Fact Sheet

Preguntas y respuestas

Actualizado el 9 de Julio de 2015.

Nota: Este documento está creado para proveer información para parejas del mismo sexo que consideran casarse en el estado de California. Por ningún motivo debería considerarse como asesoría legal. Debe hablar con un abogado para una consulta legal en torno a su asunto particular.  

This FAQ was prepared by American Civil Liberties Union, Center for American Progress, Family Equality Council, Human Rights Campaign, Lambda Legal, National Center for Transgender Equality, National LGBTQ Task Force Action Fund, SAGE and Transgender Law Center.

I. GENERAL QUESTIONS

1. Who will be protected under the Equality Act?
The Equality Act protects lesbian, gay, bisexual, transgender (LGBT) and gender nonconforming people based on their actual or perceived sexual orientation or gender identity from discrimination. It also updates the law to add protections from discrimination on the basis of sex where those protections are not already in existing law. It also includes protections for those who associate with others who are targets of unlawful discrimination (for example, children of LGBT people).

2. What does the Equality Act do?
The Equality Act prohibits discrimination based on an individual’s sexual orientation or gender identity at work and in the context of housing, credit, education, and jury service. It also prohibits discrimination based on sexual orientation, gender identity, and sex in programs that receive federal funding and places of public accommodations, while also expanding the list of protected places of public accommodations to include retail stores, transportation services like airports, taxis and bus stations, and service providers like accountants.

3. Why is the Equality Act necessary?
LGBT people across the country remain vulnerable to discrimination on a daily basis and too often have little recourse. In many states, same-sex couples have the right to marry but have no explicit non-discrimination protection under state law. The current patchwork of protections for LGBT people across the country is inadequate. Every person, every employer and every business should know that discrimination is wrong and illegal, no matter where they live or work. LGBT people and their families need clear, consistent protections against discrimination under federal law.

4. Who supports the Equality Act?

• The American Public - Polls have consistently shown overwhelming support for the principle of equal job opportunities for LGBT people. A recent poll shows 7 out of 10 Americans support a comprehensive non-discrimination bill that provides protection on the basis of sexual orientation and gender identity (Greenberg Quinlan Rosner Research poll, March 2015).
• American Business - Corporate America knows that basic fairness is good for business. 89% of Fortune 500 companies have non-discrimination policies that include sexual orientation, and 66% also cover gender identity. Additionally, 66% of small businesses believe that business owners shouldn’t be able to deny goods or services to someone who is LGBT based on religious beliefs, and eight in ten entrepreneurs say they would support a federal law banning discrimination against LGBT people in public accommodations and employment (Greenberg Quinlan Rosner poll, July 2015).

5. Is it true there is no effective recourse for discrimination against LGBT people under existing laws?
While we have made some progress, LGBT people still lack a clear and secure guarantee that the law protects them. The Equal Employment Opportunity Commission and a growing number of courts have recognized that both sexual orientation and gender identity discrimination are forms of unlawful sex discrimination. But there is not yet a clear and explicit federal law that protects LGBT people—and there is no protection at all in key areas such as public accommodations and jury service. This means that LGBT people across the country remain vulnerable to discrimination on a daily basis and too often have little or no recourse. While protections under existing law are important, each employee should not need a lawyer to help get or keep a job – every person and every employer should know that discrimination is wrong and illegal.

Without comprehensive federal protections, the basic rights of LGBT people vary state to state. In some instances, individuals lose rights and protections the moment they cross the border into a neighboring state. Only 22 states have clear laws barring discrimination based on sexual orientation in employment and housing, and a mere 19 states have such protections for transgender individuals. In the context of public accommodations, only 21 states provide protections on the basis of sexual orientation and 17 on the basis of gender identity. Some municipalities have similar ordinances, but the majority of LGBT people across this country have no clear protection.
Under our current patchwork of protections, in many states a same-sex couple could legally marry one day and risk being evicted from their apartment or denied legal services the next – simply because of who they are. The Equality Act will put an end to this kind of unfair, inconsistent treatment of LGBT people.

6. Are religious entities covered under the Equality Act?
The Equality Act updates the law to add explicit protections for sex, sexual orientation, and gender identity to existing civil rights laws. It does not change the religious exemptions already in place in federal law. Those religious entities that are currently exempt will remain exempt, with regard to expressing a preference for people of their faith in employment, under Sections 702(a) and 703(e) of Title VII) and for the sale, rental, or occupancy of a dwelling owned by a religious organization for non-commercial purposes (under Section 3607 of the Fair Housing Act) will remain allowed to do so.

II. FEDERAL PROTECTIONS FOR LGBT PEOPLE

Title II Public Accommodations

1. Who is protected from discrimination in public accommodations under the equality act?
Title II of the Civil Rights Act of 1964 prohibits discrimination in places of public accommodation on the basis of race, color, religion, or national origin. The Equality Act adds protections against discrimination on the basis of sex, sexual orientation, and gender identity, which will prohibit discrimination against LGBT people and women in places of public accommodation

2. Does the Equality Act change what is considered a “public accommodation?”
Yes. In addition to the places of public accommodation like restaurants and hotels already included in the 1964 Civil Rights Act, the Equality Act updates the law to ensure that other important providers of goods and services like stores, accountants, and banks do not discriminate on the basis of any protected characteristic. Transportation providers including trains, taxis, and airlines are also included within the Equality Act.

3. Why are these protections necessary?
LGBT people and women, particularly pregnant and breastfeeding women, experience discrimination and harassment while accessing public accommodations across a wide range of contexts – including restaurants, stores, hotels, theaters, and transportation services. People of color also continue to face persistent discrimination on a daily basis in stores, salons, and in accessing transportation including car services and taxis. Whether denied service or experiencing unfair treatment or harassment, this discrimination impedes individuals from fully participating in social and public spaces. Updating the law will ensure that no one is denied the ability to fully participate in social and public spaces just because of who they are.

Title IV Desegregation of Public Education

1. Who is protected from discrimination in education under the Equality Act?
Title IV of the Civil Rights Act of 1964 currently prohibits discrimination on the basis of race, color, religion, sex, or national origin. The Equality Act adds sexual orientation and gender identity to this list of protected characteristics that cannot be used as a basis for assigning public school students to particular schools or programs within public schools. By including sexual orientation and gender identity as explicitly protected categories under Title IV, the Equality Act makes clear that individuals who have experienced discrimination in admission or enrollment at a public school or college may file a complaint with the Attorney General.

2. What schools are covered under the Equality Act?
Title IV covers all public schools including elementary or secondary educational institutions and public colleges, which include any institution of higher education or any technical or vocational school above the secondary school level that is operated by a state. Title IV does not cover private schools. The Equality Act neither alters the types of schools covered by Title IV nor applies to private schools itself.

Title VI Federal Funding
 

1. Who is protected from discrimination in federal funding under the Equality Act?
Title VI of the Civil Rights Act of 1964 prohibits discrimination in federally assisted programs on the basis of race, color, and national origin. The Equality Act adds discrimination on the basis of sex, sexual orientation, and gender identity to this list of protected characteristics. This would prohibit discrimination against LGBT people and women in federally assisted programs or services and would make denying LGBT people access to federal benefits or excluding them from a federally assisted program solely on the basis of their sex, sexual orientation, or gender identity unlawful. The bill would also ensure that both women and men are protected against sex discrimination with federal funds.

2. What entities are covered under the federal funding portion of the Equality Act?
The Equality Act only amends Title VI by including sex, sexual orientation, and gender identity as protected characteristics. Therefore, the entities covered under that title are not changed by the Equality Act. Any entity that accepts federal funding, whether through a contract, grant, award, or other form of funding, is a covered entity. Acceptance of federal funds is voluntary.

3. Why are these protections important?
LGBT people and women face widespread discrimination in employment and services from entities accepting federal funds and as recipients of federal financial assistance. The Equality Act will ensure that everyone, regardless of their sexual orientation, gender identity, or sex can participate in federal programs that are supported by taxpayers.

Title VII Employment

1. Who is protected under the employment section of the Equality Act?
Title VII of the Civil Rights Act of 1964 currently prohibits discrimination in employment on the basis of race, color, religion, sex, and national origin. The Equality Act adds sexual orientation and gender identity explicitly to that list. It codifies the protection against discrimination on the basis of sex stereotyping detailed in Price Waterhouse v. Hopkins, a landmark Supreme Court case, as well as recent decisions by courts and the Equal Employment Opportunity Commission affirming workplace protections for LGBT people. Under the Act, “gender identity” means the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth. Sexual orientation means homosexuality, heterosexuality, or bisexuality. The Act clarifies and confirms that discrimination based on sexual orientation or gender identity is a form of sex discrimination.

2. How will the Equality Act impact a business’s equal employment obligations under Title VII?
The Equality Act updates Title VII by making explicit that sexual orientation and gender identity are protected characteristics, and makes clear that discrimination against LGBT people in hiring, firing, and promotions is unlawful. It also confirms that LGBT people must have access to all federal remedies currently available under Title VII.
This will not only protect LGBT people from discrimination, but it will also help eliminate uncertainty and confusion for businesses by providing employers and employees alike with clear rules that everyone knows and can follow.

3. What does this mean for bona fide occupational qualifications?
The Equality Act does not alter the general reach and applicability of the bona fide occupational qualifications (BFOQ) defense. However, when a BFOQ is used to justify employment or training decisions on the basis of sex, individuals must be recognized as qualified in accordance with their gender identity. It is important to note that courts have deemed very few BFOQs to be permissible in practice.

4. How will the Equality Act impact sex-segregated facilities?
Under the Equality Act, companies with sex-segregated facilities including restrooms and locker rooms must provide access to gender-appropriate facilities for individuals in accordance with their gender identity.

5. What actions of an employer are covered under the Equality Act?
The Equality Act adds explicit protections against sexual orientation and gender identity discrimination to Title VII. Therefore, the same standards under existing law apply to sexual orientation and gender identity discrimination. Current law applies to an employer's decisions regarding employment and employment opportunities, such as hiring, firing, promotion, training, or compensation and benefits. The Act requires that an individual's sexual orientation or gender identity may not be a factor in such decisions.

6. What would an individual have to show to prove discrimination under the Equality Act?
The Equality Act makes clear that the same standards under existing law apply to sexual orientation and gender identity discrimination. The individual must demonstrate that the discrimination was based on a covered characteristic. For example, it is acceptable differential treatment for a company to refuse hire a lesbian who is a teenager for a full time position based on her age. However, it is impermissible discrimination for a company to refuse to hire a woman simply because she is married to another woman.
Individuals claiming discrimination bear the burden of proving that discrimination based on sexual orientation or gender identity occurred, and that they were otherwise qualified for the opportunity. The employer can present evidence to show the adverse action was taken because of some legitimate, non-discriminatory reason. For example, an employer cannot terminate an employee simply because the employee’s parent or spouse is transgender. This would be discrimination based on that individual’s association with someone who is transgender and is therefore unlawful. However, an employer retains the same rights regarding decisions pertaining to hiring, promotion, and termination that are currently available under Title VII. Thus, an employer could lawfully terminate an employee who is not performing well or is violating company policy regardless of the sexual orientation or gender identity of that employee.

7. Won’t this result in a flood of unnecessary law suits?
No. In 2013, the Government Accountability Office (GAO) issued a report surveying the number of claims filed with state authorities in 21 states and D.C. that have statutes barring employment discrimination based on sexual orientation, 17 of which (and D.C.) also barred discrimination based on gender identity. The GAO found that “the administrative complaint data reported to [the GAO] by states for 2007 through 2012 show relatively few employment discrimination complaints based on sexual orientation and gender identity.” On average, claims based on sexual orientation or gender identity were about 3-4% of the total number of employment discrimination claims. (Report GAO-13-700R, July 31, 2013). (Note: the number of states providing employment protections on the basis of sexual orientation and gender identity has risen since the GAO survey concluded.)

In 22 states and hundreds of localities across the country, employers have already been bound by laws that prohibit discrimination against at least some members of the LGBT community. Hundreds of companies have voluntarily adopted EEO policies that include sexual orientation and gender identity. If protecting LGBT employees created a tidal wave of litigation or bankrupted companies, we certainly would have seen that. Instead, non-discrimination laws can decrease the incidents of discrimination by placing both employers and employees on notice that discriminatory behavior is both unacceptable and illegal. We have seen businesses succeed and American families protected – and that should be the reality for our entire nation. Further, the Equal Employment Opportunity Commission has been accepting claims of gender identity discrimination since 2011 and of sexual orientation discrimination since 2013 for processing and voluntary resolution. The Equality Act thus codifies this existing area of sex discrimination guidance and practice, providing increased clarity for everyone.

8. What kind of relief is available under the Equality Act for employment discrimination?
The Equality Act adds explicit references to sexual orientation and gender identity within Title VII. It makes clear that the same enforcement mechanisms and remedies under existing law also apply to sexual orientation and gender identity discrimination. This means a complainant must go through the administrative mechanism of the Equal Employment Opportunity Commission. That person may then file a lawsuit in federal court and, if successful, may receive injunctive relief, such as reinstatement and/or back pay. Compensatory and punitive money damages may be received to the extent such damages are allowed under Title VII. Attorney's fees are available.

Fair Housing Act

1. Who is protected from discrimination in housing under the Equality Act?
The Fair Housing Act currently prohibits discrimination in housing by landlords and real estate companies as well as other entities, including municipalities, banks, and other lending institutions and homeowners insurance companies on the basis of race, color, religion, sex, national original, familial status, or disability. The Equality Act writes sexual orientation and gender identity into this Fair Housing Act list of protected personal characteristics. This includes protections from discrimination in the sale or rental of housing and access to brokerage services based on sexual orientation or gender identity.

2. What entities are covered under the Equality Act?
The Fair Housing Act and the Equality Act apply to direct providers of housing, which include landlords and real estate companies, as well as other entities involved with homeownership or rental. It also applies to municipalities, banks, and other lending institutions and insurance companies. It does not apply to private home owners renting a room or apartment in their own home. It also does not cover individuals seeking roommates.

3. Does the Equality Act have an exemption for religious organizations?
Yes. The Equality Act amends the Fair Housing Act without changing the religious exemption that is currently part of the Fair Housing Act. This exemption preserves the right of a religious organization or nonprofit institution operated by a religious organization to sell, rent, or occupy a dwelling that the organization owns or operates for persons of the same religion as long as it is not operated for commercial purposes.

4. Why are federal housing protections important for LGBT people?
National surveys, including a study commissioned by the Department of Housing and Urban Development show that LGBT people frequently experience discrimination when seeking to rent or purchase a home. Housing discrimination takes a variety of forms. Same-sex couples may experience discrimination when shopping for a home or renting an apartment by a prospective landlord or seller. Real estate agents may also refuse to show a same-sex couple or transgender person a home in a particular area of the city simply because of who they are.

5. Will the Equality Act require owner-occupied rental housing to comply with non-discrimination requirements?
No. The Fair Housing Act includes exemptions for both owner-occupied rental housing with three or fewer units, as well as individual roommate arrangements. The Equality Act would not alter these protections and homeowners and individuals seeking a roommate could continue to make these choices without taking the FHA into account.

Equal Credit Opportunity Act

1. What does the Equality Act mean for credit?
The Equal Credit Opportunity Act prohibits discrimination on the basis of race, color, religion, national origin, sex, marital status or age with respect to credit transactions. The Equality Act adds sexual orientation and gender identity as protected personal characteristics under the Equal Credit Opportunity Act. The Equality Act does not alter the ability of a creditor to make lawful inquiries regarding marital status, age or public assistance, or to use empirical data in determining an applicant’s credit-worthiness.

2. How are same-sex spouses treated for credit purposes under the Equality Act?
The Equality Act amends the Equal Credit Opportunity Act to recognize all spouses including those who are of the same-sex consistent with the U.S. Supreme Court decision in Obergefell v. Hodges.

Jury Selection and Service Act

1. Who is protected from discrimination in jury service under the Equality Act?
The Jury Selection and Services Act currently ensures that citizens cannot be excluded from jury service simply on the basis of race, color, religion, sex, national origin, or economic status. The Equality Act adds sexual orientation and gender identity as protected characteristics under § 1862 of the Jury Selection and Services Act.

2. What courts are covered by the Equality Act?
The Jury Selection and Services Act only prohibits discrimination in the context of federal courts.

3. Why is jury service important for the LGBT community?
The right to an impartial jury of one’s peers and the right to serve on a jury are basic rights included in the Bill of Rights. These are fundamental and foundational to the fairness we expect and deserve from our legal system and democracy. The LGBT community has a long history of experiencing discrimination when being considered for jury service, and also as litigants, witnesses and lawyers in cases decided by biased juries that lacked openly LGBT members. Routine exclusion of LGBT people from jury service too often results in a miscarriage of justice.

III. MISCELLANEOUS QUESTIONS

1. Why does the Equality Act need to protect people who are perceived to be gay or transgender?
Individuals who are perceived to be gay or transgender, but who are not, often face the same discrimination experienced by LGBT people. Therefore, it is necessary for the Equality Act to cover these individuals. Similar discrimination occurs based on mistaken perceptions about race, national origin, and religion, thus the Equality Act ensures that anyone who experiences discrimination because of others’ mistaken perceptions about them has grounds to remedy the discrimination.

2. Why does the Equality Act protect people who associate with LGBT people from discrimination?
Like the Fair Housing Amendments Act and the Americans with Disabilities Act, which prohibit discrimination against those who associate with people with disabilities, the Equality Act prohibits discrimination against people who associate with LGBT people. Heterosexual people, including parents and siblings of LGBT people, are often subject to harassment and other discrimination at work and in public accommodations because of their association with their family member or friend. Children of LGBT people also face discrimination and harassment at school, in clubs, and in places of public accommodation including parks. Such individuals are not perceived to be gay or transgender themselves (and therefore, would not be covered on that basis), but rather, are discriminated against solely because of their association. The Equality Act also clarifies existing law to ensure that these protections apply to anyone who experiences discrimination because they associate with someone of a different race, sex, religion, or national origin.

3. Why does the Equal Act address the Religious Freedom Restoration Act (RFRA)?
The federal government has a well-settled compelling interest in eradicating discrimination through robust enforcement of our non-discrimination laws. That means businesses covered by federal civil rights laws should not be able to use RFRA to discriminate, but we should not leave that as an open question for the courts. Making this explicit ensures that the federal government doesn’t have to defend non-discrimination laws against businesses that want to engage in harmful discrimination, including at the taxpayers’ expense.

4. Why are the terms “Sexual Orientation” and “Gender Identity” included within “Sex”?
Numerous federal courts and administrative agencies responsible for enforcing our nation’s civil rights laws, including the EEOC most visibly, have recognized both sexual orientation and gender identity as included within the definition of sex for purposes of discrimination. For example, applying Supreme Court rulings against gender stereotyping and sexual harassment, federal courts and the EEOC have determined that discrimination against an employee on the basis of sexual orientation or gender identity is in fact unlawful sex discrimination. The Equality Act recognizes and codifies these legal precedents.

The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 C.F.R. §§ 99.00 et seq.) is a federal law that protects the privacy of student educational records. FERPA gives parents certain rights with respect to their children’s educational records. These rights transfer to the student when he or she reaches the age of 18 or attends a school beyond the high school level. (34 C.F.R. § 99.4-5).

Under FERPA, students, current or former, have a right to seek to amend their school records if said records are “inaccurate, misleading, or in violation of the student’s rights of privacy.” (34 C.F.R. § 99.7(a)(2)(ii)). Transgender students wishing to change their name and gender marker on their educational records can seek such an amendment under this federal law.

You may find an HTML version of this FAQ in our Know Your Rights: Transgender hub by clicking on this link.

Couples in South Carolina have been waiting a long time to marry and, based on the actions of state officials, have been forced to wait longer than couples who live in the other states in the Fourth Circuit. Because we know that these changes can be confusing, it is likely many families will have questions about what it all means. This FAQ will provide some clarification for South Carolina residents who are ready to marry.

American Medical Association

Policy Number H-160.991, Health Care Needs of Homosexual Population

“[B]elieves that the physician’s nonjudgmental recognition of sexual orientation and behavior enhances the ability to render optimal patient care in health as well as in illness[,]” and “opposes the use of ‘reparative’ or ‘conversion’ therapy that is based upon the assumption that homosexuality per se is a mental disorder or based upon the a priori assumption that the patient should change his/her homosexual orientation.”

American Academy of Pediatrics

Barbara L. Frankowski et al., Clinical Report: Guidance for the Clinician in Rendering Pediatric Care, Sexual Orientation and Adolescents, Pediatrics, Vol. 113, No. 6 (June 2004)

Believes “[i]t is important that pediatricians be able to discuss the range of sexual orientation with all adolescents and be competent in dealing with the needs of patients who are gay, lesbian, bisexual, or transgendered or who may not identify themselves as such but who are experiencing confusion with regard to their sexual orientation…Because self awareness of sexual orientation commonly occurs during adolescence, the pediatrician should be available to youth who are struggling with sexual orientation issues and support a healthy passage through the special challenges of the adolescent years.” (p. 1827)

Notes approvingly that the American Psychiatric Association reclassified homosexuality in 1973 to state that “homosexuality [is] a sexual orientation or expression and not a mental disorder” (p. 1828).

States that “the current literature and most scholars in the field state that one’s sexual orientation is not a choice; that is, individuals do not choose to be homosexual or heterosexual…. Current knowledge suggests that sexual orientation is usually established during early childhood” (p. 1828).

Counsels pediatricians to “raise issues of sexual orientation and sexual behavior with all adolescent patients or refer them to a colleague who can. Such discussions normalize the notion that there is a range of sexual orientation” (p. 1829).

Encourages pediatricians to “[b]e supportive of parents of adolescents who have disclosed that they are not heterosexual” and “remind parents and adolescents that gay and lesbian individuals can be successful parents themselves” (p. 1830-31).

Notes that Pediatricians may wish to “[h]elp the discussion of when and how factual materials about sexual orientation should be included in school curricula and in school and community libraries” (p. 1831).

American Counseling Association

Joy S. Whitman et al., ACA Ethics Committee Opinion, Ethical issues related to conversion or reparative therapy

The belief that same-sex attraction and behavior is abnormal and in need of treatment is in opposition to the position taken by national mental health organizations, including ACA. The ACA Governing Council passed a resolution in 1998 with respect to sexual orientation and mental health. This resolution specifically notes that ACA opposes portrayals of lesbian, gay and bisexual individuals as mentally ill due to their sexual orientation.. . . In 1999, the Governing Council adopted a statement ‘opposing the promotion of reparative therapy as a cure for individuals who are homosexual.’ In fact, according to the DSM-IV-TR [the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association], homosexuality is not a mental disorder in need of being changed.”

“[T]he ACA Ethics Committee strongly suggests that ethical professional counselors do not refer clients to someone who engages in conversion therapy or, if they do so, to proceed cautiously only when they are certain that the referral counselor fully informs clients of the unproven nature of the treatment and the potential risks and takes steps to minimize harm to clients.. . . This information also must be included in written informed consent material by those counselors who offer conversion therapy despite ACA’s position and the Ethics Committee’s statement in opposition to the treatment. To do otherwise violates the spirit and specifics of the ACA Code of Ethics.”

Written informed consent material must include, for example that: “Conversion therapy assumes that a person who has same-sex attractions and behaviors is mentally disordered and that this belief contradicts positions held by the American Counseling Association and other mental health and biomedical professional associations[;]” “Conversion therapy as a practice is a religious, not psychologically based, practice[;]” “Research does not support conversion therapy as an effective treatment modality[;]” “There is potential for harm when clients participate in conversion therapy.”

Association for Lesbian, Gay, Bisexual, and Transgender Issues in Counseling (a division of the American Counseling Association), Competencies for Counseling with Transgender Clients, (Approved by American Counseling Association Governing Council, November 7, 2000)

“Competent counselors will:

• C. 1. Understand that attempts by the counselor to alter or change gender identities and/or the sexual orientation of transgender clients across the lifespan may be detrimental, life-threatening, and are not empirically supported; whereas counseling approaches that are affirmative of these identities are supported by research, best practices, and professional organizations — such as the American Counseling Association. American Psychological Association).”

“Competent counselors will:

• E. 1. Understand and be aware that there has been a history of heterosexism and gender bias in the Diagnostic and Statistical Manual (DSM). For instance, counselors should have knowledge that homosexuality was previously categorized as a mental disorder and that currently “Gender Identity Disorder” remains in the DSM.
• Know the history of how the helping professions have negatively influenced service delivery to transgender individuals, their families and significant others through heterosexism and gender bias, and specifically know the history of when “Gender Identity Disorder” was inserted into the Diagnostic and Statistical Manual (DSM) and when homosexuality was removed as a mental health disorder.”

American Psychological Association

APA Policy Resolutions Related to Lesbian, Gay, Bisexual and Transgender Issues

Resolution on Discrimination Against Homosexuals

In the Resolution on Discrimination Against Homosexuals, APA states that “[h]omosexuality per se implies no impairment in judgment, stability, reliability, or general social or vocational capabilities: Further, the American Psychological Association urges all mental health professionals to take the lead in removing the stigma of metal illness that has long been associated with homosexual orientations.”

Resolution on Lesbian, Gay and Bisexual Youths in the School

In the Resolution on Lesbian, Gay and Bisexual Youths in the School, APA “support[s] providing a safe and secure educational atmosphere in which all youths, including lesbian, gay and bisexual youths, may obtain an education free from discrimination, harassment, violence, and abuse, and promotes an understanding and acceptance of self.”

Policy on Appropriate Therapeutic Responses to Sexual Orientation

In the Policy on Appropriate Therapeutic Responses to Sexual Orientation, the APA affirms several principles that imply the APA’s opposition to conversion or reparative therapy, before noting that the APA “opposes portrayals of lesbian, gay, and bisexual youth and adults as mentally ill due to their sexual orientation and supports the dissemination of accurate information about sexual orientation, and mental health, and appropriate interventions in order to counteract bias that is based in ignorance or unfounded beliefs about sexual orientation.”

Policy on Transgender, Gender Identity & Gender Expression Non-Discrimination

As stated in the Policy on Transgender, Gender Identity & Gender Expression Non-Discrimination, the APA “opposes all public and private discrimination on the basis of actual or perceived gender identity and expression and urges the repeal of discriminatory laws and policies” and “calls upon psychologists in their professional roles to provide appropriate, nondiscriminatory treatment to transgender and gender variant individuals and encourages psychologists to take a leadership role in working against discrimination towards transgender and gender variant individuals[.]”

Sexual Orientation and Homosexuality

States that: “psychologists do not consider sexual orientation to be a conscious choice that can be voluntarily changed[;]” “homosexuality is not an illness[, i]t does not require treatment and is not changeable[;]” “psychiatrists, and other mental health professionals agree that homosexuality is not an illness, a mental disorder, or an emotional problem[;]” and re-affirms the APA’s stance against conversion therapies.

American School Health Association

ASHA Resolutions, Sexual Minority Youth In School

ASHA believes “all school personnel should demonstrate respect for the dignity and worth of all students by . . . [u]tilizing curriculum materials, teaching strategies, and school policies that do not discriminate on the basis of sexual orientation and gender identity or expression” and “[include] sexual orientation and gender identity in the sexuality education component of a comprehensive health education curriculum [.]”

ASHA Resolutions, Quality Comprehensive Sexuality Education

ASHA “expects that comprehensive sexuality education in schools will be scientifically accurate and based on current medical, psychological, pedagogical, educational and social research” and recommends “that teachers be well-trained [to demonstrate]…insight into and acceptance of their own personal feelings and attitudes concerning sexuality topics so personal life experiences do not intrude inappropriately into the educational experience[.]”

American Psychiatric Association

Position Statement and Supplement, Therapies Focused on Attempts to Change Sexual Orientation (Reparative or Conversion Therapies), 2000

Augmenting a similar 1998 position statement (below), the Association strongly criticizes proponents of conversion therapies, noting that “[t]o date, there are no scientifically rigorous outcome studies to determine either the actual efficacy or harm of ‘reparative’ treatments.”

“Even though there are little data about patients [who have undergone these treatments], it is still possible to evaluate the theories, which rationalize the conduct of ‘reparative’ and conversion therapies. Firstly, they are at odds with the scientific position of the American Psychiatric Association which has maintained, since 1973, that homosexuality per se, is not a mental disorder.”

“Recent publicized efforts to repathologize homosexuality by claiming that it can be cured are often guided not by rigorous scientific or psychiatric research, but sometimes by religious and political forces opposed to full civil rights for gay men and lesbians. APA recommends that the APA respond quickly and appropriately as a scientific organization when claims that homosexuality is a curable illness are made by political or religious groups.”

The APA further notes that “‘reparative’ therapists have not produced any rigorous scientific research to substantiate their claims of cure. Until there is such research available, APA recommends that ethical practitioners refrain from attempts to change individuals’ sexual orientation, keeping in mind the medical dictum to First, do no harm.”

Position Statement, Psychiatric Treatment and Sexual Orientation, 1998

“The potential risks of ‘reparative therapy’ are great and include depression, anxiety, and self-destructive behavior, since therapist alignment with societal prejudices against homosexuality may reinforce self-hatred already experienced by the patient. Many patients who have undergone ‘reparative therapy’ relate that they were inaccurately told that homosexuals are lonely, unhappy individuals who never achieve acceptance or satisfaction. The possibility that the person might achieve happiness and satisfying interpersonal relationships as a gay man or lesbian are not presented, nor are alternative approaches to dealing with the effects of societal stigmatization discussed.”

Position Statement, Homosexuality, 1992

States that “homosexuality per se implies no impairment in judgment, stability, reliability, or general social or vocational capabilities,” and “calls on all international health organizations, psychiatric organizations, and individual psychiatrists in other countries to . . . do all that is possible to decrease the stigma related to homosexuality wherever and whenever it may occur.”

See also Diagnostic and Statistical Manual of Mental Disorders (DSM-V), published by the American Psychiatric Association, which does not list homosexuality as a mental disorder.

National Association of Social Workers

Catherine Crisp and Yolanda Padilla, Lesbian, Gay, and Bisexual Issues Policy

“Taken to the extreme, homophobia in social workers and other practitioners can lead to the use of conversion or reparative therapies, which are explicitly condemned by NASW, the American Psychological Association (APA), the American Counseling Association (ACA), and the American Psychiatric Association” (citation omitted), and NASW further “reaffirms its stance against reparative therapies and treatments designed to change sexual orientation or to refer practitioners or programs that claim to do so” (citation omitted).

“NASW encourages the development of programs to increase public awareness of the violence and social injustice experienced by lesbian, gay, and bisexual people. Public awareness and education in schools should include information on the contributions made to society by lesbian, gay, and bisexual people.”

National Committee on Lesbian, Gay, and Bisexual Issues, NASW, Position Statement, “Reparative” or “Conversion” Therapies for Lesbians and Gay Men

Calls such therapies “misleading” and advanced through “propaganda,” and notes that “proponents of reparative and conversion therapies, such as the most commonly cited group NARTH, claim that their processes are supported by scientific data; however, such scientific support is replete with confounded research methodologies.” (citation omitted)

“[R]eparative or conversion therapies…cannot and will not change sexual orientation. Aligned with the American Psychological Association’s (1997) position, NCLGB believes that such treatment potentially can lead to severe emotional damage. Specifically, transformational ministries are fueled by stigmatization of lesbians and gay men, which in turn produces the social climate that pressures some people to seek change in sexual orientation. No data demonstrate that reparative or conversion therapies are effective, and in fact they may be harmful” (emphasis in original) (citation omitted).

Committee on Lesbian, Gay, Bisexual, and Transgender Issues, NASW, Position Statement, Gender Identity Disorder and the DSM

“Respectfully, the National Association of Social Workers (NASW) National Committee on Lesbian, Gay, Bisexual, and Transgender Issues (NCLGBTI) holds a position that Gender Identity Disorder, Gender Incongruence, Gender Dysphoria, Transvestic Fetishism and, Transvestic Disorder should not be considered as mental health diagnosis and therefore should be eliminated from the Diagnostic Statistical Manual (DSM). . . . Including Gender Identity Disorder, Gender Incongruence and Gender Dysphoria in the DSM and assigning a mental diagnosis to individuals with these conditions is misguided and harmful. More appropriate is a medical diagnosis and support for mental health and life coping issues related to the diagnosis. Also appropriate are efforts to address ignorance, intolerance, discrimination and oppression related to gender identity and expression.”

National Education Association

Teaching Manual (not policy), Strengthening the Learning Environment: A School Employee’s Guide to Gay, Lesbian, Bisexual, and Transgender Issues, 2nd Edition

Notes that “[t]he issue of GLBT content in school curricula or libraries has caused controversy and, in some cases, parental desire to opt their children out of particular courses. Schools have a great deal of discretion to control curricular content, and the courts generally have upheld schools’ refusal to allow parents to excuse their children from classes they find objectionable” (p. 18).

Additionally, “[m]ost schools do not have policies in place to address transgender or gender nonconforming youth and pursue policies or training only after a transgender student or employee enrolls or “transitions” unexpectedly. The result is often disastrous. Because of the many practical concerns that arise when accommodating gender nonconforming youth or faculty, administrators and school boards should consider the following issues in advance. . . Education: Sensitivity training is indispensable to address ignorance and fears around gender nonconformity. Policy Reform: School discrimination and harassment policies should protect people on the basis of gender identity and expression. Names/Pronouns: Schools should honor the request of a member of the school community to be called by a different name and pronoun (he vs. she) . . . For school purposes, the requester should not be required to obtain a court order or legal gender change in advance. Steps should be taken to inform staff of the requested name, which should be placed alongside the student or employee’s legal name in school records.”

Brochure (not policy), Focus On: Gays, Lesbians, Bisexuals, and Transgendered Persons, September 2006

In addressing GLBT-issues that educators face, the brochure notes that “[a]lthough it is never appropriate to discuss same gender sexuality with young children, it is suitable to discuss biases, discrimination, sexual orientation, gender identity, and diverse communities without approaching topics related to human sexuality.” (p. 1).

American Association of School Administrators

Alan L. Storm, Developing Tolerance for Gay, Lesbian Students, The School Administrator (Feb. 2000)

In tips section, recommends using “the words gay and lesbian in positive ways[,]” challenging “homophobic remarks everywhere and all the time[,]” and supporting “the creation of a gay/straight alliance . . ..”

Pan American Health Organization

Position Statement, “Cures for an illness that does not exist”

"These supposed conversion therapies constitute a violation of the ethical principles of health care and violate human rights that are protected by international and regional agreements. [They] lack medical justification and represent a serious threat to the health and well-being of affected people.” Citing “depression, anxiety, insomnia, feelings of guilt and shame, and even suicidal ideation and behaviors” as linked to efforts to change one’s sexual orientation, PAHO states that they “constitute unjustifiable practices that should be denounced and subject to adequate sanctions and penalties.”

“Professional associations should disseminate documents and resolutions by national and international institutions and agencies that call for the de-psychopathologization of sexual diversity and the prevention of interventions aimed at changing sexual orientation.” PAHO believes that “the use of positive images of non-heterosexual persons or groups, far from promoting homosexuality (in virtue of the fact that sexual orientation cannot be changed) contributes to creating a more humane and diversity-friendly outlook, dispelling unfounded fears and promoting feelings of solidarity.”

Compiled by Lambda Legal
For more information, contact:
Hayley Gorenberg, Deputy Legal Director
(212) 809-8585 (telephone)
(212) 809-0055 (fax)
hgorenberg@lambdalegal.org

La legislatura del estado de Illinois aprobó la “Ley del estado de Illinois para la protección a la libertad religiosa y la equidad del matrimonio” (Illinois Religious Freedom Protection and Marriage Fairness Act). A continuación encontrarás respuestas a las preguntas frecuentes sobre la nueva ley del matrimonio y sobre el fallo reciente que le dicta al secretario del condado de Cook a expedir licencias para el matrimonio de manera inmediata.

Por favor toma nota: Este documento únicamente brinda información general, y no fue creado para ofrecer orientación o asesoría legal sobre la situación concreta de una persona en particular. Nos encontramos frente a un campo legal en constante evolución donde sin duda existirá la incertidumbre. Estaremos trabajando de manera cercana con abogados del estado de Illinois para promover los mejores resultados. Si tienes preguntas adicionales, si te has topado con dificultades al querer obtener el reconocimiento correspondiente de tu estado civil, o si estás buscando información de contacto de abogados particulares quienes te podrían asesorar, contacta la Línea de Ayuda de Lambda Legal. También puedes contactar a la ACLU del estado de Illinois en el 312-201-9740 o por medio de www.aclu-il.org/about/requesting-legal-assistance/

It's tax season - and for married same-sex couples, it's a new world! Since the Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA), the federal government now recognizes the marriages of same-sex couples.

Filing taxes is serious business, so we have tried to answer the most frequently asked questions about it below. Unfortunately, there are still complications for couples that live in states that do NOT recognize the marriages of same-sex couples. We are still fighting for the freedom to marry across the country - but for now, here are some things you need to know.

The Hawaiʻi Marriage Equality Act of 2013 (“Marriage Act”) passed the state legislature and was signed by Governor Abercrombie on November 13, 2013. The law takes effect on December 2, 2013. Below are answers to frequently asked questions about the new law and what it means for same-sex couples who live and work in, or visit, Hawaiʻi. These answers give general information not legal advice for any specific person or circumstances. Marriage is a serious legal commitment as well as an expression of love and personal dedication. Before getting married, couples should educate themselves about the legal consequences of marriage and should consult an attorney (and possibly a financial advisor or tax professional) if they have questions about their particular circumstances. At the end of this document, you will find contact information for organizations that can answer additional questions and help you find an attorney.

WHAT DID THE MARRIAGE EQUALITY ACT DO?

The Marriage Act allows same-sex couples to exercise the freedom to marry in Hawaiʻi on the same terms as different-sex couples. This means that same-sex couples will be eligible for the full range of rights, benefits, and protections granted to married couples under both state and federal law. The Act left in place the existing civil union law and the reciprocal beneficiaries law. If you and your partner have entered a civil union or are registered as reciprocal beneficiaries and wish to remain in that status, you are free to do so. However, if you decide to marry, your civil union or reciprocal beneficiary status will be terminated automatically when you get married.

In addition, the Marriage Act reiterates constitutional rights of religious freedom for clergy and faith communities, making clear that religious societies retain control over their religious practices and are free to determine their own rules about who they will marry. It further states that religious organizations may refuse to provide goods, services, or facilities for weddings that are inconsistent with their religious tenets.

WHEN CAN WE GET MARRIED?

The Marriage Act goes into effect on Monday, December 2, 2013. According to the Hawaiʻi Department of Health, same-sex couples can begin applying for marriage licenses on that date. Visit the Department of Health website for more information about timing and requirements for marriage licensing and ceremonies. You also may call the Health Department at (808) 586-4545.

WHO CAN GET MARRIED IN HAWAIʻI?

You may get married in Hawaiʻi if you both are at least 18 years old, neither of you is currently in a marriage or civil union, or registered as reciprocal beneficiaries, with someone other than the person you plan to marry. You cannot be more closely related than first cousins and if either of you is under supervision of a conservator or legal guardian, the conservator or guardian must consent. As with different-sex couples, if you are at least 16 but not yet 18, you can marry with parental permission or a court order. And if you are just 15, you can only marry with permission from your parents and a court order. You do not need to be a Hawaiʻi resident to marry in Hawaiʻi.

CAN WE STILL ENTER INTO A CIVIL UNION NOW THAT WE HAVE THE OPTION OF MARRIAGE?

Yes. The Marriage Act does not invalidate the Hawaiʻi civil union law. Visit the Hawaiʻi Department of Health website for more information about applying for a civil union license.

On the other hand, now that same-sex couples may marry in Hawaiʻi, they no longer are eligible to register as reciprocal beneficiaries because that status is available only to pairs of individuals who cannot marry. However, reciprocal beneficiary registrations will remain valid for same-sex partners who registered as reciprocal beneficiaries in the past and do not change their legal status now.

WHAT IF WE WANT TO MARRY BUT WE ALREADY ENTERED A CIVIL UNION OR REGISTERED AS RECIPROCAL BENEFICIARIES IN HAWAIʻI?

Your existing civil union or reciprocal beneficiary registration does not limit your ability to marry the same partner. If you want to marry your current civil union partner or reciprocal beneficiary, you do not have to dissolve your civil union or registration to enter into a marriage. Once your marriage is solemnized, your civil union or reciprocal beneficiary registration will terminate automatically and the rights you had from the prior status will continue with your marriage.

If you wish to marry someone other than your civil union partner or reciprocal beneficiary, you must first dissolve your civil union or terminate your registration. If the dissolution or termination is done within 30 days of your application for a marriage license, you will need to bring proof of the dissolution or termination to the marriage license agent.

Should you wish to remain in your civil union or reciprocal beneficiary registration and not marry, you can do so and your existing legal status will not be affected by the Marriage Act.

CAN WE MARRY IN HAWAIʻI IF WE ALREADY ENTERED INTO A CIVIL UNION OR A REGISTERED DOMESTIC PARTNERSHIP ELSEWHERE?

Yes, a couple that already have committed to each other in a civil union or registered domestic partnership (RDP) can marry each other. If you encounter any difficulty getting a license agent to grant you a marriage license because you already have a civil union or RDP, contact Lambda Legal’s Help Desk. If you entered into a marriage, civil union, or RDP in another state and now want to marry a different person, you must first dissolve the previous marriage, civil union, or RDP.

WHAT STEPS DO WE TAKE TO GET MARRIED?

First you must find someone to perform your marriage ceremony. Your “performer” must be licensed by the State of Hawaiʻi. As long as your performer is licensed, you do not need to select a performer from that list. However, if you select a performer from that list you are eligible for a temporary online marriage certificate three days after your ceremony, while you wait for your certified marriage certificate to be mailed to you (a process that typically takes about three weeks).

Next, you must apply for a marriage license. You can find an online application here. For same-sex couples this application will be available as of December 2, 2013. You can submit the application online, including payment of the $65.00 fee, or print out a PDF and bring it with you in person to a marriage license agent.

You and your partner must appear together in person before a marriage license agent to get your marriage license. 

When you meet with your marriage license agent, you should bring with you:

• Proof of age
• A completed official application (available online). The application cannot be sent by email or U.S. mail. It must be given to the license agent in person with your proof of identification and age.
• $65.00 to pay for the license fee and administrative cost (this can be paid online or in person).

Your marriage license is issued when your application is approved by the marriage license agent. Once the license is issued there is no waiting period before the marriage can take place. The marriage license is valid throughout the State of Hawaiʻi for thirty days from the date of issuance.

Your marriage ceremony is called a “solemnization.” After your ceremony has taken place, your performer will confirm with the Department of Health that the solemnization has occurred. You will be mailed a certified copy of your marriage certificate after the Department of Health has recorded your marriage.

CAN I CHANGE MY NAME WITH MY MARRIAGE?

Yes, but it requires several steps. You should obtain a certified copy of your marriage certificate from the office of your marriage license agent. Using this document, you can apply to government agencies and businesses to update your records with your new name. First, bring a copy of your marriage certificate to your local Social Security Administration office. With your new Social Security card and marriage license you can apply for a new driver’s license and other identification.

IF WE DON’T GET MARRIED, BUT WE HAVE A CIVIL UNION OR RDP FROM ANOTHER STATE, HOW WILL HAWAIʻI TREAT OUR RELATIONSHIP?

Under Hawaiʻi’s civil union law, RDPs and civil unions from other states are treated as civil unions, so long as those unions were validly entered, the couple meets the requirements for a Hawaiʻi civil union, and the union can be documented. This is not changed by the Marriage Act. The rights and duties of civil union partners are the same as for spouses under Hawaiʻi law.

WE GOT MARRIED IN ANOTHER STATE, BUT OUR MARRIAGE WAS TREATED AS A CIVIL UNION WHEN WE CAME HOME TO HAWAIʻI. HOW WILL OUR OUT-OF-STATE MARRIAGE BE TREATED NOW?

One aim of the Marriage Act was to “ensure that there is no legal distinction between same-sex married couples and opposite-sex married couples with respect to marriage under the laws of this State.” Thus, just as with different-sex couples, so long as your out-of-state marriage is consistent with the laws and public policy of Hawaiʻi, your marriage now will be fully recognized under Hawaiʻi law. There is no need to marry again.

ONCE WE’RE MARRIED, WILL WE STILL NEED A SECOND-PARENT OR STEPPARENT ADOPTION TO SECURE OUR CHILD’S RELATIONSHIP WITH THE NON-BIOLOGICAL PARENT?

Even though spouses are both legally presumed to be parents of children born into a marriage and that presumption applies to same-sex spouses, too, we still encourage non-biologically related parents to obtain second-parent or stepparent adoptions as further security for their parent-child relationships. This is particularly important when traveling in other states that do not, or may not, respect your marriage or the legal presumptions of parentage it creates.

WHAT RIGHTS AND OBLIGATIONS DO SAME-SEX SPOUSES HAVE IN HAWAIʻI?

Once you are married, you will have all of the rights and responsibilities of marriage under both Hawaiʻi law and federal law. The following examples illustrate categories of rights and responsibilities without trying to be complete.

Under State Law:

Family Law Rights and Responsibilities

• Duties of joint financial support and liability for family debts incurred during the relationship;
• Access to stepparent and joint adoption;
• Legal presumption that both spouses are parents of children born into the marriage — but adoption is still important, especially for interstate travel;
• Dissolution of the marriage in family court to manage a fair division of the assets and debts of the relationship;
• Right to seek financial support from each other upon breakup;
• Access to custody, visitation and support orders concerning children upon breakup;
• Protection under domestic violence and crime victim laws.

Medical and Death-Related Rights

• Hospital visitation and medical decision-making;
• Priority to administer deceased spouse’s estate, to authorize anatomical gifts and release of spouse’s medical records, and to make funeral arrangements;
• Right to seek money damages for spouse’s wrongful death, lost financial support and companionship;
• Right to inherit in the absence of a will;
• Protection against duty to repay public medical costs upon death of spouse; and
• For State employees, spousal health insurance and other family benefits.

Other Rights and Responsibilities

• Right to file joint state income tax returns and state tax exemption regarding value of spousal health insurance;
• Right to hold real property in “tenancy by the entirety” (which offers some protection against creditors);
• Some workplace benefits, including sick leave to care for ill spouse and where work injury causes death, funeral and burial expenses, and death benefits;
• Protections under state insurance laws;
• Right not to testify against spouse;
• Many other state law rights and responsibilities too numerous to list here.

Under Federal Law:

There are more than 1,100 places in federal law where a protection or responsibility is based on marital status. These include but are not limited to the ability to file joint federal income tax returns; exemption from income tax on employer-provided spousal health insurance; Social Security survivors’ and spousal benefits; exemption from inheritance tax; spousal protections in bankruptcy; spousal benefits for military personnel and veterans; immigration rights; employment protections under the Family Medical Leave Act; spousal protections and obligations under the Medicare, Medicaid, Supplemental Security Income (SSI), and other federal benefit programs; and the array of spousal protections and benefits for which current and former civilian employees of the federal government may be eligible.

For more information regarding federal rights and obligations now that federal law treats married people the same regardless of sex and sexual orientation, please read our After DOMA FAQs.

Note that, at the present time, the federal protections and obligations based on marriage usually are not the same for partners in a civil union. If federal protections or obligations are of concern to you or your partner, the need for a protection or to avoid an obligation may be a reason to choose between marriage and civil union, or to choose neither. The law in this area continues to evolve. You should consult an attorney for advice about your particular circumstances.

HOW WILL SAME-SEX SPOUSES WHO MARRY IN HAWAIʻI BE TREATED OUTSIDE THE STATE?

By other states:

In the growing number of states that honor the marriages of same-sex couples, a marriage solemnized under Hawaiʻi law will confer the legal status of spouses regardless of whether a couple marries in that state or elsewhere. In the many other states that discriminatorily deny respect to same-sex couples’ lawful marriages, the marriage will not automatically receive legal respect and the couple may be unprotected legally.

This is an important reason why life-planning documents such as wills and powers of attorney for healthcare decisions remain essential for married same-sex couples, just as for couples in civil unions and domestic partnerships. For more information about your options, access the Lambda Legal life-planning publication Take the Power.

By the federal government:

On June 26, 2013, the U.S. Supreme Court struck down Section 3 of the federal so-called “Defense of Marriage Act” (DOMA), which denied all federal recognition to the marriages of same-sex couples, as unconstitutional. As a result, legally married same-sex couples living in Hawaiʻi will be treated just like married different-sex couples.

The situation is more complicated for same-sex couples who marry in Hawaiʻi and then return home to a state that does not respect their marriage. They are likely to have access to some federal rights and benefits, but not to others, at least not immediately. Federal agencies have different approaches regarding which state’s laws determine if a marriage is valid for federal purposes and some agencies have not yet issued guidance about the approach they will take. More information is available here.

Depending on your circumstances, getting married may be financially or legally detrimental, especially if you are receiving certain government benefits. If you live in a state that does not, or may not, respect your marriage, that may affect your rights under federal as well as state law. So you should get advice from a knowledgeable attorney before traveling to Hawaiʻi to marry.

MUST MY EMPLOYER OFFER HEALTH INSURANCE AND PENSION AND OTHER EMPLOYMENT-RELATED BENEFITS FOR MY SAME-SEX SPOUSE?

State and local government employers must offer employees the same health insurance and pension benefits to cover same-sex spouses as to cover different-sex spouses. It may be more challenging, however, to get certain private employers to treat same-sex spouses equally with respect to health insurance and pensions, depending on what plans the private employer uses, and whether nondiscrimination laws apply. If your private employer denies same-sex spouses equal access to health insurance or pensions, we encourage you to contact the Lambda Legal Help Desk for help determining your options.

HOW DO I END A MARRIAGE, CIVIL UNION, OR RDP THAT I ENTERED INTO IN ANOTHER STATE?

To get a divorce or dissolve a civil union or RDP entered into in another state, you will need to file a petition in the Hawaiʻi family court. One spouse or civil union partner or registered domestic partner must have been living in Hawaiʻi for at least six months prior to filing. Same-sex spouses, civil union partners and RDPs may be eligible for “maintenance” (like alimony) and court assistance in allocating child custody, awarding visitation and child support, and dividing property.

WHAT HAPPENS IF WE MARRY IN HAWAIʻI AND LATER WANT TO DISSOLVE OUR MARRIAGE WHEN MY SPOUSE AND I DON’T LIVE IN HAWAIʻI?

Under the Marriage Act, if you both live in a state or states that won’t grant you a divorce because the law doesn’t recognize the marriages of same-sex couples, you will be able to get a divorce in Hawaiʻi. The Act allows the family courts of Hawaiʻi to grant marriage dissolution and divorce for nonresident couples who have married in Hawaiʻi and cannot get a divorce in their home state or states. In addition to ending the couple’s legal status as married, the Hawaiʻi courts also can decide questions concerning child custody, financial support and division of property if both spouses consent or if there is another legal basis for doing so in addition to the marriage law. Especially because federal law will honor same-sex couples’ marriages in various contexts even when state law does not, it usually will be wise for couples to get a divorce if they can when their relationship has ended.

WHEN MIGHT A SAME-SEX COUPLE BE ADVISED NOT TO GET MARRIED?

• If they wish to adopt a child from a state or country that may not approve adoptions by LGBT people or same-sex couples;
• If either depends on public assistance;
• If either or both do not want the significant rights and mutual responsibilities provided under both state and federal law to those who marry.

PLEASE NOTE: This document offers general information only and is not intended to provide legal advice or guidance about any person’s specific situation. Keep in mind that getting married is a major step. Although the law provides significant rights and obligations to those who marry, it still can be important to write a will or trust, prepare powers of attorney, secure parent-child relationships by adoption, and take other legal steps to protect yourself and your loved ones, especially when traveling. You should consult an attorney about your needs. Long-term couples and those with substantial property especially should get advice about tax consequences of marrying and ways to protect pre-marriage property if they wish.

If you have additional questions or need help finding a lawyer, please contact Lambda Legal’s Help Desk.

This FAQ document is brought to you by Lambda Legal, Equality Hawaii, and the Hawaiʻi LGBT Legal Association. To help with the continuing work to advance LGBT equality in Hawaiʻi and to educate the community about LGBT legal issues and needs, contact Lambda Legal or Equality Hawaiʻi at info@equalityhawaii.org, or the Hawaiʻi LGBT Legal Association at hawaii.lgla@gmail.com.