Today, we wanted to highlight four great pieces of news that are probably going to fly mostly below the radar, or may not be recognized for the important change they represent to the LGBT community.

• First, the Obama administration stated it would not oppose challenges to US Service Members complaints that denial of military and veteran benefits constitutes discrimination. Previously, Service Members and veterans were told they could not receive benefits, even if legally married, due to the so-called Defense of Marriage Act (DOMA). Of course, as with the litigation concerning Proposition 8, Congress could decide to act as the opposing party. The underlying issue to note here is that it would only apply to married same-sex couples. If a couple is merely registered as a domestic partner or in a civil union, they would still not be entitled to the benefits. So, when asked why does “marriage” matter, we have one more compelling reason to add to the mix. Here is a link to the story.
• Also, a federal district judge ruled DOMA unconstitutional, declaring that it violated the U.S. Constitution’s guarantee of equality. The case involved a federal court employee who was denied spousal benefits under the Federal Employees Health Benefits Program (“FEHB”), a comprehensive program providing health insurance for federal civilian employees and their family members. In its opinion, the court applied a standard of review called “heightened scrutiny,” which means that the proponents of the statute must establish, at a minimum, that the classification is “substantially related to an important governmental objective.” This is the first federal court case in which the court expressly concluded that heightened scrutiny must be applied. Prior to this, “rational review” has been applied, which essentially means that if there is any rational basis for upholding the law, it will be upheld, regardless of the actual reasoning behind the enactment of the law. The case is Golinski v. Office of Personnel Management and the opinion can be found at this link.
• In New Jersey, the Superior Court Reinstated a Federal Equal Protection claim in a case seeking marriage equality on behalf of Garden State Equality and seven same-sex couples and their children harmed by the state’s unequal civil union system. Last June, Lambda Legal filed a lawsuit for marriage equality arguing that barring same-sex couples from marriage and relegating them to civil unions violates the constitutional rights of those couples and their children. In November, the Court ruled that Lambda Legal could proceed to court on a claim that civil union violates the state Equal Protection Clause. Today’s ruling will allow Lambda Legal to proceed with both a state and federal equal protection claim. Read more here.
• Finally, the state of Maryland is now one signature by the Governor away from being the eighth state to legalize same-sex marriage. This week, the state Senate passed the gay marriage law after the House of Delegates narrowly approved it last week. The Democratic Governor Martin O’Malley is expected to sign it. This latest victory reflects the national trend that has shown a majority of Americans support same-sex marriage, and four national polls back that up. Read about the full story behind Maryland’s votes here. Okay, maybe this one didn’t fly below the radar, but we knew you would want to know!

This scenario happens every day: a relative dies and because there is no Will, state law dictates how the estate will be distributed to the next of kin. In many cases (but not all), a surviving opposite-sex spouse or same-sex Registered Domestic Partner would be the person designated to inherit if there was no Will. However, there is more to making a Will than making sure your significant other “gets everything.”

Creating a Will or Living Trust is often the last thing anyone wants to do, and the truth is, if you want to protect your assets, pass your assets on to someone other than what state law dictates, or ensure they go to the individuals or organizations you choose, then creating a Will should be one of the first things you do. For LGBT adults with partners, creating a Will or Living Trust is a crucial part of protecting your partner from financial uncertainty after your death. Too often, surviving partners are prevented from inheriting by family members who use the law to excise the surviving partner from the estate administration process. A family’s prejudices about the sexual orientation of their deceased loved one can motivate them to interfere with the deceased person’s intentions. Because of this risk, Wills and Living Trusts need to be prepared by a legal professional, who can help create a document that is thorough, concise, and properly executed. This helps ensure that the deceased person’s wishes and intentions are better able to withstand a legal challenge. Also important to consider, a Will is very necessary when a lengthy and/or degenerative illness leaves an opportunity for family members to argue that a person was not of sound mind when they executed their Will or Living.

Another reason to consider creating a Will or Living Trust is to try to mitigate some potential – and often inadvertent – tax consequences to the beneficiaries of your estate. Meeting with a legal professional to assess the potential tax risks of your estate, and to incorporate tax-saving techniques in your estate plan can help alleviate potential tax burdens after you die. Same-sex couples and unmarried opposite-sex couples are particularly vulnerable to taxation after the death of a partner, because of the disparate tax treatment between State and Federal taxing agencies based on marital status, and because there are often fewer planning opportunities available.

In addition to creating a Will or Living Trust, individuals and couples can execute the Oregon Advance Directive – and Physicians Orders for Life Sustaining Treatment (“POLST”) in certain circumstances – to name someone to direct your healthcare when you are unable to do so yourself, and to leave additional information and instructions about end-of-life preferences. This can be especially important when a couple is unmarried or not in a Registered Domestic Partnership where, in the absence of an Oregon Advance Directive, neither partner has a statutory right to direct the health care of the other partner.

Make 2012 the year you map out your estate planning documents – Wills or Living Trusts, Advance Directives or Health Care Powers of Attorney, Financial Powers of Attorney, etc. – and see an attorney who specializes in estate planning to help you create a plan that will protect your wishes and your loved ones. If you wish to speak to someone at Beth Allen Law, please feel free to contact us.

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Many gay and lesbian couples feel excluded from a great many of the rights enjoyed by married heterosexual couples. Therefore, it came as no surprise that when the federal Family and Medical Leave Act (FMLA) was enacted in 1993, it did not extend benefits and protections to same-sex partners.  However, for gay and lesbian parents whose children were biological or adopted, the employer* was required to grant the parents leave from work to care of their children or to bond with a newly adopted child.

Now, almost 20 years after that Clinton-era law, state laws across the country are beginning to fill the FMLA gap by extending coverage to gay and lesbian couples, thereby placing a new emphasis on acceptance of all families. Both Oregon and Washington states have family leave laws that explicitly include same-sex partners as legitimate family members: the Oregon Family Leave Act (OFLA) and Washington State Family Leave Act (FLA). Here are the basics of all three laws:

To learn more about the efforts to extend equal rights for family leave at the federal level, visit the Human Rights Campaign (HRC) and read more about their efforts to get the Family Leave Insurance Act (FLIA) passed. A description of FLIA from HRC reads: “FLIA would grant essential benefits to working families by providing twelve weeks of paid FMLA coverage to employees seeking to take leave to care for their families, including leave to care for a domestic partner and their children.”

If you feel your rights have been violated with regard to your taking a qualified leave of absence under FMLA, OFLA, or FLA, please contact us.

* Applies to employers with 50 or more employees in the current or past year.

** Applies to employers with 25 or more employees.

Resource Links:

• Information on HRC’s FLIA
• Information on Oregon’s OFLA
• Information on Washington State’s FLA

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Emotions often rule the thoughts and decisions when couples break up, and despite the universal advice to “think about what’s right for the children,” things can get ugly between two adults who used to mean everything to each other. If the sparring couple has children together and one parent is not legally recognized as a parent, the dispute can take on a decidedly anti-gay tone when the legally-recognized parent (often, but not always the birth parent) attempts to use laws that are very hostile to our community in order to deny the other party’s parentage. These are often the very same laws that the GLBT community is working so hard to change.

These cases usually arise in the context of a lesbian couple in which one woman gives birth via assisted reproduction (i.e., using donor sperm). In the West Coast states, lesbian couples face no obstacles to adoption by the non-birth mother of the child born by the other mother. But, many states do not allow second-parent adoptions. Or, even though adoption may have been available when the child was born, the couple may have decided that adoption was too expensive, or delayed obtaining one for some other reason, including the mistaken belief that their parentage would be recognized. For example, in Oregon and Washington, couples that are in Registered Domestic Partnerships that have a child will have both names showing on the birth certificate.  That assures the recognition of both mothers as parents in Oregon. But, that is not sufficient for parental recognition throughout the country. Also, due to anti-gay sentiment a lesbian or gay male couple may not jointly adopt in foreign countries. Because of this, often a couple will choose to have one of them adopt, usually with the intention that the other will adopt when financially or legally feasible. If a separation occurs before the second parent legally adopts, the legal adoptive parent may use his or her rights as a sole legal parent to deny parentage or visitation.

Thus, where parentage has not been established by adoption, one could be caught in a legal trap by her vindictive ex-partner. This has the result of not only denying legal recognition of the other partner’s parentage, but also limits custody and visitation options. In some cases, mothers are ordered to stay away from their children until they reach the age of 18, regardless of how long they have been a parent and regardless of how it will affect the children. This is wrong for the mother whose parentage has been denied, for the children as well, but also for the entire community.

Although a few attorneys are unwilling to take a case where one parent is trying to deny a fit parent her parentage and rights to see the children, there are lawyers who would take this type of client and not realize, or not care about, the damage done to the children, the other parent, and the LGBT community as a whole. Fortunately, in Oregon and Washington, most of the time the non-legal parent is ultimately able to establish parentage, but only after a long, often ugly and very expensive fight in the court room. But it is not just lawyers who must accept responsibility for what they are doing. We, as a community and as individuals, raise hell at the injustice when non-LGBT people refuse to recognize our families, yet too often stand by silently when we see it in our own community. It takes courage to speak out when a friend uses anti-gay laws for his or her own selfish purposes. However, silence empowers the legal parent to continue down a damaging path.

The key message here is to be responsible to your children even if you feel you’d rather not see your ex-partner again. Honor the relationships your ex-partner has with your children. If there are issues regarding the quality of parenting, focus on the visitation, but do not deny the parentage.  This is what straight parents do where there is disagreement over who should have custody or the circumstances of visitation. Do not use anti-gay law to deny parentage recognition.

If you feel you need counsel for yourself on this topic and wish to speak to someone at Beth Allen Law, please feel free to contact us.

Resource Links:

• http://www.hrc.org/resources/entry/legal-documents-to-protect-your-family
• http://www.leg.state.or.us/ors/106.html
• http://sos.wa.gov/corps/domesticpartnerships/

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When gay, lesbian, or transgender parents send a child to school, they worry about the enhanced possibility that their child could be bullied or discriminated against the same as if the child were the one who was GLBT. It is irrelevant whether your child identifies as GLBT, because merely being from a family of queer parents can be enough to spark school incidents, including discrimination from school officials as well as rejection from peers. Regardless of the irrationality of this behavior, it is similar to the issue of heterosexual students being bullied by peers, who teased them because they appeared to be gay.

Basic Rights Oregon’s Legal Group, of which Beth Allen is a member, spear-headed the effort to get Oregon lawmakers to enact a statute in 2009 that requires all public schools in the state to have a policy in place that covers bullying related to actual or perceived sexual orientation. In addition, the law specifies that each school have a designated person who is in charge of investigating bullying incidents. This policy applies both for the children and the parents of a household with same-sex or transgender parents. Although some schools still have not met this obligation, most have adopted policies, again with the help of the BRO Legal Group.

Regardless of whether your children’s school has a policy and procedures in place, the more involved you can be with your child’s education, the more likely you would be to see an issue as it arises and be able to address it as soon as possible. If you are concerned about this issue occurring in your child’s school, talk to the school counselor and address this, especially if your child has heard any negative comments directed towards him or her, or even if any school assignment does not allow for the inclusion of your family. Speaking to a school administrator and the designated person in charge of investigating issues should also be on your list of things to do. If you suspect that a law was broken and wish to consult with someone at Beth Allen Law, please feel free to contact us.

Parents, Families and Friends of Lesbians and Gay (PFLAG), along with Gay, Lesbian and Straight Education Network (GLSEN), are working hard on the issues of equal treatment in schools for all children in the GLBT community. Both organizations have teamed up to work on passing a federal anti- bullying law. Follow the links below for more information on Safe Schools initiatives from those organizations and the Safe Schools Improvement Act.

The good news is there has been a lot of progress in the area of equal treatment by schools for GLBT families, and for preventing, identifying, and stopping bullying in schools. But, there is still much to do.

Resource Links:

• http://www.stopbullying.gov/community/state_laws/key_components.html
• http://www.oregonsafeschools.org/
• http://community.pflag.org/Page.aspx?pid=1274
• http://www.glsen.org/cgi-bin/iowa/all/student/index.html
• http://community.pflag.org/Page.aspx?pid=1274

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