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National Center for Lesbian Rights

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FAQ: Legal Issues for LGBTQ+ Families In the Post-Roe Era

On June 24, 2022, the U.S. Supreme Court released its decision in Dobbs v. Jackson Women’s Health Organization, ruling that the U.S. Constitution does not guarantee access to abortion as a fundamental right, overturning Roe v. Wade and ending the longstanding recognition of that right.

(Read NCLR’s statement about that decision.)

Although abortion remains legal in many states, this decision has a devastating effect on many people seeking abortion care, particularly those who are low-income, survivors of violence or sexual assault, or have limited ability to travel. NCLR encourages those who are able to consider donating to support a fund or organization that will directly assist people seeking abortion care. Learn more here.

The Dobbs decision did not overturn the Obergefell decision (recognizing same-sex couples’ right to marry) or the Lawrence decision (ruling sodomy laws unconstitutional). Those two decisions are still the law. However, the Dobbs case has raised concerns for many in the LGBTQ+ community about whether their fundamental rights will remain legally protected.  

This FAQ intends to provide information for LGBTQ+ people and their families on steps they can take now to protect their legal rights.

What can we do to protect our legal rights as a couple?

Whether or not you are legally married, you can take steps to protect your legal rights as a couple. Although the steps described here do NOT provide for the full range of rights and protections of legal marriage, they may provide some additional legal protection for certain rights, particularly in a time of crisis.

You can create medical documents about who you want to be able to visit you or make medical decisions for you if you or your partner is incapacitated. This is especially important if you do not want your family of origin to make those decisions.

Hospitals that receive federal funding must allow patients to decide who may visit them, regardless of biological or legal relationship. They cannot restrict visitation only to legal or blood relatives.

Hospitals must also allow patients to pick a support person who can make decisions about visitors on their behalf if the patient cannot. A patient can pick anybody to be their support person, regardless of legal relationship.

You can also fill out forms in advance to tell healthcare providers what medical treatment you do or do not want if you cannot communicate your wishes. Send a copy of these forms to your primary care doctor and your support person.

(You can download the medical decision-making forms for your state here.)

Ahead of time, you can designate your support person in writing or ask your hospital for a visitation authorization form to fill out. You can also send a copy of this authorization to your primary care doctor and your support person.

You may also want to have a will or other estate-planning documents. If you die without a will, your state’s law will determine by default what happens to your property, and if you do not have a legally-recognized spouse or children, your parents or siblings may inherit. If you already have a will and are legally married, you still may want to talk with an attorney about whether you need to update your will, for example, to include what you want to happen to your property if your marriage is challenged. (For a free resource to help create a will, please visit this site.)

You can also create other financial documents, like a power of attorney, which allows somebody to make decisions about your finances if you are unable to make those decisions for yourself.

You can create written agreements between you and your spouse or partner about how you will divide your property and resolve any other issues that may come up if you end your relationship. If you are already legally married, these agreements are sometimes called “post-nuptial” or “post-marital” agreements. You could include in these agreements how you will divide your property or resolve issues between the two of you if the validity of your marriage is challenged. If possible, you should work with separate attorneys to help create, or at least review, your agreement.

Some states have other forms of state legal recognition for relationships such as a state-registered domestic partnership or civil union.

Colorado, Hawaii, Illinois, and New Jersey allow couples to enter into civil unions. California, Washington, D.C., Oregon, and Nevada allow couples to enter into state-registered domestic partnerships. These can provide most or all of the same legal rights and responsibilities as marriage under state law. 

Maine, Maryland, New York, and Wisconsin grant limited rights and responsibilities to domestic partners. Hawaii also grants limited rights to two people who register as “reciprocal beneficiaries,” and Colorado makes available a limited set of rights to two people who register as “designated beneficiaries.”

If you are already legally married, we encourage you to speak with an attorney before deciding whether to get one of these other forms of recognition for your relationship. If you have children, there are other legal documents you can create, particularly if one or more of the parents is not a biological or adoptive parent (see question 3 below).

We are a couple who are not legally married but are concerned about states refusing to issue marriage licenses to same-sex couples in the future. Should we get married?

Marriage is a very personal decision, and each couple has to decide whether getting married and when to get legally married, is right for them.

Obergefell v. Hodges, the U.S. Supreme Court case that guaranteed marriage equality nationwide, is still the law. States cannot restrict the right of couples to marry based on their sex or gender. However, it is possible that the Supreme Court will change the law. If so, legal protection for this right may become uncertain in some states.

 All couples, whether married or unmarried, can take the steps listed above to protect their relationship.

If you are a non-biological, non-adoptive parent, NCLR strongly encourages you to get a court order recognizing your parentage if possible. Court orders about parentage, such as adoptions and parentage judgments, must be recognized in every state and must be recognized even if the law later changes about who can be considered a legal parent.

Adoption: a “second parent” or “step-parent” adoption allows you to adopt your child without terminating the parental rights of the other parent.

Parentage judgment: a gender-neutral term for what is also called a paternity judgment, legally establishes a parent-child relationship.

We encourage you to speak with a family law attorney in your state about how best to get a court order recognizing your parentage in your situation. (Find out more about Voluntary Declarations of Parentage here.)

In addition to a court order, you can create other documents to protect your relationship to your children. 

A nomination of a guardian or conservator identifies the person you want to take care of your child if you die or become physically or psychologically unable to care for your child. Usually, that person will be given physical custody of the child and the authority to manage the child’s financial matters.

A nomination is not legally binding, but if the child does not have another legal parent, most courts will respect a deceased or disabled parent’s wishes.

Because the format of these guardianship documents varies from state to state,  you should have the nomination of guardian or conservator drafted by an attorney who is aware of the requirements in your state.

We are considering having a child through assisted reproduction. Will this case affect our ability to do that legally?

The Dobbs case and anti-abortion trigger laws are not intended to restrict assisted reproduction, and should not have a direct effect on access to those forms of care. The American Society for Reproductive Medicine has a state-by-state analysis of those trigger laws that may be helpful to healthcare providers and patients: State Abortion Trigger Laws’ Potential Implications for Reproductive Medicine | ASRM

However, some implications of the Dobbs case – such as the activation of state laws defining embryos as people – could mean we may see attempts in the future to restrict IVF in some states.

If you are considering using assisted reproduction that includes IVF in the future, or you have embryos stored in a state with a trigger law, we encourage you to speak with an attorney and/or your healthcare provider about your options.

Does this Supreme Court decision mean that employers, schools, and landlords or other housing providers can now discriminate against married same-sex couples or LGBTQ+ parents or children?

No. In the U.S. Supreme Court decision Bostock v. Clayton County, the Court said that federal employment anti-discrimination law prohibits discrimination on the basis of sexual orientation and gender identity as forms of sex discrimination.  Because the Bostock case was about the meaning of a federal employment law, it should not be directly affected by the Dobbs case overruling  Roe v. Wade.

There are similar federal laws prohibiting sex discrimination in housing,  schools, and healthcare. The federal agencies that enforce those laws have announced that based on the ruling in Bostock, they are applying those laws to discrimination based on sexual orientation or gender identity.  

Federal laws protect you no matter what state you live in.

In addition, many states have state laws that either explicitly ban discrimination on the basis of sexual orientation or gender identity, or have been interpreted – like in Bostock – to apply to such discrimination.

You can look for a lawyer referral service in your area by searching for information from your state’s bar association. Your state bar association website likely will have a lawyer referral service or a list of local lawyer referral services by city or county.

You can also look for a local LGBTQ bar association. These are groups of attorneys, many of whom are  LGBTQ themselves, with expertise in issues affecting the LGBTQ community. You can find a list of affiliated bar associations on the National LGBTQ+ Bar Association’s website here.

You can also look for a legal aid organization in your area. Legal aid organizations provide free legal services to those who are low-income or who otherwise qualify for their services. You can look for a legal aid organization or organizations that provide low-cost or free legal services in your area here.

If you have questions about your legal rights or would like more help finding an LGBTQ-friendly attorney, please contact NCLR’s Legal Information Helpline by phone at (800) 528-6257, or by e-mail at Info@NCLRights.org, or via our online form here.

MORE RESOURCES

For more information or answers to questions you and your family have about your legal rights following the Supreme Court’s Dobbs decision, you can more information in the What LGBTQ+ Families Need to Know FAQ that NCLR published with our partners at COLAGE, Family Equality, and GLBT Legal Advocates & Defenders (GLAD) here.