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VIRGINIA LGBTQ FAMILY LAWA Resource Guide for LGBTQ-Headed Familiesliving in VirginiaSeptember 2020

TABLE OF CONTENTSINTRODUCTION. 2RELATIONSHIP RECOGNITION. 3Federal Benefits After United States v. Windsor and Obergefell v. Hodges . 4CHILDREN AND PARENTAGE. 4Adoption. 6Joint Adoption.7Second-Parent Adoption.7Stepparent Adoption.7Custody Orders and More than Two Parents. 9Parental Presumption.10Surrogacy, Assisted Reproduction and Artificial Insemination.10Birth Certificates.13Applying for a Social Security Number and Card for a Child.13Applying for a Passport for a Child.14NONDISCRIMINATION PROTECTIONS.15Employment.15State Law.15Federal Law. 17Company Policies.18Housing.19State Law.19Federal Law.19Public Accommodations .20State Law.20Federal Law.20SCHOOL POLICIES AND ANTI-BULLYING.21State Law.21Federal Law.22HEALTHCARE.24Federal Law.24CONVERSION THERAPY.26FAMILY AND/OR PARENTING LEAVE.26CHANGES OF NAME AND GENDER.28HATE CRIMES PROTECTIONS.29RECOMMENDED LEGAL DOCUMENTS FOR SAME-SEX COUPLES.30Last Will and Testament.27Advance Directive For Healthcare.28General Power Of Attorney.28Domestic Partnership Agreement.29Co-Parenting Agreement.29

INTRODUCTIONThis guide was drafted by Family Equality, in collaboration with Equality Virginia.It addresses many of the legal rights and issues that affect LGBTQ familiescurrently living in Virginia. As LGBTQ equality advances across the nation,Virginia has recently enacted a number of new laws to protect LGBTQ familiesfrom discrimination in parental recognition, employment, housing, healthcare,public accommodations, and education. In this changing environment, it isimportant to understand what the law is in each area and how best to protectyour family.DISCLAIMERThis handbook is not intended to be legal advice but an overview of thecurrent state of LGBTQ-family law in Virginia. The law is changing quicklyand dynamically, so it is important to consult an attorney or contact theauthors to discuss the details of your particular situation and to ensurethat information provided herein is still accurate.2VIRGINIA LGBTQ FAMILY LAWA Resource Guide for LGBTQ-HeadedFamilies

RELATIONSHIPRECOGNITIONIn 2004, the Virginia legislature enactedthe Affirmation of Marriage Act, whichprohibited civil unions in Virginia andstated that a civil union entered into inanother state was void in Virginia .1 In 2006,Virginia voters approved an amendmentto the Virginia Constitution that definedmarriage as a union solely between oneman and one woman.2In 2013, after the United States SupremeCourt struck down Section 3 of theDefense of Marriage Act (DOMA), whichbarred same-sex couples from beingrecognized as spouses under federal law,3a U.S. District Court judge in Virginiaruled that the marriage amendment inVirginia’s Constitution, as well as theAffirmation of Marriage Act to the extentthat it prohibited a person from marryinga person of the same gender, violated theU.S. Constitution.4 A federal appeals courtaffirmed this decision in July 2014,5 andthe U.S. Supreme Court denied review ofthe case.6 As such, the Commonwealth ofVirginia began issuing marriage licenses to1 H.B. 751 (2004)(enacted); Va. Code § 20–45.3.2 Ballot Question 1 (voted on Nov 7, 2006);Virginia Constitution, Article I §15-A; Va. Code §20-45.2.3 United States v. Windsor, 133 S.Ct 2675 (2013).4 Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va2014).5 Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014).6 Schaefer v. Bostic, 135 S.Ct. 308 (2014).Find more information ame-sex couples on October 6, 2014.7 Civilunions are still not recognized in Virginia,however.Nationwide recognition of marriagesof same-sex couples came in June 2015with the U.S. Supreme Court's ruling inObergefell v. Hodges.8 Obergefell not onlyrequires all states in the U.S. to issuemarriage licenses to same-sex couples, butalso requires them to recognize marriagelicenses issued in another state.9Although Virginia's now-void constitutionallanguage prohibiting marriage equalitystill remains, the Virginia State Code wasamended in April 2020 to remove theprohibition on marriages between samesex persons.10In 2016 and 2017, the Virginia legislatureattempted to pass laws stating that noperson could be required to participatein the solemnization of any marriageor subject to any penalty by theCommonwealth "solely on account ofsuch person’s belief, speech, or action inaccordance with a sincerely held religiousbelief or moral conviction that marriage7 Commonwealth of Virginia, Office of theAttorney General, Statement of Attorney GeneralMark Herring on Marriage Equality in Virginia(October 6, 2014): generalherring-on-marriage-equality-in-virginia.8 Obergefell v. Hodges, 135 S.Ct. 2584 (2015).9 Obergefell v. Hodges, 135 S.Ct. 2584 (2015).10 H.B. 623 (2020), amending § 20-38.1. The billalso updates numerous provisions of the VirginiaCode to substitute “spouse” for “husband” or “wife,”and make other statutory terms gender neutral.VIRGINIA LGBTQ FAMILY LAWA Resource Guide for LGBTQ-HeadedFamilies3

the U.S.13 Following Obergefell, all federalmarriage benefits have been extended tomarried same-sex couples nationwide.Such benefits include, but are notlimited to, Social Security and VeteransAdministration benefits, all federal taxbenefits, health insurance and retirementbenefits for same-sex spouses of all federalemployees, and spousal benefits for samesex spouses of military service or should be recognized as the unionof one man and one woman."11 Althoughthe Governor of Virginia vetoed bothlaws, ministers have the right to refuse tomarry a couple based on their religiousbeliefs under the state Religious FreedomRestoration Act.12Federal Benefits After United Statesv. Windsor and Obergefell v. HodgesAs discussed above, in 2013, the U.S.Supreme Court, in United States v. Windsor,found Section 3 of DOMA unconstitutional,overturning the law that denied federalmarriage benefits to married same-sexcouples. This case laid the foundation formarriage equality nationwide, which waswon two years later.In 2015, the Supreme Court found inObergefell v. Hodges that same-sex coupleshave a fundamental right to marry underthe Constitution, mandating that same-sexcouples be permitted to marry and havetheir marriages recognized throughout11 H.B. 2025 (2017); S.B. 41 (2016).12 Va. Code § 57-2.02.4VIRGINIA LGBTQ FAMILY LAWA Resource Guide for LGBTQ-HeadedFamiliesIMPORTANT:Because marriages of same-sexcouples are now recognizednationwide, married couplesliving in Virginia should be ableto access all federal benefitsthat are attendant to marriage.Please alert the authors if youfind such benefits have beendenied to you as a result of theagency failing to recognize yourmarriage.CHILDREN ANDPARENTAGELGBTQ people and same-sex couplesform families in various ways. Somehave children from prior different-sexor same-sex relationships. Some LGBTQpeople are single parents by choice. Some13 Obergefell v. Hodges, 135 S.Ct. 2584 (2015).

Find more information IRGINIA LGBTQ FAMILY LAWA Resource Guide for LGBTQ-HeadedFamilies5

same-sex couples adopt or use assistedreproductive technologies to build theirfamilies together. While there is still somework to be done in Virginia with regard toparental recognition for LGBTQ individualsand couples, there are new state rules andstatutes in place that recognize and reflectthe evolving landscape of the modernfamily make-up.All same-sex couples raising LGBTQchildren should keep copies of thefollowing documents easily accessible: Adoption or Order of Parentage decree Birth certificate Guardianship or Custody Order oragreement Co-parenting agreement Marriage License Medical Powers of AttorneyADOPTIONUnder Virginia law, any single unmarriedadult or married couple who resides inVirginia may petition to adopt.14 Nothingin Virginia law or regulations explicitlyprohibits LGBTQ individuals or couplesfrom adopting, but there also is no explicitstatutory protection against discrimination.In 2012, the Virginia state legislaturepassed a so-called “conscience clause” law,providing that “no private child-placingagency shall be required to perform, assist,counsel, recommend, consent to, refer, orparticipate in any placement of a child forfoster care or adoption when the proposedplacement would violate the agency'swritten religious or moral convictions or14Va. Code § 63.2-1201; Va. Code § 63.2-1225.Please consult an attorney experienced in LGBTQ law, or the authors, if youexperience discrimination from state agencies in recognizing your familyrelationships on the basis of your marriage.Likewise, if you are an LGBTQ person or same-sex couple thinking aboutfostering and/or adopting children either from the public child welfare systemor through private adoption, it is critical that you hire a Virginia adoptionattorney who has experience working with LGBTQ people and couples. Itis not enough to simply hire an experienced family law attorney. There areissues unique to LGBTQ families that can, and should, only be managed by anattorney with particular experience and expertise in this area of the law. If youare unsure where to find an experienced LGBTQ family law attorney, pleasecontact Family Equality (, and we will do our best tohelp you find one.6VIRGINIA LGBTQ FAMILY LAWA Resource Guide for LGBTQ-HeadedFamilies

policies.”15 In effect, the law permits privatechild-placement agencies to discriminateagainst LGBTQ prospective foster andadoptive parents and youth in their carebased on any written “moral” or religiouspolicies or beliefs of the agency. For thisand other reasons, it is advisable to contactan adoption attorney experienced inLGBTQ family law in Virginia and to engagewith foster and adoption agencies who arewelcoming and affirming to LGBTQ peopleand couples.Joint AdoptionBy Virginia statute, either a single personor a married couple can adopt.16 Aftermarriage equality was recognized inVirginia in 2014, the Virginia Departmentof Social Services released a bulletininforming local social services divisionsthat married couples of the same gendercan legally adopt jointly and that "anymarried couple is a married couple forpurposes of adoptive placements."17Moreover, since marriage equality isrecognized nationwide, same-sex spousesmust be permitted to adopt under thesame terms and conditions as different-sexmarried couples.Virginia law by statute at present doesnot permit unmarried couples to petitionto adopt jointly, whether same-sex ordifferent-sex.15 Va. Code § 63.2-1709.3.16 Va. Code § 63.2-1201.17 Virginia Department of Social ServicesBulletin re Impact of Same-Sex Court Ruling onAdoption and Foster Care (October 10, rticle?articleId 6827 (last visited Sept 26,2017).Find more information econd-Parent AdoptionSecond-parent adoption is the adoption ofa child by an additional parent who is notmarried to the legal parent of the child. Ina second-parent adoption, the additionalparent can be recognized as such withoutthe first parent losing any parental rights,and the child is entitled to the benefitsof two legal parents. Virginia law doesnot currently allow unmarried couplesto obtain a second-parent adoptionin Virginia.18 However, validly-grantedsecond-parent adoptions issued in otherstates should be recognized in Virginiaunder the 2016 United States SupremeCourt ruling in V.L. v E.L., which requiresall states to give full faith and credit toadoption orders from other states,19 aswell as the 2005 Virginia Supreme Courtdecision of Davenport v Little-Bowser,which requires the Virginia state registrarto recognize out of state adoption ordersfor children born in Virginia and issue anamended birth certificate.20Stepparent AdoptionMarried same-sex couples can ensurethat both parents are legally recognizedby obtaining an adoption decree throughthe stepparent adoption procedure. Notehowever that the statute itself does notuse the term “stepparent” at all. Stepparentadoption is the adoption of a child by thespouse of the child's legal parent.21 A child18 Va. Code § 63.2-1241.19 136 S.Ct. 1017 (2016).20 269 Va. 546, 611 S.E. 2d 366 (2005) (involvingsame-sex adoption order from out of state). VaCode § 32.1-261(1)21 Va. Code § 63.2-1241.VIRGINIA LGBTQ FAMILY LAWA Resource Guide for LGBTQ-HeadedFamilies7

An adoption decree is the single best irrefutable and undeniableproof of parentage. We strongly recommend that same-sex coupleswith children ALWAYS get an adoption decree that recognizes bothparents as legal parents, even if you are married and appear on thebirth certificate.can be adopted by a stepparent so longas the child only has one legal parent.For LGBTQ families, if one of the spousesalready has a child when the couple ismarried and that parent is the child's onlylegal parent, then the spouse of the legalparent may adopt the child as a stepparentand share equally in the rights andresponsibilities of raising the child.In Virginia, individuals petitioning toadopt as a stepparent must petition jointlywith the spouse who is the legal parentto indicate the legal parent's consent.22Since the recognition of marriage equality,a spouse of the same gender as the legalparent should be entitled to adopt underthis provision just as a spouse of a differentgender would. However, as stated above,there are no explicit statutory protectionsin Virginia preventing discrimination.As such, consultation with a Virginiaattorney experienced in working withLGBTQ families is highly encouraged whenproceeding with a stepparent adoption.While typically most same-sex marriedcouples can do a stepparent adoptionwithout any issue, there are still somejurisdictions and/or judges that will notproceed directly to a final order but insteadwill require a “report of investigation” by228Va. Code § 63.2-1241.VIRGINIA LGBTQ FAMILY LAWA Resource Guide for LGBTQ-HeadedFamiliesthe local department of social serviceswhich requires a background investigationand at least one visit to the adoptiveparents’ household. Also, while there isnothing in the statute that requires that ahearing take place, a very small number ofcourts will mandate a hearing , and somewill require the appointment of a guardianad litem to represent the child. As of July1, 2020, the requirement of a nationalcriminal background check on the adoptingparent will be eliminated. However,legislation continues to be introduced eachy

VIRGINIA LGBTQ FAMILY LAW A Resource Guide for LGBTQ-Headed Families 2 DISCLAIMER This handbook is not intended to be legal advice but an overview of the current state of LGBTQ-family law in Virginia. The

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