Same-sex couples have had the freedom to marry in Iowa since 2009. Melissa and Heather Gartner are among the thousands of same-sex couples who have married there. But when Heather gave birth to their daughter Mackenzie in 2010, the Gartners discovered that there were some loopholes in the "marriage equality" they thought their home state of Iowa had achieved. The Iowa Department of Public Health refused to list Melissa Gartner as Mackenzie's parent on her birth certificate. That left Melissa in the awkward position of lacking legal proof of her relationship to the baby, should she need to travel with Mackenzie or arrange medical care for her when her wife isn't on hand to sign paperwork.
The state of Iowa based its decision on the fact that Melissa is not Mackenzie's biological father—which is true, but also misses the point. Iowa, like most other states, has a "spousal presumption" that a mother's spouse is legally recognized as the other parent of children born to her during the marriage. It's crystal-clear under Iowa law that the husband of a biological mother may be listed as a parent on a child's birth certificate, regardless of whether he's the biological father.
For example, Iowa authorities previously determined that a mother's husband should be listed on her baby's birth certificate when he had been serving overseas in the military at the time of conception (so he couldn't possibly be the biological father). The spousal presumption is one of the most basic rights and responsibilities of marriage. But Iowa officials refused to apply that presumption fairly when they started to receive birth certificate applications that listed the mother's female spouse as a parent.
The Gartners filed suit against the Iowa Department of Health in 2010, represented by Lambda Legal. In January 2012, they received a favorable decision from an Iowa trial court, but the state appealed. Later in 2012, the ACLU's LGBT Project and the ACLU of Iowa submitted a friend-of-the-court brief urging the Iowa Supreme Court to rule in the Gartners' favor. Expanding on the arguments our colleagues at Lambda Legal put forth, we argued that it's a violation of the strong equal protection guarantees in the Iowa Constitution to discriminate against Melissa on the basis of her sex and sexual orientation, as well as against baby Mackenzie based on the status of her parents (just as the U.S. Supreme Court has determined it's unconstitutional for states to deny rights to children whose parents happen to be unmarried), by denying them the benefits of birth certificate listing.
Today, the Iowa Supreme Court ruled in favor of the Gartners, affirming once and for all that the spousal presumption applies to mothers' wives, just like it does to mothers' husbands. In its 6-0 ruling, the Court focused on the equal protection issue. It determined that the state of Iowa was discriminating based on sexual orientation when it applied the spousal presumption to list a husband as the father on a birth certificate when a straight couple had conceived through donor insemination, but refused to apply the presumption when a lesbian couple had conceived the very same way. This decision will bring Iowa in line with all of the other states that recognize marriage or civil unions for same-sex couples, by allowing a mother's spouse or partner to be listed as a parent on their child's birth certificate.
We encourage all married lesbian couples who give birth to pursue second-parent adoptions, since an adoption judgment is the most solid legal confirmation of the parental relationship and is the surest way to ensure protection in case issues arise in a part of the country that doesn't yet recognize marriage for same-sex couples. Nonetheless, requiring Iowa to name both mothers on birth certificates will be both practically useful and symbolically important for Iowa families.
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Press ReleaseDec 2024
LGBTQ Rights
President Biden Must Veto Defense Bill Attacking Military Families with Transgender YouthPresident Biden Must Veto Defense Bill Attacking Military Families with Transgender Youth
WASHINGTON — The U.S. Senate today passed a version of the National Defense Authorization Act that would ban coverage for gender-affirming care for transgender youth whose parents are active-duty military personnel. The American Civil Liberties Union is opposing final passage of the defense bill over the inclusion of this health care ban and calling on President Joe Biden to veto the bill. Section 708 of the NDAA would prohibit insurance coverage for “medical interventions for the treatment of gender dysphoria” such as hormone therapy and puberty-suppressant medications, which Speaker Mike Johnson says would “permanently ban transgender medical treatment for minors.” The same treatments would be covered by TRICARE for any medical purpose other than treating gender dysphoria, the clinical diagnosis for the psychological distress experienced by transgender people related to their gender identity. “By passing this bill, the House and Senate are forcing thousands of active-duty service members to choose between their careers in the military and the future of their transgender children,” said Mike Zamore, national director of policy & government affairs at the ACLU. “This unconscionable and unjustifiable attack on those families stands in direct contrast to President Joe Biden’s legacy of defending the civil rights of transgender Americans — including when few in his own party showed the courage to do so. President Biden should cement his legacy by vetoing this bill and sending it back to Congress to pass without Speaker Johnson’s last minute health care ban for servicemembers’ kids.” If signed by President Biden, this health care ban would be the first new anti-LGBTQ provision enacted by Congress and signed into law by the president since the enactment of the military’s since-repealed “Don’t Ask, Don’t Tell” policy for LGBTQ servicemembers and the since-repealed federal law barring recognition of same-sex marriages known as the Defense of Marriage Act. It is unknown how many transgender youth are currently enrolled in TRICARE or how many of those enrolled are currently receiving coverage for gender-affirming care. In one 2022 analysis, 2,500 minor patients sought care for gender dysphoria through TRICARE Prime insurance at military or civilian treatment facilities in 2017, and 900 received puberty suppressants or gender-affirming hormones. Earlier this month, the Supreme Court heard oral arguments in a landmark case brought by the ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump on behalf of three families and a medical provider challenging a Tennessee ban on gender-affirming hormonal therapies for transgender youth on the grounds the ban violates the Equal Protection Clause of the U.S. Constitution. -
Press ReleaseDec 2024
LGBTQ Rights
Montana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's LicensesMontana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's Licenses
HELENA, Mont. – A Montana court has granted a preliminary injunction preventing the state of Montana from enforcing policies that bar transgender people from obtaining accurate sex designations on their birth certificates and driver’s licenses. After a prior restriction on amendments of birth certificates was struck down by the courts, in early 2024 the state of Montana enacted a new rule that categorically bars transgender Montanans from correcting the sex designation on their birth certificates. Around the same time, the Montana Department of Justice adopted a policy similarly restricting amendment of driver’s licenses. The plaintiffs challenged these policies in state district court, arguing that they violate various constitutional provisions, including the right to equal protection of the law. In a recent Montana Supreme Court decision, two justices concluded that discrimination on the basis of transgender status – as the state is engaging in here – is a form of sex discrimination that violates the Montana Constitution’s equal protection clause. The plaintiffs, two transgender women, are represented by the American Civil Liberties Union, the ACLU of Montana, and Nixon Peabody LLP. Plaintiff Jessica Kalarchik, a veteran who served in the United States Army for 31 years, said: “After finally being able to live my life openly as the woman I know myself to be, I am frustrated that my birth state, Montana, wants me to carry around a birth certificate that incorrectly lists my sex as male. I live my life openly as a woman, I am treated as a woman in my daily life, and there is no reason I should be forced to carry a birth certificate that incorrectly identifies me as male. Fortunately, the court agrees that this ridiculous policy should not be in effect.” “Once again the State of Montana chose to adopt a draconian policy that is clearly intended to marginalize transgender Montanans, only for that discriminatory action to be blocked by the courts,” said Akilah Deernose, executive director for the ACLU of Montana. “Here in Montana we treasure our right to privacy and to live our lives free from governmental intrusion. The State of Montana clearly has not learned any lessons from the past few years, where courts have repeatedly struck down unconstitutional laws targeting transgender Montanans.” “Forcing anyone to carry documents that contradict their identity unjustly violates their rights to privacy, equal treatment, and not being compelled to convey a government message about their sex that they disagree with,” said Malita Picasso, staff attorney for the ACLU’s LGBTQ & HIV Project. “Such a policy marks transgender people for further mistreatment and discrimination, essentially requiring them to carry papers that out them as transgender any time they need to provide identity documents. Fortunately, the court has refused to allow the state of Montana to subvert the freedom of transgender Montanans to control their own identity as this case goes forward.” In granting the plaintiffs’ motion for a preliminary injunction, the court held, “[i]f the challenged state actions discriminate against transgender individuals on the basis of their transgender status, they also necessarily discriminate the basis of sex.” The state has the option of appealing the district court’s ruling to the Montana Supreme Court, but the underlying case will proceed in district court. A trial has not yet been scheduled. -
FloridaDec 2024
LGBTQ Rights
Keohane v. DixonKeohane v. Dixon
On September 30, 2024, the Florida Department of Corrections rescinded its policy regarding treatment of gender dysphoria, which allowed for hormone therapy when deemed medically necessary, as well as access to clothing and grooming standards that accord with one’s gender identity. Under this new policy, grooming and clothing accommodations have been stripped away, and hormone therapy is not permitted unless an exception is deemed constitutionally required. The ACLU brought a class action challenging the policy. -
IdahoDec 2024
LGBTQ Rights
Robinson v. LabradorRobinson v. Labrador
Two incarcerated transgender women have sued the state of Idaho alleging that HB 688, a 2024 law barring state funding for gender-affirming medical care for transgender people, denies them access to the health care their doctors have prescribed for them and is a violation of their Eighth Amendment right to be free from cruel and unusual punishment. They represent a class of all incarcerated folks within the state of Idaho who face the loss of hormone therapy due to HB 668.