The victory of Donald Trump in the US election has prompted deep concern among many minority groups.
Some, including as many in LGBTI communities, are wondering what the potential implications are of a Republican Presidency after Trump takes office on 20 January
LGBT Nation says the Pentagon has requested same-sex partners to get married before New Year’s Eve in order to secure the same rights as opposite-sex domestic partners.
There have also been reports of transgender people rushing to change their ID in light of Trump’s win.
Is this concern legitimate or an over-reaction?
Trump himself has said in an interview with CNN that he considers the issue of same-sex marriage ‘settled’. However, he has also said that he will repeal Executive Order issued by President Obama. This will include one that prohibits federal contractors from firing workers for being LGBT.
Still in a domestic partnership?
According to David Dinielli, Deputy Legal Director with the Southern Poverty Law Center, LGBTI people have good reason to be concerned. The organization is advising people to consider a range of actions.
‘We are really advising people to draw up the legal status of their families in a variety of ways.
‘Prior to the ruling of the US Supreme Court on marriage equality, many states had ways for people to register domestic partners. We know that lots of couples never transformed their domestic partnerships into a marriage because it seemed to give them what they want in terms of rights and responsibilities.
‘In the state where they registered, those might still be recognized, but it is not clear at all that states might recognize out-of-state domestic partnerships, even though they have to legally recognize marriages. So, we do urge couples who are in committed relationships to transform their partnerships into marriages whenever possible.’
His comments were echoed by Sarah Warbelow, Legal Director with HRC, the biggest LGBT advocacy organization in the US.
‘If an individual is ready to make choices about their life, whether it is affirming their gender identity, changing gender markers, a couple that is ready to get married, or finalize an adoption, there’s going to be a lot of uncertainty in the next four years.
‘Certainly, if you are ready to make those steps, it probably makes sense to begin that process.’
Family law and children
Both say that it is important for LGBT parents to legally cement their relationship with their children, if they haven’t already done so.
‘We know that not every state allows second-parent adoptions, whereby a non-biological parent can adopt his or her partner’s biological child, but we think this is important too,’ says Dinielli.
‘Adoption is a way to ensure you’re parenting relationship to a child will be recognized when you move from state to state or travel. Many states allow both parents to be on a birth certificate, but we think that’s not enough. We think people really should be trying to finalize second-parent adoptions when possible.
‘With the Trump administration, we do expect a greater likelihood of the passage of the First Amendment Defense Act, which would allow people, including those who work for the government, to act in accordance with their strongly-held religious beliefs.
‘Although it is unclear whether this would allow someone to disregard an assertion of parentage, our experience is that laws relating to religious freedom motivate people to act in ways that go far beyond the actual letter of the law.
‘So confirming that you have an adoption that is finalized in a state court decree is something that at least as a matter of law is something that cannot be denied by anyone in any other state.’
Again, Warbelow says legally cementing relationships is key.
‘You know, much of family law is controlled at the state level. It is not something the federal government weighs in on. Although certainly there are questions about the scope of the Family and Medical Leave Act that says who is eligible to take time off and under what circumstances.
‘Finalizing a legal relationship between a parent child will preserve that parent’s right to be able to care for that child – through adoption, or a declaration of parentage.’
Healthcare and medical matters
Dinielli adds that other paperwork should be brought up to date.
‘We are also urging people to update their traditional life planning: things like medical powers of attorney, health care proxies and living wills.
‘The reasons for this is that the Obama administration issued guidance that indicated that all medical facilities such as hospitals that receive federal funding – which is a very broad net – they must respect a patient’s desire as to who should be able to visit, and who should make decisions.
‘We don’t know what that policy’s future is under a Trump administration,’ he says, pointing out the well-known support of Vice President Elect Mike Pence for Religious Freedom legislation.
‘Guidance could be revoked, especially in a way that encourages people to discriminate based on their religious convictions.
‘We again have concerns that that would mobilize and encourage those in the medical field to deny the wishes of LGBT patients because they disapprove of them, but there is nothing to allow the override of an instrument such as power of attorney or healthcare proxy or living will, all of which are currently recognized in all of the states.’
Name and gender changes for transgender people
If the future is uncertain for gay people, Warbelow and Dinielli both acknowledge that transgender people are more vulnerable to possible legislative changes.
As controversy continues over so-called bathroom bills, transgender people are right to feel deep apprehension at how a Trump administration might protect them.
For this very reason, the Transgender Law Center has issued a detailed statement, much of which, for informative purposes, were are reproducing below.
‘A lot of people have been wondering how the recent election might affect their ability to legally change their name and gender and update their documents,’ it says.
‘While we know that we are the only ones who ultimately define our genders, having state-issued documents that more accurately reflect our identities often critically affects our safety and well-being as trans people.
‘Before anything else, we have to acknowledge that there are a lot of unknowns right now: we can’t predict the full extent of the effects of the election.
‘But by the same token, we don’t necessarily know that there will be any immediate changes (it’s worth noting the new presidential administration has not announced any concrete plans to change ID document policy).
‘Another encouraging thing to know is that many of the steps you may want to take to change your legal name and gender are controlled by the state where you live, not the federal government.
‘The processes for obtaining a court-ordered name and gender change and updating name and gender on driver’s licenses, state IDs, and birth certificates are in the hands of individual states, and no change in federal administration should directly affect them.
‘The biggest area of uncertainty right now surrounds the process for updating legal gender on federal documents and records such as Social Security cards, passports, and immigration documents.
‘The good news is that the process of changing your gender with the Social Security Administration (SSA), passport, and USCIS documents is currently fairly straightforward: you don’t need a court-ordered change of gender or to update your gender on any other document; all you need is a letter from your doctor stating that you have had “appropriate clinical treatment,” as well as the necessary forms and fees.
‘Our recommendations for how to proceed partly depend on what steps you’ve taken already.
‘If you have already obtained a legal name and/or gender change (if available in your state), but haven’t had an opportunity to update your information with the SSA or USCIS, or on your passport, we would recommend pursuing that as soon as you are able.
‘If you would like to obtain a legal name and gender change but haven’t yet, you have two basic options. The first is to immediately apply for a name and gender change in the court in the county in which you live, and apply for new federal documents as soon as you have your court date and are granted the order.
‘The other option you have is to apply for new federal documents immediately with an updated gender only, waiting until after your court date to update your name if you plan on doing this as well.
‘This protects you from any risk of losing access to the option of changing your gender on your federal documents. The downside is that you may have to pay additional fees to replace your passport and other federal documents if you would like to change your name on them later.’
Read the TLC’s full advice for transgender people here.