Gender-affirming care is emerging as a hot-button legal issue, like abortion, that pits patients and doctors against politicians and lawmakers in some states. The battle over gender-affirming care raises constitutional questions about who deserves equal protection and freedom of speech in the medical setting. People seeking gender-affirming care often face a confusing patchwork of state laws and policies that vary widely from state to state.
According to the Association of American Medical Colleges (AAMC), gender-affirming care refers to a range of social, psychological, behavioral, and medical interventions designed to support and affirm an individual's gender identity when it conflicts with the gender they were assigned at birth.
The goal of gender-affirming care is to help people match their physical—and sometimes legally recognized—presentation with their gender identity.
Transition is a personal process that looks different for different people. Some individuals need hormone therapy and surgery to treat their gender dysphoria; others don’t. Health professionals help transgender and non-binary people explore different ways to express gender identity and medical treatment options for gender dysphoria.
Doctors and therapists can help people with their psychological and medical transition, including through:
Behavioral health providers can guide and support people with their social transition, including when it comes to:
Every major medical association in the United States, including the American Medical Association (AMA), now recognizes that gender-affirming care is medically necessary to improve the physical and mental health of transgender and gender-diverse people.
But not all insurers are convinced. Some health insurance plans cover both surgical and nonsurgical gender-affirming care. Others exclude gender-affirming services, like hair removal, viewing it as cosmetic and not medically necessary.
Lawmakers are also mixed in their response to gender-affirming care. The federal government and some states have passed anti-discrimination laws to protect people from being denied health insurance coverage or care based on gender identity. Other states allow health insurance plans, including Medicaid and state employee benefits, to exclude gender-affirming health care from coverage. Still other states have no explicit laws or policies either way.
The Affordable Care Act (Section 1557) includes broad civil rights protections in health care, barring discrimination based on race, color, national origin, sex, age, or disability in all health care programs or activities that receive federal funding. (42 U.S. Code § 18116 (2022).)
The Obama administration interpreted Section 1557’s ban on sex discrimination to include discrimination based on gender identity. The Trump administration erased those protections in 2020. The Biden administration then restored them in 2021, bolstered by a landmark U.S. Supreme Court decision ruling that gender identity discrimination in the workplace is illegal. (Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020).)
Section 1557 offers important protections for people seeking gender-affirming care. But it only applies to health care programs that receive federal funding and doesn’t require health insurance policies to cover any particular procedure or treatment. Insurers can still deny some gender-affirming care on a case-by-case basis, and state laws and policies related to private insurance, Medicaid programs, and employee benefits vary widely.
Section 1557 protects transgender and nonbinary people from discrimination in certain health care settings in a few ways. The law:
People seeking gender-affirming care often face a confusing patchwork of state laws and policies. Despite Section 1557 protections, the reality is that access to gender-affirming care varies widely from state to state. Some private employers and insurers offer gender-affirming health benefits; others don’t. Some state employee health benefits cover gender-affirming care; others don't. Even state programs that receive federal funding, like Medicaid, have some flexibility in setting eligibility criteria.
Also, the law on gender identity discrimination is new. Some insurance plans and some Medicaid and Medicare providers haven't updated their policies. And some plans and providers ignore federal law.
Most state laws about gender-affirming health care and insurance fall into three categories:
The Movement Advancement Project (MAP) has put together a map of gender-affirming healthcare laws and policies across the country that looks strikingly similar to the 2020 electoral map—with “blue states” tending to offer the most access to gender-affirming care and insurance coverage and “red states” offering less or none.
Laws concerning transgender youth take many forms. Some are aimed at preventing kids and teens from playing sports consistent with their gender identity. Others restrict the bathrooms transgender and non-binary people can use at school. And a growing number of state laws seek to ban gender-affirming care for young people.
Utah became the first state to ban minors from receiving gender-transition health care in January 2023. The Utah law prohibits transgender youth from receiving gender-affirming surgery and blocks access to hormone therapy with limited exceptions. Republic lawmakers are quickly pushing for similar bans nationwide through legislative actions or policy measures.
According to MAP, as of March 2024, states that have passed total or partial gender-affirming care bans include:
Not all bans have gone into effect yet and some bans are facing legal challenges.
According to the Williams Institute, a research center at the U.C.L.A. School of Law, an estimated 300,000 teenagers identify as transgender in the United States. Roughly half of them (144,500) are at risk of being denied gender-affirming medical care. The AMA has urged governors to oppose state legislation that would ban medically necessary gender transition-related care for minor patients, calling the laws a “dangerous intrusion on medicine.”
Proponents of state bans on gender-affirming care say that the laws are necessary to protect kids from harmful, permanent medical procedures. Critics of the laws say that cutting off or denying minors gender-affirming care is what causes harm to minors, including an increased risk of suicide, heightened gender dysphoria, and depression.
Most bans target gender-affirming care for trans adolescents, but many states are trying to restrict care for people 18 years old and over. In April 2023, Missouri became the first state to restrict some gender treatments for people of all ages. Other states, including Florida, have tried to prohibit Medicaid from covering some kinds of gender care for transgender people of all ages.
The battle over state bans on gender-affirming care is shifting from state legislatures to courtrooms all over the country. Most of the legal challenges argue that bans violate the equal protection and the due process clauses of the 14th Amendment to the U.S. Constitution. Specifically, people and organizations suing over the bans argue that the laws violate parents' due process right to manage their children's medical care and discriminate against trans kids.
Most of the lawsuits are in the early stages, with courts simply deciding whether to block the bans or allow them to stay in place while the legal challenges play out. But, as of late 2023, two federal appeals courts have found that access to gender-affirming care isn't protected by the Constitution, leading many legal experts to believe that the issue may be headed to the U.S. Supreme Court.
Not all states are trying to limit or ban gender-affirming health care for young people. In September 2022, Governor Newsom signed Senate Bill 107. The law (often described as a "shield" or "refuge" law), establishes California as a sanctuary for gender-affirming care.
Other states, including Colorado, Connecticut, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Vermont, and Washington, and a handful of cities have also passed shield laws protecting health care providers, transgender people, and their families.
If you believe you’ve experienced discrimination in health care, you can file a civil rights complaint with the U.S. Department of Health and Human Services, Office for Civil Rights (OCR). Don’t delay—your claim must be filed within 180 days of when the discrimination happened, though the OCR may give you more time if you have a good reason for missing the deadline.
If the OCR accepts your complaint, the agency will investigate and potentially get the health care program or provider to change its discriminatory practices or provide you with a service.
You might also want to file a complaint about insurance-related discrimination with your state’s Department of Insurance (DOI). The department will investigate the complaint and try to get the insurer to fix the problem if the insurer has mishandled your claim or broken a law or regulation.
If you would like to file a civil lawsuit in court, talk to a lawyer. You can typically file a lawsuit instead of, or in addition to, a civil rights complaint with the OCR or a complaint with your state’s DOI.
If your health insurance company refuses to pay a claim or ends your coverage, you might have a right to appeal the decision and have it reviewed by an independent third party.
The American Bar Association has put together a list of transgender resources, including organizations that offer legal and support services.
Trans Lifeline is a trans-led organization that connects trans people to community support and resources. Call (877) 565-8860 to speak with a trans/nonbinary peer operator.
]]>In 2020, the United States Supreme Court heard a case involving a funeral home worker who was fired after coming out as transgender. The Court held that Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination on the basis of sex, also barred discrimination based on gender identity.
As a result, this type of discrimination is now illegal nationwide. In the same ruling, the Court also outlawed employment discrimination based on sexual orientation.
Gender identity means the gender with which a person identifies. Sometimes, people use the term “gender expression,” which refers to someone’s gender-related mannerisms, appearance, style of dress, characteristics, or identity, without regard to the person’s designated sex at birth.
Someone’s gender expression may or may not conform to his or her gender identity. For example, someone may identify as male, yet wear women’s clothing and style his hair in a way that is perceived as feminine.
Under federal law, employers may not single out employees who are transgender or gender nonconforming for differential treatment. For example, an employer may not refuse to hire someone who is undergoing a gender transition, refuse to promote someone who uses a different gender and name than he or she was assigned at birth, refuse to step in if coworkers are harassing an employee for being transgender, or fire someone who begins dressing and grooming in a style that doesn’t conform to his or her perceived gender.
As a result of a landmark Supreme Court ruling in 2020, gender identity discrimination in the workplace is illegal nationwide. In Bostock v. Clayton County, Georgia (590 U.S. ____ ), a funeral home employee who presented as male told her bosses that she wanted to live and work as a female. She was fired shortly thereafter.
The Supreme Court held that discriminating against an employee because he or she is transgender is a form of illegal sex discrimination under Title VII of the Civil Rights Act. Using similar reasoning, the Court also ruled that discrimination based on sexual orientation violated Title VII.
The Court's ruling means that employers nationwide are barred from discriminating against workers on the basis of transgender status or sexual orientation in any aspect of employment, including hiring, training, promotion, compensation, discipline, and termination. And because harassment is a type of discrimination under federal law, the ruling also bars workplace harassment based on gender identity or sexual orientation.
Until the Supreme Court ruled on the issue, only about half the states and the District of Columbia prohibited gender identity discrimination in the workplace. Many local governments and private employers also banned this sort of discrimination.
If you are currently transitioning your gender, or have recently transitioned and are facing questions about your gender, you might be subject to gender identity discrimination. Here are a few of the issues you might face.
You can find great resources on your legal right—and practical matters to consider when transitioning—at the website of the Transgender Law Center.
A variety of practical issues can arise when an employee transitions from one gender to the other. Basic documents—such as ID badges, beneficiary forms, and employee rosters—will have to be updated to reflect the employee's changed gender. Employers will also have to figure out which restroom the employee should use, how to inform coworkers of the change, and whether some workplace training is in order, among other things.
The issue of bathrooms for transgender employees has sparked much debate in recent years. Some states, including California, Washington, Vermont, and Iowa, specifically require employers to allow workers to use the bathroom associated with their gender identity. And, in light of the ruling in Bostock, any employer who forces a transgender employee to use the bathroom that corresponds to their sex at birth is inviting a lawsuit.
If other employees have privacy-related or other concerns, employers can remain on safe legal ground by providing single-occupancy, gender-neutral bathrooms as an alternative to shared bathrooms.
If you believe you are being discriminated against because of your gender identity, you should talk to an experienced employment lawyer who is familiar with transgender issues. A lawyer can help you assess your legal rights, evaluate the strength of your claims, and decide on the best strategy for moving forward.
Updated January 23, 2024
]]>How you can respond to these forms of housing discrimination depends on:
Historically, federal law did not protect gays, lesbians, or transgender people from discrimination by landlords and other housing providers. In January 2021, however, President Biden issued the Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation (the “Order”). The Order stated that going forward, the federal Fair Housing Act (42 U.S.C. 1681 and following) prohibited discrimination on the basis of gender identity and sexual orientation. In response to the Order, the U.S. Department of Housing and Urban Development (HUD) released a memo stating that HUD would begin accepting and investigating complaints of discrimination based on gender identity or sexual orientation.
If you believe that you have been subjected to illegal housing discrimination on the basis of gender identity or sexual orientation, you can file a federal fair housing complaint with HUD’s Office of Fair Housing and Equal Opportunity (FHEO).
Many state and local laws address one or more of the following forms of discrimination.
Each law has its own definition of these protected classes—check the law carefully to see exactly what is covered.
Several states and cities prohibit sexual orientation housing discrimination. Many of these same states and cities also prohibit gender identity and gender expression housing discrimination. Some laws differentiate between gender identity and gender expression discrimination; others lump the two forms of discrimination together. You’ll want to check your state and local laws to find out whether they prohibit one, two, or all three of these forms of discrimination.
State and local laws change frequently. To find out how to pursue fair housing complaints based on sexual orientation, gender identity, and gender expression discrimination in your state, check with your state’s fair housing office. You can find a list of state agencies on FHEO’s website. For city and local information, check out the Human Rights Campaign’s Municipality Database—you can search for your city or zip code to find out the current status of protections against housing discrimination. Finally, you can also contact the National Gay and Lesbian Task Force for more information.
The timing of the discriminatory behavior directly affects what remedies you might have. As discussed below, you have limited options if the discrimination occurs at the application stage. However, if you experience discrimination after you’ve signed a lease or rental agreement, you have a number of options for fighting back.
If you are denied a rental at the application stage, in many cases there's not much you can do about it. Most of the time, the landlord either doesn’t tell you why you were rejected or invents a reasonable-sounding, nondiscriminatory explanation to conceal the true (discriminatory) reason. If the landlord’s refusal was clearly based on gender identity or sexual orientation, you could pursue a claim under federal, state, or local law.
If you have a lease, your tenancy cannot be terminated until the lease expires unless you have broken an important lease clause (such as failing to pay rent or violating a no-pets rule), or you have committed an illegal act.
So, a landlord who attempts to evict you solely on the grounds of your sexual orientation would have a hard time prevailing in a federal fair housing complaint. You can also file a fair housing complaint with your state fair housing office.
Renters with month-to-month rental agreements might be in greater danger of eviction. Landlords can terminate month-to-month tenancies by giving the required notice, which is 30 days in most states. The landlord need not give a reason for the termination.
However, landlords are not allowed to terminate rental agreements for a discriminatory reason, so if you suspect sexual orientation discrimination, you can pursue a federal fair housing complaint or contact your state fair housing office.
Tenants in areas with rent control might have another avenue for complaints—most rent control laws also have eviction protection rules prohibiting termination of month to month tenants unless they have violated the rental agreement, have seriously broken the law (by selling drugs, for example), or the termination is based on enumerated "just causes" in the rent control or eviction protection law.
Nolo's LGBTQ Law section also contains a wealth of articles addressing laws and rules that might affect members of the LGBTQ community.
]]>The landmark Obergefell decision means that same-sex marriages are now recognized by the federal government and all other U.S. states and territories. Prior to the ruling, some states allowed same-sex couples to marry and others didn’t, causing confusion about whether (and to what extent) same-sex marriages were recognized by federal and state agencies and private entities like employers.
Not all countries recognize same-sex marriages. Couples planning to travel or move abroad need to know about marriage equality around the world.
Prior to Obergefell, the federal Defense of Marriage Act (DOMA) said, among other things, that no state had to recognize the legal validity of a same-sex relationship even if the relationship was recognized by another state. In 2013, the U.S. Supreme Court found parts of DOMA unconstitutional in United States v. Windsor (570 U.S. 744), before granting same-sex couples the right to marry in Obergefell in 2015.
Federal recognition of same-sex marriage strengthens families and offers equal status to same-sex couples. It also has practical benefits for same-sex couples, including:
In 2022, after the Supreme Court overturned Roe v. Wade, lawmakers were motivated to pass the Respect for Marriage Act (RFMA). The RFMA requires states to recognize same-sex and interracial marriages across state lines. The law also guarantees same-sex and interracial couples federal marriage benefits.
Prior to Obergefell, same-sex couples faced a confusing patchwork of laws concerning marriage that varied widely from state to state. Efforts to legalize same-sex marriage began to pop up across the country in the 1990s.
Prior to allowing same-sex marriage, some states offered same-sex couples relationship recognition like civil unions and domestic partnerships, but those unions weren’t necessarily recognized by other states or the federal government. Other states passed laws banning gay marriage. Most of the first states that allowed gay marriage did so because of court rulings, rather than state laws or ballot initiatives.
As marriage equality laws gained momentum, states that allowed same-sex marriage started recognizing same-sex marriages made in other states. But states with “defense of marriage” laws (bans on gay marriage) didn’t recognize any same-sex marriages. Other states had no firm policy on same-sex marriages, so employers and private companies were free to make their own decisions about whether to extend health, retirement, and other benefits to same-sex spouses of employees.
But the U.S. Supreme Court put an end to all the legal uncertainty about same-sex marriage in 2015 with the Obergefell decision. States have no choice now but to allow and recognize same-sex marriages.
Along with the legal right to get married, same-sex couples in the U.S. also have the right to get divorced, as long as they meet their state's requirements to file for divorce. The procedures and laws for same-sex divorce are the same as for all divorces.
However, there are particular issues that crop up in some same-sex divorces, especially for couples who have children or lived together for years before they were able to marry legally. Also, couples who had registered domestic partnerships or civil unions before they married might have to terminate those partnerships as well. In some states, like California, you can get a divorce and end your domestic partnership in the same legal proceeding. (Cal. Fam. Code § 299 (2023).)
A growing number of governments around the world are legally recognizing same-sex marriages. As of 2022, dozens of countries have laws allowing LGBTQ people to marry. Most of the countries are in Europe and the Americas.
To keep up-to-date on same-sex marriage around the world, visit the Human Rights Campaign Foundation.
]]>I live and work in California. I was born a biological male, but I've always felt myself to be female. I've begun taking female hormones and plan to start dressing and living as a woman in preparation for my transition to being female.
I met with the HR manager to talk about the transition process. He was very accommodating in terms of changing my name on forms and other paperwork, and he seemed understanding. However, he said I have to continue to use the men's restroom until I have gender reassignment surgery. He claimed that my female coworkers, who have known me as a man for years, will be uncomfortable if I share their restroom facilities, and that he doesn't blame them. He is looking into the possibility of creating one unisex bathroom. In the meantime, however, he says I've got to keep using the men's room. Is this legal?
The answer is most likely no. Both the federal government and the state of California protect employees from discrimination based on their gender identity. Gender identity is typically defined as the gender with which someone identifies, which might be different from the gender they were assigned at birth. Discrimination against employees because they are transgender falls under the category of gender identity discrimination.
Requiring you to use restroom facilities that contradict your gender identity until you have sex reassignment surgery would likely constitute discrimination under California law. At least one California court has allowed a case to proceed based on this argument.
What's less clear is whether your employer must allow you to use the women's restroom or may meet its legal obligations by providing unisex bathroom facilities. Some transgender advocates argue that prohibiting transgender employees from using the restroom facilities designated to the gender with which they identify is itself a form of discrimination, even if the employer makes unisex facilities available. So far, there has been no definitive answer from the courts on this question.
The legal issues faced by transgender employees are complicated, and the field is evolving rapidly. To learn your rights and make sure you are fully protected as you transition, you might want to talk to an experienced local employment lawyer.
]]>This type of discrimination is illegal in public and private workplaces in the United States as a result of a 2020 Supreme Court decision, Bostock v. Clayton County, Georgia. That decision also outlawed workplace discrimination on the basis of gender identity.
An employer discriminates based on sexual orientation when it considers an employee’s sexual orientation in making employment decisions. For example, it is discriminatory for an employer to refuse to hire gay or lesbian employees, fire a gay employee for marrying his same-sex partner, or segregate openly gay employees from positions that require customer contact.
It would also be discriminatory for an employer to take action against heterosexual employees because of their sexual orientation. A bar or restaurant that serves a largely gay clientele could not refuse to hire straight employees as bartenders or waiters, for instance.
Workplace harassment is a form of discrimination. Harassment is offensive and unwelcome conduct based on a protected trait, and it comes in two forms:
In June 2020, the U.S. Supreme Court issued an historic decision for LGBTQ rights in Bostock v. Clayton County, Georgia (590 U.S. ____). The Supreme Court held by a 6-3 margin that workplace discrimination based on sexual orientation or transgender status violates Title VII of the Civil Rights Act of 1964, which prohibits sex-based discrimination.
The case involved three individuals who alleged they were fired because they were gay or transgender. Writing for the majority, Justice Neal Gorsuch argued that "it is impossible to discriminate against a person for being homosexual or transgender without discriminating
against that individual based on sex." He wrote:
An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
Justice Gorsuch conceded that the drafters of Title VII might not have anticipated the ban on sex discrimination applying to sexual orientation or gender identity. Nevertheless, he wrote that "the limits of the drafters' imagination supply no reason to ignore the law's demands."
The landmark decision means that public and private employers nationwide are prohibited from firing or otherwise discriminating against workers on the basis of sexual orientation or gender identity in every aspect of employment—including hiring, training, promotion, compensation, discipline, and termination.
Harassment on the basis of sexual orientation and gender identity is also prohibited. As mentioned above, harassment is any conduct motivated by a protected category (such as sexual orientation) that creates an intimidating, hostile, or offensive work environment. Harassing conduct might include homophobic slurs or jokes, or physical acts—for example, posting an offensive picture in an employee's workspace.
To qualify as unlawful harassment, the conduct must be unwelcome and sufficiently severe or pervasive to change the workplace environment. If the conduct is particularly egregious, a single incident might be enough to constitute harassment, but in most cases a pattern of behavior is required.
Prior to the Bostock decision in June 2020, about half the states had already outlawed workplace discrimination based on sexual orientation or gender identity.
The federal Equal Employment Opportunity Commission (EEOC)—the agency that enforces federal antidiscrimination laws—had taken the position that sexual orientation discrimination was unlawful sex discrimination under Title VII. Meanwhile, the U.S. Department of Justice had taken the opposite stance. And federal courts were split on the issue, which is why the case ended up at the nation's highest court.
If you believe you are being discriminated against because of your sexual orientation, your first step should be to talk to an experienced employment lawyer. A lawyer can tell you whether you have a strong legal claim against your employer and help you come up with the best strategy to protect yourself.
Don’t delay: If you decide to take legal action against your employer, you will likely have to first file a charge of discrimination with the EEOC or your state fair employment practices agency. This is a prerequisite to filing a lawsuit under Title VII; many states have the same requirement. The deadlines can be tight for filing a charge: You may have as few as 180 days after the discrimination or harassment took place. A lawyer can help you sort through the facts, decide how to proceed, and present your case in the strongest light.
]]>The federal civil rights protections in the Affordable Care Act (Section 1557) guard LGBTQ people from discrimination based on sex in any program or facility that gets federal funding for health care services, including Medicare. And many—but not all—states have antidiscrimination laws that protect LGBTQ people from being unfairly treated in public places, including doctors’ offices and hospitals.
Prior to the passage of the Affordable Care Act (ACA) in 2010, no federal law prohibited sex discrimination in health care. Now, Section 1557, the antidiscrimination section of the ACA, bars discrimination based on race, color, national origin, sex, age, or disability in all health care programs or activities that receive federal funding. (42 U.S. Code § 18116 (2022).)
The Obama administration interpreted Section 1557’s ban on sex discrimination to include discrimination based on gender identity. The Trump administration briefly reversed that reading of the law until it was restored by the Biden administration in 2021.
Section 1557 applies to:
For example, Section 1557 applies to hospitals that accept Medicare, doctors who receive Medicaid payments, and federal programs like Head Start.
Federal antidiscrimation protections have increased LGBTQ access to health care and services in many ways, including:
Some states have antidiscrimination laws that prohibit discrimination in “public accommodations.” Public accommodation laws typically protect LGBTQ people and others in places like stores, restaurants, hospitals, and doctors’ offices—anywhere other than home, work, or school.
As of 2022, over 20 states have public accommodation laws explicitly barring discrimination based on sexual orientation and gender identity. An equal number of states have no laws barring LGBTQ discrimination in public accommodations. The remaining states prohibit sexual orientation discrimination only or interpret existing prohibitions on sex discrimination to include discrimination based on sexual orientation and gender identity.
State laws and policies on private insurance, Medicaid, and state employee benefits also vary widely. Some states—like California and New York—protect LGBTQ people from being unfairly denied health insurance coverage or being unfairly excluded from coverage for certain health care procedures on the basis of sexual orientation or gender identity. Other states—like Arkansas—explicitly permit insurers to refuse to cover gender-affirming care.
An emerging hot-button issue in 2022 is gender-affirming medical care for transgender youth. As of March 2022, over a dozen states have restricted access to gender-affirming care or are currently considering laws that would do so. Many of the laws carry criminal penalties for health care providers, and sometimes families, who provide or seek gender-affirming care for minors.
Historically, medical professionals have contributed to bias against LGBTQ people. But the American Medical Association (AMA) is now working to expand access to medical services, reduce stigma in treating LGBTQ patients, and break down discriminatory barriers to health care.
The AMA Code says: "Physicians who offer their services to the public may not decline to accept patients because of race, color, religion, national origin, sexual orientation, gender identity or any other basis that would constitute invidious discrimination."
In fact, the AMA has adopted dozens of rules and opinions calling for the equal treatment of gay, lesbian, bisexual, and transgender patients, doctors, and medical students. The AMA supports access to gender-affirming care and the end of discredited practices like so-called “conversion therapy.”
A few states have laws that allow businesses and government officials to deny services, including health care (except in emergency situations), to LGBTQ people if doing so would conflict with sincerely held religious beliefs. For example, a doctor in these states may refuse to provide fertility treatments to same-sex couples, hormone-replacement therapy for transgender people, or counseling for bisexual people.
Religious exemptions (sometimes called conscious clauses) are not new in medicine. Almost immediately after Roe v. Wade legalized pre-viability abortions nationwide in 1973, Congress passed a law clarifying that health care providers, hospitals, and clinics that receive federal funding don’t have to provide abortions or sterilizations if they have religious objections to the procedures. A number of states have abortion-related conscious clauses too.
But LGBTQ-related religious exemptions for health care providers might conflict with Section 1557 of the ACA, which applies to nearly every hospital, insurer, and private practice in the country. So, an LGBTQ person who lives in a state with a broad conscious clause, may be able to file a federal lawsuit against a doctor who refuses to provide gender-affirming care or fertility treatments based on that person’s sex, sexual orientation, or gender identity.
If you believe a doctor or employee has refused to treat you because of your sex, sexual orientation, or gender identity, you can do any of the following:
You can also file a civil rights complaint with the HSS Office of Civil Rights (OCR). The OCR will investigate your complaint and potentially get the program or provider to change its discriminatory practices.
If you would like to file a civil lawsuit, talk to a lawyer. You can typically file a lawsuit instead of or in addition to filing a complaint. Learn more about hiring and working with a lawyer. You can also connect with a lawyer directly from this page.
Lambda is a national legal organization whose mission is to protect the civil rights of LGBTQ people. Lambda’s Legal Help Desk provides information and resources relating to discrimination based on sexual orientation, gender identity, gender expression, and HIV status.
]]>Lesbians and gay men bring children into their lives in a number of ways. In lesbian couples, frequently, one partner gives birth to a child, and the other partner—the second parent—becomes a legal parent through a second parent or stepparent adoption. Gay men can do virtually the same thing by using a surrogate to carry a child born from one partner's sperm and a donor egg.
Some same-sex couples may choose to adopt children jointly so that both partners are legal parents from the beginning. Lesbian and gay singles and couples can adopt children through agencies or independent adoptions, and even through international adoptions (though international adoption may be more difficult now that the United States has adopted the Hague Convention).
In a historic ruling in 2015, the United States Supreme Court (USSC) legalized same-sex marriage throughout the country. (Obergefell v. Hodges, 576 U.S. 644). As a result of the ruling, all 50 states have overturned or rewritten laws to allow married same-sex couples the privilege of adopting children. If you are married and would like to adopt your spouse's biological child, you can apply for a stepparent adoption in your state.
However, if you're unmarried, the journey to building your family may become more complicated if you live in a state that doesn't allow second parent adoption. Second parent adoption is a legal procedure where an unmarried partner applies to adopt the other partner's biological child. For example, if you and your partner are not married, but your partner has a child from a previous relationship, and you'd like to become that child's other legal parent, you can apply for a second parent adoption in your state. Once the court hears your case and approves the adoption, you become the second legal parent, with the same rights and responsibilities as if you were a biological parent.
Although the United States has made significant progress in the fight for equality for the LGBTQ community, several states still prohibit unmarried, same-sex couples from applying for second parent adoption. For a state-by-state overview of second parent adoption laws and cases, visit the Lambda Legal Defense and Education Fund's website at www.lambdalegal.org.
If you live in a state that prohibits second parent adoption, you should speak with an attorney about creating a co-parenting or custody agreement, which will detail each parent's rights and responsibilities for the child. Although some states don't recognize these agreements as legally binding, if you and the other parent experience trouble in your relationship in the future, you can present the agreements as evidence of your parental intentions if you end up in court later.
Because it's essential that you know your local law before you decide to raise a child together, we strongly recommend that you seek legal advice when you are considering parenting. Search out gay and lesbian parenting groups in your state. If you don't know where to start, try the Queer Resources Directory ( www.qrd.org), which includes many parenting sites. The following organizations can also provide you with information: The Human Rights Campaign (www.hrc.org), The National Center for Lesbian Rights (www.nclrights.org), Lambda Legal Defense and Education Fund (www.lambdalegal.org), and Gay and Lesbian Advocates and Defenders (www.glad.org).
It's no secret that throughout history gay and lesbian couples have faced roadblocks when creating their families. Although every state in the nation allows married same-sex couples to adopt, whether privately or through state foster care, couples should prepare for potential roadblocks along the way.
The legal process for adoption is now the same for same-sex couples as for opposite-sex couples. However, private and religious adoption agencies are fighting for the right to deny well-qualified, loving couples the right to adopt by arguing it violates religious freedoms. As of 2020, the United States Supreme Court has not issued a ruling on its most recent religious freedom adoption case.
It's important for prospective parents to thoroughly research agencies that welcome same-sex adoptions to avoid any potential heartbreak.
Although international adoption is available to married heterosexual couples throughout the world, same-sex couples often face challenges adopting from countries that do not recognize same-sex marriage. Some countries explicitly ban adoptions to the same-sex community, regardless of qualifications.
There are very few countries that permit international adoption to same-sex couples. If the country you wish to adopt from does allow adoption, the legal process may take significantly longer and be more expensive than domestic adoption. If you're successful with international adoption, you may still need to go through the United States stepparent adoption process to ensure you receive the full rights and benefits of adoption once you return to the your home state.
A legal parent is a person who has the right to live with a child (full or part-time) and to make decisions about the child's health, education, and well-being. A legal parent is also responsible for financially supporting the child. When a married couple has or jointly adopts a child, the law automatically recognizes both partners as legal parents. As a result, even if they split up, they both remain legal parents.
While same-sex marriage is legal throughout the country, there are still unanswered questions about both parents' presumption of biological parentage. In other words, although the law now recognizes same-sex marriages, couples often hit roadblocks when attempting to define the biology of their family.
For example, if an opposite-sex couple marries and the wife births a child, the court (and law) presume that the husband is the biological father. As a result, the father automatically has rights and responsibilities for the child. In a same-sex marriage, however, when one partner births a child, the law is often unequal in applying the biology standard to the other spouse. While some states have progressed in giving same-sex couples the same rights as opposite-sex couples, some states continue to make it difficult for same-sex couples to create their families.
Whether you're in a state that recognizes your rights as a same-sex married couple or not, attorneys continue to recommend that same-sex partners complete stepparent adoptions on behalf of the nonbiological parent. The adoption serves as extra protection for the family and ensures the parents and the children receive the same state and federal benefits as an opposite-sex family.
For unmarried, same-sex couples, the law doesn't consider the second parent a legal parent in some states. As a result, the nonbiological parent has few, if any, legal rights with regard to the child unless the couple applied for and received a second parent or stepparent adoption.
A second parent's status (the nonlegal, nonbiological parent) is most likely to become an issue if a same-sex couple splits up. When unmarried, heterosexual parents separate and can't agree on custody terms, courts will resolve the troubles. But, unmarried gay and lesbian couples don't usually have these built-in protections.
In fact, many courts say that a second parent has no rights regarding the child of a partner, even if the second parent has spent years helping with homework, patching up scrapes, and giving and receiving unconditional love. At worst, the second parent may be treated by the courts as a stranger, giving the legal parent an absolute right to deny all future contact between the ex and the child.
A handful of courts take the opposite view, awarding visitation to a nonlegal parent after finding the second parent to be such a critical part of the child's life that it would be detrimental to the child not to grant at least some continuing contact with the child. These courts may call the second parent a "de facto parent" or "psychological parent," meaning that the parent has lived with the child and fulfilled every responsibility and aspect of nurturing and discipline such that the only tie not satisfied is the legal or biological one.
In addition to looking at the reality of the parent-child relationship in these situations, courts may consider the following factors in the relationship between the child and the nonlegal parent:
Married same-sex couples going through a divorce, theoretically, should have the same protections as opposite-sex couples when it comes to child custody and visitation. However, as discussed earlier in this article, there are still discrepancies throughout the United States on how courts handle these issues. If you're contemplating a divorce, but you're worried about your rights as a parent, speak with an experienced attorney in your state before you file your paperwork.
If you've committed to joint parenting but can't adopt (or choose not to), the first thing you should do is write up a parenting agreement. The agreement should specify that, although only one of you is the legal parent, you both consider yourselves parents of your child, with all the rights and responsibilities that come with parenting. Include language that clearly states your intentions to continue co-parenting even if you end your relationship.
It's also wise to go further and cover financial issues, as well as the legal parent's intention to provide the second parent with generous visitation, access to school and social events, and so forth, in the case of a break-up.
If the unfortunate does occur and you split up, honor your agreement. You've both agreed to co-parent without the legal advantages and protections of adoption, so it's up to both of you to put your differences aside and make your child's needs a priority. If you can't resolve the issues amicably, you must take your chances with your state's court system. The outcome of such a battle is anything but certain.
]]>I work in a large office where most of us are in cubicles. One of my coworkers frequently makes homophobic comments. I'm a gay man, married to my partner of many years, and completely open about it. My coworker knows this and never makes derogatory comments about me. In fact, our working relationship is okay. But he often makes comments about "fairies" and "queens," acts in a mocking effeminate manner (with a limp wrist and a catty tone), and jokes about gay sex. We all ignore him, but that hasn't stopped the commentary. What should I do to stop this?
What's true on the playground is true in the cubicle farm: Peer pressure and social shaming are very powerful tools to change behavior. Unless you feel that you're at risk of being harmed or you're otherwise uncomfortable with a confrontation, the best way to get a workplace harasser to stop is to state, plainly, that you want him to do so.
Talk to your coworkers about his behavior. Are others offended? Would they like the juvenile comments to stop? If so, plan a conversation with a small group of your office mates and the harasser. You might want to plan it for a lunch or after-work meeting, to create the best opportunity that he will really hear what you are saying. At the meeting, explain that his comments are offensive and unprofessional and that you are personally insulted by them. Allow your coworkers to say what they want about the situation, too.
Hopefully, the harasser is just stuck in some kind of childhood time warp and didn't realize how inappropriate his workplace behavior had gotten. You may well find that he offers an embarrassed apology and that's the end of it.
If not, however, it's time to consider escalating your complaint. For example, if your coworker is belligerent, makes additional homophobic comments at the meeting, or simply doesn't stop his offensive behavior, you should go to your company's HR department. (This should be your first step if you don't feel safe or comfortable approaching the harasser in the first place.)
Before you head to HR, find out whether your state protects employees from discrimination based on sexual orientation. Believe it or not, in these days of rapidly expanding gay rights and same-sex marriage, it is still legal, under federal law, to discriminate against employees based on their sexual orientation.
While the federal Equal Employment Opportunity Commission (EEOC) interprets Title VII of the Civil Rights Act as forbidding sexual orientation discrimination, this interpretation is not necessarily binding on the courts. (Learn how to file a charge of discrimination with the EEOC.)
You might enjoy more protection from discrimination under state and local laws. A number of states and hundreds of municipal and local governments have passed laws prohibiting sexual orientation discrimination. To find out the rules in your state, select it from the map at Lambda Legal's "In Your State" page; you can look up local rules for your area at the website of your city or county government.
Whether or not you are legally protected from this type of harassment, many employers have policies in place that prohibit sexual orientation discrimination and harassment in the workplace. If your employer has such a policy, they should take immediate steps to put a stop to the harassment.
Hopefully, your company will do the right thing and bring your coworker into the 21st century. If not, it's time to consider talking to a lawyer to find out how best to protect yourself and assert your rights.
]]>First things first. If you’re an unmarried couple, regardless of whether you’re an LGBTQ couple or not, creating a solid estate plan may have added urgency for you. An estate plan can ensure that your relationship is recognized after one of you dies, and that the surviving partner has access to as many of the benefits of surviving spouses as possible.
A will or living trust is the heart of any estate plan. A will in particular is a simple and relatively inexpensive document that you may be able to make yourself. With a will, you can:
If you die without a will or living trust, your state’s laws of intestate succession will determine who inherits from you, and your partner of many years can end up with nothing.
You can make a simple will or living trust yourself with WillMaker & Trust. If you want a more complicated document, see a lawyer for help.
Probate is the court process of wrapping up your estate after you die. Probate can be a long and expensive process, and it's rarely a benefit to your heirs. Avoiding probate may be more complicated for unmarried couples because, in most states, they can’t take advantage of laws that allow property to pass to spouses without probate.
You can avoid probate by using these estate planning tools:
Additionally, most states have simplified probate procedures for small estates. So if you don’t have much property, you might not need to plan for probate at all. Learn more about Probate Shortcuts in Your State.
Health care directives let you set out your wishes for end-of-life health care, in case you can’t speak for yourself. There are two pieces to a health care directive:
In some states, there two parts are actually two separate documents, while in other states, these two parts are combined into one.
When you make a health care directive (or power of attorney for health care), you can designate your partner as the person you want making health decisions for you in the event you become incapacitated. This is especially useful if your family is unaware of, or has not fully accepted, your relationship, as it gives your partner the legal authority to make medical decisions on your behalf.
Learn more about Health Care Directives.
With a financial power of attorney, you give another person power over your finances. Again, if you anticipate incapacity, or just want to make sure that your partner has the legal authority to take care of your finances in case of emergency, consider making a durable power of attorney for finances.
Learn more about how Health Care Directives and Financial Powers of Attorney can work together to protect you and your partner.
Most people don't have to worry about federal estate taxes. (If you die in 2024, only estates worth more than $13.61 million will owe federal estate taxes.) State estate taxes, on the other hand, affect more people. However, not all states impose a state estate tax. Find out whether your state has an estate tax.
With federal estate taxes, all assets left to a surviving spouse—including a validly married spouse of the same sex—are exempt from federal estate tax. But if you're not married, the surviving partner won't have this benefit. State estate tax rules vary. If you're worried about estate taxes, you can see a lawyer or tax professional to discuss ways to reduce them.
As part of your estate plan, you and your partner should also consider making final arrangements documents. In this document, you can specify your wishes, in as much detail as you choose, about:
While this document is not legally binding, it can come as great relief to those who must take care of these details after you die. Knowing what you wanted can calm concerns and put to rest any questions about your final wishes. This may be of particular help to your partner if you anticipate that other people in your life may have strong opinions about how to lay you to rest, or if you anticipate friction when your partner tries to assert your wishes.
You can easily create a final arrangements document using WillMaker & Trust. In addition to helping you make a will, simple living trust, healthcare directive, and financial power of attorney, WillMaker walks you through all of the issues listed above to arrive at a final arrangements document with as much or as little detail as you like about your final wishes.
Read more about Estate Planning for Unmarried Partners.
Even if you’re a married LGBTQ couple, you might want to consider whether a few additional estate planning issues apply to you.
While certainly everyone should keep the beneficiary designations on their bank, retirement, and IRA accounts and life insurance policies up-to-date, LGBTQ couples in particular should make a point of checking that their beneficiary designations are current. Why? Many people remove ex-partners as the beneficiaries of their accounts when they get divorced. Divorce, with its legal procedures for unraveling a relationship, acts as a natural point for people to reevaluate their estate plans and beneficiary designations. However, because same-sex couples were not universally able to get married before the Supreme Court decision in 2015, break-ups often did not involve an official divorce. Without this built-in reminder to unwind assets and check beneficiary designations, you might have left an ex-partner named as the beneficiary to a significant asset. So double check your accounts.
Read How to Change a POD Account Beneficiary and Naming a Beneficiary for Your Life Insurance.
If you’re estranged from your family or expect family conflict over the property you leave behind, consider adding a no-contest clause to your will or living trust. A no-contest clause states that if someone (say, a disgruntled relative) challenges the validity of your will or trust in court, and then loses, they won’t inherit anything at all from you. These clauses give potential challengers pause, and may be of interest to some in the LGBTQ community, as well as anyone who anticipates family disputes after death. However, no-contest clauses aren’t enforced in every state. If you’re interested in adding a mechanism like this, consult a local estate planning attorney.
Read more about No-Contest Clauses in Wills and Trusts.
Even if you’re married, one spouse might not be the legal parent of one or more of your children. (See Gay and Lesbian Adoption and Parenting for more on this topic.) With respect to your estate plan, you’ll want to consider not only whether your children will inherit from one or both spouses, but also what will happen to your minor children if either (or both) of you die. If your family situation is complicated, consider looking for a family law or estate planning attorney.
Read more about Leaving an Inheritance for Children.
Learn more about legal issues affecting same-sex couples in the LGBTQ Law section of Nolo.com.
]]>My name was drawn in this year’s diversity visa lottery. My girlfriend and I are talking about marriage. This will be a same-sex marriage, which is legal in my country. I’ve read that spouses can accompany DV lottery winners, but we’re not yet married. Is it too late to get married and have my new wife get a green card along with me and come to the United States together?
No, it’s not too late, assuming you can get married before your visa interview. Also, you are correct that spouses, including same-sex ones, can accompany the winner of a diversity visa lottery to the United States, on a “derivative” visa.
You don’t have to have been married on the day of your lottery “win” to claim your same-sex spouse as a derivative. The key will be that you are married before your immigrant visa or adjustment of status interview, indicate the appropriate information on the paperwork you fill out for that interview (you might need to amend what you've already submitted), and make clear that this isn’t a marriage of convenience to get your new spouse a green card.
Also, (as you mentioned is the case), you will need to be married in a state or country that legally recognizes same-sex marriage.
You might need to provide not only a marriage certificate, but documentation of your good faith marriage; that is, of your real relationship and of the fact that you are planning to create a shared life together. (There's a lot of suspicion of marriage fraud among U.S. immigration authorities.)
Be sure to act quickly no matter what you decide, however. You will need to obtain your diversity-based visa by the end of the fiscal year in which your name was drawn, or lose your chance at it, as discussed in these articles on diversity visas and green cards. See in particular, Spouses and Children of Visa Lottery Applicants Can Qualify for Derivative Green Cards.
While traveling, I met and fell in love with a native of an African country that's renowned for putting gay or LGBTQ people in prison. We’re both men, and I’m a U.S. citizen. We’ve been Skyping for months, and I'd like him to come to the U.S. and marry me. But he is backpacking around the world, and hasn’t gone back to his home country out of fear. Getting a visa based on marriage to another man would immediately “out” him and put his life in danger there. Which consulate can he go to for a K-1 fiancé visa?
You’ve asked a good question. The usual policy of U.S. consulates and embassies around the world is to process K-1 fiancé visas only for citizens and nationals of the country where the consulate is located, or for people who can show some tie to that country (for example, are living there on a long-term visa).
A backpacker who is just passing through, or who chooses to enter a country just to get a visa, won’t usually receive cooperation in arranging what's known as "third-country processing."
Fortunately, however, the U.S. State Department recognizes that gays and lesbians seeking K-1 fiancé visas are in a unique and possibly dangerous situation. Therefore, it has informally developed policies for dealing with such matters. But you’ll want to get an attorney’s help, because the process needs to be handled quickly and correctly.
You can likely start the process on your own. You’d do this in the normal way: by you, the U.S. citizen petitioner, preparing and filing a visa petition (USCIS Form I-129F) by mail to U.S. Citizenship and Immigration Services.
There’s a question on that form asking about which consulate the applicant will apply for the visa at. (It’s Part 2, Question 62 in the 3/21/22 version of the form, which expires in 2024.) You have no choice but to put your fiancé's home country consulate there, but don’t worry, the next parts of the process should take care of this.
After getting a USCIS receipt for the I-129F submission, you—or hopefully your attorney—will need to email the National Visa Center (NVC) at NVCInquiry@state.gov and include “K-1 URGENT” in the subject line. The information conveyed within the email will need to include your USCIS receipt number, your name, your fiancé's name and place of birth, and a detailed explanation of why he is afraid to travel to his home country. The email will also need to suggest up to three alternate U.S. consulates, in order of preference, where your finance would like to attend the visa interview.
To make sure your message gets through, it's also worth using the NVC's online inquiry form.
After that, the NVC will communicate with the consulates mentioned, and work out scheduling of the K-1 visa interview. Your fiancé will attend the interview and, if all goes well, be granted a K-1 visa for U.S. entry.
Another thing you might look into is which countries might grant your fiancé an entry visa. You can't just list a few countries and expect the NVC to take care of the rest. It has no way of arranging entry for someone wishing to visit a U.S. consulate there.
Again, it would be an excellent idea to get an attorney involved. The USCIS approval of Form I-129F is good for only four months, so if you’ve started this process on your own, and then don’t ensure that the rest happens quickly, you might end up having to start all over again.
A final note: You didn't mention whether he has tried to get another type of visa to the U.S., but just in case, you should read Why Can’t My Same-Sex Partner Come to the U.S. as a Tourist, So We Can Marry and Get a Green Card?.
My girlfriend is from Mexico, and I’m a U.S. citizen. She, however, has no status in the United States, having crossed the border illegally when she was in her early twenties. If we get married, can I help her become a U.S. citizen on that basis?
Your question has several important legal aspects, which we’ll try to address separately here.
First, the matter of same-sex marriage and U.S. immigration benefits: Yes, they exist, ever since the U.S. Supreme Court’s Windsor decision removed the bar to immigration rights for same-sex couples. The spouse of a U.S. citizen is an “immediate relative” in immigration law lingo, and therefore immediately eligible to apply for U.S. lawful permanent residence (a green card).
The important thing in petitioning for a same-sex spouse will be to make sure that the marriage is legal in the state and country where it takes place. If you marry in the United States, you'll need to make sure to follow any state laws (such as prohibiting marriage between close relatives or where one party is underage). However, same-sex marriage is legal across the U.S., owing to a Supreme Court decision called Obergefell v. Hodges.
Be sure to obtain a certified copy of your marriage certificate before moving forward with the immigration process.
Next, the matter of what rights a same-sex spouse, or any spouse of a U.S. citizen, gains: It’s too soon to talk about U.S. citizenship. After a successful application, you will first be approved for a U.S. green card, or lawful residence.
Also be aware that, with a marriage less than two years old at the time you submit the visa petition (Form I-130) to start the application process, your spouse will gain “lawful conditional residence” as opposed to “lawful permanent residence,” and have to submit another application (Form I-751) before the end of a two-year period to remove the conditions and become a full-fledged permanent resident. After three years of marriage and living with a U.S. citizen, a green card holder can apply for U.S. citizenship.
Now, to the most difficult part of your question: your girlfriend’s undocumented status. Because she entered illegally, and assuming she has been in the U.S. for more than six months, she’s likely got an inadmissibility problem, as described in Consequences of Unlawful Presence in the U.S.--Three- and Ten-Year Time Bars.
That means that, although technically eligible for the green card, she probably won’t be allowed to stay in the U.S. to apply for it, although she can still apply for it at a U.S. consulate in Mexico. But before leaving the U.S., she'd want to apply for what's called a "provisional waiver," if she qualifies for one. Leaving the United States without it could risk being prohibited from return for three or ten years. And the waiver needs to be based on extreme hardship to her U.S. permanent resident or U.S. citizen spouse (that’s you) and/or parents. See the Inadmissibility and Waivers section of Nolo’s website for details.
You’re in a situation where there might be no risk-free option available for your new spouse’s application for U.S. immigration benefits, which you would be best off discussing with an experienced immigration attorney.
Yes. In a landmark decision in 2015, the United States Supreme Court ruled that same-sex couples have the right to marry anywhere in the United and that all states must recognize same-sex marriages legally performed in other states. (Obergefell v. Hodges, 576 U.S. 644 (2015).)
The Respect for Marriage Act, a federal law passed in 2022, requires states to recognize same-sex and interracial marriages across state lines. The law also guarantees same-sex and interracial couples federal marriage benefits.
No. In two decisions, the U.S. Supreme Court has ruled that people who object to same-sex marriage can't be forced to do business with gay or lesbian couples.
First, in Masterpiece Cakeshop v. Colorado Civil Rights Comm'n., 584 U.S. ___ (2018), a Colorado law said that people and businesses offering services to the public couldn't discriminate based on sexual orientation. A baker—the owner of Masterpiece Cakeshop—refused to bake a wedding cake for a gay couple, because he objected to same-sex marriage for religious reasons. The Court decided that Colorado's law, as applied to the baker, violated the First Amendment free exercise of religion clause. The baker couldn't be forced to bake wedding cakes for same-sex couples.
More recently, in 303 Creative LLC v. Elenis, 600 U.S. ___ (2023), a Colorado website maker objected to making websites for same-sex weddings because, she said, same-sex marriage is contrary to her religious beliefs. She asked the courts for an order preventing Colorado from enforcing its anti-discrimination law against her. The Court agreed that the law was unconstitutional, but for a different reason than in Masterpiece Cakeshop.
Forcing the website maker to create websites for gay or lesbian weddings would compel her to deliver a message—approval of same-sex marriage—that she opposed. Drawing on a long line of decisions prohibiting compelled speech, the Court found that Colorado's law violated the First Amendment free speech clause.
In short, if a business owner objects to doing business with gay or lesbian couples on religious or free speech grounds, the Court says the Constitution protects their right to discriminate. Otherwise, anti-discrimination laws should protect same-sex couples as they do opposite-sex couples.
Not anymore. Now that same-sex marriage is legal in every state, all married couples are treated the same by the IRS. Same-sex couples who are married can potentially benefit from any tax rules where marriage is a factor, including:
Legally married same-sex couples can file taxes in one of two ways—married filing jointly or married filing separately. To find out which is better for you, check out: Should married people file jointly or separately?
On a state level, same-sex married couples can file joint state tax returns in all states, even states that previously banned gay marriage. If you have questions about federal or state tax filings, you should talk to an experienced tax professional or lawyer.
Domestic partners are unmarried couples (of the same or opposite sex) who live together and register their relationship with the government to receive the same legal rights as married couples.
As of 2022, only a handful of states recognize domestic partnerships. A few others recognize civil unions. All states allow for same-sex marriage.
Domestic partner benefits vary, but can include things like:
Learn more about domestic partnerships and whether they are available in your state.
Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) people have adopted children for decades, but they do face some roadblocks.
Now that same-sex marriage is the law of the land, individuals can adopt their same-sex spouses’ biological children through stepparent adoption laws. For example, let’s say a woman named Stephanie gives birth to a child conceived with donor sperm. Stephanie’s wife can apply to adopt Stephanie's biological child through stepparent laws nationwide. If Stephanie and her partner aren’t married, her partner can petition for second-parent adoption in states that allow it.
Some states allow LGBTQ couples to adopt children jointly, making both parents legal parents at the same time. Usually, these adoptions are done through domestic or international adoption agencies or independently (where the adopting parents deal directly with the birth parents or through an intermediary, like an attorney).
While same-sex couples, especially married same-sex couples, have more opportunities than ever to adopt, some private and religious adoption agencies refuse to place children with LGBTQ families. In 2021, the U.S. Supreme Court said that a Catholic foster care agency may ban same-sex couples from fostering and adopting. (Fulton v. The City of Philadelphia, 141 S.Ct. 1868 (2021).)
Learn more about gay and lesbian adoption and parenting.
Just as same-sex couples have the right to marry in every state, they also have the right to divorce in every state. Same-sex couples must follow the same divorce processes as opposite-sex couples in their state, including rules related to:
Learn everything you need to know about same-sex divorce.
The process for ending a domestic partnership varies in the handful of states that recognize domestic partnerships. In some states, domestic partners might simply be able to file a request to terminate the partnership with the Secretary of State. In other states, partners must go through a process similar to divorce proceedings.
Couples with questions about how to end their marriage or domestic partnership—especially ones who are married or registered in more than one place—should talk to a divorce attorney who has experience working with same-sex couples.
Even though the Supreme Court legalized same-sex marriage in 2015, many questions remain for same-sex couples who are unmarried or in civil unions or domestic partnerships. And parenting rights for same-sex couples still vary depending on the couple's relationship status and state laws.
You can also find the latest information about legal issues affecting same-sex couples and their families at Lambda Legal.
For years the U.S. Congress, as well as U.S. Citizenship and Immigration Services (USCIS) insisted that heterosexual marriages were the only ones that counted for immigration purposes. A law called the "Defense of Marriage Act" or DOMA had defined “marriage” as between a man and a woman, with the result that only heterosexual partners could petition for a green card for their foreign-born spouses.
However, as a result of the U.S. Supreme Court's decision in United States v. Windsor, same-sex foreign spouses of U.S. citizens and permanent residents became eligible to apply for green cards. The Court held that DOMA violated the equal protection guarantee of the U.S. Constitution and that the federal government cannot discriminate against married lesbian and gay couples for the purposes of determining federal benefits and protections.
The bottom line is that any same-sex marriage that is legally recognized in the United States or in the country where it took place counts for U.S. immigration purposes.
In order to successfully get a green card, all applicants must make it through USCIS’s multi-step process. To start matters, the U.S. citizen spouse must fill out a petition on USCIS Form I-130.
Just like a same-sex couple, you’ll have to prove that your marriage is legally valid in the place it occurred. After the Supreme Court’s later decision in Obergefell v. Hodges, all states must recognize same-sex marriages performed anywhere within the United States. Thus, if you and your spouse were married within the U.S., meeting the legal-marriage requirement isn’t a problem. The USCIS also recognizes same-sex marriages that took place outside the United States, as long as the marriage is legally recognized in the country in which it occurred.
However, many countries still don’t recognize same-sex marriage. In some of these countries, travel might be difficult for the foreign spouse, making it particularly difficult to enter into a legally recognized marriage. (It’s important to make sure that you don’t try to get around this problem by getting a tourist visa to enter the U.S.—this could be considered visa fraud, and could result in denial of a green card. See the discussion below about fiancé visas.)
In most circumstances, you can prove legal marriage by presenting a copy of your marriage certificate. Note that USCIS usually requires that you have a certificate created by an official governmental agency rather than a church or other nongovernmental entity. If you’re married abroad, see what your options are for getting a certificate that’s officially recognized, registered, or issued by a governmental agency.
Another requirement for a marriage-based green card is that the marriage is “bona fide”—meaning you didn’t get married simply to provide the non-citizen with a pathway to citizenship. USCIS typically requires all couples to provide copies of documents such as photos of the wedding, letters, bills or statements showing you live together, and children’s birth certificates.
If your foreign-born fiancé is out of the country, but you want to get married in the United States, your best option is probably to get a K-1 fiancé visa. A K-1 visa allows your fiancé to spend 90 days in the United States. While your fiancé is in the country, you can get married, and then apply for “adjustment of status,” in other words, U.S. lawful conditional residence.
The legal requirements for getting a K-1 visa for same-sex couples are the same as those for different-sex couples. Perhaps most importantly, you must intend to get married. The U.S. government will require more than just a general goal of tying the knot—you’ll have to provide evidence of plans, such as reservations for a venue or an appointment to appear before a judge. It’s a good idea to make sure your plans are flexible, though, because there’s no guarantee of how long it will take to get approved for the fiancé visa.
You’ll also have to demonstrate that you and your intended spouse have met in person within the two years immediately before filing the I-129F petition for the fiancé visa. Finally, you must legally be able to marry. Being a same-sex couple is no longer a barrier to getting a legal marriage in the U.S., but you’ll want to make sure that you meet all the other requirements for getting a marriage license.
For more information, check out Nolo’s Fiancé & Marriage Visas: A Couple’s Guide to U.S. Immigration. The USCIS also offers an online policy manual that includes a section on immigration for spouses of U.S. citizens. Finally, Nolo has an online section addressing marriage-based green cards, which goes into greater detail on many of the topics addressed in this article.
]]>So, if you financially support your partner and meet all other criteria, you might be able to file a tax return as a single person and claim your partner as a dependent.
To be able to do this legally, you must meet the following criteria.
The supporting partner must provide at least 50% of the other partner's total support for the year. Support includes food, shelter, clothing, medical and dental care, education, entertainment, and just about any expense you can think of.
You generally can't claim a person as a dependent unless that person is a U.S. citizen, a U.S. resident alien, a U.S. national, or a resident of Canada or Mexico.
The supported person's gross income can't exceed a certain amount for the year. (See IRS Publication 501, Dependents, Standard Deduction, and Filing Information to find out the current amount.) Nontaxable money, such as gifts, welfare benefits, and nontaxable Social Security benefits, don't count toward gross income.
Under IRS regulations, a person who lived in your home for the entire year can be considered a dependent as long as the relationship doesn't violate local law. When this rule was written, sodomy, fornication, and cohabitation were illegal in many states. Even though most states have repealed these kinds of laws, a few are still in place. If you live in one of those states, you're technically not allowed to claim the tax break. Though, consider going ahead and claiming your partner as a dependent anyway. Various court decisions have made those laws questionable at best, and the worst that can happen is that the IRS won't allow you to claim your partner as a dependent, and your tax bill will be recomputed.
If the supported person is married and files a joint tax return with a legal spouse, the supporting partner in this relationship can't claim the supported person as a dependent. There's one exception: If the married couple didn't earn enough to have to file a tax return and did so only to get a refund, the supporting partner can claim the dependent.
Review IRS Publication 501, Dependents, Standard Deduction, and Filing Information to learn more about dependents and taxes. You can get a copy of this publication by contacting the IRS at 800-829-1040 or going to the IRS website at www.irs.gov.
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