Guest Post: Recommendations in Preparation for the Next Trump Presidency

This post is a repost of an excellent analysis prepared by one of Brownstone’s favorite ART attorneys Amira Hasenbush, in collaboration with attorneys Elizabeth Schwartz, Kate Mozynski, Catherine Tucker, Heather Ross and Heather Fann.  Thank you for your leadership, Amira!

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In the wake of the election, we have been asked for recommendations on how people can protect themselves and their families.  This is a current list, which may be edited or updated as circumstances change, so please check back as needed.  Here are our current recommendations.

Marriage:

• • • If you’re legally married, you need not get married again (to the same person!). A marriage is a marriage, and there’s no benefit to entering into another marriage to prove anything. In fact, it could create confusion down the line if you had two dates of marriage.
    • Marriage equality is the law throughout the US, and even if the federal government were to refuse to recognize marriage equality prospectively, your already-existing marriage would likely remain valid. Watch this space for updates should we see changes to that expectation.
    • Similarly, if a state were to roll back its freedom to marry, and you were already validly married, it is extremely unlikely that such decisions will impact pre-existing marriages.
    • Even if the freedom to marry is impacted, such changes will not occur overnight. If you’re afraid and considering getting legally married, please take the time to think through all of the automatic rights and responsibilities that come with marriage, whether at the time of death or divorce. Be sure to prepare a nuptial agreement if you wish to modify those rights. There’s no need to act impetuously.

Parentage:

• • • If you haven’t gotten a judgment to protect your parentage (adoption or parentage judgment), do so now.  A birth certificate (even with your name listed as a parent) will not necessarily protect you fully. Some states may require a marriage to provide the adoption; others have different options based on different marital statuses.
      • If you’ve already gotten the judgment, make sure you have a certified copy somewhere safe and accessible, and I suggest you keep a scan or picture of it somewhere easy to access on your phone, along with a scan of your child’s birth certificate.
      • If you’ve already gotten a judgment, so long as your court had jurisdiction, that judgment is final and binding, no matter what happens in the future around marriage. The Full Faith and Credit Clause of the US Constitution should require that that judgment be recognized in every state in the country.

Fertility:

• • • If you have sperm, eggs or embryos in the freezer, please consult with a fertility lawyer in the state where they are cryopreserved to determine if any extra protections need to be put in place or if they advise for them to be moved out of state.
    • If your genetic material is frozen in California, double check your clinic forms and make sure that they are clear on what would happen to it in the event of death or separation.  Keep in mind that the enforceability of the clinic forms is still a legal gray area.  A California fertility lawyer can write you a contract that will be more likely to be enforceable (though still cannot be guaranteed 110% under current law).

Estate planning:

• • • If you don’t have estate planning in place – now is the time to do so: wills, trusts, nominations of guardianships, healthcare powers of attorney and advance directives.
      • Make sure that your existing children (including those in gestation) are specifically named in your estate plan and your future children are adequately described. The traditional language used by estate planners, such as “my natural and adopted children” is not sufficient for LGBTQ families.
      • Likewise, make sure that your spouse is specifically named and not just generically referred to as any spouse you may have.
      • If any person named in your estate plan is trans, make sure your estate plan reflects their correct name/gender to avoid inadvertently outing them.
      • Don’t forget to align any of the language about frozen sperm, eggs or embryos here with what you have with the clinic or any other written forms.
    • Be sure to have a health care surrogate/proxy named along with an alternate in case the first person isn’t available. Many health care facilities are faith-based, and you wouldn’t want to encounter a provider who wants to deny your spouse entry to see you without having an additional way to prove the legitimacy of your relationship. If that happens, you should most definitely get the administrator on duty to assist but in the meantime, your loved one might be in a health crisis. It is critical that you have an advance directive and healthcare power of attorney stating your intention for who should have access and decision-making authority if you should be unable to communicate for yourself. If applicable, be sure that it specifies directives regarding the continuation of gender affirming care.
    • Also double check your beneficiaries on any bank accounts, investments, retirement accounts, life insurance or accidental death policies you may have.

Gender:

• • • If you would like to amend your gender on any of your ID documents, get the federal documents updated NOW.  Changes might not be available under the new administration, but gender changes can currently be made for passport and social security without a court order.
      • US passports currently allow for a nonbinary (X) gender marker – this may get rolled back and no longer be available.  We may also be entering an era where having a nonbinary gender marker exposes you to (more) potential harassment, discrimination or other risks.  Act in the way that feels best for your individual circumstances.
      • Children of US Citizens born abroad usually have a Consular Report of Birth Abroad (CRBA) instead of a birth certificate. Get the gender marker corrected on the CRBA as soon as possible.
    • If you can get a court order affirming your gender and chosen name, do so as soon as possible.
    • If you can get your birth certificate corrected affirming your gender and chosen name, do so as soon as possible.
    • If you can get your driver’s license corrected affirming your gender and chosen name, do so as soon as possible. In many states, this is an administrative process that can be done independently of the birth certificate status and sometimes without a court order.
    • If you DO NOT have an option for correction of gender on birth certificate and/or driver license, get a passport or passport card with the correct gender marker listed right away. In most cases, you can use a passport or passport card to prove identity and US citizenship in lieu of a birth certificate.
      • Even if your state of birth will not change your birth certificate to reflect the correct gender, if you live in a state that will give you a court order of gender affirmation, that might help in your state of birth. Some state vital records offices will honor out of state court orders even if their own courts do not provide them.
    • If your child is trans and cannot get a corrected birth certificate, you will want a legal document that identifies the parent-child relationship without outing your child. Consider getting a gender neutral or correctly gendered court order such as an adoption order or a parentage order (sometimes called parentage judgment) that correctly identifies your child’s chosen name and gender.
    • In California, in addition to updating your own birth certificate to reflect your chosen name and gender, you may also be able to update your child’s birth certificate and/or your marriage certificate.

We’ve been through this before, and we will get through it again. Please remember to reach out to your loved ones, hold them close, and take time to breathe and take care of yourself. We are not going anywhere.