Viewpoint: Does a Year Make a Difference?

BY JAY KAPLAN

As we celebrate this year's same-sex marriage expo, never have the words, "what a difference a year makes!" rung so true. On June 26, 2015, the United States Supreme Court in Obergefell v. Hodges held that it was unconstitutional for states (like Michigan) to deny same-sex couples the right to marry as well as to deny recognition of marriages between same-sex couples in other jurisdictions. This year, same-sex couples can not only attend the marriage expo and decide which vendors they may want at their marriage ceremonies, they can also be assured that they have the actual legal right to be civilly married in the state of Michigan and to have their relationship be recognized in all 50 states. That is much to celebrate and rejoice about.

As monumental and historic as the marriage equality decision is and was, it does not resolve a host of other important public policy issues impacting the LGBT community and our struggle to achieve true and meaningful equality in the state of Michigan. We also remain vigilant regarding any attempts to roll back progress on LGBT rights as part of the backlash in response to the obtaining of marriage equality. Among issues that should be addressed and resolved include:

- Amending our state and federal civil rights laws to prohibit discrimination on the basis of sexual orientation and gender identity: Despite the fact that a majority of Fortune 500 companies have LGBT-inclusive nondiscrimination policies, and despite the fact that more than 40 Michigan local communities have LGBT-inclusive human rights ordinances, in most places in Michigan it remains legal to be fired from a job and denied housing and medical services (along with other public accommodations) because you are LGBT. Yes, in Michigan, because you are LGBT, you could be married on a Sunday and fired on a Monday. We must continue our efforts to get our elected officials to pass comprehensive civil rights legislation that protects us from discrimination.

- Efforts to use religion as a basis to justify discrimination: Several weeks before SCOTUS issued its marriage equality decision, the Michigan Legislature passed and Gov. Snyder signed into law a provision that permits faith based foster care and adoption agencies that have contracts with the state of Michigan -- paid for by Michigan tax payers -- to refuse to work with families and refuse to make placements of children based on the agency's religious beliefs, even when that may not be in the best interests of the child. The impetus behind such legislation was to permit these faith based agencies, acting on behalf of the state, to refuse to work with LGBT families. Such laws are clearly unconstitutional, yet this type of legislation is cropping up all across America. Michigan legislators have also introduced a broad range "Religious Freedom Restoration Act" (RFRA) that would permit individuals, who are not engaging in religious activity, to discriminate against others in employment, housing and public accommodations because of their religious beliefs. Once again, part of the motivation behind these bills is to allow people to openly discriminate against LGBT people.

For the many years that same-sex couples were not able to marry in Michigan, this has caused collateral damage to LGBT families. Nowhere is this more apparent than in the context of parent-child relationships. Because couples could not marry, only one partner was recognized under Michigan law as a parent to the child the couple was raising. In the event of a break-up, the legal parent controlled all decisions regarding child custody and parenting time. Sometimes, in a particularly hostile break-up, the legal parent would unilaterally take the children away from the other parent, denying him or her the opportunity to see or have contact with the children they raised. The only way to challenge this is to be recognized as an equitable or de facto parent. For almost 20 years Michigan courts have limited the use of this doctrine to a legal marriage and because same-sex couples could not marry, they were denied this protection and many gay parents lost the ability to see or have contact with their children. Marriage equality does not help these parents whose relationships with their same-sex partner/legal parent ended before the right to marry was available in Michigan. It is wrong to deny co-parents, who have established bonded relationships with children they have helped to raise with their former partners, the right to have continued contact and relationships with these children. Seldom is this ever in the best interests of the children. And yet we continue to see LGBT legal parents who do just that, because they can, in an attempt to erase the existence of their former partners. This needs to change either through legislation or through a court ruling.

- Access to health insurance coverage for transgender people: Many health insurance companies participating in Michigan's insurance marketplace have blanket exclusions for medically essential transgender health care. In addition, Michigan's Medicaid policy prohibits payment for medications related to gender identity conditions. This is clearly discriminatory and in violation of the federal Affordable Care Act, and yet our state continues to allow it to happen by essentially doing nothing.

- Updating state pension policies: Most state pension policies limit the named beneficiary to spouses or children. For years, since same-sex couples could not marry, they could not name their long-time partners as beneficiaries on their pensions. For many same-sex couples who can finally marry in Michigan, some state pensions prohibit naming a beneficiary post-retirement. If a retiree was prohibited from marrying their partner at the time of retirement, once they marry their partner they should be allowed to name their spouse as beneficiary to their pension. This requires a law that takes into account the circumstances of same-sex couples who were unconstitutionally denied the right to marry.

- A large part of the backlash to marriage equality has targeted the transgender community. There are efforts to deny transgender people the right to use public restrooms and to participate in educational and athletic activities in accordance with their gender identity and gender expression. All members of the LGBT community, including allies, must speak out against such proposed policies and work towards ensuring that transgender people are afforded the same opportunities as cisgender people in both education and public accommodations.

Jay Kaplan is the staff attorney at the ACLU of Michigan's LGBT Project. He can be reached at jkaplan@aclumich.org.
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