What are Current Gay and Lesbian Legal Issues?

Hello. We’re speaking with Attorney Emily Doskow, an expert on Lesbian and Gay legal rights, and the editor of, “A Legal Guide for Lesbian and Gay Couples,” from Nolo.

NOLO: Emily, there’s a great movie called “Normal,” about a rural couple that’s been married for twenty-five years. Then, one day, the husband announces he plans to change his sex. Legally, what happens in situations like this, when a married couple becomes a same-sex couple? Is the marriage over?

EMILY DOSKOW: The marriage isn’t legally over if they were opposite sex when they got married; their marriage will still be valid after one partner transitions. It’s different if the partners are same-sex, and then one partner transitions so they become opposite sex, and the courts are split on that about whether a marriage would be valid that was done after a transition. Some courts say that the sex that the person was at birth is the sex that they stay, and so they’re still the same-sex couple that can’t have a valid marriage, and some states say that if they become opposite sex then their marriage is valid.

NOLO: In your book, there’s a discussion about a debate among gay activists as to whether the pursuit of marriage rights is a proper goal for same-sex couples. Considering all the rights that are denied same-sex couples, that is, compared to married couples, what’s the thinking behind opposing marriage rights for same-sex couples?

EMILY DOSKOW: I think it comes from a bunch of different places. One is a political stance that says, “Nobody should get married; marriage is an institution of the state that’s oppressive, and everybody should be able to define their legal and financial relationships however they want to.” Another is that it’s just too much too soon, and people aren’t ready for it, and it causes a backlash, and a lot of negative, you know, all of these anti-same-sex marriage laws that we’re seeing everywhere. Another is that it sort of closes doors to alternative types of relationships by mainstream, I mean the LGBT community. So, for example, in situations where a Lesbian couple asks a man to be a sperm donor, they want all three of them to be parents, and that’s something that has happened in the past, so that a child can have two female parents, one male parent, and courts have actually granted adoptions where it ends up that a child has three legal parents… that’s getting more and more uncommon because the structure of domestic partnerships, marriage, civil unions, all of that, is so much like marriage that courts are sort of becoming more reluctant to do things that are sort of outside of that mainstream, so that’s another argument against it.

NOLO: Five states have domestic partner programs: Maine, New Jersey, Vermont, Hawaii, and California. Which offers the best legal rights?

EMILY DOSKOW: Well, Connecticut also is on that list; there are six now. And, of course, Massachusetts offers same-sex marriage, which is the best among them. I would say of the others, California, Connecticut, Vermont, and Maine all offer benefits that are equivalent to marriage on the state level; none of them are recognized by federal government.

NOLO: Let’s talk about living together contracts; there’s one on the CD in the Nolo book. What are the minimum requirements for making a living together contract, and are there times when a couple should get a lawyer to do one, rather than use the Nolo agreement?

EMILY DOSKOW: Well, I think people can do living together contracts for a lot of different reasons; the main reason for making sort of the most basic, simple kind, is that you’re acquiring property together, and you want to decide who owns it. I think the minimum things you need to have in it in that case are to identify the property, identify its value (or at least how much you spent to buy it, its purchase price), and then say what would happen to it if you split up; that’s the main purpose of having it, is to avoid a fight over who owns it if you break up. So, those are sort of the minimum things that should be in it other than, you know, the date, and your names, and all that basic stuff. In terms of when you would get a lawyer involved, I think that when you have a lot of property, or extremely valuable property, it might be good to have a lawyer review the agreement, where there’s really expensive real estate, if there are third parties involved besides the couple, that’s a good idea to have a lawyer look it over, or when people are doing contracts in anticipation of registering as domestic partners, or in a civil union. Oftentimes those types of pre-registration agreements are very much like a prenuptial agreement, which require both parties to have a lawyer in most states.

NOLO: In communities where landlords can discriminate based on sexual preference, is there a best strategy as to whether to tell the landlord about the sexual orientation? Can you think of a situation, for example, where a same-sex couple would have to disclose their sexual orientation?

EMILY DOSKOW: From a legal standpoint, I don’t think there are situations where you have to; my own personal view is that it’s not really that pleasant to live in a situation where you are worried about your landlord or anybody else finding out that you’re Gay or Lesbian, so I personally think it’s better not to stress yourself out by getting into a situation like that. Legally, though, I don’t think there’s any place where you would have to disclose.

NOLO: Same-sex couples cannot marry, except for Massachusetts. They also cannot divorce. So, how does a court sort out the ownership of the property when the same-sex couple splits?

EMILY DOSKOW: Well, in Massachusetts and in California, Connecticut, New Jersey, and Vermont, same-sex couples who split up who have registered legally, or entered into a civil union, or married, all of those same-sex couples can use the courts, and are required to use the courts, to get a divorce, or to dissolve their relationship just as heterosexual married couples would. In other states, basically, same-sex couples are treated as though they’re legal strangers who own property together; they don’t have any legal relationship other than their property ownership. They would go to civil court, rather than family court, and the judge would look at it as though they were business partners owning property together. It’s different, though, with children. If same-sex couples, even if they’re not registered or married, if they have children and they’re both legal parents, then they’ll go to family court as if they were married, just like heterosexual unmarried couples who have kids go to family court.

NOLO: Name changes. When name changes create the appearance of marriage, will courts permit it?EMILY DOSKOW: Sure. Courts will permit any name change as long as it’s not for a fraudulent purpose, or as long as it doesn’t contain fighting words, that sort of thing. So, people, very often same-sex couples, change their names so that they have the same last name, and having the appearance of marriage doesn’t really matter as long as they’re not intending to defraud anybody by doing it.

NOLO: Can you refer people to some places on the web to keep up with these Gay and Lesbian legal rights issues?

EMILY DOSKOW: Sure. There are a number of legal organizations that have tons of information on their websites; the National Center for Lesbian Rights at nclrights.org is one, lambdelegal.org is another, the Human Rights Campaign at hrc.org is another, and then for more sort of newsy, social connection type of things, planetout.com and gay.com are both big websites with lots of information.