I’m writing this on November 6, 2024. Like many queer Americans, I’m terrified, sad, depressed, and full of rage. I’m channeling some of those feelings into making this list of a few legal protections for queer families for the upcoming Trumpacolypse: the sequel.
Fingers crossed that these Legal protections for queer families get us through this upcoming hellscape.
1. Protect your rights to your children
If you are married, and one parent carried the child(ren), the other parent should adopt the child(ren) through a second-parent adoption (sometimes called co-parent adoption). Do this even if both parents are on the birth certificate. Legal protections for queer families are critical at this time and this is absolutely where I would start.
The birth certificate does not count as a document that gives you legal rights to make decisions for your child as a non-genetic parent. If something happens to the genetic parent, or you and your spouse separate, you want to make sure you have legal parenting rights.
GLAD has a second-parent adoption guide for Vermont that covers lots of legal details. My wife and I did this in Vermont after Clarence Thomas’ frightening comments a few years ago about queer marriage rights. In this state, this was an easy process where we just signed forms with a lawyer. The court waived the need for us to appear, or for a home study, and the process was simple.
In other states (or possibly other counties in Vermont), couples may have to go through more legal steps. A social worker may have to visit your home to make sure you are a fit parent- even though you’re already doing that. This can feel invasive and I completely understand that. Unfortunately, it will be best for your family’s future if you’re able to push through that hurt and discomfort to get the legal paperwork in place.
Another option, that we took when we lived in Missouri, is a Voluntary Declaration of Parentage. This can be done whether you’re married or not. Originally, these were for straight unmarried couples to be able to give legal rights to children to their fathers. They work well now as legal protections for queer families and many states now allow same-sex couples to use this method to protect parental rights as well, but (as always) you should check with a lawyer. When we went through this process, we had to appear in court. We also had to sign a form with our lawyer saying that it wasn’t a conflict of interest to represent both of us and that this was a consensual process we were pursuing.
Our court date for the Declaration of Parentage happened during the pandemic so it was over Zoom. If it had not been, we would have appeared in court in person with our child.
Our lawyer also informed us that we would be able to ask for the court appearance to be cleared if we wanted, but we wanted everyone to see this was something we had to go through. When our case was called, our lawyer explained that although we were married and both of us were listed as parents on the birth certificate, we wanted this extra protection in case a statute was passed taking away our legal marriage. From looking at everyone’s faces on Zoom, it was clear many people had never had to think of this. If you’re reading this and have never considered that your child could be legally declared to be not-your-child, sit with your privilege and think of how you can support queer families.
Another legal option, if second-parent adoption and Declaration of Parentage aren’t available where you live, is a legal Co-Parenting Arrangement. This is not as strong a legal document as the other options but would show a legal agreement and could help establish rights, according to GLAD.
2. Protect your rights with your partner
Marriage comes with some legal rights, but those rights can vary across state lines and who knows what will happen with queer marriage in the coming years. Who knows what could happen if you travel with your family out of state? There are other documents that provide legal protections for queer families and you can, and should, get these to protect your rights. These include the following:
A. Wills
Making a will is a good idea for everyone, but especially for couples whose rights are under threat. Make sure that your partner (or the person of your choice) will inherit your estate. Indicate guardianship of your children to your partner, or in the case of both of your deaths, to an LGBTQ+ affirming loved one.
B. Partners’ rights to make medical decisions
Having a medical power of attorney and an advanced directive protects you in case you have a medical crisis and are unable to make decisions for yourself. These documents are a good idea even with legal marriage, as not all states have the same laws about what rights you gain with legal marriage. Vermont is one of these states- according to Vermont Legal Help, “No Vermont law says that your spouse or other next of kin can make medical decisions for you. So if you want your spouse or next of kin to make medical decisions for you, you should name that person as your agent in an advance directive.”
Imagine you are in a car accident and need a procedure. Without these documents, your spouse cannot make medical decisions for you if you are unconscious. A medical power of attorney gives your “agent” the right to make medical decisions on your behalf. An advanced directive contains information about how you want future medical decisions to be made, such as if you want medical providers to provide life-sustaining measures. You can talk over options with your lawyer, as there are standard forms and procedures to help you make these decisions, and states differ in what is standard and the rights you are granted with legal marriage.
3. Partners’ rights to make financial decisions
A financial power of attorney will allow your partner (or children, or anyone you choose) to make financial decisions on your behalf if you are incapacitated. This does not give anyone the right to make medical decisions for you, so you still need the medical power of attorney to protect your health and your assets in the case where you are unable to make decisions.
On the standard financial power of attorney that my partner and I have (though we did not live in Vermont at the time we had it drawn up), there was language stating that to declare someone mentally incapable of making financial decisions, they needed to be declared so by two doctors. These doctors could not be related to the “agent” (that’s the legal term) who would gain financial control. So, no getting your siblings to claim your spouse has lost their mind when you get annoyed with them.
These legal protections for queer families are not perfect and cannot prevent a tragedy, but they give me some peace of mind. If my legal marriage rights are revoked I have other legal paperwork to show if I need to. Other things we’ll be doing as a queer family are getting passports renewed, making sure life insurance policies are up to date, and I’m sure we’ll think of more in the coming days.
4. Protecting transgender kids
Transgender people are more vulnerable than cisgender queer people like me. They are rightfully worried not only about their families, but also their gender-affirming care, ability to change legal documents to their gender, and other basic rights that cisgender people do not have to think about. I know people who are having difficult discussions and doing lots of mental calculus on the pros and cons of trying to change their names now, or the gender marker on their driver’s license, or get a birth certificate or other documents with their lived name.
Transgender people have a much longer list than cisgender queer people of what to do in the Trumpacolypse to keep themselves safer.
If you have a transgender child in school, I recommend first checking their school’s non-discrimination policies. If they do not already protect gender, gender identity, and gender expression, advocate for that policy to the school administration. Find other parent allies. Reach out to teachers and counselors to see how they’re supporting trans youth. If there is an LGBTQ+ student group, reach out to the faculty sponsors to see how you can help, such as by providing snacks for meetings, fundraising for queer and trans-inclusive resources, or whatever other support needs you’re capable of providing.
If anyone has other ideas or needs more support, please let me know in the comments. Legal protections for queer families are something we must focus on right now.
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