Many of us in the LGBT community were happy to see 2016 come to an end. Last year we felt the shock of the mass shooting at a gay nightclub in Orlando. We mourned the deaths of David Bowie, Prince, and George Michael. And we suffered a setback in the march toward equality through the election of Donald Trump.
This last event has left many gay, lesbian, bisexual, and transgender Americans feeling no more optimistic about the year ahead. The LGBT community hasn’t been the primary target of Mr. Trump’s animus, but Mike Pence, his vice president, is decidedly anti-gay. Their rise to power—and the formation of a Republican administration—has worrying implications for 2017 and beyond.
First, the vice president–elect has confirmed the new administration’s plans to roll back President Obama’s executive orders. These include a ban on anti-LGBT discrimination by federal contractors, as well as instructions to public schools not to discriminate against transgender students. Also in jeopardy could be President Obama’s order requiring Medicaid and Medicare hospitals to allow visitations by same-sex partners.
Other possible changes are less certain to occur. The right to change federally issued identity documents to reflect a new gender could be lost. For those who are transitioning, it would be smart to file as soon as possible for a new gender marker or your passport or a changed name on your Social Security card. Passports are valid for 10 years, so a new one will last beyond the Trump administration.
Trump’s rise to power—and the formation of a Republican administration—has worrying implications for 2017 and beyond.
The president-elect has said that gay marriage is a settled matter, and he should be right. The Supreme Court’s decision in Obergefell v. Hodges, granting same-sex couples the right to marry, is based on the U.S. Constitution. Under the legal doctrine of “stare decisis,” the Court should continue to honor the decision into the future, and no law can reverse it. Even if Mr. Trump appointed an extreme conservative to succeed Justice Antonin Scalia, who died last year, the five authors of the Obergefell decision would still remain on the court—at least for now.
From a legal perspective, tying the knot is still a good idea. Marriage offers many important protections for same-sex couples, regardless of who occupies with White House. If you and your partner are contemplating marriage, talk to a lawyer first to ensure that you understand the state and federal benefits, as well as the tax obligations. For example, being married means having to file your annual tax returns as a married couple, and some couples will pay more in taxes under the “marriage penalty.”
Less certain than the right to marry is the future of adoptions by same-sex couples. If one parent has a legal connection to a child, such as through birth, it’s smart to have the other parent file for a second-parent adoption to create a clear legal relationship. A court order giving the second parent full legal rights will prevent problems when enrolling the child in school or accessing his or her medical records.
No matter what your circumstances, it is prudent to have a current estate plan in place. Wills, financial powers of attorney, and advance medical directives will go a long way toward protecting you in a crisis, as well as your partner and any children. These documents are especially important for those who are in a relationship but not yet married.
Your completed estate plan should be tailored to your unique circumstances. Because everyone’s situation is different, start by consulting a lawyer with experience in LGBT estate planning.
Now more than ever, it is important to take advantage of every benefit the law provides. The light at the end of the tunnel may have dimmed, but we will persevere in the coming years.
Lee Carpenter is an Estates & Trusts attorney at Saul Ewing Arnstein & Lehr LLP and an Adjunct Professor at the University of Maryland Carey School of Law. This article is intended to provide general information about legal topics and should not be construed as legal advice. For qualified legal counsel contact Lee Carpenter at Lee.Carpenter@saul.com or 410.332.8626.