What Does a Trump Presidency Mean for Gay Dads?
Many of us are still struggling to understand the enormity of what transpired on Tuesday, November 8, 2016. It’ll be a while, still, before the fog fully dissipates.
As parents, however, we won’t have the luxury of feeling sorry for ourselves for much longer. We will soon need to clear our eyes, get to higher ground, and confront questions far too many of us dismissed as laughable over the course of the last 18 months:
What does a Trump presidency mean for our families?
It's tempting to gobble up the breadcrumbs Trump has scattered along the campaign trail for us that suggest he isn’t personally hostile towards LGBT families. After all, isn’t this the guy who suggested transgender people use the bathroom of their choice? And who mentioned the acronym “LGBT” during his convention speech? And who proudly held up a rainbow flag at a rally a couple weeks ago?
Yes, but let’s not kid ourselves. Regardless of his personal views, Trump now stands atop a party that has doubled down on its anti-LGBT agenda: The platform ratified by the Republican National Committee this past July was arguably the most anti-LGBT in history. Perhaps even more troubling are the prominent LGBT foes Trump has picked as his confidants and advisers — most notably Vice President-elect Mike Pence, who was a champion of anti-LGBT causes while governor of Indiana and is shaping up to be a formidable force in the Trump administration.
But let’s also not get despondent. Even if Trump aggressively pursues an anti-LGBT agenda, there are limits to what he can do to our families, particularly in the way they relate to our marriages and parental rights.
Is my marriage safe?
On “60 Minutes” yesterday, Trump said he considers the issue of same-sex marriage “settled,” thanks to the 2015 Supreme Court case that established a nationwide right to same-sex marriage. During the campaign, however, he promised to “strongly consider” working towards overturning marriage equality by appointing anti-marriage equality judges.
Which Trump will we get? We will soon find out.
Trump will have an immediate opportunity to fill the Supreme Court seat vacated by Justice Scalia’s death. The addition of an anti-LGBT justice will simply restore the 5-4 split on the court that led to nationwide marriage equality. If Trump is serious about a challenge to marriage equality, he will need to wait for an additional vacancy from the court’s liberal wing. That day may be sooner than we’d hope — three of the five justices who voted for marriage equality are 78 years old or older.
Still, most LGBT groups and legal advocates assume that marriage equality is safe, at least in the short term. Even if Trump is able to stack the Supreme Court with homophobic judges, the justices may not be eager to hear a new case on the matter so soon after the 2015 decision. It is exceedingly rare, moreover, for the court to reverse itself. Perhaps most encouragingly, marriage equality now enjoys support from a firm majority of the American public, with no signs of abating. The justices are often reluctant to issue sweeping decisions that are so out of step with public opinion.
But let’s continue down this dark, dank rabbit hole for a moment longer and assume Trump’s Supreme Court does effectively overturn marriage equality. What happens then?
If you are currently married, you will very likely remain so. As Shannon Minter of the National Center for Lesbian Rights wrote in a guest post for the Equality Federation, “The law is very strong that if a marriage is valid when entered, it cannot be invalidated by any subsequent change in the law. So people who are already married should not be concerned that their marriages can be taken away.”
Are my parental rights secured?
If you are legally married or have your name on the birth certificate of your children, you likely have nothing to fear. As long as same-sex marriage remains the law of the land, there are unlikely to be any specific threats to LGBT parenting rights across the country. Obergefell v. Hodges clearly states that same-sex couples should be treated the same as every other married couple — and that includes status as parents.
However, if you are a non-biological parent, you can and should take steps to ensure you have secured legal ties to your children. Well before Trump's ascendancy, family lawyers have long suggested that non-biological parents secure a formal adoption judgment from a court. In fact, even if you are married to your partner, and both of your names are on the birth certificate of your child, obtaining a second parent adoption is still the best way to shore up your parental rights.
In the unlikely event that the right to same-sex marriage nationwide is invalidated, moreover, obtaining a second-parent adoption will help assure your parental status even in localities that no longer recognize marriage equality. According to the LGBT civil rights organization Lambda Legal, this is because court judgments must be respected state-to-state, and by the federal government.
Check to see if second-parent adoption is legal in your state. If it is not, Lambda Legal suggests pursuing an adoption in a neighboring state. Other suggestions: Make sure that each child’s Social Security number record lists both parents as the child’s legal parents, and obtain a passport for each child that lists both parents as the child’s legal parents.
The integrity of our marriages and families may be safe, but this should not be interpreted as an invitation for complacency. Equality foes are already salivating at the opportunity provided by a Trump administration to attack our community. While they face an uphill battle going after issues involving marriage and parental rights, we could have challenging fights ahead of us to protect other advances made under President Obama, notably anti-discrimination policies, transgender rights and health care for our community.
And lest we fail to recognize our responsibilities for the entire LGBT community, let’s remember that we are also women, immigrants, and racial and religious minorities. Our marriages may be safe, but an attack on any of these communities is also an attack on us.
So let’s take a deep breath. Take a moment to hug your family a little bit closer. And then get back to work.