While the results of the 2024 election are deeply unsettling, there are many steps that can be taken to provide legal protections against the challenges we could face. I believe that action absorbs anxiety. I’m resolute in my commitment to advocating for our community. For over 27 years, I have been fighting for LGBTQ+ families and will continue to do so no matter the headwinds. The fact is, it’s time to redouble efforts to take care of our own. My office has been flooded with understandable concerns about how people can protect themselves and their families in the coming years. Unfortunately, we in Florida are no strangers to having to navigate a hostile political climate. Know that I can help you anywhere you are in Florida; click here for the LGBTQ Family Law Institute Directory if you need an attorney outside of Florida.
● If you're legally married, you need not get married again (to the same person!). For example, a marriage is a marriage, and there's no benefit to entering into another marriage to prove anything. In fact, it could create confusion down the line if you have two different dates of marriage.
● Marriage equality is the law throughout the US and was determined by the US Supreme Court to be a fundamental right. Even if the federal government were to refuse to recognize marriage equality going forward, your already-existing marriage would likely remain valid. Watch this space for updates should we see changes to that expectation.
● Similarly, if Florida were to roll back our freedom to marry, and you were already validly married, it is extremely unlikely that such decisions will impact pre-existing marriages.
● Even if the freedom to marry is impacted, such changes will not occur overnight. If you're afraid and considering getting legally married, please take the time to consider the consequences, such as the automatic rights and responsibilities that come with marriage, whether at the time of death or divorce. Be sure to prepare a nuptial agreement if you wish to modify those rights. It was never right to act impetuously, and it's still not; rather, you should only get married if you've evaluated all the pros and cons. I wrote a whole book on this topic.
● If you haven't gotten a judgment to protect your parentage (adoption or parentage judgment), do so now. These are very easy to obtain in Florida and I can help you anywhere you live. You don’t need to come to Miami as any hearing required (and they’re not always needed) would be via Zoom. A birth certificate (even with your name listed as a parent) will not necessarily protect you fully (see more on my website here). Adoption and parentage are governed by state law, not federal law. Believe it or not, Florida is currently a very adoption-friendly state.
● If you've already gotten the judgment, make sure you have a certified copy somewhere safe and accessible, and I suggest you keep a scan or picture of it somewhere easy to access on your phone, along with a scan of your child's birth certificate.
● If you have sperm, eggs or embryos in the freezer, please consult with a fertility lawyer in the state where they are cryopreserved to determine if any extra protections need to be put in place or if they advise for them to be moved out of state.
● If your genetic material is frozen in Florida, double check your clinic forms and make sure that they are clear about what would happen to it in the event of death or divorce. I can prepare a contract for you if your plans differ from the default in Florida law.
● If you don't have estate planning in place - now is the time to do so: wills, designations of pre-need guardian, durable powers of attorney and advance directives are all critical. This has always been a central part of my law practice (read more here) but now more than ever.
● Make sure that your existing children (including those in gestation) are specifically named in your estate plan and your future children are adequately described. The traditional language used by estate planners, such as "my natural and adopted children" is not sufficient for LGBTQ families.
● Likewise, make sure that your spouse is specifically named and not just generically referred to as your spouse.
● If any person named in your estate plan is trans, make sure your estate plan reflects their correct name/gender to avoid inadvertently outing them.
● Don't forget to align any of the language about frozen sperm, eggs or embryos here with what you have with the clinic or any other written forms.
● If your testamentary documents include any type of plan that relies on the validity of your marriage, such as a marital trust, have an alternate provision in place in the event the marriage isn’t recognized.
● Be sure to have a health care surrogate named along with an alternate in case the first person isn't available. Many health care facilities are faith-based, and you wouldn't want to encounter a provider who wants to deny your spouse entry to see you without having an additional way to prove the legitimacy of your relationship. If that happens, you should most definitely get the administrator on duty to assist but in the meantime, your loved one might be in a health crisis. It is critical that you have an advance directive and healthcare power of attorney stating your intention for who should have access and decision-making authority if you should be unable to communicate for yourself. If applicable, be sure that it specifies directives regarding the continuation of gender affirming care.
● Double check your beneficiaries on any bank accounts, investments, retirement accounts, life insurance or accidental death policies you may have to ensure those listed are what you intend.
● If you would like to amend your gender on any of your ID documents, get the federal documents updated NOW. Changes might not be available under the new administration, but gender changes can currently be made on passport and social security card without a court order.
● US passports currently allow for a nonbinary (X) gender marker - this may get rolled back and no longer be available. We may also be entering an era where having a nonbinary gender marker exposes you to (more) danger. Act in the way that feels best for your individual circumstances.
● If you are a naturalized US Citizen whose Naturalization Certificate shows your old name and/or gender, you should reach out to USCIS about the timeline and process for updating your Naturalization Certificate to reflect your correct name and gender, in hopes of having it updated before the new Administration is sworn in.
● If you were born outside of the United States but at least one of your parents was a US Citizen at the time of your birth, you would usually have a Consular Report of Birth Abroad (CRBA) instead of a birth certificate. Get the gender marker corrected on the CRBA as soon as possible.
● If you can get a court order affirming your gender and chosen name, do so as soon as possible.
● If you were born outside of Florida and can get your birth certificate corrected affirming your gender and preferred name, do so as soon as possible.
● If you can get your driver’s license corrected affirming your gender and chosen name, do so as soon as possible. In many states, this is an administrative process that can be done independently of the birth certificate status and sometimes without a court order.
● Florida currently DOES NOT have an option for correction of gender on birth certificate, so get a passport or passport card with the correct gender marker listed right away. In most cases, you can use a passport or passport card to prove identity and US citizenship in lieu of a birth certificate. Florida WILL correct your name on your birth certificate with a court order requiring the name change.
Take care of yourselves and your loved ones. We’ve been through painful times and our resilience has not failed us yet. I have signed on to this letter committing to the continued work ahead, to maintaining our strength and advancing our movement’s goals of full lived equality for us all (you can sign on too – click here) and I love how it ends: We are here together, and we will move forward. We’ve got this. We’ve got us.
Many thanks to my colleague Amira Hasenbush for her quick and herculean efforts to put this together and Kate Mozynski and Catherine Tucker for their stellar contributions.
