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Know the laws in your state that protect LGBT people and people living with HIV.
December 1, 2016
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Understandably, we have been getting a number of questions to Lambda Legal’s Help Desk and through social media about what might happen once President-elect Trump is in office.

We’ve broken it down into four categories:

Don’t Worry (Too Much)

Will marriage be taken away from us as soon as President-elect Trump is in office? Should we hurry to marry immediately?

Supreme Court decisions don’t disappear overnight. The Court is extremely unlikely to reconsider the two recent landmark marriage decisions vindicating the fundamental right to marry and to have one’s marriage treated equally by our federal and state governments.

Of course there are many other issues of importance to the LGBT community that are before the Court now or likely to be so in the next few years. So the composition of the Court is of great importance to us, and we are gravely concerned about the outcome of the election because of its implications for the Supreme Court.

However, even if the balance of the Court shifts in the next few years, we are optimistic that the Court will refuse to reconsider the footing of its recent marriage decisions simply because courts are reluctant to reverse themselves too soon. Additionally, these decisions enjoy significant popular support.

Thus, if you married somewhere marriage was legal at the time of your ceremony, you're still married. And you'll stay married as long as you want. If you legally married in Canada, or prior to the Supreme Court's marriage decision, or in a state other than the one in which you currently live, you do not need to get married again, and there is no reason to worry that your marriage will be taken away any time soon.

If you are in a registered domestic partnership or civil union, wondering whether to marry, here are some things you should consider. Registered domestic partnerships and civil unions are not recognized under federal law as marriages. Couples in domestic partnerships and civil unions are not eligible for the vast majority of the federal protections, responsibilities, and access to federal programs afforded to legally married couples (whether same-sex spouses or different-sex spouses). There are more than 1,100 places in federal law where a protection or responsibility is based on marital status. A few key examples include access to Social Security survivors’ benefits; the option to use family medical leave to care for a spouse; the opportunity to sponsor a foreign-born spouse for citizenship; access to veterans’ spousal benefits; spousal health insurance for the spouse of a federal employee; and the ability to file federal taxes as a married couple. Reasons not to get married could include concerns about how household income would be determined if either or both members of a couple receives public assistance, or a desire to adopt a child from a country that may not approve adoptions of same-sex spouses.

Even though the Court is extremely unlikely to take away your marriage, there are ways short of reversing a marriage decision in which the new administration could make life harder for same-sex spouses and their children, such as by permitting discrimination against these families in some contexts. It is also possible that the new administration could reduce the respect given by federal government agencies to the marriages of same-sex spouses.

We will fight back against any such unconstitutional efforts to treat same-sex spouses and their children differently. If you feel that you have encountered unequal treatment, we want to hear from you.

The Obama administration’s guidance protecting trans youth in schools will likely go away now right? What does that mean for trans students?

The Obama administration’s guidance protecting transgender youth is based on federal law and established court decisions. Those decisions are legally solid and cannot be changed by the Trump administration.

Title IX, a 1972 federal law banning sex discrimination in public schools remains in effect, but there are state and local laws in many parts of the country that also help protect transgender students. For years now, Lambda Legal and many others have been helping school administrators understand their responsibilities to transgender and gender-nonconforming students, and to all students, and sometimes suing school districts that discriminate. We are continuing that work as vigorously as ever, and we invite any students who encounter discrimination to contact our Legal Help Desk for information about steps they can take.

I’m 15 and I have heard that Vice President-elect Pence believes LGBT kids can be cured with conversion therapy — will they make me do it?

No. So-called “reparative” therapy or “conversion” therapy is a widely rejected practice. The leading medical and counseling organizations all agree that attempting to change someone's sexual orientation or gender identity is baseless and potentially dangerous.

Professional groups opposed to conversion therapy include the American Medical Association, American Academy of Pediatrics, American Counseling Association, American Psychological Association, National Association of Social Workers, and the American Psychiatric Association.

In addition to the District of Columbia, several states have outlawed conversion therapy for minors:

  • California
  • Illinois
  • New Jersey
  • Oregon
  • Vermont

One conversion therapy business was successfully sued for consumer fraud. In sum, most licensed professionals would be violating their professional obligations and risking their licenses if they engaged in conversion therapy. But some unlicensed people are still trying.

A Note to Parents: Efforts to change a person's sexual orientation or gender identity have been linked to depression, shame, decreased self-esteem, social withdrawal, substance abuse, self-harm and suicide. For young people, who are often subjected to these practices at the insistence of parents who don't know or don't believe that the efforts are harmful, the risks of long-term mental and physical health consequences are particularly severe.

Will the hospital visitation policy be affected by a Trump administration?

Take steps to protect yourself. The Obama administration’s policy confirms that hospitals receiving federal funding, which is most of them, must permit visitors according to patients’ wishes as expressed verbally when patients can do so or in pre-written documents, unless there are nondiscriminatory medical or other reasons for limiting visitation. That policy is consistent with state laws and should remain in place under a Trump administration.

Whether the new administration acts in this area or not, it remains important to have legally enforceble written documents like a health care proxy or medical power of attorney and a living will stating your wishes about medical care and decision-making and about who may visit you. No change in federal policy could undermine these documents.

I am living with HIV and currently have my health insurance through Obamacare. What happens to me if it’s repealed?

No one knows for sure what will happen, but Obamacare is likely to be repealed. It may or may not be replaced with something that ensures that people with pre-existing conditions are able to obtain health insurance. Regardless, the best thing a person living with HIV can do is get enrolled in health insurance now—if you have health insurance if/when Obamacare is repealed, you should be able to keep it regardless of any medical conditions you are living with at that time.

Also, the Americans with Disabilities Act (ADA) prohibits discrimination based on health related disabilities like HIV. So if discrimination from a health care provider occurs there may be a legal solution under the ADA.

If you experience discrimination based on your HIV status, contact Lambda Legal’s Help Desk.

I’m worried about increasing hate violence toward LGBT people. What can we do?

The President does not have power to summarily repeal the federal hate crimes statute. Doing so would take a bill passed by Congress and signed by the President. The President also has no authority to repeal state laws covering hate crimes related to sexual orientation or gender identity.

Many people fear that because of the election campaign and results, violence against the community will increase and that police will be encouraged not to take complaints seriously. Unfortunately, in many instances, this problem already exists. Discriminatory actions by law enforcement violate the federal constitutional right to equal protection of the laws.

When we know about these situations, we can try to address them, as we currently are doing in multiple cases. The National Coalition of Antiviolence Programs keeps a list of community resources throughout the nation.

Should I consider applying for Deferred Action for Childhood Arrivals (DACA) program?

Authorized by President Obama’s executive action in 2012, the DACA program grants temporary protection from deportation and lawful employment to certain undocumented individuals who came to the United States before their 16th birthday.

No one knows for sure what will happen, but the DACA program could be revoked. The new President will not be inaugurated until January 20, 2017, and until then DACA will remain in place, and initial and renewal DACA requests will be processed. We do not know what immigration officials might do with information that DACA applicants submit.

If you do not have DACA and are considering whether to apply for it: It is recommended that you do not do so at this time. Your application will likely not be adjudicated until after January 2017, and it is possible that the DACA program will no longer exist by then. At this point, submitting an initial DACA application may result in no benefit and risk exposure to immigration authorities.

Please speak with an immigration attorney or a Board of Immigration Appeals–accredited representative if you are considering submitting a DACA application.

I am a current recipient of the DACA program. What could happen to DACA? Is it safe to renew?

If you already have DACA and are considering whether to renew it: It should be ok to apply for renewal. Immigration authorities already have the information that you previously submitted with your application, so renewing DACA does not carry a new risk of exposure. Any renewals filed now may not be adjudicated before the new President is inaugurated. There is no guarantee of an adjudication or the production of a renewed employment authorization card. The total filing fees for DACA renewal will increase from $465 to $495 starting December 23, 2016. There is no refund for filing fees. Anyone traveling outside the United States on advanced parole should return before January 20, 2017, to avoid risking inadmissibility.

Bottom Line:

In addition to navigating federal issues don’t forget that state and local laws and court rulings, on issues ranging from marriage laws to protections against discrimination based on gender identity to anti-bullying measures, remain important sources of rights. Lambda Legal will continue its advocacy in courthouses and statehouses to advance and expand these critical sources of protection. 

 

Do These Things Now:

If you are transgender and your identity documents don’t reflect who you are, it is a good idea to update your documents — including any state-issued IDs, passport and Social Security record — before the new administration takes office. We have a whole Know Your Rights section on this topic,

If you are a same-sex couple raising children, it’s important that both parents have secure legal ties to your children. If you have not done a second-parent adoption or a joint adoption, that may be an important step to take now if it’s possible in your state. A formal adoption judgment from a court can give important security -- even if both parents’ names are already on each child’s birth certificate -- because court judgments must be respected state-to-state and by the federal government. If you are not married, and if your state does not permit a formal adoption judgment for unmarried parents, we suggest you seek a parentage order in states where that is possible. Other suggestions include making sure that each child’s Social Security number record lists both parents as the child’s legal parents, and obtaining a passport for each child that lists both parents as the child’s legal parents.

Get your life planning documents in place. Create or update your medical power of attorney or health care proxy and living will. The hospital visitation policy put in place by the Obama administration is consistent with state laws and should remain in place under a Trump administration. No change in federal policy can undermine these documents. It is important to have these legally enforceable written documents stating your wishes about medical care and decision-making, and about who may visit you.

 

How You Can Help:

We’ve heard from so many people who want to know what they can do to help all of us get through these next four years together. Here are three things:

Donate and ask your friends to donate.

We are going to need all the resources we can muster to protect LGBT people and people living with HIV. We have offices located across the country and are ready to defend the progress we’ve made and find new ways to continue the process of positive change.

Tell all your friends about Lambda Legal and our Legal Help Desk. Invite them to like our Facebook page and follow us on Twitter—we share all our breaking news and Know Your Rights information there.

Share this FAQ on Facebook and Twitter.

 

If You Need Help

If you have experienced discrimination please call Lambda Legal’s Help Desk.

If you feel you are in crisis and need someone to talk to: Crisis Text Line

Suicide hotline: 800-273-8255
Trans crisis hotline: 877-565-8860
LGBTQ+ youth (Trevor Project) hotline: 866-488-7386

AFSP

Dedicated to advancing our knowledge of suicide and our ability to prevent it. AFSP’s activities include supporting research projects, providing information and education about suicide and depression, and supporting programs for suicide survivor treatment, research and education.

CenterLink: The Community of LGBT Centers

Exists to support the development of strong, sustainable LGBT community centers and to build a unified center movement.

GLSEN

The Gay, Lesbian and Straight Education Network strives to assure that each member of every  school community is valued and respected regardless of sexual orientation or gender identity/expression.

The National Coalition for LGBT Health

Committed to improving the health and well-being of LGBT individuals and communities through public education, coalition building and advocacy that focus on research, policy, education and training.

PFLAG

Parents, Families & Friends of Lesbians & Gays is a national nonprofit organization with over 200,000 members and supporters and over 500 affiliates in the United States.

SIECUS

The Sexuality Information and Education Council of the United States was founded in 1964 to provide education and information about sexuality and sexual and reproductive health.

Soulforce

The purpose of Soulforce is freedom for LGBT people from religious and political oppression through the practice of relentless nonviolent resistance.

Suicide Prevention Resource Center

Provides prevention support, training and resources to assist organizations and individuals to develop suicide prevention programs, interventions and policies, and to advance the National Strategy for Suicide Prevention.

The Trevor Project

The leading national organization providing crisis intervention and suicide prevention services to LGBTQ youths.

RAINN

800-656-4673

The Rape, Abuse & Incest National Network is the nation's largest anti-sexual violence organization and also carries out programs to prevent sexual violence, help victims, and ensure that perpetrators are brought to justice.