LGBTQ families are understandably concerned about how a second Trump administration might impact their rights, especially given that it is likely that the administration will appoint additional conservative judges who could potentially influence decisions regarding LGBTQ rights.
With the appointment of additional conservative judges, it isn’t unreasonable to think that conservative groups might be emboldened to bring cases to the courts that could put LGBTQ rights at risk. Right now, it isn’t entirely clear how LGBTQ rights might be impacted on a national level by a second Trump term.
Washington state laws offer strong protections for LGBTQ families, LGBTQ marriages, and children in these families. Yet, a second Trump administration could potentially bring about changes on the national level that could impact LGBTQ families across the country, including LGBTQ families in the state of Washington.
In a recent webinar run by experts from the National Center for Lesbian Rights (NCLR), the Family Equality, Movement, Advancement Project (MAP), and GLAD Law, Shannon Minter of NCLR emphasized that LGBTQ families should not panic in this time, explaining, “we can absolutely protect our family.” You can watch the full webinar here, and listen to experts explore the various ways LGBTQ families can protect their rights. Some of the solutions offered require LGBTQ families to take additional legal steps. And the LGBTQ lawyers at Truce Law are here to help you take these legal steps to protect your family.
While President Trump and Project 2025 conservatives have set forth a plan that specifically addresses trans rights and the rights of same sex couples, it isn’t entirely clear whether the most concerning of these plans will gain the kind of widespread support to be implemented. Yet, if we look to Project 2025, we can see how the new administration might target LGBTQ rights.
One proposal in Project 2025 includes the call to “define “sex” under Title IX to mean only biological sex recognized at birth.” Furthermore, project 2025 calls for eliminating the definition of “sex” as “sexual orientation and gender identity” and furthermore “restore the Trump Administration’s Title IX regulations, with the additional insistence that ‘sex’ is properly understood as a fixed biological fact.” One of the core principles set forth in Project 2025 is for the Department of Education to reject “gender ideology and critical race theory.”
Project 2025 further calls for restricting the names that educators can call students to the name on their birth certificate (unless parental permission is granted) and restricting the pronouns educators can use to refer to students to only correspond to the biological sex (unless parental permission is granted). Project 2025 also includes language that specifically calls for policies that promote the idea of a family as being comprised of a “mother,” “father,” and children. Furthermore, according to Project 2025, one of the conservative priorities for a Trump presidency is that LGBTQ rights should be “repealed and replaced by policies that support the formation of stable, married, nuclear families.”
The attack on LGBTQ rights extends beyond Project 2025. Human Rights Campaign notes that Trump has threatened to stop providers from receiving Medicare or Medicaid payments if they offer gender transition care to minors. Making these medical providers Medicare or Medicaid ineligible could hinder access to gender-affirming care across the county.
We can also look to the courts to see areas where LGBTQ rights may be at risk in the coming presidential term.
When the Supreme Court struck down Roe v. Wade in Dobbs v. Jackson, and women lost the national right to abortion, in his concurring opinion, justice Clarence Thomas wrote, “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” In his opinion in Dobbs, Thomas calls for a strict reading of the Constitution, one that claims that abortion isn’t protected by the Fourteenth Amendment’s “guarantee that no State shall ‘deprive any person of life, liberty, or property without due process of law.’”
Recent news stories of women losing their lives due to their inability to access the standard of care in emergency situations (ProPublica has reported about how women have lost their lives or struggled to access emergency medical care due to strict abortion bans in Georgia, Texas, and elsewhere) would suggest that current laws do deprive women of life, but that’s outside the scope of this article.
Yet, perhaps just as alarming is the suggestion that the court might revisit other rights previously guaranteed by the Supreme Court, including the right to access contraceptives (Griswold) and the right of same-sex couples to marry (Obergefell). Given the current makeup of the court, it’s conceivable that even these rights could be overturned in the same manner as Roe v. Wade. Under Obergefell, same sex couples are granted the right to marry, but also the constellation of rights and benefits granted to married couples, which includes paternity rights under state law. The loss of Obergefell could have major implications for family law and for LGBTQ couples.
Same sex couples who rely on IVF to conceive might also want to closely watch how debates surrounding IVF and birth at conception laws unfold.
The Alabama Supreme Court ruled on February 16, 2024 that embryos created during IVF should be considered children under the law (the Johns Hopkins Bloomberg School of Public Health writes that “the Alabama Supreme Court determined that these in vitro embryos are declared personhood” and therefore subject to protection under Alabama’s strict anti-abortion laws). Major IVF clinics in the state stopped offering IVF treatments “out of real concern of the civil—and potential criminal—liability that their physicians and patients might face.” When patients seek IVF, more embryos are often created than can be used, creating a dilemma for doctors and patients in pro-life states about what to do with the extra embryos if they cannot be destroyed due to strict pro-life laws. And while some lawmakers have suggested that all embryos get implanted, this is also problematic because it increases a woman’s risk of having a dangerous high multiple pregnancy.
Lawmakers in Alabama passed laws to protect IVF providers from legal liability when embryos are destroyed during IVF procedures, but it doesn’t settle the contradictions between life at conception laws and IVF. While Congressional Republicans have voiced their support for IVF, and claim that IVF is pro-life, many Republicans have struggled to address contradictions in their support for “life at conception” laws and IVF. President Trump has said that he supports IVF, but some pro-life conservatives do not support it.
According to Human Rights Watch, the first Trump administration fought against expanding anti-discrimination laws to include sexual orientation, and Washington Post notes that the President, along with social conservative appointees, will likely try to pursue similar action in a second Trump administration.
These are just some of the many potential attacks on LGBTQ civil rights that the LGBTQ community could face in the coming years. The good news is that Washington state offers robust protections for LGBTQ couples, their families, and children. Thanks to these protections, there are things LGBTQ couples, families, and children can do to protect their families and their children.
In this article, we’ll explore some of the changes that could potentially take place, and what LGBTQ families in the state of Washington can do to protect themselves.
Marriage
Same sex marriage has been permitted under Washington law since 2012. Potential national changes to marriage equality would have to come through the Supreme Court—only the Supreme Court could take away the right of same sex couples to marry. Many experts believe that it is unlikely that Obergefell would be overturned.
Yet, in the unlikely scenario that the Supreme Court overturns Obergefell, Washington state law would continue to protect same sex marriage. And, thanks to new laws passed since Obergefell, same sex couples who are already married would also have additional protections for their marriages in states that still have laws banning same-sex marriage on the books. Under the Respect for Marriage Act, states would not be able to deny the rights of married couples based on sex, race, national origin, or ethnicity—regardless of how their state law views same-sex marriage. So, if you are married in a state that permits same-sex marriage, your marriage would have to be recognized in a state that does not.
The overturning of Obergefell could still affect the constellation of benefits granted to same sex couples on a national level, including the right to adopt children from other states if the state bans same-sex marriage and same-sex adoption. It’s easy to forget that until very recently, same-sex couples weren’t granted basic benefits guaranteed to married couples, like military survivor’s benefits.
Power of Attorney for Medical Decision Making and Finances
In the past, LGBTQ lawyers have recommended that LGBTQ couples get powers of attorney for medical decision making and finances. Lawyers and LGBTQ groups continue to recommend that LGBTQ couples have these documents in place. In fact, these documents are important estate planning instruments for all couples, not just LGBTQ couples.
Formal Adoption and Paternity
Washington offers robust parentage protections for same sex couples and parents. One of the rights under marriage is the presumption of parentage, which means that when a couple has children within a marriage, both partners’ names go on the child’s birth certificate. Yet, just having both parents’ names on the birth certificate does not establish legal parentage across state lines. To guarantee that your parentage rights would be protected across state lines, you’d need to get a court order establishing parentage, either through formal adoption, a formal parentage order, or through voluntary acknowledgement of parentage.
Parentage is a very important right. It establishes a legal relationship between parent and child and comes with many additional rights including the right of the parent to make medical and educational decisions for their child. It also secures other important benefits, like health insurance, inheritance rights, and more.
According to Meg York of MAP, it’s important for parents to secure parentage rights not only at the state level, but also at the national level.
Under Washington’s Uniform Parentage Act, parentage can be established based upon several factors. These include:
1. “A judicial order establishing parentage;”
2. “An acknowledgement of parentage filed with the registrar of vital statistics;”
3. “A presumption of parentage” which can “arise from the parents’ marriage or registered domestic partnership”
4. Or, presumption of marriage based on a “parent living with the child and holding the child out as his or her own for the first 4 years of the child’s life.”
5. “Parentage can also be based on adoption, a valid surrogacy contract, or an individual’s consent to assisted reproduction.”
Thanks to these laws, Washington offers broad protection for same sex couples when they have children, including same sex couples who use assisted reproduction or surrogacy to have children. Because the right to same sex marriage is protected under Washington state law, national changes to these rights would not affect parentage rights for same-sex couples on a state level. Yet, couples should be aware that these rights might not cross state lines, and only a judicial order establishing parentage, or an acknowledgement of parentage would cross state lines. Presumption of parentage is not enough.
According to PBS News, attorneys are seeing a “surge of LGBTQ parents seeking to adopt their children before the new Trump term.” Not all states have the same strong parentage protections afforded under Washington state law. Under many state laws, simply being listed on a child’s birth certificate isn’t sufficient to establish legal parentage, especially if one person in the marriage isn’t the child’s biological parent.
For LGBTQ couples this is of concern, because many LGBTQ couples rely on IVF or surrogacy to conceive, and for LGBTQ couples, one, or both parents, may not be the child’s biological parent. According to LGBTQ Family Law and Policy, the only way for LGBTQ couples to ensure that parentage would be recognized across state lines is to get a court order. Under the Constitution, a court order in one state must be recognized in another.
There are two types of court orders parents can get: a court order for adoption or a parentage order.
Parents who want to protect their parentage rights might want to check with their family lawyer to see which kind of court order makes sense for their situation. If one of the parents in your marriage is not your child’s biological parent, a court order of adoption could formally establish parentage and ensure robust protections for your family regardless of where you, or your children live in the future. Same sex couples who are pregnant can apply for a court order before the child is born so that court-ordered parental rights are established the day the child is born.
Many same sex couples wonder whether adoption, a parentage order, or acknowledgement of parentage is the right path for them. Ultimately, you’ll want to speak to your LGBTQ family lawyer at Truce Law who can review your specific situation and help you explore your options.
Transgender Rights
Project 2025 attacks trans rights from multiple angles.
One of the most important things you can do is to make sure that your documents are correct, consistent, and in alignment with your identification documents. If you have changed your name and gender, you might want to take steps so that your marriage certificate, your adoption or parentage paperwork, your children’s birth certificates, and any titles or deeds are consistent with your new name and gender. In Washington state, you can change your marriage certificate when you change a vital record. Birth certificates can be corrected if information is incorrect. The LGBTQ lawyers at Truce Law can help you navigate these changes and any challenges that may arise.
When it comes to trans rights, ensuring that your estate planning documents are consistent with your identity, relationships, and wishes will also be important, especially if you want to continue to receive gender affirming care even if you are no longer able to make medical decisions on your own behalf. Medical powers of attorney, financial powers of attorney, a valid will, and other important estate planning instruments can help you formalize your wishes to ensure that they are respected in the event of an emergency or crisis.
Until parentage orders, adoption paperwork, or other paperwork has been amended, transgender parents who have had a name or gender change would want to keep a paper trail and copies documenting their formal name change. Some individuals choose to keep electronic copies of this information on their phones.
Trans individuals still face bias, even in a liberal state like Washington. That said, Washington law offers strong protections for trans individuals seeking gender affirming care, trans parents seeking custody, and parents who support their trans children. Yet, bias remains and changes to laws on a national level could potentially impact trans rights. The LGBTQ lawyers in the state of Washington at Truce Law help trans individuals and LGBTQ couples navigate divorce and child custody matters, estate planning, and more.
Next Steps
Living in Washington affords a great deal of protections for LGBTQ couples and families. And the good news is that current laws and the courts offer robust protections for LGBTQ families. The state of Washington LGBTQ family lawyers at Truce Law are here to help you take legal steps to protect your rights as we navigate challenging political changes that could potentially impact LGBTQ rights.
This article is for educational purposes only and does not constitute legal advice. Every situation is unique. For guidance specific to your circumstances, consult a licensed family law attorney in your area.