Please note, this blog has been updated to include additional recommendations for LGBTQ people under the second Trump Presidency. Special thank you to Attorney Amira Hasenbush for spearheading and sharing this most current list of recommendations so that we could disseminate the information faster.
In the wake of recent SCOTUS rulings and now the election, it is more important than ever to put protections in place for queer families. Our community has long fought for privacy and autonomy over our lives, and we will continue to fight for those values. The good news is that we can still protect our families in times of uncertainty through careful legal planning, an insurance policy so to speak. The LGBTQ community did this long before marriage equality, so while it may feel disheartening and backwards to plan as if the laws do not protect us, it is far better than the alternative. This list will continue to be updated as circumstances change, so please check back as needed.
Marriage: Marriage equality is the law throughout the US. Even if the federal government were to refuse to recognize marriage equality in the future, your existing marriage would likely remain valid. Similarly, if a state were to roll back marriage equality, and you were already validly married, it is extremely unlikely that such decisions will impact pre-existing marriages. If you're afraid and considering getting legally married, please take the time to think through all of the automatic rights and responsibilities that come with marriage, including at the time of death or divorce.
Parentage: Protect your children with a adoption. Nonbiological and/or nongestational parents need an adoption which recognizes their legal rights as a parent. While having your name on the birth certificate is validating, a birth certificate alone is not sufficient protection for your legal parentage rights. From custody issues to survivor benefits, adoption provides security for your whole family. Once you have this judgement of parentage, maintain a certified copy in a safe and accessible place. Also, do the same with your child's birth certificate. Take a scan or picture on your phone for travel.
If you’ve already gotten a judgment, so long as your court had jurisdiction, that judgment is final and binding, no matter what happens in the future around marriage. The Full Faith and Credit Clause of the US Constitution should require that that judgment be recognized in every state in the country.
Fertility: If you have sperm, eggs or embryos in the freezer, please consult with a fertility lawyer in the state where they are cryopreserved to determine if any extra protections need to be put in place, including whether they need to be moved out of state. If your genetic material is frozen in Iowa, double check your clinic forms and make sure that they are clear on what would happen to it in the event of death or separation. You should consult an Iowa fertility lawyer as the clinic forms may not be enough for enforceability.
Estate Planning: This includes last will and testaments, trusts, advance directives, healthcare powers of attorney, and financial powers of attorney. Many LGBTQ families do not fit the "traditional" family model that our laws are framed around, making it all the more prudent to have estate planning completed. All spouses and partners should have a plan for if one or both or all of you pass away. This includes designating beneficiaries for personal property and financial accounts, and designation of a guardian for minor children. Make sure that your existing children (including those in gestation) are specifically named in your estate plan and your future children are adequately described. The traditional language used by estate planners, such as "my natural and adopted children" is not sufficient for LGBTQ families. Likewise, make sure that your spouse is specifically named in your will. If any person named in your estate plan is trans, make sure your estate plan reflects their correct name/gender to avoid inadvertently outing them. Don't forget to align any of the language about frozen sperm, eggs or embryos here with what you have with the clinic or any other written forms.
Be sure to protect your healthcare wishes with advance directives and name an agent who would make healthcare decisions on your behalf if you are unable and the type of care you want to receive. If applicable, include specifics about the continuation of gender affirming care.
Also double check your beneficiaries on any bank accounts, investments, retirement accounts, life insurance or accidental death policies you may have.
Gender: If you would like to amend your gender on any of your ID documents, get the federal documents updated NOW. Changes might not be available under the new administration, but gender changes can currently be made for passport and social security without a court order. In most cases, you can use a passport or passport card to prove identity and US citizenship in lieu of a birth certificate.
US passports currently allow for a nonbinary (X) gender marker - this may get overturned and no longer be available. We may also be entering an era where having a nonbinary gender marker exposes you to (more) potential harassment, discrimination or other risks. Act in the way that feels best for your individual circumstances.
Children of US Citizens born abroad usually have a Consular Report of Birth Abroad (CRBA) instead of a birth certificate. Get the gender marker corrected on the CRBA as soon as possible.
If possible, and as soon as you are able: get a court order affirming your chosen name, get your birth certificate corrected affirming your gender and chosen name, and get your driver’s license corrected affirming your gender and chosen name. In Iowa, updating your driver's license can be done independently of the birth certificate status. Refer to The Iowa Guide to Changing Legal Identity Documents for step by step on how to complete these items.
If you DO NOT have an option for correction of gender on birth certificate and/or driver license, get a passport or passport card with the correct gender marker listed right away.
In Iowa, in addition to updating your own birth certificate to reflect your chosen name and gender, you may also amend your child’s birth certificate and/or your marriage certificate.
This is not legal advice and does not create an attorney-client relationship. Please contact our office for a consultation to discuss your specific situation.