of State.

NOTE: The California law was amended in 2002. If you were regis-tered with the state before this date, you do not need to take any action. Registry with a city or municipality is not the same as registry with the state of California.

Effect

The effect of a California Domestic Partnership is that you and your partner are formally registered as partners. Additionally, you become responsible for financially supporting each other, which includes basic living expenses (like rent, utilities, food, etc.) and can include medical care if one person carries the other on his or her health insurance policy. This means that if one partner fails to support the other, this right to support can be enforced in court.

However, this does not mean that one partner becomes respon-sible to creditors for debts of the other partner unless he or she agreed to that responsibility by doing things like co-signing a loan or opening a joint account.

The California law requires health insurance companies to make coverage for domestic partners available as an option—it does not require employers to offer this coverage however.

Other rights provided by the California law include:

◆ the right to sue for wrongful death or emotional distress upon the death of a partner;
68 GAY & LESBIAN RIGHTS

◆ the right to use sick leave to care for a partner or a partner’s children;

◆ the right to collect unemployment benefits if a partner quits a job to follow a partner who moves because of work;

◆ the ability to apply for disability insurance on behalf of your partner;

◆ equal standing in a conservatorship proceeding (seeking to act as a conservator for an ill or incapacitated partner);

◆ recognition of the rights of partners in hospitals with regard to visitation and decision making;
◆ inclusion of domestic partners in the state simplified will form;

◆ the right to adopt a partner’s child through stepparent adop-tion procedures; and,

◆ the termination of bequests made in wills when a domestic partnership ends (this makes a will provision leaving items to a partner invalid once the domestic partnership has ended, simi-lar to provisions found in hetero spouses’ wills).

It is unclear whether a California registry can be enforced in another state. Test cases are needed to explore this. It is possible that Vermont might honor this registry. The Full Faith and Credit provision of the Constitution requires states to uphold and recognize laws of other

Termination

A California Domestic Partnership is terminated when:

◆ one partner gives the other (or sends by registered mail) a notice terminating the partnership;
◆ a partner dies;

◆ a partner marries in a heterosexual marriage; or,

◆ the partners stop sharing the same residence (i.e., one moves out).

To make the termination legal, one partner must file the Notice of Termination of Domestic Partnership form (form 13, p.246) with the secretary of state. There is no filing fee. The date it is received is the date of termination (except for marriage and death—in these situations, termination is at the date of the event). The person filing the notice must send a copy to the other person at his or her last known address.

If the partnership included a partner receiving benefits (such as health insurance) through the other partner, notice must be given within sixty days of the termination to the company or employer providing the benefit.

OTHER DOMESTIC PARTNERSHIP REGISTRIES

Other cities and municipalities have domestic partnership registries. The list includes the following:
◆ Albany, NY; ◆ District of Columbia;

◆ Ann Arbor, MI; ◆ East Lansing, MI;

◆ Atlanta, GA; ◆ Hartford, CT;

◆ Austin, TX; ◆ Iowa City, IA;

◆ Berkeley, CA; ◆ Ithaca, NY;

◆ Boulder, CO; ◆ Laguna Beach, CA;

◆ Brookline, MA; ◆ Long Beach, CA;

◆ Broward County, FL; ◆ Los Angeles, CA;

◆ Cambridge, MA; ◆ Madison, WI;

◆ Chapel Hill, NC; ◆ Marin County, CA;

◆ Davis, CA; ◆ Minneapolis, MN;
70 GAY & LESBIAN RIGHTS

◆ Nantucket, MA; ◆ Rochester, NY;

◆ New Orleans, LA; ◆ Sacramento, CA;

◆ New York, NY; ◆ San Francisco, CA;

◆ Oak Park, IL; ◆ Santa Barbara, CA;

◆ Oakland, CA; ◆ Santa Clara, CA;

◆ Palo Alto, CA; ◆ Seattle, WA;

◆ Philadelphia, PA; ◆ St. Louis, MO;

◆ Provincetown, MA; ◆ Travis County, TX; and,

◆ West Hollywood, CA.

Check with your city or municipality to determine if a registry exists in your area. Unfortunately, many of these partnerships are no more than ceremonial. They offer few rights. The rights that are commonly provided are the right to obtain health insurance cover-age, family bereavement leaves, rent control benefits, and visiting rights for hospitals and jails.

Massachusetts

Beginning on May 17, 2004, Massachusetts became the first state in the nation to issue marriage licenses to same-sex couples. Same-sex couples who marry have all the rights and responsibilities of mar-riage as any traditional marriage under Massachusetts law. Federal benefits, however, will still not be recognized.

The right of same-sex couple being able to wed came about from a Massachusetts’ Supreme Court ruling in Goodridge v. Mass. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2003). From this ruling, same-sex marriages will be equal to, and no different from, the marriages of heterosexual couples in terms of rights granted.

There is a three-day waiting period in Massachusetts before cou-ples can marry. Non-Massachusetts residents are not being allowed to come to marry. Currently, a civil union law and amendment to the Massachusetts’ constitution have been proposed. The question of whether to change the Massachusetts’ constitution to overturn this ruling will not reach the voters until 2006. Until then, same-sex residents of Massachusetts may be issued a marriage license and legally wed.
DOMESTIC PARTNERSHIPS 71

Hawaii

Many people incorrectly believe that same-sex marriages are per-mitted in Hawaii. The Hawaii case Baehr v. Lewin held that same-sex marriages should be allowed in Hawaii, but this became a moot point when Hawaiian voters approved a measure limiting marriage to hetero couples. So currently, there is no domestic part-nership or same sex marriage opportunity in Hawaii.

Canada

Canada may soon permit gay marriages. In a recent case in Toronto, a gay couple was married in a church using the process of issuing banns (weekly announcements asking if anyone had any objections to the marriage) without a city marriage license. The couple was issued a marriage certificate by the officiant and tried to register it. The registration was denied and the couple sued. A Canadian court held that it was unconstitutional to refuse to recognize gay and les-bian marriages. However, the ruling was suspended for two years to give the Canadian Parliament time to redefine the word marriage. The final word on gay marriage in Canada is yet to come.

COMMITMENT CEREMONIES

Regardless of whether you can register your partnership or form a civil union, many couples choose to have commitment ceremonies or weddings. While commitment ceremonies convey no legal rights, they do send an important message in the fight for equality.

Many newspapers now print commitment ceremony announce-ments. The larger papers that do so include the New York Times, Washington Post, Chicago Tribune, Boston Globe, Cleveland Plain-Dealer, Oregonian and Columbus Dispatch. Contact your local paper about its policy. If your area newspaper will not print your announcement, consider printing it in an area GLBT publication instead.

In planning a ceremony, ask friends, check with local pride orga-nizations or read ads in local GLBT newspapers to locate wedding service providers (such as florists, bakers, planners and so on) that
72 GAY & LESBIAN RIGHTS

welcome gay customers. (In Vermont there is a booming gay wed-ding industry.)

If you wish to have a religious blessing, contact your clergyper-son to find out if he or she will perform the ceremony. You can ask friends for leads on clergy they know who are willing to perform ceremonies. Check the resource appendix at the end of the book for links to lists of clergy who support or participate in commitment ceremonies or weddings.

The ceremony itself can include anything you wish, from formal vows to casual announcements. Since there are no rules as to what must be included, use this as your opportunity to create a ceremony that is meaningful to you and which fulfills your needs and desires.

DOMESTIC PARTNERSHIP AGREEMENTS

While currently only Vermont and California offer a true, legally binding, full partnership, there are steps you can take to formalize your relationship and make certain aspects of it legal. Creating a written contract can be important if you plan to own property, share expenses and merge your financial lives. While most people do not of document, you may consider executing two separate documents one that meets your employer’s requirements and is signed before a notary (form 2, p.229) and another for your own purposes, which can contain more personal details. (See Chapter 6 for more information on employer provided domestic partnership benefits.)

Creating a written contract can also increase your level of trust and comfort. You know your partner cannot just walk out the door someday and leave you with nothing. By signing a contract, you agree to be responsible to each other for certain things and set cer-tain parameters that will affect any possible break up. Some couples include the signing of a contract as part of the wedding or commit-ment ceremony.

What to Include

The partnership or commitment agreement can include anything you like, but you must be aware that only certain portions of it will be legally enforceable, depending on the laws of your state. Here are some examples of the types of things to consider including in your agreement.

Property Ownership. There are lots of options when it comes to owning property together. To jointly own real estate, see Chapter 3. In your agreement you can state what your intentions are and how you plan to arrange ownership of other types of property. To jointly own bank accounts or investments, you generally need to open a new joint account. When opening the account you can specify that it is to be owned jointly and severally—which means either of you can remove all the money at any time. You can still maintain sepa-rate individual accounts.

For vehicles, you need to change the ownership listed on the title (contact your state motor vehicle department). For personal and household property, you can specify in your partnership con-tract what items are to be jointly owned (for example, you could say that all household furnishings purchased after the date of the con-tract will be jointly owned). You can create joint ownership in specific items of property if you wish as well. You can also list those items that will continue to be individually owned. See Chapter 4 for more information on joint ownership.

Debts. Your agreement can state that you intend to own all debts jointly or to have just some that are joint. You can agree how

RAINBOW TIP
If you live in a state with a sodomy law, you’ll want to avoid mentioning sex or sexual relationships in the agreement. Include your personal relationship in your commitment cer-emony but leave it out of your legal document.
74 GAY & LESBIAN RIGHTS

you will share payments on these. (See Chapter 4 for more infor-mation about sharing debts.)

Expenses. You may choose to assign certain household expenses to each of you, or you may agree to equally share all of them or pay them out of a joint account. Your agreement can state that you agree to be jointly responsible for the expenses of the household and then go on to explain how you will divide these expenses. Some partners appor-

tion this on a 50/50 split, others assign percentages based on earnings (one partner earns $80,000 and the other earns $20,000—thus expenses are shared on an 80/20 split) or create other arrangements.

Pets. It is important to establish pet ownership so that if there is a break up, you do not have a long emotional battle over custody of your cat, dog or other pet. Joint

ownership is an option, but it might be a good idea to specify who would take the animal in the event of a break up. Joint ownership means joint responsibility for expenses as well.

Household Responsibilities. While these are an important aspect of any relationship, they are not legally enforceable (you can-not take your lover to court if she does not vacuum). Despite this, it can be helpful for many couples to spell out exactly what each will be responsible for. This can eliminate confusion and later argu-ments.

Cooling Off Period. Some couples choose to include something in their agreement about a period of time they will take after a major fight or what appears to be a break up. This kind of agreement means you agree to take some time to get past your initial anger and try to face the problem with calmer attitudes. This kind of agree-ment can also be important in that it provides a sense of security – you know your lover is not going to walk out the door and never
DOMESTIC PARTNERSHIPS 75

come back if you have a big fight. Again, this is not a legally enforce-able provision.

Dissolution. Although it is difficult to think about it, it makes sense to make some plans for how you would handle a break up. Agreeing to try couples therapy might be one provision to include. Agreeing to use mediation or arbitration to help resolve property and debt issues is another. You can also agree that you would each be entitled to one half of the jointly owned items and each respon-sible for one half of jointly incurred debts. If you are both listed on a mortgage or lease, you might want to consider in advance who would keep the home or apartment and how the other partner would be compensated for this.

Legal Enforceability

A partnership agreement that contains specific provisions about ownership, debt, and financial responsibilities may be enforceable if it is written as a contract. To be a contract there has to be complete agreement between the parties and there has to be some sort of give and take, which is called consideration. If you agree to pay your part-ner $500 per month as your share of the utilities and rent, then you receive the consideration of living there and benefiting from the apartment and the utilities.

Many partners create partnership agreements as a way to make it clear how they will arrange things in their lives. They include items they do not intend to be legally binding, but which they believe helps to formalize their relationship.

Living With an Agreement

It can be hard to live with a very detailed partnership agreement. One or the other of you will always be pulling it out to look some-thing up and your lives will be essentially run by it. Try instead to create an agreement that you will not have to think about. Most married heteros do not spend their time thinking about their pre-nuptial agreements during the course of their marriages. You should not either. The purpose of an agreement is to clear up some legal problems from the beginning, so no one will have to worry about
76 GAY & LESBIAN RIGHTS

them. The purpose of an agreement should not be to govern your daily life and have you constantly worrying about violating it. It should make things easier for you, not more difficult

Create an agreement if you want one and then put it behind you. Live your lives together and keep your agreement as a legal safeguard.

Modifying Your Agreement

You can modify your agreement at any point. You can do so by:

◆ creating an addendum to it (an extra section that clears up some points or changes agreements made in the original agree-ment);

◆ writing a new agreement, which, if dated, would supercede the previous one;
◆ ripping up the old one and creating a new one; or,

◆ ripping up the old one and doing nothing in place of it.

To understand the effects of breaking up without any kind of written agreement, see Chapter 13.

Sample Agreements

A sample Domestic Partnership Agreement is provided in Appendix F at the back of the book on page 227. Additionally, Appendix E provides links to other samples created by other organizations.
–8–

VERMONT CIVIL UNIONS

While there are many municipalities that maintain domestic part-nership registries, Vermont is the only state that has taken action to create legal marriage-like partnerships for same-sex couples. Some activists feel the law does not go far enough, since it still gives gay partners a legal status separate from that given married partners and fails to place gay partnerships on the same level as heterosexual partnerships. Others are pleased to see the steps taken in Vermont as the first in what many hope will be a wave of states following Vermont’s lead. Regardless of your viewpoint, the Vermont law is an important new step for gay rights.

MEANING OF THE LAW

In 2000, Vermont became the first state with a Civil Unions law as part of its general statutes. (See Appendix A for the complete text of the law.) This law permits same-sex couples to legally become part of a civil union. The law gives same-sex partners who unionize their relationship certain benefits and protections similar to those given to married couples. This means that any time the words “spouse,” “family,” “dependent,” “next of kin,” or “immediate family” are used in Vermont laws, they also apply to civil union couples.

Restrictions to Vermont’s Civil Union Law are:

◆ only same-sex couples can become part of a civil union;

◆ relatives (parent, sibling, grandparent, aunt/uncle) may not become part of a civil union together;
◆ people under age 18 may not become part of a civil union;
78 GAY & LESBIAN RIGHTS

◆ people who are not of sound mind or who are under guardian-ship may not become part of a civil union; and,

◆ partners entering a civil union cannot currently be part of another civil union or heterosexual marriage.

CIVIL UNION BENEFITS

Because the law treats civil union couples the same as married cou-ples, it means that unionized couples are given the same rights and responsibilities as married couples. This includes:
◆ the responsibility to support each other;

◆ being governed by the Vermont laws of annulment, divorce, separation, child custody and support, and property division and maintenance;

◆ the right to hold real property in Vermont together as tenants by the entirety (this means you both own 100% of property at the same time and if one partner dies, the other has complete ownership);

◆ being treated as a spouse for the purpose of inheritance and probate laws within Vermont;
◆ state health insurance;

◆ spousal abuse protections and programs;

◆ Vermont victim’s and worker’s compensation rights;

◆ medical care and hospital/nursing home rules (such as those restricting decision-makers or visitors);
◆ family leave benefits under Vermont law;

◆ Vermont public assistance;

◆ state taxes;

◆ the privilege of refusing to testifying against a spouse; and,

◆ special Vermont laws for veterans and family farmers.

A very important point of the law is that a child naturally born to either partner during the civil union is considered the natural and legal child of both partners.

The law does not mean that the federal government considers partners in a Vermont civil union to be married or unionized. For example, only Vermont public employers (not including federal
VERMONT CIVIL UNIONS 79

employers) must offer health insurance to civil union partners. Private employers have the option, but are not required to. When filing Vermont tax returns, unionized couples must select “married filing jointly” or “married filing separately”, but federal returns will be made as single persons. Similarly federal laws about married cou-ples and IRAs, pensions and so on do not apply to unionized couples. Additionally, civil unions will probably not be recognized by other states.

Remember that these benefits carry responsibilities. Formalizing a couple’s relationship in a civil union is a legal act that has legal requirements attached.

PROCEDURE

To legalize a civil union the following steps must be taken.

◆ Apply for a civil union license in Vermont. This can be done in person or by mail (form 14, p.247). At least one party must sign it and attest that the information in it is true. The current fee is $20. If you or your partner live in Vermont, you must go to your town clerk. If you do not live in Vermont you can sub-mit your application to any Vermont town clerk. (See the list in Appendix B.)

◆ Within sixty days of the application date, the civil union cere-mony must be completed and the license must be certified by the person performing the service.

◆ The certificate must be returned to the town clerk within ten days of the certification.

◆ The certificate becomes legal when it is recorded by the town clerk. Six weeks after the return of the certificate, you can

obtain a copy for $7 from: Vermont Department of Health Vital Records Unit

108 Cherry Street, P.O. Box 70 Burlington, VT 05402
80 GAY & LESBIAN RIGHTS

CIVIL UNION CEREMONY

A civil union ceremony can be performed by:

◆ a Vermont judge;

◆ a Vermont justice of the peace;

◆ a clergyperson authorized or ordained in Vermont;

◆ a clergyperson of an adjoining state whose church, temple, etc. is situated in Vermont; or,
◆ a clergyperson of another state or Canadian province who has

RAINBOW TIP

For a list of churches/denominations that support gay ceremonies, visit: www.buddybuddy.com/toc.html

For a list of newspapers that print commitment ceremony announce-ments, visit: www.glaad.org

Contact information for Vermont judges can be found online at: www.vermontjudiciary.org.

received special authoriza-tion from a Vermont judge to perform a civil union cere-mony.

There are no specific requirements as to what must be part of a civil union cere-mony and partners are free to create their own ceremony, as long as the judge or clergyper-son is in agreement. Most will want to include the words “By the authority vested in me by the State of Vermont, I hereby join you in civil union.”

DISSOLVING A CIVIL UNION

Since a civil union has the same effect as a marriage, it can only be dissolved in Vermont by annulment or divorce.

Annulments are granted in Vermont if at the time of the civil union, one of the parties was:
◆ underage;

◆ an idiot or lunatic (this is the technical language used in the statute);
◆ physically incapable of entering into the marriage state; or,

◆ persuaded to consent to the union through fraud or force.

RAINBOW TIP
You can contact the Vermont Bar Association for a referral to an expe-rienced civil union law attorney at: 800-639-7036 or www.vtbar.org.
VERMONT CIVIL UNIONS 81

Divorces in Vermont are granted in the following circumstances:

◆ adultery;

◆ one of the partners is imprisoned for life or for three years or more during the course of the union;

◆ intolerable severity by one of the partners (this basically means he or she treated the other badly);

◆ willful desertion (one of the partners purposefully abandons the other or has been gone for seven years or more and has not been heard from);
◆ failure by one of the partners to support the other financially;

◆ incurable insanity of one of the partners; or,

◆ the partners have lived apart for six consecutive months and resumption of marital relations is not reasonably probable.

To be granted a divorce in Vermont, one or both of the parties must have lived in the state at least six months at the time of filing

and have lived there at least

one year at the date of the final divorce hearing. This means that if you and your partner come from another state to be unionized in Vermont, you can only get a divorce if one of you becomes a Vermont resident for at least six months before

filing. This makes it very difficult to dissolve a civil union. Divorces and annulments are handled in Family Court in

Vermont. To obtain a divorce or annulment in Vermont, speak to a Vermont family attorney.

EFFECT OF CIVIL UNION IN OTHER STATES

It remains to be seen how other states will deal with Vermont civil unions. Other states are probably not required to recognize Vermont civil unions since the unions violate the laws of those states. This cannot be known for certain though until there are test cases. You
82 GAY & LESBIAN RIGHTS

can probably assume at this point that other states will probably not recognize Vermont civil unions and partners will not be allowed to use courts in other states to dissolve civil unions.

Cases have been filed seeking to enforce Vermont civil unions in other states. The trial courts in those states have thus far refused to do so. In Connecticut, the plaintiff died before an appeals court could decide the case. In Georgia, the appeals court refused to enforce the civil union. An appeals case is currently pending in Indiana. Additionally, a Texas judge initially granted a divorce to a couple unionized in Vermont, but then withdrew his ruling. The partner seeking the divorce withdrew his petition and the case was dismissed. So, to date, this issue has not been resolved.

There has been discussion in Vermont about limiting civil unions to only Vermont residents, but this is unlikely to be put into place because the civil union industry brings a lot of tourist dollars to Vermont.
–9–

NAME AND
GENDER CHANGES

Since GLBT couples cannot yet legally marry, some choose to dis-close to the world their committed relationship by taking on a new name. This decision is a personal choice, and while it does not change the couple’s rights, it does require society to recognize the relationship and level of commitment. Name changes also arise in TG situations. This chapter will discuss some ways to accomplish a name change.

CHOOSING A NAME

You can choose to adopt your partner’s name, have him/her adopt yours, or both adopt a new last name. Some part-ners choose a hyphenated or combination name, such as Taylor-Barnes or Barlor (a combination of Barnes and Taylor), while other choose a completely new last name. Changing your name(s) can give a real sense of unity and cohesion to your union and may also be important to you if you have children or plan to have a family.

RAINBOW TIP

If you and your partner already have children, you can change their last names by using the same process described in this section. If you have children, but only one of you is a legal parent and the child has another legal parent, a parent with sole cus-tody may be able to make a name change decision on his or her own. If the parents have joint legal custody (see Chapter 14), then both parents would need to agree to the name change.

RAINBOW TIP
Information about name change pro-cedures are available on most state web pages. To find the home page for your state, fill in your state’s abbrevi-ation in the blank in this web address: www.state.
Do a search for name change or look for the courts section.
You can also check the home page for your state attorney general.
84 GAY AND LESBIAN RIGHTS

TG individuals usually change only their first names to reflect the gender change. Some prefer to choose a name similar to their birth name, going from Samuel to Samantha or Joseph to Joanne, while other individuals select completely new names. The choice is yours. You can choose to change your middle name and last name at the same time if you wish.

LEGAL NAME CHANGE

Except in states where name change is a part of the civil union law (i.e., Vermont), you will need to institute a court case to change your name. In many states, you can do this on your own, without an attorney. Some states pro-vide do-it-yourself name change packets.

The process isn’t very complicated and is not

hugely expensive, although it is important that you follow the pro-cedure set up by your state. You will need to file the papers required by your state. This usually includes:

◆ legal proof of your current name usually a birth certificate and driver’s license are sufficient (If you are a woman who changed her name during marriage, you need to show your marriage license as well. Most divorce decrees authorize the former spouses to resume using their previous names without further court procedures, so you already have authorization to go back to your previous name.);

◆ a statement that you are not changing your name to defraud anyone (for example, to get out of a debt);

◆ some kind of reason for the name change (creating a domestic partnership is a good reason, as is the transgender process);
NAME AND GENDER CHANGES 85

◆ proof of notification or publication of the name change (A clas-sified ad may be sufficient, but find out what constitutes legal notice in your state, the number of times the notice must be run, and in what newspaper the notice must be published.); and,
◆ fingerprinting (in some states).

While name changes are fairly routine and commonly granted, certain judges have been known to deny the requests. In addition to a judge’s possible personal bias against GLBT members, courts are on the lookout for people seeking to change their names in order to defraud creditors. Even if someone is undergoing a transgender pro-cedure, a name change can be denied if the court finds that one of the reasons for the change is fraud. In the Matter of Robert Henry McIntyre 715 A.2d 400 (Pa. 1998). For that reason it may be in your best interest to consult an attorney familiar with the judge hearing your case to advise of the best way (i.e. reason for the change) to accomplish your goal. Some states also require fingerprinting as part of the process, so be prepared to follow the procedures required in your state.

If you are not comfortable handling your own name change, but cannot afford an attorney, you can probably locate a paralegal ser-vice in your area that will do the name change for you, for less than an attorney would charge. You can also find these services online, such as www.e-paralegalservice.com.

Once your name change is legal, a new birth certificate is issued in the new name. You can no longer use the old name. After the name change is legal, you will have to do a lot of work to change everything over to the new name. Use the list below to help you.

Places to Contact with Legal Name Change Information

◆ banks;

◆ credit unions;

◆ landlord;

◆ credit card companies;
86 GAY AND LESBIAN RIGHTS

◆ credit reporting institutions (Equifax www.equifax.com, Trans Union www.transunion.com, and Experian www.experian.com are the big three credit report companies);

◆ state department of motor vehicles (usually you will need to show your new Social Security card as proof);

◆ insurance companies (life, health, auto, homeowner’s, renter’s and business);
◆ veteran’s department (if you are a veteran);

◆ Social Security (use form SS-5, see form 15, p.248);

◆ employer;

◆ passport (use form 16, p.249);

◆ utilities;

◆ Internet/email provider;

◆ IRS;

◆ state income tax depart-ment;
RAINBOW TIP

Use email for name change notifica-tions when possible. You can cc: or bcc: a list of people and/or organiza-tions with the information and not have to pay for a lot of stamps.

◆ schools (if you have children or are enrolled somewhere yourself);
◆ alumni associations;

◆ churches/temples/mosques you belong to or are affili-ated with;

◆ investment advisors and account managers;
◆ AAA;

◆ hobby organizations;

◆ employee pension plans;

◆ deeds/property tax;

◆ friends;

◆ family;

◆ veterinarian;

◆ medical, dental, vision, hearing, and mental health care providers for you or your children;
◆ dry cleaners;

◆ video rental store;
NAME AND GENDER CHANGES 87

◆ voter registration;

◆ library;

◆ magazine and newspaper subscriptions;

◆ store bonus cards;

◆ any pending court cases;

◆ catalogs you order from; and,

◆ pharmacy.

NAME CHANGE BY USE

It is possible in most states to informally change your name by usage only. This means that you can adopt a new name and use it in your daily life without any approval from your state. Doing so is a simple way to change your name, but can lead to possible confusion and problems with social security and taxes.

A name change by usage is informal and does not allow you to pay taxes, take out a mortgage, apply for credit, get a driver’s license, etc using the new name. You can, however, tell people it is your name and ask that they call you that.

TRANSSEXUAL NAME CHANGES

Transsexual individuals often use a first name of the opposite sex (and also sometimes a different last name) when in their alter per-sona. There is nothing wrong with using a different name when introducing yourself to people, registering at a hotel or other social situations. The difficulty comes when you need to pay with a credit card for something or offer ID. You will not be able to legally obtain ID or credit cards in a name that is not your legal name. Instead, pay with cash when possible. If you are transsexual and are undergoing gender change, read the rest of this chapter for information about name changes.

RAINBOW TIP
For further discussion on TG issues, visit: www.hrc.org/worknet/transgender
88 GAY AND LESBIAN RIGHTS

GENDER CHANGE

When a person goes through the transgender process (also called sex reassignment), he or she first must adopt a new name (name change by usage, see above) and live the life of the opposite sex. There is nothing illegal in using a name of the other gender before the gen-der change takes effect. Once the gender change is complete, you can legalize the name change using the process explained earlier in this section.

Changing the gender listed on the birth certificate can be a more difficult process. First talk with your medical and mental health caregivers. They are probably aware of the fastest way to get this change made in your state. Having such a change
made probably will involve a letter from your doctor stating that you now have all the normal sexual characteristics of your new sex and requesting that the gender change be indicated on your new birth certificate. Birth certificates are usually handled by your state department of vital records. (See Appendix D for a list of these departments with contact information.) Some states will issue new birth certificates, while others will amend them, leaving the old information visible.

There have been cases in Texas and Kansas in which courts did not recognize gender changes despite being amended on birth certifi-cates. In these cases, transgendered people sought to marry a person of the opposite sex (i.e., the sex the transgendered person used to be). Courts in both states would not recognize this type of marriage. It remains to be seen how other states will handle this issue.

OTHER TG ISSUES

Certainly transgendering involves a lot more than just a name and gender change. If you are considering or are going through the trans-gender process, it is important to be sure you are getting the best
NAME AND GENDER CHANGES 89

medical and emotional advice and support possible. Check the list of resources in Appendix E for more information. Chapter 2 includes information about transgendering at work.

Discrimination against TG individuals is one of the last frontiers. As discrimination against gays is overcome gradually, the transgen-der community is often left behind. There is also a generally acknowledged rift in the GLBT community between gays/lesbians and TGs.

If you are in the transgender process and are dressing as a mem-ber of the opposite sex during the pre-operative stage, it is a good idea to carry documentation from your medical and mental health providers indicating that this is part of your treatment. This could save you a lot of trouble with law enforcement.

Military

Cross-dressing or transgendering is prohibited by the armed services and is basis for dismissal. Those who have undergone transgendering or who cross-dress are prohibited from joining the armed services.

Cross-Dressing

Cross-dressing is a crime in some areas, where there are laws prohibiting people from dressing as persons of the opposite sex or impersonating someone. There have been a few cases where pre-operative transgendered individuals have been arrested, but judges gen-erally recognize that cross-dressing is an important part of the transgender medical/ emotional process.

RAINBOW TIP

Parenting

Unfortunately, there are many court cases that have denied custody or access by TG parents to their children. If you find yourself in a position where you are litigating custody or access, it is important that you (or your attorney) bring in an expert who has studied chil-dren of TG individuals and can provide testimony that it is not harmful to children. (See Chapter 12 for further discussion on GLBT parenting.)

Gender Identity Disorder

The American Psychiatric Association classifies transgender individ-uals as having Gender Identity Disorder (GID). While it is insulting to have something as basic as one’s gender identity classified as an illness.

Discrimination

Only two states, Minnesota and Rhode Island, specifically include gender identity in the wording of their anti-discrimination laws. Four states, Connecticut, Massachusetts, New Jersey, and New York have caselaw that provides protection.
–10–

ESTATE PLANNING

No one likes to think about his or her own death, but taking the time to do some planning now will ensure that the people and things you care about are protected once you are gone.

INTESTATE INHERITANCE

A person who dies without a will dies intestate. This means that his or her belongings and assets are distributed according to the laws of the state. Most states divide things between a spouse and children of the deceased. If there is no spouse or children, then the deceased’s parents, siblings, or other relatives inherit the assets.

Since GLBT partners are unable to legally marry (except in Vermont where unionized couples are covered by inheritance laws), your partner will not be entitled to any part of your estate. Depending on the relationship your partner has with other mem-bers of your family, he or she could be placed in a situation of losing everything. It is also important to note that if you and your partner have children, only those children who are legally yours (or who can prove they are your biological children) will inherit from you if you die without a will.

WILLS

A will is a simple legal document that states how a person wishes to divide his or her belongings after death. You can leave your belong-ings to friends, lovers, children, family members, charities or anyone else you would like. It is important to note however, that if you have a heterosexual spouse (or a unionized partner in Vermont), even if

RAINBOW TIP
Other than the rule about heterosexual spouses, there are no requirements about to who you can leave your estate. Think carefully about who is important to you and how you can best distribute your assets.
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you leave your spouse out of your will or specify that he or she will get nothing, most states have a law that gives a certain amount of the estate to the spouse no matter what.

In your will you can specifically list individual items and state who they will go to. You can also simply leave everything to one or more persons. In general it makes sense to specifically divide up the large, important items or items with sentimental value.

It is best to have your will drawn up by a lawyer in your state. Different states have different requirements to make a will valid. If you fail to follow the requirements in your state, the fact that you have written down your wishes will have no effect.
Most states require that the person making the will be of sound

mind and be able to recog-nize and understand what is happening. Most wills must be witnessed. Holographic or handwritten wills are valid in most states, but it is impor-tant to understand that they can be troublesome, so it is best to have an attorney draw up a will and have it properly witnessed. If you move to a new state, it is crucial that

you review the requirements for a valid will in your new state. While your handwritten will may have been valid in your old state, if it does not meet the requirements of your new state, it is essentially worthless.

In your will you may also state your wishes about burial or cre-mation, but make sure others know about these wishes. (See Chapter 5 for more information about this.) If you have a large estate, it is important to talk to an attorney and do some estate plan-ning to preserve your assets from taxes and probate.

You will need to name an executor in your will. An executor is the person who will be responsible for doing the legwork with your estate. He or she will pay all your bills, divide up your belongings,
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sell your home, and so on. Choose someone you trust. It is perfectly acceptable to name your partner as executor. It’s a good idea to ask the person you choose if he or she would be willing to do this, since some people are uncomfortable with the responsibility. Executors are usually paid a small amount for their services.

You can change a will by adding a codicil (an addendum), by rip-ping it up, or by signing a new will that revokes the old one.

When you have a will made, it is a good idea for your partner to have one made at the same time. You should discuss with your attor-ney a provision that deals with simultaneous death (if you and your partner both die at approximately the same time in an accident). Your will should be coordinated so that it is clear who should be considered to have died first, so that a clear path of inheritance can be followed with some of your joint property.

GUARDIANSHIP OF CHILDREN

If you are the legal or biological parent of any minor children, it is important to name a guardian for them in your will. This will help a judge decide who should care for and raise your child if you should die. If you and your partner are raising children together, but only one of you is the legal parent, this can be absolutely essential. You want to make sure the child will remain with your partner after your death. In many states it is a good idea to include a brief statement in your will stating why you have selected the guardian that you have named. You can indicate that you and your partner are raising the child together as a family and it is important for the child to have that continuity of family bonds.

NOTE: You can indicate who you want as a guardian and why, but the judge will make the final decision.

Be aware that if your child has another legal parent that is not your partner, it is most likely that the court will award guardianship to him or her. If you do not want him or her to have custody of your child, it is very important that you detail the reasons why you don’t want this to happen. You should also talk to a family attorney about
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making your partner a legal parent now, to avoid problems should you die while your children are still minors.

You can name a separate guardian for the assets your child will own, but most people choose the same person they selected for the child’s guardian, particularly if they are naming a partner as guardian.

If you and your partner have children, it is important to talk with an estate planning attorney to develop a complete plan to pro-tect your children both in terms of custody and in terms of financial well-being.

Guardianship of Pets

Some people want to leave their estate to their pets. Since a pet is not a living person, you cannot do this, but you can set up a trust that will provide for your pet’s needs should you pass away. Speak to an estate planning attorney about this. A pet is considered a pos-session and you can state in your will who you are leaving your pets to.

LIVING TRUSTS

Living trusts are an estate planning tool that can allow you to trans-fer ownership in property before your death while allowing you to retain possession during your lifetime of the items you are transfer-ring. Items that are transferred via living trusts do not go through probate (the court procedure through which a will is verified and enacted) and thus they avoid court fees. Drawing up a living trust may be expensive though, so it is best to talk to an estate attorney to weigh your options.

Since living trusts do not go through court, it is very difficult for them to be challenged. So if you have family members who would contest a will leaving your estate to your partner, a living trust may be something to consider. See Chapter 4 for more on living trusts when dealing with finances. See Appendix E for a reference guide to creating a living trust.
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POWERS OF ATTORNEY

A power of attorney is a document authorizing someone else to man-age your business or financial affairs should you become unable to (for example, in a coma, unconscious after a long surgery, or the like). Many attorneys recommend executing a power of attorney at the same time a will and health care directive is drawn up so that you have a complete package. Power of attorney forms differ in each state. Contact an attorney or purchase a form at a local legal sta-tionery store.

If you own a business, you can create a power of attorney just for your business that gives your partner the right to manage things for you. Most people execute powers of attorney giving a partner the right to handle their personal financial affairs. The person you give this power to is called the attorney in fact. He or she can deposit or withdraw money from your bank accounts, sell your investments, pay your bills, manage your real estate (including selling it) and han-dle insurance matters. Some banks prefer to use their own forms, so if you present them with a form executed by your attorney, they may insist that you complete a separate form for them.

You can also use a power of attorney as a tool to give your part-ner rights similar to those of a spouse. A durable power of attorney is one that is effective now and in the future. By making a power of attorney effective right away, you authorize your partner to handle all of your financial affairs. You continue to have the right to access and use your accounts yourself at the same time. This is a way to give a partner access to your individual accounts for convenience.

You can also choose to make the power of attorney effective only upon the happening of a certain event—such as an illness or medical procedure. You can destroy or invalidate a power of attor-ney by ripping it up or signing a revocation. (See Chapter 4 for more discussion on using power of attorney for business and financial matters, and Chapter 5 for more discussion on health care powers of attorney.)
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JOINT OWNERSHIP

Another estate planning tool that you and your partner may have been using without even realizing it is holding property in joint ownership with right of survivorship. Property owned this way automatically passes to your partner when you die without going through probate. As discussed in Chapter 4, the language required is specific and merely putting both your names on an account may not be enough. A review of your bank accounts, stocks, bonds, retire-ment accounts, mutual funds, vehicle titles and registrations, and property deeds will let you know how you are legally holding your property, and allow you to make changes if necessary.

Using joint ownership for estate planning does have some disad-vantages to keep in mind. Either joint owner may be able to take control of all the property at any time; either party’s creditors can take it and if you and your partner were to die in the same accident, probate would still be necessary since there would not be a surviv-ing owner to take the property. Talk to your attorney about this last possibility. You can coordinate your wills so it will be clear how the joint property is passed.
–11–

BECOMING A PARENT

There are more options than ever before for members of the GLBT community who wish to parent children. Changes in state laws have made adoption processes more accessible and technological advancements have made biological parenting possible. Raising chil-dren is an option for GLBT singles or couples and continues to become accessible for all members of the community.

STEPPARENTING

If you or your partner has a child, either from a previous relation-ship or from a single parent situation, the non-related partner assumes a step-parent role when you form a committed partnership. A stepparent can assume the role and function of a parent, but has no legal authority or claim to the child. Should the legal parent die, the stepparent has no legal claim to custody. Additionally, should the relationship end, in most states, the stepparent has no legal right to access or visitation with the child.

Most states follow a rule that gives standing (the right to file a court case) in custody cases to biological and legal parents. Foster parents usually do not have standing to seek custody of children. Some states are beginning to relax this rule. Massachusetts, Pennsylvania, Wisconsin, New Jersey, New Mexico and Rhode Island now give standing to psychological parents—people who have had a parenting role in a child’s life, such as a stepparent.

If you or your partner is a stepparent, there are some steps you can take to protect your family. It is important to create a written co-parenting agreement (form 6, p.234) which states that you
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intend to parent together, make decisions together, and raise the child as a couple. The agreement should indicate that should the legal parent die, the intention is for the other parent to have cus-tody. The agreement should also indicate that should you ever end your relationship, you both agree that the stepparent will have access to the child to continue a relationship with him or her.

The legal parent should create a will and name the stepparent as guardian should the legal parent die. It is also important to execute a Consent to Obtain Medical Treatment (form 9, p.239) allowing the stepparent to obtain medical care for the child should the legal parent not be available. The legal parent can also indicate in the child’s school file that the stepparent is authorized to pick up the child, attend parent-teacher conferences, attend school events, make decisions for the child, and so on.

Despite all of these safeguards, a stepparent will still not be guaranteed a legal relationship with the child. The nomination in a will of a guardian for a child is not binding on the court and the judge will make a decision based on what he or she believes to be in the best interest of the child, which might include giving custody of the child to the other biological parent or to relatives. A co-parent-ing agreement may not be considered binding by a family court if a couple splits up since stepparents have no legal standing to seek cus-tody.

Evidence of a Parent-Child Relationship that May be Helpful in Court
◆ consent for stepparent to obtain medical treatment;

◆ will naming stepparent as guardian;

◆ co-parenting agreement;

◆ documents showing stepparent participation with child’s school or extracurricular activities;

◆ receipts showing stepparent contributed towards expense of raising the child;

◆ calendars showing stepparent participation in child’s life and activities;
◆ family photographs and videos;

RAINBOW TIP
For up-to-the-minute information on your state’s GLBT adoption laws, visit: www.hrc.org/familynet /adoption_laws.asp
BECOMING A PARENT 99

◆ stepparent’s will leaving inheritance to stepchild;

◆ stepparent joint ownership of family home;

◆ joint bank accounts used to pay child’s expenses;

◆ forms in which stepparent has been listed as parent; and,

◆ any other documents that show participation by the stepparent in the child’s life

Stepparent rights are quite tenuous and offer little protection. Stepchildren generally cannot:
◆ automatically inherit from a stepparent;

◆ receive Social Security benefits through a stepparent;

◆ receive insurance benefits through a stepparent; or,

◆ receive survivor benefits through a stepparent.

ADOPTION

Adoption legally creates a parent-child relationship and is an excel-lent way to create a family. When a parent adopts a child, he or she becomes the child’s legal parent. All rights of the birth parents are eliminated. The child has the right to inherit from the parent, receive Social Security and survivor’s benefits, and be supported by the parent.

The parent has the right to seek custody or visitation (also called parental access) with the child should there be a dissolution of the parent’s partnership. Once an

adoption has been finalized it cannot be undone. The only way to end a parent-child relationship after an adoption is through termination of parental rights, a process that takes place in a state family court and legally dissolves a parent’s rights with respect to a child.
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Second Parent Adoption

Adoption by a stepparent is called second parent adoption. If one partner has a child (whether it is a biological child or a child he or she adopted), the stepparent may be able to adopt the child and become a legal parent. Stepparent adoption procedures are stream-lined and often do not require the home studies and waiting periods that are part of stranger adoptions.

Requirements for second parent adoption:

◆ the parent that is the partner consents;

◆ the other parent is dead, had his or her rights terminated, aban-doned the child or consented to the adoption;
◆ the adopting parent has no criminal history; and,

◆ the adopting parent agrees to become the legal and permanent parent of the child.

If the child’s other parent is alive he or she must consent to the adoption, unless he or she abandoned the child, had his or her parental rights terminated or cannot be located despite reasonable attempts.

NOTE: A child conceived through insemination has only one legal par-ent since the sperm donor waives all parental rights at the time of donation. When a child is conceived using insemination, no consent to the adoption is required from the donor.

The adoption procedure involves completing a petition, affi-davits, and consents. These forms vary from state to state. Contact your local family court for information about obtaining forms. Once the paperwork is submitted, criminal record checks are then com-pleted. In some states a home study is required. A state social worker will meet with the partners at their home and speak with them and view the home. Most states also require that an older child (pre-teen or teen) give his or her consent to the adoption as well. Once all requirements have been met, the court will finalize the adoption. A new birth certificate is issued naming the stepparent as the child’s legal parent.
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Second parent adoptions are not automatic, especially for same-sex couples. Opposition and biases exist based on personal preju-dices and beliefs of what constitutes a family unit. Many judges still insist that one mom and one dad is not only the ideal family situa-tion, but also the only one they will recognize. This attitude is slowly changing with a growing number of states expanding the rights of second parent adoptions by same-sex partners.

States that allow second parent adoptions by same-sex parents:

◆ California (second parent adoptions by gays are expressly per-mitted by the domestic partner law);
◆ Connecticut;

◆ Illinois;

◆ Massachusetts;

◆ New Jersey;

◆ New York;

◆ Pennsylvania;

◆ Vermont; and,

◆ Washington, D.C.

States that have permitted some same-sex second parent adoptions, but have not clearly enunciated a rule:
◆ Alabama;

◆ Alaska;

◆ Delaware;

◆ Georgia;

◆ Hawaii;

◆ Indiana;

◆ Iowa;

◆ Louisiana (Adoption of Meaux, 417 So.2d 522 (La. Ct. App. 1982) held that a gay couple could not adopt together since they did not qualify as “single people,” however gay single peo-ple have adopted in the past in the state.);
◆ Maryland;

◆ Michigan (There is a current case pending in Michigan that will decide this issue.);
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◆ Minnesota;

◆ Nevada;

◆ New Mexico;

◆ Oregon;

◆ Rhode Island;

◆ Texas; and,

◆ Washington.

Florida has prohibited any adoption by gays or lesbians. (See Lofton v. Kearny and www.lethimstay.com for more information on this case as it is appealed.) Mississippi also expressly forbids adop-tion by gays and lesbians. Utah law does not prohibit adoption by gays, but prohibits adoption by a person who is unmarried and cohabiting with another person.

Single Parent Adoption

In every state except Florida, a gay single parent may adopt a child. The adoption can be done through an adoption agency or privately (by an agreement with the birth mother and the adoptive parent). The adopting parent must complete a criminal record check and a home study. A home study involves a visit to the home by a social worker or other trained professional who evaluates the home, the people in the home and the adoptive parent’s abilities. In many states there is a waiting period during which the birth mother can change her mind. This can range from 12 hours to 15 days.

A birth father must give consent only if paternity has been legally established. It is possible to have a birth father’s parental rights revoked if he has failed to support the child. Many states have established birth father registries, which must be searched before an adoption can become finalized. If a man believes he has fathered a child, he registers. If that child is involved in an adoption proceeding, his name comes up on a search and if he is in fact the biological father he can prevent the adoption. Currently these registries exist in Alabama, Arizona, Georgia, Illinois, Indiana, Louisiana, Minnesota, Missouri, Montana, Nebraska, New Mexico, New York, Ohio, Oklahoma, Tennessee, Texas, and Wyoming.

RAINBOW TIP
For a state-by-state search of GLBT friendly adoption agencies, go to:
www.hrc.org/familynet /adoption-groups.asp
BECOMING A PARENT

Once a single parent adoption is finalized, the parent is the sole legal parent of the child. It is then possible for a partner to apply for a second parent adoption. This is a way around the prohibition of joint adoptions by gays.

Joint Adoption

A joint adoption occurs when both partners seek to adopt a child at the same time as a couple. Courts in Washington D.C., New York, New Jersey, Vermont (for unionized couples), and some courts in California permit gay joint adoption. Florida and New Hampshire expressly forbid it. Other states have not clearly ruled either way.

Private Adoption

Private adoption occurs when a person or couple adopts a child directly from the biological mother/parents. Most of the time, it is a good idea to use an adoption intermediary or facilitator to handle contact with the biological mother/parents. All adoptions must be finalized by a court.

Agency Adoption

An agency adoption occurs when you apply to an adoption agency and they place a child with you. You have little control over what child you get and often have no contact with the biological parents. You must be approved by the agency and this involves interviews, home studies, background

checks and paperwork. Most agencies will not place chil-dren with members of the GLBT community, although some are neutral about this issue. Finding an agency that will accept you can take some footwork.

Transgender Adoption
In addition to all of the hurdles faced by people in the GLBT com-munity to adopt, TG persons often face additional bias. Beyond the legal questions and issues, TG individuals seeking to adopt must be ready to provide additional education to those individuals playing a role in granting the adoption. Be ready to educate the court, social service workers, adoption agencies, and even your attorney as to what it means to be TG. To make the process easier.

RAINBOW TIP

In recent years, there has been a lot of publicity about the huge numbers of children available for adoption in foreign countries. A foreign adoption is more complicated and more expensive than a domestic one. There is resistance to adoption by gays in some coun-tries, but it is possible to keep your sexual orientation to yourself and prevent it from becoming an issue.
To adopt a child from another country you must not only meet the adoption requirements of the child’s country of origin, which can include a residency requirement (requiring you to live there for a few months before adopting), but also you must have the adoption cleared through the U.S. Immigration and Naturalization Service.
You will need to pay lawyers in both countries.
Once one partner adopts a foreign child, the other partner can then do a second parent adoption as described earlier.

Foreign Adoption

◆ search out and contact agencies known to welcome members of the GLBT community;

◆ bring in experts in transgender issues, such as doctors or thera-pists to help educate others; and,
◆ find an attorney with experience in TG issues.