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Post-Election Questions About Protecting Family Relationships

As members of our community brace for the next administration, LGBTQ+ people and people living with HIV who contacted Lambda Legal’s Help Desk have expressed fear and uncertainty about the future. Many have asked how to take proactive steps to protect themselves and their loved ones. Most of these questions have been about ways same-sex couples and LGBTQ+ parents can protect their family relationships and how people who identify as transgender, nonbinary, or gender nonconforming (TNBGNC) can secure accurate identity documents. Here is basic information about these areas, actions to consider, and sources of additional information.

Keep in mind that this is not legal advice. State law governs many of the issues relevant for protecting family relationships and securing one’s identity, and state rules in these areas vary. So, if you can, it is strongly recommended to get legal advice about your situation from an attorney licensed to practice in your state. The attorneys at Lambda Legal’s Help Desk might be able to provide contact information for attorneys in your area as well as giving more tailored information for you to consider.

Protecting a same-sex spouse, civil union, or domestic partner relationship

Things to know.

Don’t panic. The Supreme Court decision recognizing the constitutional right of a person to marry a same-sex partner, Obergefell v. Hodges, will not be reversed overnight. The Supreme Court does not act without a case, and there is no case before the Court now asking that Obergefell be reversed.

Congress passed and President Biden signed the Respect for Marriage Act into law in 2022. It requires the federal government and all states to respect the valid marriages of same-sex couples (and interracial couples) even if Obergefell were to be overturned and even if some states were to refuse to allow those couples to marry in their states in the future. Because the laws of many states will continue to allow same-sex couples to marry, couples living in hostile states might have to travel to friendly states to marry, as was the case before the Obergefell decision. But then, thanks to the Respect for Marriage Act, those couples must be treated as married for all purposes even by hostile states (including their home state) and the federal government. Congress could repeal the Respect for Marriage Act in the future. But that, too, would not happen overnight. Also, neither overturning Obergefell nor repealing the Respect for Marriage Act appears to be high on the priorities list of the incoming Trump administration.

Actions to consider.

Marriage. If you are thinking about getting married in your home state and you worry about the law changing in your home state, consider marrying sooner or possibly doing it in another state.

Divorce. If you have been thinking about getting divorced, get legal advice about whether your home state is one where there are discussions among lawmakers about limiting access to no-fault divorce. If this is something you might want to pursue, consider acting promptly.

Life-Planning Documents. Whether or not you are married or planning to marry, check and update your life-planning documents. These often include a will, trust, or other estate planning documents, as well as a power of attorney for medical decisions (which can be a simple form and often includes a Living Will), sometimes a power of attorney for financial and other decisions, and beneficiary designations on bank accounts, insurance policies, and retirement savings accounts.

It always is wise to prepare these documents and then check them periodically to ensure they reflect your current wishes, even if you are not worried about the future validity of your marriage. For those who can, it is best to retain an estate planning attorney in your state to do this.

Securing legal ties with your children

Things to know.

When a child is born to a married couple, both spouses are presumed by law to be parents to the child regardless of whether either parent gave birth or provided genetic material. This principle has been important to married same-sex couples as it has been for married different-sex couples who plan for and bring a child or children into their family. But the laws can vary in terms of the strength of this legal presumption and when it can be challenged. For same-sex parents in particular, questions about these legal ties might arise if the validity of their marriage were to be attacked in the future.

Actions to consider.

Adopting your children. It can seem strange and certainly is burdensome, but a court judgment of adoption can be the most effective way to secure either or both parents’ legal ties to their children when biological ties are lacking. This can be important when a couple plans for a child together, and when a single parent of an existing child forms a new spousal or domestic partner relationship and wishes to secure that new adult’s relationship with the child. In some states, the Family Code provides an explicit procedure for a spouse or domestic partner to secure a parent-child relationship with a stepparent or second-parent adoption without disrupting the child’s legal tie with the other parent. In some states, court decisions confirm the availability of these adoptions. If this is relevant to you, try to find an attorney in your county that specializes in family law issues affecting LGBTQ+ people.

The bottom line 

Things to know. 

Many attorneys who specialize in helping LGBTQ+ people are extra busy now that members of our community are responding with concern about the election results. And in some parts of the country, there are fewer attorneys available with this specialized expertise. If there are actions you should take, do so sooner rather than later.  

Actions to consider. 

Contact Lambda Legal’s Help Desk for additional information about your situation. The Help Desk does not give legal advice but usually has helpful information, can assist you to understand information you find online, and might have contact information for lawyers in your area with expertise relevant to your needs.  

The National LGBTQ+ Bar also might be able to provide contact information for LGBTQ+-friendly lawyers in your area or for a local bar association that provides attorney referrals.  

If you are in crisis. 

Lambda Legal’s Help Desk is not able to assist with emergencies or immediate requests for legal assistance. Please contact a crisis hotline or any legal service provider that is equipped to provide emergency assistance. Here is contact information for several of our partner organizations. Keep in mind these lines are not branches of Lambda Legal and are instead resources for crisis intervention. 

Don’t let anxiety or confusion cause you to put off taking steps to protect yourself and your loved ones. 


Last updated December 13, 2024.