Michigan Family Law Journal Attend a Meeting, Kindly Send an E-Mail in Advance So We Reaches: Are Sure to Have Plenty of Space and Food

A Special Publication of the State Bar of Michigan Family Law Section and the LGBTQA Section Hon. Richard B. Halloran, Family Law Section Chair • Richard A. Roane, LGBTQA Section Chair Editors in Chief: Anthea E. Papista & Amy M. Spilman Editorial Board: Daniel B. Bates, Sahera G. Housey, Shon Cook & James W. Chryssikos Assistant Editors: Lisa M. Damphousse, Ryan M. O’ Neil, Shelley R. Spivack, Kiana E. L. Franulic, & Ashish S. Joshi Volume 47 Number 6 June/July 2017

Family Law Chair Message...... 1 Civil Unions: Marriage Equality’s Forgotten U.S. Immigration and the LGBTQA By Hon. Richard B. Halloran Stepchildren...... 30 Community...... 57 LGBTQA Chair Message...... 2 By Tim Cordes By Michael Wooley & Daniel Brick By Richard A. Roane The Importance of Attorneys in the Name Few Fair Housing Protections for the State of the LGBTQA Legal World...... 3 Change and Gender Marker Modification LGBTQ Community...... 61 By Peter M. Kulas-Dominguez & Process ...... 33 By Elizabeth K. Bransdorfer & Nancy L. Haynes Gregory Schrot By S. Kerene Moore Access to Justice, or the Lack thereof, for Challenges in Domestic Relations Cases for Transgender Bathroom Laws and Trump LGBTQ Crime Victims in Michigan...... 63 LGBT Families: A Judicial Perspective...... 8 Administration Rollbacks...... 39 By Jaimie Powell Horowitz By Hon. Kathleen M. McCarthy By Amanda Shelton & Mary Deon Expediting the Business/Professional The Psychological Parent Doctrine...... 14 Free to Marry, Not Free to Work...... 42 Practice Valuation Process...... 69 By Jennifer M. LaTosch By Daniel A. Gwinn & Laura Bradshaw Tucker By Joseph W. Cunningham Expanding the Equitable Parent Doctrine for Transgender Employees Are Protected Recent Published and Unpublished pre-Obergefell LGBT Couples...... 19 Under Title VII...... 47 Cases...... 70 By Jay Kaplan By Sam Richman Summarized by the State Bar Family Law Council Amicus Committee Members The Trick About Wedlock: How Obergefell Improving Access to Justice for LGBT Self- Changed LGBT Adoption...... 23 Represented Litigants...... 49 Family Law Happenings: OCBA Committee By Lisa J. Schmidt By Angela Tripp & Amy Billmire of the Year Award...... 75 Work Benefits: Do They Come into Play Bankruptcy Practice in Michigan in the for Same-Sex Couples Contemplating Wake of Obergefell v. Hodges...... 54 Separation or Divorce?...... 27 By Donald C. Wheaton, Jr. By Bradley A. Vauter Advertise in the List of Family Law Council Meetings* M I C H IG A N *All regular, monthly Council meetings start at 9:30 a.m. on Saturdays and are preceded by a breakfast buffet starting FAMILY LAW at 9:00 a.m. The Annual Meeting customarily starts at 9:00 a.m. with breakfast buffet at 8:30 a.m. Family Law Section JOURNAL members who are not Council members are welcome at all Council meetings. However, if you know you are going to Ten times per year, the Michigan Family Law Journal attend a meeting, kindly send an e-mail in advance so we reaches: are sure to have plenty of space and food. If a presenter or • Over 3,000 State Bar of Michigan members directly member wishes access to audio-video equipment, please let • Various courts and law libraries us know 7 days in advance. • Specialized nancial professionals • State and local public of cials —Hon. Richard B. Halloran; [email protected] Your ad for services or products – or your political ad – targets people you want most and need to Next Meeting: Thursday, September 28, 2017 at 9:00 a.m. reach. Cobo Hall, Detroit Cost of ad per issue: $350 –full page List of LGBTQA Council Meetings $200-half page $175-quarter page The LGBTQA Section Council meets on the second Wednesday $100-eighth page of each month from 3 to 5 pm (excluding July and August). Meeting locations rotate between Lansing, Metro Detroit, Ann Prepayment for 10 issues receives a 5% discount Arbor or Grand Rapids with meeting location published on For details contact: the SBM Website. The next meeting is the Annual Meeting on Thursday, September 28 at 1:30 pm in conjunction with the Kristen L. Robinson SBM Annual Meeting at Cobo Hall, Detroit. c/o Mellin Robinson, PC 1755 W. Big Beaver Road Troy, MI 48084 About the “Rainbow” Font on the cover: On 31 March, 2017, Gilbert Telephone: (248) 614-9005 Baker the creator of the iconic Rainbow Flag sadly passed away. To honor the memory of Gilbert Baker, NewFest and NYC Pride partnered with Fax: (248) 614-9095 Fontself to create a free font inspired by the design language of the iconic Rainbow Flag, the font was named 'Gilbert' after Mr. Baker.

2016-2017 Family Law Section Ofﬁcers and Council Members

Chair: Expires 2017 Expires 2018 Expires 2019 Hon. Richard B. Halloran Shon Cook Daniel B. Bates Elizabeth K. Bransdorfer Chair-Elect: Hon. Richard B. Halloran James W. Chryssikos J. Matthew Catchick, Jr. Kent L. Weichmann Shelley A. Kester Christopher J. Harrington Sahera G. Housey Treasurer: Mathew Kobliska Kristen L. Robinson Jennifer Johnsen Robert Charles Treat, Jr. Vanessa Marie Moss-Wilson Corresponding Secretary: Robert Charles Treat, Jr. Peter Michael Kulas Elizabeth K. Bransdorfer Steven D. Reinheimer Randall L. Velzen Anthea E. Papista Recording Secretary: Amy M. Spilman Hon. Tina M. Yost Kent L. Weichmann Sahera G. Housey

2016-2017 LGBTQA Section Ofﬁcers and Council Members

Chair: Expires 2017 Expires 2018 Expires 2019 Richard A. Roane Timothy S. Cordes Hon. Richard B. Halloran Susan K. Klooz Chair-Elect: Lori J. Frank Meri Anne Stowe Peter Michael Kulas Hon. Richard B. Halloran Douglas Eugene Meeks Laura Elizabeth Volkmann Richard A. Roane Secretary-Treasurer: Timothy S. Cordes L A Michigan Family Law Appeals, Scott Bassett ...... 6 Warner Norcross & Judd LLP ...... 7 ICLE—Family Law Institute ...... 13 Daniel A. Gwinn, Gwinn Tauriainen PLLC—Employment Law, Employment Litigation ...... 28 Cordes Law PLLC...... 29 Family Law Section—2017 Mid-Summer Conference—Register Now ...... 32 Family Law Section—2018 Winter Conference ...... 38 Kristen L. Robinson, Mellin Robinson PC—Family Law Mediation ...... 46 Ralph K. Mayers, Esq.—Divorce & Family Law Mediator ...... 48 Great Lakes Honor Roll ...... 52 Henry Gornbein, Lippitt O’Keefe Gornbein, PLLC—Family Law Mediation ...... 56 QDROExpress LLC, Attorney Robert Treat ...... 60 Troy Psychotherapy ...... 62 Laurel Stuart-Fink, PLLC—Domestic Relations Appeals ...... 72 Family Law Political Action Committee ...... 74

Letters to the Editor

The Michigan Family Law Journal welcomes letters to the Editor. Typed letters are preferred; all may be edited. Each letter must include name, home address and daytime phone number. Please submit your letters, in Word format, to the Chair of the Family Law Section, Hon. Richard B. Halloran, c/o State Bar of Michigan, Michael Franck Building, 306 Townsend Street, Lansing, MI 48933, [email protected]

The Michigan Family Law Journal Endeavors to Establish and Maintain Excellence in Our Service to the Family Law Bench and Bar and Those Persons They Serve.

Co-Editors in Chief: Anthea E. Papista • Amy M. Spilman Editorial Board: Co-Editors of Outside Articles: Daniel B. Bates • Sahera G. Housey James W. Chryssikos • Amy M. Spilman Shon Cook • James W. Chryssikos Hot Topics Co-Editors: Assistant Editors: Sahera G. Housey • Ryan M. O’Neil Lisa M. Damphousse • Ryan M. O’ Neil Shelley R. Spivack • Kiana E. L. Franulic • Ashish S. Joshi

The views, opinions and conclusions expressed in this publication are those of the respective authors and do not necessarily reect the position or opinion of the Family Law Section of the State Bar of Michigan.

FAMILY LAW SECTION “LISTSERV” (E-mail Discussion Group)

The Family Law Section sponsors a “listserv,” which is “geek-speak” for an e-mail discussion group. To be eligible to join, you must be a member of the Family Law Section or be a Michigan judge. If you are eligible and wish to participate (it is a wonderful opportunity to share ideas and solve problems, not to mention communicating with many ne colleagues), you may initiate your subscription to the Familylaw listserv by going to http://groups.michbar.org/ and click on FamilyLaw. Once there, ll out the form under “Subscribing to FamilyLaw” and follow the instructions. If you have questions, contact Elizabeth A. Sadowski at [email protected], or call her at (248) 652-4000. To All Prospective Family Law Journal Authors:

On behalf of the Family Law Council, we are encouraging our membership and readers to consider submitting an article to the Family Law Journal.

Article Contact Person: The primary contact person at the State Bar for Journal articles is Sue Oudsema (517) 367-6423 and [email protected]. Article submissions should be e-mailed to Sue in Word format. Please carbon copy Anthea Papista ([email protected]) and Amy Spilman (spilman@ emsfamilylaw.com) and write “Article for the Family Law Journal” in the subject line when you submit your article.

Article Due Date is One Month in Advance: Please submit your articles to Sue Oudsema at her email address above no later than the 15th day of the month preceding the next publication. In other words, if you wish to have your article considered for publication in Februrary, please have your article to us by January 15th. There are ten (10) published Family Law Journal issues each year. June/July and August/September are combined issues.

Formatting and Links: Consistent with the State Bar Journal’s practice, our formatting resource guide is The Chicago Manual of Style (see www.chicagomanualofstyle.org). Please use endnotes for citations. Feel free to include links in your endnotes, which will permit the reader to click and then be directed to the original source or reference.

Peer Reviewed: Authors are expected to have engaged another attorney to carefully review, critique, and edit articles before sending to the Family Law Journal for consideration.

Bio & a Picture Please: All authors are requested to submit a short biography not to exceed 100 words (similar to the Bar Journal) and photo to Sue in conjunction with your article.

Please Notify: If you are a first time author and wish to submit an article for possible publication, please advise Anthea Papista or Amy Spilman. Please include a detailed description of your topic.

Editorial Board Discretion: The Editorial Board reserves the right to accept, reject, and edit all submitted articles and Letters to the Editor. We shall endeavor to communicate any necessary substantive changes to the author in advance of publication.

Very Truly Yours, Anthea E. Papista and Amy M. Spilman Journal Committee Co-Chairs F L C M

B H. R B. H, F L S C -

I cannot fully express how pleased I am to see the cre- lessons of the Bible: that Jesus loved everyone. e only indi- ation and growth of the Lesbian, Gay, Bisexual, Transgender, viduals Jesus really condemned were hypocrites. Questioning and Allies (“LGBTQA”) Section of the State Bar e federal government and many state governments of Michigan. I still recall how in 2015, I received the notice have recently passed laws aimed at “protecting” personally that the State Bar had created the Marijuana Law Section and held religious beliefs. ese laws are typically called the res- remember my brother, who is gay, asking me why there wasn’t toration of religious freedoms acts, RFRA. Yet, too often, an LGBT section. I had no answer. these laws can be used by individuals to allow discrimination I contacted several of my former law school interns, who against others because of a “sincerely” held religious belief. are now practicing family law and are very much involved in ese types of laws helped support slavery and outlawed the ght for parental rights for members of the LGBT com- miscegenation in the past. munity, to seek their advice. With the eorts of members of As members of the legal community, we must question the Stonewall Bar Association, the Alternative Family Com- these laws and ask ourselves whether this is the government mittee of the Family Law Section of the State Bar, and the supporting specic religious views and beliefs. Do these laws, dedicated law clerks at the ird Circuit Court, the applica- in eect, violate the First Amendment of the United States tion for the creation of the Section was submitted to the State Constitution by creating an establishment of religious beliefs Bar. On July 26, 2016, the Board of Commissioners approved (religion), making these beliefs paramount to every individu- the creation of the Section. al’s right to life, liberty and the pursuit of happiness? In the fall of 2016, the dues notices went out and almost Religious beliefs should not be used to justify the denial of 200 individuals joined the Section. At the rst LGBTQA Sec- rights for the LGBTQ community or any other group. ese tion Council meeting in 2017, Richard Roane, whose column rights are based on the inalienable standards of equality that appears alongside mine in this joint-Journal issue, was elected allow every human being to pursue one’s individuality and to become the rst Chair of the Section. I have the honor to unique path. Our laws must support every person’s freedom follow him as Chair-Elect. of expression based on the identity and talents given by our As we all know, the rights for members of this community Creator. “Judge not, lest ye be judged” may seem a strange nally began to be recognized in law with the US Supreme quote to be cited by a judge; but I do not judge the state of Court’s decision in Obergefell v Hodges, 576 US ___ (2015). a person’s soul nor should anyone else. If that is necessary, I is landmark case, for the rst time, honored everyone’s right leave that up to the Supreme Judge. to love whom they choose and everyone’s right to enter into is combined Special Edition represents our Section’s a marriage that confers all of the rights and responsibilities of very rst Journal collaboration with another Section. It is my marriage on any couple regardless of their sexual orientation. sincere privilege to commend a highly talented and dedicated Nevertheless, these hard-earned rights remain susceptible group of new authors to this Special Edition which is being to limitation and discrimination because of the underlying published in conjunction with the second anniversary of the factors that cause the hatred and dislike of members of the Obergefell decision. In addition to including many of our reg- LGBTQ community. is venom is couched in terms that ular monthly features, the June/July 2017 Journal is primar- being LGBTQ is “unnatural” and often stems from people’s ily devoted to highlighting an array of LGBTQA issues that religious beliefs, especially when certain sections of the Bible continue to adversely impact Michigan families. Our work and the Koran are taken out of context and used to condemn will continue in this regard. e Family Law Section of the those individuals. People’s religious beliefs frequently under- State Bar congratulates the new LGBTQA Section and looks lie the reasoning that compels them to condemn transgen- forward to working with our Section friends on many future dered children, or cause them to refuse to bake cakes for gay events and projects for the purpose of providing access to jus- couples. is “reasoning” seems to ignore one of the main tice to all Michigan families.

J /J M F L J 1 LGBTQA C M

B R A. R, LGBTQA S C -

As the nation celebrates Pride Month and the second an- marriage to one man and one woman - which was niversary of the sweeping United States Supreme Court Mar- passed in a referendum by most Michiganders. Since riage Equality decision in Obergefell v. Hodges, I am delight- that amendment, many Michigan statutes have been ed to be addressing our readers as Chairperson of the newly enacted, and many directly touch on marriage and formed Lesbian Gay Bisexual Transgender Questioning and family. In 2009-2010 there were nearly 250 Bills Allies (LGBTQA) Section of the State Bar of Michigan. is introduced in the Michigan Legislature that included rst joint publication in partnership with the Family Law Sec- the word “spouse,” and in 2012, our statutes contained tion helps fulll one of the goals of our Section by educating nearly 150 references to “husband” or “wife.” lawyers, judges and the general public on legal issues impacting members of the LGBTQA community. To ensure consistency within Michigan law and conformity to federal rulings, our proposed section As stated on our Section webpage found at www.connect. will research and identify areas of our laws that may michbar.org/lgbtqa/home, our Mission is: need revisions or updates, and will seek to educate To review law, cases, regulations, and other legal the public and members of our legal community matters that aect lesbian, gay, bi-sexual, transgender, in how our clients may be aected as laws and new questioning, and allies of this State and to promote precedents develop. the fair and just administration of those laws. Our new Section has formed a half dozen committees in which we are addressing matters impacting the LGBTQA Last year, when seeking approval for the formation of our community in areas of family law, transgender rights, housing, Section, a group of interested lawyers and judges presented a employment, and legislation to name a few. In this Journal, Statement of Necessity for this new Section and submitted our you will nd articles written by experts in these emerging legal request to the State Bar, stating: areas on cutting edge laws, cases, procedure, as well as identi- In less than a dozen years, Michigan has undergone cation of areas in which changes have come or are needed in a dramatic shift in its approach to the rights our evolving legal climate. of its Lesbian, Gay, Bisexual and Transgender citizens. Much of this change has focused on the If you have not already done so, please consider joining denition of what makes a “family,” but there the LGBTQA Section, get involved, and make a dierence in have also been signicant changes in local anti- your practice and in the lives of others. discrimination ordinances, hate-crime statutes, and public accommodations for transgender people. With Pride and In Equality,

Some have been initiated within Michigan, and Richard A. Roane, Chairperson some have resulted from huge shifts in federal LGBTQA Section, State Bar of Michigan law. It is dicult to overstate these changes, or to Warner, Norcross & Judd, LLP easily grasp their pervasive eect on Michigan law 111 Lyon St NW Suite 900 and precedent. ese changes have fundamental Grand Rapids, MI 49503 repercussions on disparate areas throughout our 616 752 2367 statutes in laws related to intestate succession, [email protected] adoption, criminal immunities, and many more.

e 2015 U.S. Supreme Court decision in Obergefell v. Hodges invalidated the 2005 amendment to Article I Section 25 of the Michigan Constitution - limiting

2 M F L J J /J S LGBTQA L W

B P M. K -D G S

e US Supreme Court rulings in US v Windsor1 and gender on a state-issued identication was unconstitutional.14 Obergefell v Hodges2 have accelerated the already zealous advo- According to the complaint, the policy made it unduly burden- cacy for change within the LGBTQA community. While there some — and in some cases impossible — for Plaintis and oth- have been signicant triumphs toward progress, some major ers like them to obtain a state ID that accurately reects their setbacks have also occured. e following recent decisions and gender. In this way, Plaintis were forced to rely on an ocial currently pending decisions that may inuence and aid in pro- ID that did not conform with their physical appearance. is, gressing the LGBTQA community’s interests include: they maintained, indirectly divulged their transgender status to Hively v. Ivy Tech In a recent 7th Circuit decision, the complete strangers and placed them at serious risk of harm. Court held that discrimination based on sexual orientation Defendant led a motion to dismiss the complaint pursuant falls under the protected category of sex-based discrimination to Federal Rule of Civil Procedure 12(b)(6). According to De- under Title VII.3 An Ivy Tech adjunct professor was denied fendant, even accepting the allegations in the complaint as true, multiple full-time positions and eventually did not have her Plaintis failed to assert a claim of constitutional dimension. contract renewed based on her sexual orientation.4 e 7th cir- e Court denied Defendant’s motion and found that cuit notes that its holding was not legislating from the bench; Plaintis raised a cognizable privacy claim under the Four- rather, “is is a pure question of statutory interpretation and teenth Amendment to the U.S. Constitution. Shortly after thus well within the judiciary’s competence.”5 Importantly, the the Court issued its order, Defendant amended its policy in a court uses two methods to reach the same outcome, the court signicant way. Specically, a Michigan resident is no longer used both the comparative method and the Loving method, required to produce an amended birth certicate to change nding sex discrimination using both. 6 the gender on their state ID. State v. Arlene’s Flowers e Washington Supreme Armstrong v. Shirvell e U.S. Sixth Circuit issued a Court held that discrimination based on sexual orientation decision that involved an openly gay president of the Univer- violates the state’s laws against discrimination.7 Under the sity of Michigan student assembly and an Assistant Michi- 15 “Washington Laws Against Discrimination” (WLAD), dis- gan Attorney General. In early 2010, Andrew Shirvell, an crimination based on sexual orientation is considered discrim- alumnus of the University of Michigan and a former Assistant ination of a protected class.8 is case raised major constitu- Attorney General for the State of Michigan, began an online tional issues, including the “free exercise clause,” “freedom of and in-person “campaign” against Christopher Armstrong, speech” and expanding “protected class.” 9 the former president of the University of Michigan’s student council. Shirvell blogged that Armstrong, who graduated in Smith v. Avanti e Colorado District Court held that 2011, was “dangerous” and a “radical homosexual activist” discrimination based on “sex stereotyping,” violates the Fair and a “major-league fanatic who is obsessed with imposing the 10 Housing Act’s prohibition on sexual based discrimination. radical homosexual agenda on the student body.” In addition In Smith, a lesbian couple was denied application to an apart- 11 to broadcasting his views, Shirvell tracked Armstrong down ment based on the couple’s “unique” relationship. It is im- in Ann Arbor. At rst, Shirvell posted yers around campus portant to note that the court did not expand the denition and in students’ mailboxes. He soon discovered Armstrong’s of sex-based discrimination to include discrimination based o-campus residence and made an appearance at a party there. on sexual orientation and/or being transgender (both present On several occasions, he marched up and down the street out- in this case).12 Although the denition of sex discrimination side Armstrong’s house, protesting. under the FHA was not expanded, this case shows the impor- In April 2011, Armstrong sued Shirvell in Michigan tance of state level anti-discrimination laws.13 state court for defamation, intentional iniction of emotional Love v. Johnson A group of transgender students led distress, abuse of process, false light, intrusion, and stalking. a lawsuit against the Michigan Secretary of State and sought Shirvell removed the case to federal court. Armstrong later a declaration that the department’s policy of changing the dismissed the abuse of process claim and the court granted

J /J M F L J 3 summary judgment on the intrusion claim. e court denied did not conform to the traditionally masculine role.”21 e Shirvell’s motion for summary judgment on the remaining Sixth Circuit rejected this claim, noting that a plainti can- claims. Armstrong requested that Shirvell retract certain not “bootstrap protection for sexual orientation into Title statements, but Shirvell refused. VII” under the guise of a sex-stereotyping claim.22 Because the A jury trial was conducted in August 2012. e jury plainti “failed to allege that he did not conform to traditional found Shirvell liable on all counts. On the defamation claim, gender stereotypes in any observable way at work,” he had failed the jury found that Shirvell made some of his defamatory to allege a claim of gender-stereotyping.23 A Title VII claim for statements negligently and made others with actual malice. discrimination based on gender stereotypes thus requires a e jury awarded $4.5 million in total damages. showing of discrimination based on gender non-conforming Shirvell insisted that all his statements were either true, behavior “observed at work or aecting... job performance,” or protected because of Armstrong’s role as a public gure; such as one’s “appearance or mannerisms on the job.”24 however, the court held: “Shirvell cannot transform Arm- Although in her response brief Plainti, “concede[d] that strong’s private conduct into a public controversy simply by Defendant did not discriminate against [her] because she was alleging that Armstrong ‘promoted’ the gay lifestyle. e fact homosexual” it is important to note that even when couched that Armstrong was occasionally involved on campus in or- as a gender-stereotyping claim (e.g., “Plainti... does not con- ganizations seeking to “improve the lives of LGBT students form to traditional gender stereotypes, in terms of her sexual on campus,” does not make his own sexual behavior a mat- orientation”), such claims must be rejected under Vickers. ter of public controversy. Similarly, a public controversy over e Court then turned to the allegations that support Armstrong’s sex life does not arise simply because Armstrong Plainti’s claim of discrimination based on her failure to con- is openly gay.” form to gender stereotypes in any observable way at work. Plainti submitted a sworn statement by a former co-worker Reed v South Bend Nights, Inc. d/b/a Best Western Hos- that stated Plainti’s supervisor told her that Plainti “was cra- pitality Hotel 16 Plainti Tracy Reed brought a claim of sex zy and acted too manly” and that Plainti’s supervisor “didn’t discrimination under Title VII against her former employer, want to work with” Plainti. In addition, Plainti’s supervisor Defendant South Bend Nights, Incorporated (d/b/a Best testied at her deposition that Plainti “dressed more like a Western Hospitality Hotel). Plainti, a lesbian who is married male than a female.” According to Plainti’s supervisor, Plain- to a woman, alleged she was terminated because she did not ti dressed dierently from other employees in the housekeep- conform to traditional gender stereotypes. ing department because Plainti wore “khaki pants sagging a Plainti claimed she was qualied for her job and was little with her belt tucked in,” while other housekeepers wore subject to an adverse employment action when she was termi- scrub pants and a blue shirt. Plainti’s supervisor also stated nated. She alleged a motivating factor for her termination was that Plainti’s “demeanor” was a “little more mannish.” Al- illegal sex discrimination because she did not meet traditional though Plainti’s supervisor stated that Plainti’s demeanor gender stereotypes, and that any legitimate reasons put forth did not factor into her decision to terminate her, she also testi- for terminating Plainti by Defendant are mere pretext for the ed that she terminated Plainti because she wasn’t a good t discrimination. due to “the way she carried herself and the way she spoke and Sexual orientation is not a protected class under Title she was loud in the laundry room. She used profanity, a lot of VII,17 and while discrimination “on the basis of sexual orienta- profanity, and she was loud.” tion has no place in our society[,]...Congress has not yet seen e Court found that Plainti was discriminated against t...to provide protection against such harassment.”18 A claim because she did not conform to traditional gender stereotypes that an individual has been discriminated against based on her in terms of her appearance, behavior, or mannerisms at work. sexual-orientation will not survive under Title VII. A claim of discrimination based on gender stereotypes Carcaño v McCrory Carcaño25 challenged a sweeping however, can amount to a claim of sex discrimination under North Carolina law, House Bill 2, which Carcano challenged Title VII.19 Under the gender-stereotyping theory, an employ- banned transgender people from accessing restrooms and other discriminates on the basis of sex when it makes decisions er facilities consistent with their gender identity and blocked based on “the degree to which an individual conforms to tra- local governments from protecting lesbian, gay, bisexual, and ditional notions of what is appropriate for one’s gender.” 20 transgender (“LGBT”) people against discrimination in a wide e Sixth Circuit has acknowledged a “curious distinc- variety of settings. e ACLU of North Carolina sued on be- tion” between claims of sexual-orientation discrimination and half of its members, some of whom are transgender individuals gender-stereotyping discrimination. In Vickers, the plainti who are barred by H.B. 2 from using restrooms and other fa- argued that harassment by co-workers based on his sexual cilities in accordance with their gender identity in schools and orientation amounted to gender-stereotyping discrimination government buildings, and some of whom are lesbian, gay, because “in the eyes of his co-workers, his sexual practices... bisexual, or transgender individuals who have been stripped

4 M F L J J /J of or barred from local non-discrimination protections based that LGBTQA issues are not limited to family law matters but on their sexual orientation and sex, including gender identity. expand into various areas of law. ese issues and other issues e transgender Plaintis (in their individual capaci- will continue to arise as we progress forward post Obergefell. ties) claimed that Part I violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (“Title IX”). About the Authors In addition, the individual transgender Plaintis and ACLU- NC claim that Part I violated the Equal Protection and Due Peter Kulas-Dominguez practices family law litigation Process Clauses of the Fourteenth Amendment to the United with an emphasis on divorce and non-marital domestic rela- States Constitution. tionships. He counsels individuals through LGBT family issues, On March 29, 2017 HB2 was repealed, but was replaced domestic relations mediation and collaborative law, spousal sup- with prohibitions on local government entities from extend- port, child custody and support, complex business valuations and ing legal protections to LGBT people until 2020 and bans on pre- and post-nuptial agreements. Peter ran his own o ce for over protections for transgender individuals in restrooms and other seven years where he ercely advocated for clients involved in dif- single-sex spaces. e bill also made it illegal to protect people cult situations, such as child protective proceedings, delinquency from discrimination. work with minors and unaccompanied minor matters. Today, Peter counsels individuals and families who are going through a While there have been cases that show a sign of progress divorce and remains passionate about helping people through dif- towards LGBTQA equality, there have also been several cases cult situations while delivering positive results. that show potential regression. Some of those cases include: Greg Schrot is a second-year law student at e Univer- sity of Toledo College of Law and an Articles Editor on Board Barber v. Bryant is case is pending before the 5th Cir- 49 of the Toledo Law Review. Greg is a law clerk at the Toledo cuit and involves proposed legislation that would allow for rm of Zoll and Kranz LLC. Greg enjoys family law, an interest those with “sincerely held religious beliefs” to discriminate that has grown with his time spent in the Hon. Byron Konschuh’s based on qualities held by all same-sex couples and other lim- 26 court room and through the positive inuence of his uncle, Attny. ited categories. Proponents of the bill believe that it is nar- John Schrot. Greg enjoys spending time traveling the great state of rowly tailored to serve its designated purpose; however, those Michigan with his wife Ellery and can often be found outdoors opposed to the bill believe that it will cast a shadow on those when not studying. that fall outside of the state approved religious qualities.27

Pidgeon v. Turner e Texas Supreme Court will re- Endnotes hear arguments that it once dismissed in which two taxpayers sought an injunction against the City of Houston for extend- 1 United States v. Windsor, 133 S.Ct. 2675 (2013). ing benets to same-sex couples, where such benets had pre- 2 Obergefell v. Hodges, 135 S. Ct. 2071, 576 U.S., 191 L. Ed. 2d viously been denied.28 ere has been signicant commentary 953 (2015). on this matter from both sides of the issue including many 3 Hively v. Ivy Tech Cmty. College of Ind., 2017 U.S. App. LEXIS Texas lawmakers staunchly opposing Houston’s position and 5839 (2017). 29 seeking a much narrower interpretation of Obergefell. ere 4 Id. at 1-4. is serious concern among supporters of same-sex marriage 5 Id. at 9. because the attorneys for the challengers have indicated their willingness to take this case as far as they can.30 6 Id. at 13 (“holding all other things constant and changing only her sex, she would have been treated the same way[…]; Lov- Smith v. Pavan e Arkansas Supreme Court admon- ing, line of cases stemming from Loving v. Virginia, 388 U.S. ished circuit court judge for ruling in favor of same-sex cou- 1 (1967), established a person’s freedom to associate intimately ples seeking allowance of both parents’ signatures on birth with person of same-sex). 31 certicate at time of birth. Same-sex couples in the state of 7 State v. Arlene’s Flowers, Inc., 187 Wn.2d 804, 829 (2017); see Arkansas were not allowed to have both parents sign a child’s Zack Ford, Washington Supreme Court rules against orist who birth certicate at the time of birth.32 e challenged Arkansas discriminated against same-sex couple, ink Progress, Feb. 16, statute contains a biological presumption of parentage which 2017, https://thinkprogress.org/washington-supreme-court-arlenes- does not apply to same-sex couples.33 e Arkansas Supreme owers-d15c3d7f3150. Court held that Obergefell and the Equal Protection Clause 8 Id. do not grant same-sex couples the right to be listed on birth 9 See Zack Ford, Washington Supreme Court rules against orist 34 certicate at time of birth. who discriminated against same-sex couple, ink Progress, Feb. e aforementioned cases are not every recent or pend- 16, 2017, https://thinkprogress.org/washington-supreme-court- ing case that involve LGBTQA issues; however, they signal arlenes-owers-d15c3d7f3150

J /J M F L J 5 10 Smith v. Avanti, 2017 U.S. Dist. LEXIS 54777, 11-13 (2017). 25 CARCAÑO v. McCrory, No. 1: 16cv236 (M.D.N.C. Aug. 26, 11 Id. at 3-5 (Family make-up included a lesbian couple in which one of 2016). the partners was transgender and the couple had two minor children). 26 Barber v. Bryant, 833 F.3d 510, 511 (Miss. 2016)(quoting Miss. 12 Id. at 7-8; see also Id. at 15-17 (FHA denition not expand- Laws 2016, HB 1523 § 2)); see also Miss. Laws 2016, HB 1523 ed; rather, interpreted to include discrimination based on sex § 2 (e. July 1, 2016) (“(a) Marriage is or should be recognized stereotyping. Discrimination based on sexual orientation and as the union of one man and one woman; (b) Sexual relations transgenderism is explicitly prohibited by the CADA). are properly reserved to such a marriage; and (c) Male (man) or female (woman) refer to an individual’s immutable biological 13 Fair housing future? Colorado court hints at direction of fair hous- sex as objectively determined by anatomy and genetics at time ing laws in Trump era, Apr. 10, 2017, http://www.lexology.com/ of birth”). library/detail.aspx?g=1f3a6cd8-d05a-4d60-8a1d-0fbab30f89f7. 27 See Anna Wolfe, Miss. U.S. Senator to Trump: Protect religious 14 Love v. Johnson, 146 F.Supp.3d 848 (E.D. Mich. 2015). freedom, e Clarion Ledger, Apr. 5, 2017, http://www.clari- 15 Armstrong v. Shirvell, Court of Appeals, 6th Circuit 2015, onledger.com/story/news/local/2017/04/05/miss-us-senator-trump- Docket No. 13-2368 (unpublished). protect-religious-freedom/100038736/. 16 Reed v. SOUTH BEND NIGHTS, INC., 128 F. Supp. 3d 996 28 Pidgeon v. Turner, 2016 Tex. LEXIS 799, 2 (2016)(Devine, J.; (E.D. Mich. 2015). dissenting). 17 See Vickers v. Faireld Med. Ctr., 453 F.3d 757, 762 (6th 29 Alex Ura, Texas Supreme Court to take up same-sex marriage Cir.2006). case, Texas Tribune, Feb., 28, 2017, https://www.texastribune. org/2017/02/28/texas-supreme-court-take-same-sex-marriage- 18 Bibby v. Phila. Coca-Cola Bottling Co., 260 F.3d 257, 265 (3d case/. Cir. 2001). 30 Doyein Oyeniyi, Here’s What You Need To Know About Pidgeon 19 See Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, v. Turner, Texas Monthly, Mar. 1, 2017, http://www.texasmonth- 104 L.Ed.2d 268 (1989) (allegation that defendant denied ly.com/the-daily-post/heres-need-know-pidgeon-v-turner/. plainti partnership in part because she was too “macho” and not “feminine” enough amounted to sex discrimination claim 31 Smith v. Pavan, 505 SW3d 169 (Ark. 2016). under Title VII). 32 Id. at 172. 20 Vickers, 453 F.3d at 762. 33 Id. at 178-79; see Jacqueline Froelich, Same-Sex Parental Birth 21 453 F.3d at 763. Registration a Constitutional Right, But Not in Arkansas, KASU, Jan. 16, 2017, http://kasu.org/post/same-sex-parental-birth-regis- 22 Id. at 764 (internal citation omitted). tration-constitutional-right-not-arkansas (same-sex couples must 23 Id. at 764 (emphasis added). petition to have name of second parent included on birth cer- 24 Id. at 763. See also Dawson v. Bumble & Bumble, 398 F.3d 211 ticate which may cost substantial amounts of money, an issue (2nd Cir.2005), (arming dismissal of sex-stereotyping claim which heterosexual couples need not worry about). where no allegations of discrimination based on appearance or 34 Smith v. Pavan, 505 SW3d 169, 180 (Ark. 2016). mannerisms were alleged).

Michigan Family Law Appeals Scott Bassett

Quality and Experience

248-232-3840 - Telephone 248-928-0355 - Fax

[email protected] www.michiganfamilylawappeals.com A Michigan Virtual Law Practice

6 M F L J J /J

Congratulations to the State Bar LGBTQA and Family Law Sections on the publication of this Journal.

Ric Roane, Founding Chair of the LGBTQA Section Peter Kulas-Dominguez, LGBTQA and Family Law Section Counsel Warner Norcross is deeply committed to diversity and inclusion and continues to be an advocate of the LGBTQA community. To learn more about that commitment and our family law practice, visit us at wnj.com.

Ric Roane, Partner Peter Kulas-Dominguez, Attorney Warner Norcross & Judd Warner Norcross & Judd

Grand Rapids South eld Midland Macomb Muskegon ‰ Kalamazoo A BETTER PARTNERSHIP Holland Lansing C D R C LGBT F : A J P

B H. K M. MC

In 2010, I was assigned to Harmon v Davis, 1 a case that The Effect of Obergefell focused on the child custody rights of an unmarried female In 2015, the United States Supreme Court ruled in plainti to the children of the woman’s former same-sex part- Obergefell that same-sex couples have a right to marry under ner. e children were born while the parties were in a lengthy both the Fourteenth Amendment’s Due Process Clause and its domestic relationship. e plainti lacked a biological con- Equal Protection Clause. e Supreme Court also determined nection to the children, while the defendant was the biological that the Fourteenth Amendment required states to recognize mother of the children. After hearing the arguments of both same-sex marriages validly performed out-of-state. However, sides, I issued my Opinion on the Petition on April 16, 2010.2 Obergefell did not address issues beyond the right to marry that I ruled that, under the circumstances presented in the case, can aect same-sex couples, especially the issues resulting from the defendant was the natural parent of the children under a decision to raise children together. Accordingly, Obergefell Michigan law and could enter into a parenting agreement with did not solve many of the issues raised in Harmon, which re- the plainti under the Due Process Clause of the Fourteenth main unsettled. is article will discuss those unsettled issues Amendment. e Michigan Court of Appeals reversed on the and propose solutions. basis that the plainti could not establish standing to seek custody of the children under the then-existing Michigan law.3 In the interim, since the Court of Appeals issued its ruling in What Obergefell Solved Harmon, the United States Supreme Court issued its ruling in e Supreme Court’s recognition that same-sex couples Obergefell v Hodges 4giving same-sex couples the right to marry. are constitutionally entitled to marry is momentous and is article will examine whether the Court of Appeals would changed the national landscape regarding the marriage rela- have made the same decision if a case with the same facts as tionship. If the parties in Harmon had been married, it would Harmon had been appealed after Obergefell was decided. is have changed their rights regarding many things. For example, article will also examine the changes that might be required in during the marriage, they would have been able to hold real Michigan law to give an unmarried person custody rights as to property as tenants by the entireties. ey would have been the children born to the person’s same-sex partner pursuant to entitled to the nancial advantages of ling joint tax returns. the partners’ agreement to raise children together. ey would have been able to obtain medical insurance for their spouse, if oered by an employer. In addition, they The Harmon Facts would have been able to use Michigan’s divorce statutes to end their relationship and resolve any issues regarding their rights In Harmon, the plainti and the defendant had a same-sex in real estate and personal property they owned together while domestic partnership that lasted for nineteen years. ey never married.5 ey would have had the right to claim spousal sup- married during the partnership; however, the parties shared bank port. But they still might face legal hurdles if they had made a accounts, acquired real and personal property together, and re- decision to have children. sided together. Most importantly, the parties agreed during the Obergefell resolved some, but not all, issues regarding chil- relationship that children would be conceived by the defendant dren born during a same-sex marriage. e issues that have through articial insemination with an anonymous donor’s sperm. been solved are those that are based upon the existence of a ree children were born during the relationship, and the parties marital relationship at the time the children become part of helped raise them while living together in a family unit. When the the household. For example, Michigan’s Adoption Code al- relationship ended, the parties initially reached a 50/50 parenting lows the adoption of a child by a married person and “his wife time agreement that allowed the plainti to continue seeing the or her husband.”6 Before to Obergefell, the fact that same-sex children. However, a year later, the defendant stopped the parent- couples were not allowed to marry under Michigan law pre- ing time visits on the ground that she had a right as a parent to vented them as single persons from jointly adopting a child decide who could visit with her children, and that the plainti was with their same-sex partner, who was legally another single a legal stranger to the children. e plainti then sued for custody.

8 M F L J J /J person.7 Once same-sex marriage was recognized in Oberge- related person can become the legal parent of a child in Michi- fell, children could be adopted by a married same-sex couple. gan. As discussed in the Harmon trial opinion,13 the status of us, the prior limitations in the Adoption Code were rem- “parent” is a creature of both statute and case law in Michigan. edied by Obergefell. In Michigan, any married person is now e Harmon trial opinion summarized the current Michigan able to adopt a child with his or her spouse. law that allows a person who is not a biological parent of a e resolution of adoption issues should also extend to child to become a parent, and even a natural parent of a child.14 equitable adoption. Equitable adoption is a Michigan case ese legal constructs include the equitable parent doctrine,15 law doctrine that originated in Wright v Wright,8 which was equitable estoppel,16 the Acknowledgement of Parentage Act,17 based upon an attempt to adopt under an adoption statute adoption under the Michigan Adoption Code,18 and equitable that subsequently was declared unconstitutional.9 e Wright adoption.19 As the Child Custody Act denes “parent” as “the Court held that there was an “implied contract to adopt” unnatural or adoptive parent of a child,”20 when a person is not der these circumstances, such that the intended adoptee could an adoptive parent, he or she can still be a parent if Michigan’s inherit from the adoptive parent.10 If an attempted adoption legal requirements for a “natural parent” are met. of a child by a married same-sex couple should fail in the same manner post-Obergefell, Wright would allow the child to be Adoption and Equitable Adoption considered the equitably adopted child of the couple. In the aftermath of Obergefell, the availability of equi- To continue the earlier adoption discussion, after Oberge- table parenthood has also been resolved for certain same-sex fell, a married same-sex couple will be able to adopt a child couples: specically, for those couples who were prescient and each will be an adoptive parent. However, many Michigan or fortunate enough to get married in a state or jurisdiction same-sex couples welcomed children into their homes prior to where same-sex marriage was available before Obergefell and Obergefell and they did so while accepting that only one of the who had children who were conceived or born during the partners could legally adopt each individual child under then- marriage. is issue was specically discussed in Stankevich v extant Michigan law. If these parties marry post Obergefell, Milliron11 wherein the Michigan Court of Appeals announced the child would have to be adopted by the partner who had that a same-sex partner of a biological parent who had mar- not previously adopted the child in order for that partner to ried the biological parent in Canada prior to the birth of the become the child’s parent. However, Michigan law does not child had standing under Obergefell to seek an order declaring allow second parent adoptions.21 Stepparent adoption under that she was the equitable parent of the child.12 the stepparent adoption statute will be the only option, and Nonetheless, not all same-sex couples could get married is being employed by at least one Michigan circuit court in in the jurisdictions in which they lived pre-Obergefell. is that manner.22 Equitable adoption would presumably face has ramications for custody of any children who were born hurdles similar to those for adoption. us, same-sex married or conceived within a same-sex partnership prior to Oberge- partners who seek to become mutual adoptive parents of a fell. As a result, Obergefell did not resolve many custody issues child who had been adopted by one of the partners before the for same-sex couples like in Harmon who, at the time their partners’ marriage may have diculty making both parents children were born or conceived, were not married. adoptive parties with standing as to custody issues.

What Obergefell Did Not Solve Biological Children Obergefell’s eect is prospective, aecting only cases from ere are also obstacles to custody of biological children its issuance date forward. is means that Obergefell did not born to same-sex partners even when the partners were mar- change the historical fact that same-sex couples were prevent- ried at time the relationship ended. Same-sex partners may ed from marrying in many states, including Michigan, before not have been married, whether due to legal prohibition or its issuance. us, these couples were legally prevented from by choice, at the time a child was conceived by or born to one taking advantage of the many benets of marriage. is his- of the partners. If the partners later marry, they would face torical prevention of marriage has continuing ramications. the same problems seen in opposite-sex marriages in which a Pertinent to the instant article, legal entitlement to custody child of one of the marital partners is not the biological child of children born to a same-sex couple during a committed of the other marital partner,23 or when opposite-sex partners relationship is one of the advantages that Obergefell could not are unmarried and one of the opposite-sex partners is not the wholly secure. An examination of Michigan law reveals why. biological parent of the children.24 is is so even if the conception and birth of the child were agreed to by the parties. The Post-Obergefell State of Michigan Law As will be discussed below, these have been thorny issues for opposite-sex partners and will also complicate the custody deci- ere are a limited number of ways that a biologically un- sions of Michigan courts as to same-sex partners. Additionally,

J /J M F L J 9 advancements in reproductive technology can result in a child not his own child. us, in Johnson v Johnson,29 the Michigan being born to a person who is not biologically related to the Court of Appeals found that a man was equitably estopped child and whose partner, whether same or opposite sex, is also from denying paternity of a child when the man knew that his not biologically related to the child. Current Michigan law does wife was pregnant at the time of their marriage, that the child not address these developments in reproductive technology. was possibly not his biological child, and still held himself out as the father of the child for over nine years during the marriage. Equitable Parent Doctrine Nevertheless, in a case in which the husband did not make armative representations that he would raise the child as his own, e original formulation of Michigan’s equitable par- equitable estoppel was held to not apply.30 ent doctrine in Atkinson v Atkinson25 limited the doctrine to As with the equitable-parent doctrine, Michigan’s equi- married opposite-sex couples and Stankevich extended the table estoppel doctrine requires that the partners be married. doctrine’s application to married same-sex couples. But what In addition, when same-sex female partners are involved, the about the same-sex couples who were not allowed to marry in non-biological parent will know that the child is not biologi- Michigan and had not married in any other jurisdiction prior cally hers. is is a major impediment to the application of to Obergefell? ese people are out of luck under Michigan’s equitable estoppel in the context of a same-sex partnership. equitable parent doctrine. 26 In Lake v Putnam, the parties had a thirteen year same- Acknowledgement of Parentage Act sex relationship but were legally unable to marry for the entire length of the relationship. During the course of their relation- Another way for a nonbiological parent to become a natu- ship, the defendant was articially inseminated and gave birth ral parent of a child is through Michigan’s Acknowledgement to a child. When the relationship ended, the plainti sought of Parentage Act.31 However, the Act is specically limited to parenting time with the child in the trial court and was awarded allowing a man to be considered to be the natural father of supervised parenting time. e defendant appealed, arguing a child born out of wedlock if he joins with the mother by that the plainti was an unrelated third party who lacked stand- signing an adavit of parentage, which acknowledges that the ing to seek parenting time. e Michigan Court of Appeals re- child is his. ere is no room in the statutory language for versed the trial court order, determining that the plainti could a same-sex partner who is a nonbiological parent to become not use the equitable-parent doctrine to fulll the requirement a natural parent. As presently formulated, the Act cannot be of standing. As the Court of Appeals opinion stated, used by a same-sex partner who is a non-biological parent to While plainti claims that she satises all requirements establish a right of custody to a child. under the equitable-parent doctrine, she ignores one crucial, and dispositive, requirement for the The More Things Stay the Same . . . equitable-parent doctrine to apply—the child must be born in wedlock.27 Even after Obergefell, a same-sex partner will not be able to state a proper cause of action under current Michigan law for us, the Court of Appeals used the historical formulation custody or parenting time regarding children who are their for- of equitable parenthood to bar parenting time for the plain- mer partner’s biological children and born out of wedlock. is ti—even though the parties had agreed to have a child and is so even though the partners agreed to have children and raise had been prevented from legally marrying during their rela- them together. erefore, it is unlikely that the result of Harmon tionship. is formulation of the equitable-parent doctrine is would be any dierent even had it been initiated after Obergefell a signicant stumbling block to parenting time for a person and the parties had married prior to the end of their relationship. who was a partner to an ended same-sex relationship during e fact that the children were born before the marriage will give which a child was born to their partner.28 As presently formu- the biological parent superior rights to the nonbiological partner. lated, Michigan’s equitable-parent doctrine will not provide a means for the former partner to obtain parenting time for a What’s Next? child the partners agreed to bring into the world and help raise when the child was born out of wedlock. Michigan law must change if people in same-sex relationships who could not marry prior to Obergefell are to have mu- Equitable Estoppel tual rights to custody or parenting time as to adoptive and biological children. As Obergefell does not provide a resolution Equitable estoppel has not yet been used to seek parent- to the children of these families. erefore, what are the pos- age in Michigan by a biological parent’s same-sex partner. is sible solutions to this problem? interesting doctrine was developed to prevent a man from de- Members of the Michigan judiciary have suggested that nying paternity of a child even though the child was possibly Michigan’s equitable-parent doctrine should be expanded to ad-

10 M F L J J /J dress these cases in which marriage was legally impossible. In his prohibition, it is likely that, for as long as Michigan’s Sur- concurring opinion in Lake, Michigan Court of Appeals Judge rogate Parenting Act remains the law of the state, male same- Shapiro opined that the proper way to expand the doctrine was sex partners will have to either adopt children together or en- to engage in a factual inquiry regarding whether the same-sex ter into a gestational surrogacy contract in a state or country partners would have married before the child’s birth or concep- where such contracts are allowed. However, the best approach tion but did not do so because of the unconstitutional laws pre- to gestational surrogacy is for Michigan to repeal the Surro- venting their marriage.32 Judge Shapiro proposed that a party gate Parenting Act, which was enacted almost thirty years ago should be entitled “to seek equitable parental rights arising out and instead to adopt the Uniform Parentage Act. e Uni- of a same-sex nonmarital relationship when a preponderance of form Parentage Act cuts o the rights of the gestational sur- the evidence shows that but for the ban on same-sex marriage rogate42 and contains judicial protections for gestational sur- in the parties’ state of residency, they would have married before rogates that would address real life situations far better than the birth of the child.”33 Judge Shapiro stated that, if evidence does Michigan’s current statutory prohibition. had been presented in the trial court that the parties would have e approaches to parentage by same-sex couples used married but for the legal prohibition against same-sex marriage, in other states should also be considered for potential use in he would have concluded that the case should have been re- Michigan. Other states have employed a doctrine to deter- manded on the question of whether the parties would have mine when a partner who was not married to a biological married.34 If the trial judge then found that the answer to the parent should obtain custody or parenting rights to a child; marriage question was positive, Judge Shapiro indicated that a this doctrine has variously been described as the psychologi- hearing on custody and parenting time in the best interests of cal parent doctrine, the de facto parent doctrine, and in loco the child could then be held.35 parentis doctrine.43 is doctrine has been recently used to al- Justice McCormack’s dissent from the Michigan Supreme low same-sex partners to have custodial rights to the biological Court’s denial of leave to appeal in Mabry v Mabry36 pro- children of their partners.44 ese doctrines are all strikingly posed using the same evidentiary concept in the context of an strict about who will qualify to have parental rights to a child, equitable-parent doctrine argument. As Justice McCormack with a focus on the best interests of the child.45 In the delicate discussed, the use of this evidentiary approach would prevent balance between the rights of the biological parent and the those same-sex partners who did not intend to marry from non-biological partner of that parent, the best interests of the gaining parental rights to children when opposite-sex partners child merit careful consideration by courts. would be prohibited from gaining such rights.37 Whether the Harmon outcome could have been altered under Michigan’s approach to third-party custody may well the application of either the equitable-parent doctrine or the psy- leave an expansion of the equitable-parent doctrine as the only chological parent doctrine is unknowable, as the Court of Appeals’ potential recourse for same-sex partners who were not mar- ruling prevented the evidentiary hearing to determine whether, in ried at the time that children the partners agreed upon were agreement with the biological parent, the non-biological partner conceived or born. Nonetheless, even the postulated expan- had assumed a parent role as to the children and whether it was sion of the equitable-parent doctrine ignores features of same- in the children’s best interests that the non-biological partner have sex parentage that are dierent from opposite-sex parentage. parental rights as to them. Hopefully, future Michigan law will in- When the same-sex partners are female, a sperm donor is used clude better solutions to the thorny issues that can arise during the for conception. e sperm donors are frequently anonymous dissolution of same-sex relationships when children were raised in and are therefore unlikely to be declared the legal parent of those relationships prior to and post Obergefell. More emphasis children conceived using donor sperm. In these instances, should be placed on the best interest of the child, a child’s custo- the biological parent with whom the same-sex partner might dial environment and their signicant caretakers within that envi- compete for parentage of the child is unknown and so unlikely ronment as opposed to the biological relationship of the parties to to claim parentage. However, this situation is complicated by their child and the legal and sexual relationship of the caretakers, if the fact that the only Michigan law eliminating the potential we are resolve these issues in the future. parental status of a sperm donor is specically for circumstances in which a husband consents to the use of donor sperm by his About the Author wife for the purpose of the conception of a child,38 and Michi- gan has not adopted the Uniform Parentage Act.39 e Uniform Judge Kathleen McCarthy has served on the Wayne County Parentage Act specically cuts o the parental status of a donor Family Court Bench since 2001, and was named the Presiding when assisted reproductive technology is used, without drawing Judge in 2013. She was recently presented with a 15 Years of any distinction between same-sex and opposite-sex donees.40 Judicial Service commendation from the State Bar of Michigan’s When the same-sex partners are male, a separate set of Family Law Section. As an adjunct professor, Judge McCarthy problems are presented. Michigan’s Surrogate Parenting Act has taught the Family Law and Law Firm Program courses at the prohibits gestational surrogacy contracts.41 Because of this University Detroit Mercy Law School since 2011. In addition,

J /J M F L J 11 16 Johnson v Johnson, 93 Mich App 415 (1979). she has taught around the country from 2001 – 2015 for the Institute of Certied Divorce Financial Planners. A life-long resi- 17 MCL 722.1001-722.1013. dent of the Detroit area, Judge McCarthy earned her Bachelor’s 18 MCL 710.21-710.70. degree from University of Michigan and Juris Doctorate from the 19 Wright v Wright, 99 Mich 170 (1894). Detroit College of Law. 20 MCL 722.22(i). Judge McCarthy is an active speaker on issues involving fam- 21 Current Michigan law does not permit second parent adoptions ily law, having presented at AAML, ICLE, and MJI conferences in which an unrelated adult seeks to adopt a child already ad- over the past decade. She is past president of the Wayne County opted by another person, as such “second parents” do not fall Family Law Bar Association and the Dearborn Bar Association. within the statutory list of persons who can adopt. See MCL 710.24(1)-(2). Among other positions of leadership, Judge McCarthy currently sits on the Executive Board of the Court, the Board of the Mediation 22 e stepparent adoption statute, MCL 710.51, does not seem to fully apply to circumstances in which a same-sex spouse seeks Tribunal Association, the Board of the Furniture Bank of Southeast to adopt their spouse’s adoptive child because there is not any Michigan, the Wayne Mediation Center Board, and the Board of noncustodial parent whose rights can be terminated. Nonethe- the Arab-American Civil Rights League. less, the statute is being used to facilitate adoption by the second Judge McCarthy is married and has two children. spouse in the ird Judicial Circuit Court of Michigan with the parties representing that, depending on the circumstances, there Endnotes is no noncustodial parent or the rights of the noncustodial parent were previously terminated. 1 See Harmon v Davis, ird Circuit Court Case No. 10-101368- 23 See Kivari v Kivari, unpublished opinion per curiam of the Michi- DC (led February 2, 2010). gan Court of Appeals, issued April 12, 2016 (Docket No. 328951) 2 Id. (Opinion of the Court, signed and led on April 16, 2010). (holding that the father’s wife did not have standing to seek parent- 3 Harmon v Davis, unpublished order of the Court of Appeals, ing time for the father’s biological son who was born prior to the issued July 8, 2010 (Docket No. 297968). marriage, but who was raised by the father and the wife). 4 Obergefell v Hodges, __ US __; 135 S Ct 2584; 192 L Ed 2d 609 24 See Van v Zahorik, 460 Mich 320 (1999). (2015). 25 Atkinson v Atkinson, 160 Mich App 601, 608–09 (1987). 5 See MCR 3.211. 26 Lake v Putnam, 316 Mich App 247 (2016)(available online at 6 See MCL 701.24. 2016 WL 3606081) 7 e Michigan Adoption Code, MCL 710.21-710.70, allows 27 2016 WL 3606081 at *2. adoption only by: (1) single persons, (2) married persons ling 28 See Kivari, supra. a joint petition for adoption with his or her spouse, and (3) a 29 Johnson v Johnson, 93 Mich App 415 (1979). married person, whether husband or wife, individually ling a 30 Bergan v Bergan, 226 Mich App 183, 187 (1997). petition for adoption even though his or her spouse does not join 31 MCL 722.1001-722.1013. in the petition. See MCL 710.24(1)-(2). However, the Michigan 32 Lake, 316 Mich App at ___ (2016 WL 3606081 at *7) (SHAP- Court of Appeals has recognized as a matter of constitutional full IRO, J., concurring). faith and credit a second parent adoption eectuated in another state of children by a single person who was the partner of the 33 Id. (2016 WL 3606081 at *8). rst parent to adopt the children. See Giancaspro v Congleton, un- 34 Id. published opinion per curiam of the Michigan Court ofAppeals, 35 Id. issued February 19, 2009 (Docket No. 283267). 36 Mabry v Mabry, 499 Mich 997, 997-1001 (2016) (MC- 8 Wright v Wright, 99 Mich 170 (1894). , J., dissenting). 9 Wright v Wright, 99 Mich 170 (1894). 37 Id. at 1000. 10 Atkinson v Atkinson, 160 Mich App 601, 611 (1987). 38 MCL 333.2824(6). 11 Stankevich v Milliron, 313 Mich App 233 (2015). 39 Uniform Parentage Act (2002) [hereinafter UPA] (available on 12 Stankevich is also notable in that it went up on appeal, rst to line at: http://www.uniformlaws.org/Act.aspx?title=Parentage Act). the Michigan Court of Appeals and then to the Michigan Su- 40 UPA § 701 (2002). preme Court, prior to the Obergefell ruling in 2015. us, the 41 MCL 722.851-722.863. rulings made during the appeals in the case provide snapshots 42 UPA § 807(a) (2002). in time of the outcome of custody determinations made at the end of a same–sex marriage both before and after Obergefell. 43 See 6 Rutkin, Family Law & Practice (2016), § 65.03[3][b], pp p65-12 to 65-15. 13 Harmon v Davis, Opinion of the Court, signed and led on April 16, 2010, at 9-17. 44 DG v KS, 444 NJ Super 423 (2015). 14 Id. 45 See endnote 39 supra. 15 Atkinson v Atkinson, 160 Mich App 601 (1987).

12 M F L J J /J NOVEMBER 9 10, 2017 | NOVI

16TH ANNUAL Family Law institute

Michigan’s Must-Attend Family Law Event

Cosponsors NEW Session REGISTER TODAY Family Law Section of the Q&A Segment www.icle.org/family State Bar of Michigan with Expert Panel 877-229-4350 Michigan Judicial Institute

8GA T P P D

B J M. LT

While LGBTQA Americans celebrated the Obergefell1 de- that the failure to protect the right of same-gender parents cision on June 26, 2015, the hidden celebrants of that day to marry not only imparted an emotional and societal stigma were the thousands of minor children living in same-gender upon their children, but also that the failure to protect the families. e Obergefell decision brought comfort and secu- right to marry signicantly impacted the nancial security of rity to most of these children living across the country; yet these children. unfortunately, there are still hundreds (if not thousands) of Before Obergefell, same-gender couples in many states Michigan children who are still left without consistent, legal were allowed to protect the parent-child relationship by protections. e time is long past due to provide these Michi- jointly adopting under “second-parent adoption” or similar gan children and families the legal protections intended by the structures. Michigan denied same-gender parents the ability Obergefell Court. to jointly adopt children, or to even allow one party in a same- In concluding that the Fourteenth Amendment of the gender family to adopt his/her partner’s biological/legal child, United States Constitution requires the states to issue a mar- even if the parties planned the conception of their child through riage license to two people of the same gender, the Supreme articial insemination or other such means. Michigan allowed Court in Obergefell identied four (4) principles. First, the only a married couple to jointly adopt a child or a single person Court addressed personal choice, individual autonomy and to adopt a child alone. As Michigan at the time had a constitu- the right to marry protected by the Due Process Clause of tional amendment dening marriage as only between one man the Fourteenth Amendment. Second, the Court focused on and one woman, same-gender couples could not marry and the long standing recognition and support of such two-person therefore could not jointly adopt a child. is prohibition left Griswold 2 Lawrence.3 unions, addressing the line of and ird, children of same-gender families without the protections and the Court identied the country’s traditions that distinguish security of having two legally recognized parents. marriage as a keystone of America’s social order. And nally, With the Obergefell ruling, Michigan parents who had the Court discussed the principle that marriage is protected previously been married in other jurisdictions, or who said “I insofar as it safeguards children. do” in Michigan after June 26, 2014, were able to initiate step In identifying that the right to marry safeguards children, parent adoption proceedings to secure the legal rights of both the Court thoroughly addressed the benets of marriage that parents and their children. Michigan still only allows either a are conferred upon parents and their children. “By giving rec- married couple or a single person to adopt a child. Due to these ognition and legal structure to their parent’s relationship, marriage allows children ‘to understand the integrity and close- specic and limiting conditions, there remains today a subset of ness of their own family and its concord with other families children and parents who are still denied the security and pro- in their community and in their daily lives.”4 “Marriage also tection of full parental status and recognition through marriage aords the permanency and stability important to children’s and subsequent adoption: children of same-gender parents who best interests.”5 Clearly, protecting a mechanism for children never married and then broke up before Obergefell. to understand their families’ worth provides socio-emotional Following the Obergefell decision, many families and fam- support for children of same-gender families. e alternative ily law-practitioners were hopeful that the Michigan bench relegates these children to second-class status. “Without the would extend the doctrine of Equitable Parentage and allow for recognition, stability and predictability marriage oers, their the legal recognition and protection of Michigan children of children suer the stigma of knowing their families are some- same-gender families. Michigan adopted the Equitable Parent how lesser. ey also suer the signicant material costs of Doctrine in 1987 in Atkinson v Atkinson which provides that being raised by unmarried parents, relegated through no fault [A] husband who is not the biological father of a of their own to a more dicult and uncertain family life. e child born or conceived during the marriage may be marriage laws at issue here thus harm and humiliate the chil- considered the natural father of that child where (1) 6 dren of same-sex couples.” e Obergefell Court recognized the husband and the child mutually acknowledge a

14 M F L J J /J relationship as father and child, or the mother of the time to introduce a new doctrine into Michigan family case child has cooperated in the development of such a law: the Psychological Parent Doctrine. relationship over a period of time prior to the ling e Psychological Parent Doctrine rst made its mark of the complaint for divorce, (2) the husband desires in the 1970’s, and was addressed at length in 2000 regarding to have the rights aorded to a parent, and (3) the same-gender families in the New Jersey case of V.C. v M.J.B.13 husband is willing to take on the responsibility of 7 In VC, the parties were non-married lesbian partners. During paying child support. the relationship, MJB underwent articial insemination pro- As the Equitable Parent Doctrine was initially adopted to cedures and ultimately became pregnant. VC was present for secure the rights and obligations of a non-biological parent the birth of the twins, established educational accounts for the in a marital relationship with the other parent, the Michigan children, assisted in the selection of a pediatrician and daycare bench repeatedly declined to extend the doctrine to unmar- center for the twins, etc., and the couple maintained them- ried couples, including same-gender couples. e primary rea- selves inwardly and outwardly as a family unit. In 2000, six soning, as stated by the Court in Van v Zahorik was “[T]aking years after the birth of the twins, MJB ended the relationship a doctrine [equitable parent doctrine] rooted in marriage and and the parties initiated a nesting arrangement, taking turns extending it to persons who were never married would have living in the family home with the children. VC eventually repercussions on the institution of marriage. Michigan’s pub- moved out of the home and the parties agreed upon a parent- lic policy favors marriage.”8 ing time schedule while VC continued to nancially contrib- Even after Obergefell, when asked to extend the Equi- ute to household and children expenses. Subsequently, MJB table Parent Doctrine to include same-gender families, the terminated all contact between the children and VC, resulting Michigan bench continued to focus on the public policy in VC initiating a petition for joint custody and parenting of favoring the institution of marriage over the public pol- time. Reviewing a long line of de facto parenthood cases, the icy of protecting real children. In Stankevich v Milliron the VC v MJB Court identied four (4) factors for determining Michigan Court of Appeals originally dismissed non-bio- whether a non-legal parent has satised the test of Psychologi- logical mother’s pre-Obergefell petition for custody follow- cal Parenthood in sucient measure to have standing to seek ing the dissolution of the parties’ relationship.9 Following custody and parenting time: the Obergefell ruling, the non-biological mother, who had 1. e biological or adoptive parent consented to, and legally married the biological mother in Canada several years fostered, the petitioner’s formation and establishment earlier (although same-sex marriage was not then recognized of a parent-like relationship with the child; in Michigan), re-led her petition for custody and parent- 2. e petitioner and the child lived together in the ing time. e Court determined that it was now bound to same household; apply the Equitable Parent Doctrine as the parties had been legally married (albeit not in Michigan) and therefore the 3. e petitioner assumed the obligations of parenthood doctrine was now applicable.10 However, when the non-bio- by taking signicant responsibility for the child’s care, logical mother in Kolailat v McKennett11 led her petition for education and development, including contributing custody and parenting time following Obergefell, the Michi- towards the child’s support, without expectation of gan Court refused to apply the Equitable Parent Doctrine nancial compensation [a petitioner’s contribution to and dismissed the case as the parties did not legally marry a child’s support need not be monetary]; and (in a jurisdiction that recognized same-sex marriage). e 4. e petitioner has been in a parental role for a length Kolailat Court reasoned that the Equitable Parent Doctrine of time sucient to have established with the child a only applied to families that had the cloak of legal marriage, bonded dependent relationship parental in nature.14 whether or not that marriage was recognized at that time by the State of Michigan.12 In failing to extend the application e VC Court took special care to address each factor of of the Equitable Parent Doctrine, the Court left a gaping the Psychological Parent Doctrine test, reiterating that any tear in the safety net intended for Michigan children. And evaluation would depend on the specic circumstances of to this day, there remains no mechanism for these Michigan each case. First, the Court noted the importance of the legal minors of unmarried same-gender parents to gain the secu- parent’s consent and fostering of the parent-like relationship rity, stability or recognition they deserve and need. between the child and the non-legal parent. is factor avoids If Michigan Courts are unable to expand the reach of the the argument that a babysitter or nanny could seek standing to Equitable Parent Doctrine to include children of same-gender gain parenting time. Additionally, this factor recognizes that couples who did not marry outside of Michigan before June the control over the relationship between the child and non- 26, 2014, and if the state legislature is unable to pass a statuto- legal parent was directly within the legal parent’s dominion at ry safeguard for these children, it may be well past the proper the time of the creation of the relationship. e Court noted

J /J M F L J 15 that the focus of the review must be on the legal parent’s intent interest in maintaining the ties that connect them to adults who during the creation and pendency of the relationship between love and provide for them. at interest, for constitutional as the child and the non-legal parent, not the legal parent’s intent well as social purposes, lies in the emotional bonds that develop after the relationship ends. is focus recognizes that in hu- between family members as a result of shared daily life.”16 man nature, the bond between the child and the non-legal New Jersey is not alone in its recognition of the unbreak- parent does not terminate upon the ending of the relationship able bond between a child and a non-legal parent and its com- between the adults. In other words, while a parent controls mitment to considering not only the rights of parents, but also who can formulate a parent-like bond with his/her child, a the rights and best interests of minor children. Whether called parent does not control when that relationship terminates. Psychological Parent Doctrine or de facto parentage, as many as Also of particular note is the recognition that the non-legal eleven (11) states carve out an exception for children and their parent’s contribution to the support of the child need not be - non-legal/psychological/de facto parent.17 All such states focus nancial. Such distinction credits the value of time over treasure, on the bond created between the child and the third party and the value of stay-at-home parents, the value of helping with the devastating eects that can occur to the child’s well-being homework, carpooling to soccer practice, making meals, consol- if that bond is suddenly, and without cause in the eyes of the ing little bruised hearts, being there for a child on a day-in/day- child, severed. out basis, and holding oneself out for the child and to the world In Massachusetts, the Courts have dened a de facto that there is a parental bond and full parental responsibility. parent as: Finally, the Court conrmed that the fourth prong of the [O]ne who has no biological relation to the child, but Psychological Parent Doctrine test is the most important: the has participated in the child’s life as a member of the actual formation of a parent-child bond. ere is no set, pre- child’s family. e de facto parent resides with the scribed amount of time necessary to formulate a parent-child child and, with the consent and encouragement of the bond, each situation and family is unique; but once that bond legal parent, performs a share of care taking functions is created, the factors will be satised and a non-legal parent at least as great as the legal parent. e de facto will have standing to seek parenting time and/or custody and parent shapes the child’s daily routine, addresses his also be obligated to continue to nancially support the child. developmental needs, disciplines the child, provides e VC Court was cognizant of the long-standing rights for his education and medical care, and serves as a of t, legal parents to raise their children without outside in- moral guide.18 terference. However, the Court also recognized that the legal parent’s right is not absolute; and further, the Court has the As with similarly situated legal parents, once a non-parent authority to consider the best interests of the minor child: successfully navigates through each prong of the Psychologi- What we have addressed here is a specic set of cal Parent Doctrine test and is determined by the court to be circumstances involving the volitional choice of a a psychological parent to the child, that person has standing legal parent to cede a measure of parental authority with the legal parent to seek an award of custody and par- to a third party; to allow that party to function as enting time. Upon a determination that the non-legal parent a parent in the day-to-day life of the child; and to has standing, the Psychological Parent Doctrine, as applied in foster the forging of a parental bond between the many states, will then move into the next phase of the analy- third party and the child. In such circumstances, the sis to review the best interest factors. Within this process, the legal parent has created a family with the third party legal parent’s status will be granted sucient weight. As stated and the child, and has invited the third party into the in VC v MJB, “under ordinary circumstances when the evi- otherwise inviolable realm of family privacy. By virtue dence concerning the child’s best interests (as between a legal of her own actions, the legal parent’s expectation of parent and psychological parent) is in equipoise, custody will 19 autonomous privacy in her relationship with her child be awarded to the legal parent.” e Court went on to af- is necessarily reduced from that which would have rm that even though the legal parent will be awarded greater been the case had she never invited the third party weight in a custody determination, an award of parenting time into their lives. Most important, where that invitation to the psychological parent will be the presumptive rule. As and its consequences have altered her child’s life by further stated by the Court, “[o]nce the parent-child bond is essentially giving him or her another parent, the legal forged, the rights and duties of the parties should be crafted to 20 parent’s options are constrained. It is the child’s best reect that reality.” interest that is preeminent as it would be if two legal New York has also adopted the Psychological Parent Doc- parents were in conict over custody and visitation.15 trine; yet a slower, more methodical, case-by-case basis approach has been adopted. New York statutes do not dene the As summed up by VC v MJB, “At the heart of the psycho- term “parent,” thus leaving the term for the courts to dene. In logical parent cases is recognition that children have a strong 1990, the New York Court in Allison D dened “parent” under

16 M F L J J /J their children to have the love and support of two the Domestic Relations Law for custody and parenting time 25 matters to include only a biological or adoptive parent to a committed parents. child.21 For nearly three (3) decades, the New York courts Following Obergefell’s emphasis of the stigma placed on were asked to revise the denition of “parent” to include de children of same-gender families, the Brooke SB Court fol- facto, or psychological, parents, especially in same-gender lowed suit and likewise focused on the best interests of the families that were denied the right to marry in New York children and recognition of the importance of the children’s and for many years denied the right to engage in step-parent bonds with their non-legal parents. As in the VC case, the adoption. Courts were forced to repeatedly deny non-legal Brooke SB Court did address the fundamental right of a legal parents and children the right to continue their parent-child parent to raise their child without outside interference.26 e relationships under the doctrine of stare decisis. However, in Court quoted the Supreme Court in Troxel v Granville, 530 2016, the Court of Appeals of New York recognized that in US 57, 88-89 (Stevens, J., dissenting): while “parents extraordinary circumstances prior rulings can be overturned, and families have fundamental liberty interests in preserving’ and after careful consideration in Brooke SB, the Court over- intimate family-like bonds, ‘so, too, do children have these 27 ruled the 1990 Allison D decision and the bright-line deni- interests.’” tion of “parent” as only a biological or adoptive.22 e Brooke SB Court, following the lead of Obergefell, rec- Brooke SB involved a lesbian couple who lived together ognized that the bright-line rule and denition of “parent” as before marriage became legal in New York.23 Together the only by means of biology or adoption creates an injustice felt couple decided to have children and grow their family, joint- and perceived most excruciatingly by children of same-gender ly deciding that Elizabeth would try to become pregnant via parents. Further, such a limited denition can have the impact articial insemination. e couple was successful, and their of negating a child’s best interests, and thus fail to adhere to son was born in June of 2009. At all times during Elizabeth’s equitable principles. Accordingly, the Brooke SB Court over- pregnancy, labor and delivery, Brooke was at her side, even ruled Allison B and the New York denition of “parent” as cutting their son’s umbilical cord. Following their son’s birth, only by biology or adoption. the couple continued to live together and co-parent, with However, unlike VC, the Brooke SB Court did not adopt Elizabeth returning to work outside the home and Brooke a full Psychological Parent Doctrine or other test for attain- staying home with their son. In 2010 the couple broke up, ing standing. Rather, the Court recognized that there can be a multitude of avenues where a non-legal parent in such a yet they maintained an amicable parenting time schedule. “non-traditional” family may have standing to seek custody Unfortunately, in 2013 Elizabeth completely terminated all and/or parenting time. However, the Court declined to pass a contact between Brooke and their son. Brooke initiated cus- sweeping test. Instead, the Court foreshadowed that each case tody and parenting time proceedings and Elizabeth attempt- must be handled with the due care and consideration war- ed to dismiss the case, alleging that Brooke had no standing. ranted, and instead focused on the specic facts presented in e Family Court, after hearing testimony and acknowledg- the underlying companion cases in Brooke SB. In the two cases ing the “heartbreaking” nature of the case, dismissed the presented, each couple had entered into pre-conception and case citing the precedent of Allison D. e Appellate Court parenting agreements. erefore, the Court held that in such unanimously armed the Family Court, also concluding cases where a couple had entered into mutual pre-conception that since there was no marriage and no adoption, the Court and parenting agreements, yet did not have a valid marriage or was bound to follow Allison D. adoption proceeding, the non-legal parent would have stand- On appeal, the state’s Supreme Court recognized that ing to bring forth a custody and parenting time petition. e children of same-gender parents are particularly harmed by Court left for another day a decision on what factors it would bright-line rules, as found in Allison D., that dene “parent” require to achieve standing, if any, a petitioner who could not as only through biology or adoption: show clear and convincing evidence of a pre-conception agree- Under the current legal framework, which emphasizes ment. However, the Brooke SB ruling did provide a mecha- biology, it is impossible—without marriage or nism for many previously unprotected children and parents in adoption—for both former partners of a same- their quest for security and stability. sex couple to have standing, as only one can be Michigan was one of the last of the fty states to cling to biologically related to the child.24 By contrast, where the “traditional” denition of marriage. So too is Michigan both partners in a heterosexual couple are biologically one of the last of the fty states to cling to the “traditional” related to the child, both former partners will have denition of “parent,” both statutorily and in case law. At least standing regardless of marriage or adoption. It is this fourteen states and jurisdictions have updated and provided for context that informs the Court’s determination of statutory mechanisms for adjudicating a non-legal, non-bio- a proper test for standing that ensures equality for logical individual to have standing as a parent.28 Again, at least same-sex parents and provides the opportunity for eleven states have adopted the Psychological Parent Doctrine.

J /J M F L J 17 5 Obergefell, supra, at __ (slip op., at 15). Other states have adopted dierent measures to recognize an individual’s standing in the pursuit of custody and support; 6 See Windsor, supra, at ___ (slip op., at 23); Obergefell, supra, at for example Rhode Island expanded its interpretation of their ___ (slip op., at 15). paternity statute.29 However, Michigan’s legislature has so far 7 Atkinson v. Atkinson, 160 Mich App 601, 608-609; 408 NW2d been silent and Michigan’s courts have so far been reluctant 516 (1987). to aord similar rights upon these non-legal, non-biological 8 Van v. Zahorik, 460 Mich 320 at 332, 597 NW2d 15 (1999). parents and their children. As such, non-married same-gender 9 Stankevich v. Milliron, 882 N.W.2d 194, 313 Mich. App. 233 parents in Michigan are still treated dierently, “less than,” as (Ct. App. 2015). compared to non-married opposite-gender parents in Michi- gan. is unequal treatment is in-and-of-itself a violation of 10 Id. equal protection and due process rights, both of non-married 11 Kolailat v. McKennett, No. 328333 (Mich. Ct. App. Dec. 17, same gender parents and their children. e holding and anal- 2015). ysis of Obergefell clearly state how the socio-emotional bonds 12 See also Mabry v. Mabry, 499 Mich 997, 882 NW2d 39 (2016); and the legal rights of children and their (non-biological/non- see also Lake v. Putnam, --NW2d—92016, 2016 WL 3606081. legal) LGBTQA parents are fundamental rights that cannot 13 V.C. v. M.J.B, 163 NJ 200, 748 A2d 200 (2000). be overshadowed by a State’s antiquated and penalizing policy favoring “traditional” marriage. Such rigid attachments to the 14 Id., at 223; citing Custody of HSH-K, 533 NW2d 419, 421 traditional denitions and policies of “marriage,” “parent” and (Wis. 1995). “family,” prevent Michigan courts from protecting children. 15 Id., at 27; citing Zack v. Fiebert, 235 NJ Super 424, 432, 433 e time is past due for Michigan to recognize and pro- (App Div 1989). tect those bonds between a child and the adult who holds the 16 See also Smith v. Organization of Foster Families for Equality and role as the child’s parent; the time is past due for Michigan to Reform, 431 US 816, 844, 97 S Ct 2094 (1977). recognize that a “parent” is often more than biology or a stag- 17 Including Wisconsin, Idaho, Oregon, Washington, New Jersey, nant law can dictate. As the Plaintis in Obergefell sought and Colorado, Alaska, Pennsylvania, South Carolina, Rhode Island, won legal recognition of their unions, so too do children and and New York. their psychological parents deserve and demand “equal dignity 18 ENO v. LMN, 711 NE2d 886, 891, (Mass. 1999). in the eyes of the law.”30 19 V.C. v. M.J.B, supra at 554. 20 Id. at 555. About the Author 21 Alison D. 77 NY2d 651 (1990). Jennifer M. LaTosch is a partner in the Jae Raitt Heuer & 22 Brooke SB v. Elizabeth ACC, 28 NY3d 1, 61 NE3d 488 (2016 Weiss’ Family Law Practice Group. She concentrates her practice NY) Slip Op. 05903. in family and domestic relations law, which includes routine and 23 Brooke SB v. Elizabeth ACC also involved another lesbian New complex divorces, post-judgment matters, custody and parenting York couple who were likewise unmarried, did not engage in time disputes, pre- and post-nuptial agreements, cohabitation adoption proceedings for their children, yet did jointly engage agreements and dissolution of relationship matters, child support, in co-parenting following a mutual decision for one of the cou- paternity, change of domicile, adoption and personal protection ple to undergo articial insemination. orders. Ms. LaTosch earned her Bachelor’s degree from Albion 24 See Alison D. supra at 656 (1990). College and is a graduate of Wayne State University Law School. 25 Brooke SB v. Elizabeth ACC supra at 25. 26 e Brooke SB Court discussed Troxel v. Granville, 530 US 57, Endnotes 65 (2000) and the fundamental right of legal parents to control the raising of their children, and also the recognition that the 1 Obergefell et al. v. Hodges, Director, Ohio Department of Health, necessary caution in any attempt to impact that right. et al, 576 U.S. ___ (2015). 27 Brooke SB, supra at 26. 2 Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965). 28 Colorado, Connecticut, Hawaii, Indiana, Kentucky, Minne- sota, Montana, Oregon, Pennsylvania, Texas, Virginia, Wash- 3 Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. ington, Wyoming, and the District of Columbia. 2d 508 (2003). 4 Obergefell, supra, at _ (slip op., at 15) quoting United States v 29 See Rubano v. DiCenzo, 759 A2d 959 (2000). Windsor, 570 U.S. _ (2013), at __ (slip op., at 23). 30 Obergefell, at 28.

18 M F L J J /J E E P D -OBERGEFELL LGBT C

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Historically, LGBT couples and families were rendered In 2004, Michigan voters approved a ballot initiative invisible by both Michigan law and Michigan courts. In that resulted in the amendment of Michigan’s constitution. 1996, the Michigan legislature codied its practice of deny- e amendment provided: “[t]o secure and preserve the ben- ing same-sex couples the right to marry and, further, prohib- ets of marriage for our society and for future generations of ited the recognition of marriages between same-sex couples children, the union of one man and one woman in marriage from other jurisdictions. MCL 551.1; MCL 551.271. MCL shall be the only agreement recognized as marriage or similar 551.1 provided: union for any purpose.”3 is amendment was interpreted by the Michigan Supreme Court to not only deny the right to MCL 551. Marriages between same sex, invalidity marry to same-sex couples but to also deny same-sex couples the right to form civil unions, or to have state or local govern- Marriage is inherently a unique relationship between ments recognize their relationships. National Pride at Work a man and a woman. As a matter of public policy, this v Granholm et al, 481 Mich 56, 87; 748 NW2d 524 (2008). state has a special interest in encouraging supporting, is prohibition extended to prevent public employers from and protecting that unique relationship in order to being able to provide health insurance benets for employees’ promote, among other goals, the stability and welfare domestic partners. Id. e Michigan Supreme Court major- of society and its children. A marriage contracted ity interpreted the amendment as broadly prohibiting any between individuals of the same sex is invalid in governmental form of recognition of same-sex relationships. this state. [Emphasis added.] is blanket ban remained in place until the United States MCL 551.271 Marriages solemnized in another state Supreme Court struck down state prohibitions on the right of same-sex couples to marry as unconstitutional. Obergefell v (1) Except as otherwise provided in this act, a marriage Hodges, 135 S Ct 2584; 192 L Ed 602 (2015). contracted between a man and a woman who are And yet, in spite of these laws prohibiting recognition of residents of this state and who were, at the time of same-sex couples in Michigan, LGBT couples were forming the marriage, legally competent to contract marriage committed relationships. Using data from the U.S. Census Bu- according to the laws of this state, which marriage is reau, the Williams Institute reported that in 2000 there were solemnized in another state within the United States 15,368 same-sex couples living in every county in Michigan. by a clergyman, magistrate, or other person legally By the 2010 census, this number had increased to 22,000, a authorized to solemnize marriages within that state, forty-two percent increase. is increase likely reected same- is a valid and binding marriage under the law of this sex couples’ growing willingness to disclose their partnerships state to the same eect and extent as if solemnized in government surveys. Of this gure, eighteen percent of the within this state and according to its laws. reporting couples were raising children together.4 Unlike heterosexual married couples who, when they had (2) is section does not apply to a marriage children, would both be recognized as the child’s legal par- contracted between individuals of the same sex, ents, same-sex couples were denied this benet of marriage. which marriage is invalid in this state under section In order to provide their children with the legal protection of 1 of chapter 83 of the revised statutes of 1846, two parents, an unmarried same-sex partner could attempt to being section 551.1 of the Michigan Compiled adopt the legal child of her partner through “second-parent Laws. [Emphasis added.] adoption.” “Second-parent adoption” has been dened as an adoption in which an individual who is raising children e above statutes mirrored the federal Defense of Mar- together with a non-spousal parent, either adoptive or biologi- riage Act, enacted on September 21, 1996, which denied fed- cal, adopts the children. See Sharon S v Superior Court, 73 P3d eral recognition of marriages between same-sex couples and 554, 558 n 2 (Cal 2003). Michigan trial courts have granted permitted states to do the same.1,2 second parent adoptions to unmarried same-sex couples over

J /J M F L J 19 the years. However, a number of trial courts interpreted Michi- doctrine should not ow to a couple (who had the option to gan’s adoption law, MCL 710.51 (5), as requiring both parties marry) and who have deliberately eschewed marriage. to be married and thus denied same-sex couples the ability to Since Van, the benets and protections aorded under eq- jointly adopt.5 e lack of options available for both parents to uitable parenthood have been limited to marriage and to couples protect their relationships to their children rendered the non- who could legally wed in Michigan. As same-sex couples could legal parent particularly vulnerable in the event of a break up of not marry in Michigan until June 2015, LGBT co-parents who couple’s relationship, where the one legal parent could unilater- bonded with their children and who functioned as parents in ally decide to cut o contact with their child. every way since birth with the consent of the biological or legal e 1987 case of Atkinson v Atkinson, 160 Mich App parent were denied recognition by the state of Michigan. In the 601, 604; 408 NW2d 516 (1987), established the doctrine of event of a break-up of the parents’ relationship, the legal parent equitable-parenthood for families in Michigan. e Atkinson could unilaterally and arbitrarily cut o all communication and court held that although the husband in a divorcing couple contact between the co-parent and the child and thus perma- was not the biological father of a child born to his wife, he nently sever that parent-child relationship. If the co-parent led nonetheless had rights of paternity.6 Atkinson, 160 Mich App an action in court requesting parenting time, Michigan courts at 604. e purpose of the equitable parent doctrine was to would deny legal standing. See Harmon v Davis.9 is end protect an established parent-child relationship that had been result denied children of same-sex parents the legal protection fostered throughout a child’s life, when the non-biological par- of both parents, because of the marital status of their parents. ent wishes to continue the relationship despite a termination of the relationship with the biological parent. e doctrine The Obergefell Effect preserves the stability, consistency, and bond that was created, thus benetting the child. On June 26, 2015, the United States Supreme Court, in Reasoning that “the Child Custody Act (CCA) ‘is equitable Obergefell v Hodges, 135 S Ct 2584; 192 L Ed 602 (2015), in nature’ and its provisions are to be liberally construed,” the held that the right to marry is a fundamental right inherent Court articulated an “equitable parent” doctrine arising implic- in the liberty of the person under the Due Process Clause and itly out of the CCA. Id at 609 (citing MCL 722.26). e court Equal Protection Clause of the Fourteenth Amendment and articulated three elements of the equitable-parent doctrine: that same-sex couples may not be deprived of that right and [A] husband who is not the biological father of a liberty. Furthermore, states must recognize lawful marriages child born or conceived during the marriage may between same-sex couples performed in other states. As a re- be considered the natural father of a child where (1) sult of this decision, states’ laws like Michigan’s that denied the husband and the child mutually acknowledge a same-sex couples the right to marry as well as the benets as- relationship as father and child, or the mother of the sociated with marriage, were struck down as unconstitutional. child has cooperated in the development of such as In holding that same-sex couples cannot be denied the relationship over a period of time prior to the ling right to marry, the Court made clear that this right includes the of the complaint for divorce, (2) the husband desires benets and protections associated with marriage. “By denying to have the rights aorded to a parent, and (3) the those benets of marriage, same-sex couples (and their fami- husband is willing to take on the responsibility of lies) are consigned to an instability many opposite-sex couples paying child support. would deem intolerable in their own lives.” Obergefell, 133 St Ct at 2599. us, Obergefell also armed the long standing Following Atkinson, however, the Michigan Supreme constitutional right to have a family and raise children. Court revisited the equitable-parent doctrine in Van v Zahor- e Michigan Supreme Court recognized this “Obergefell ik, 460 Mich 320; 597 NW2d 15 (1999), and imposed a new Eect” when it vacated the Michigan Court of Appeals’ deci- limitation. Writing for the majority, Justice Taylor held that the sion in Stankevich v Milliron, 498 Mich 877; 868 NW2d 907 doctrine of equitable parenthood was rooted in marriage and (2015), and directed the Court of Appeals to reconsider in “that by extending it to persons who were never married would light of Obergefell. In Stankevich, the parties entered into a have repercussions on the institution of marriage and noted that same-sex marriage in Canada in June 2007, before the birth of Michigan’s public policy favors marriage.”7 Id. at 332. their daughter. After the parties separated in March 2009, the e rationale in behind the Van decision was severely plainti petitioned the trial court for parenting time, contend- awed, focusing “on the adult’s marital status and legal rela- ing that she was an equitable parent. e trial court dismissed tionship with the child,” while devaluing “the importance of her petition, holding that she lacked legal standing. e the child’s personal relationship with the putative father.” Van Michigan Court of Appeals armed, citing then-current at 333 (Justice Brickley’s dissent).8 Nevertheless, Van reasoned Michigan laws that prohibited recognition of the couple’s that because the public policy of Michigan favors marriage, Canadian marriage, and applying Van v Zahorik’s limitation on the benets and protections aorded by the equitable parent equitable parenthood. On November 9, 2015, the Michigan

20 M F L J J /J Court of Appeals reversed its previous decision, holding that peals, as well a motion to stay, which was granted. e Michi- because of Obergefell, Michigan is required to recognize the par- gan Court of Appeals reversed, holding that because of Van and ties’ same-sex Canadian marriage. Stankevich v Milliron (On the fact that the parties were never married, Michelle could not Rem), 313 Mich App 233, 242; 882 NW2d 194 (2015). be considered an equitable parent. “(W)e simply do not belief But what of same-sex couples who could not legally marry it is within the court’s discretion to [i]n light of Obergefell [r] in Michigan during their relationship and who did not travel etroactively transform an unmarried couple’s past relationship to another jurisdiction to marry (which would not have been into marriage for purposes of custody proceedings.” Lake, supra. recognized in Michigan)? Far from “eschewing marriage,” the In his concurrence, Judge Shapiro proposed an extension of only realistic option available to those couples pre-Obergefell the equitable parent doctrine where the “parties would have mar- was that of unmarried cohabitation. ried before the child’s birth or conception but did not because of e Oklahoma Supreme Court held in Ramey v Sutton, unconstitutional laws preventing them from doing so. If they 362 P 3d 217 (2015), that a biological mother’s former part- would have married at that time, then the fact that one or both ner had legal standing to seek custody and visitation where the would not marry today should not retroactively impose a denial couple was not able to take advantage of the legal protections of parental rights but for the unconstitutional bar to same-sex of marriage in Oklahoma before the relationship ended. Okla- marriage would have been established.” Id. at 262-263. homa, like Michigan, had a ban on same-sex couples marrying In his concurrence, Judge Shapiro referred to the In re that was struck down as unconstitutional only after the parties Madrone12 decision from Oregon, where the court concluded in Ramey had separated. Bishop v Smith, 769 F 3d 1070 (CA that whether to extend equitable parent to same-sex couples 10, 2014). According to the Ramey court, the non-biological who would have chosen to marry should be made on case-by- parent in a same-sex relationship acts in loco parentis where: case basis, considering several relevant factors. Among those 1) they were unable to marry legally; 2) engaged in intentional factors (not exhaustive) included whether the couple regis- family planning to have a child and co-parent; and 3) the bio- tered as domestic partners had a commitment ceremony, held logical parent acquiesced and encouraged the same-sex part- themselves out as spouses, exchanged rings, commingled their ner’s parental role following the birth of the child. Ramey, 362 assets, had and raised children together, and attempted unsuc- P 3d at 218. e Ramey court refused to permit “a biological cessfully to marry in their state mother [t]he right as a parent to legally erase an almost ten Many of these factors were present in the case of Mabry year parental relationship that she voluntarily created and fos- v Mabry, 499 Mich 997; 882 NW2d 539 (2016). Deanna tered with her same sex partner.” 362 P 2d at 218.10 and Joanna Mabry were in a committed relationship for over ere have been similar eorts in Michigan to have family fteen years. During that period, Michigan prohibited them courts revisit the issue of equitable parent for same-sex couples from marrying and would not recognize an out-of-state mar- who could not marry in light of the Obergefell decision. In Lake riage. e couple took repeated steps to solidify their relation- v Putnam,11 Michelle Lake and Kerri Putnam were in a commit- ship, including ling a declaration of domestic partnership, ted romantic relationship for more than thirteen years. rough- purchasing a home together, entering into a formal domestic- out the period of their relationship, they could not legally wed partnership agreement, entering into a Jewish marriage cov- in either Florida and Michigan, where they resided. During enant in the form of a ketubah. Joanna, the biological mother their relationship, they decided to have a child and that Kerri and the three children born during the relationship, took would be the biological mother through articial insemination. Deanna’s last name. Deanna provided Joanna and the chil- In 2008, Kerri gave birth to a son. e couple co-parented their dren with health insurance and was the family’s sole nancial son and he regarded both women as his mothers. At times dur- provider for several years. e parties executed a will and trust ing their relationship, Michelle was the primary caretaker of agreements that provided that in the event of Joanna’s death, their son. In September 2014, Kerri ended the relationship and Deanna would be the children’s legal guardian and conserva- moved in with her new partner, taking their son with her. She tor. Mabry, 499 Mich at 998 (Justice McCormick’s dissent). then began severely restricting Michelle’s access to and contact In spite of this preponderance of evidence, the Michigan with their son, threatening to bar any visits altogether. Michelle, Court of Appeals, in an unpublished order,13 reversed the trial represented by the ACLU of Michigan, led a petition for par- court’s refusal to dismiss Joanna’s equitable parent claim and enting time in the Washtenaw County Family Court, maintain- the scheduling of an evidentiary hearing. Citing Van v Za- ing that she had legal standing as an equitable parent and that horik, Joanna’s application for leave to appeal to the Supreme court should not deny her that standing (post- Obergefell) when Court was also denied. Mabry, 499 Mich at 997. In her dis- she was prevented from marrying Kerri during their relationship. sent, Justice McCormick (joined by Justice Bernstein) took e trial court agreed with her and ordered supervised visitation, the majority to task for its failure to recognize that “[i]f not pending an evidentiary hearing for the court to make a factual for the state’s unconstitutional prohibition on their parents’ determination regarding equitable parenthood. Kerri led an right to marry, the children in this case would be entitled to all application for leave to appeal with the Michigan Court of Ap- the benets conferred by the equitable-parent doctrine. And

J /J M F L J 21 the adoption statute, because they were married to other people as a result of the Court of Appeals’ order, the parties’ children rather than to each other. e would-be petitioners wished to will be unable to seek the love and guidance of the plainti, adopt their adult biological child. e people to whom the two have access to her healthcare benets, social security benets, petitioners were married could not join in the adoption petition, and death benets, or inherit from her if she dies intestate in conformity with the statute’s requirement that a married peti- . . . [D]enying individuals who were unconstitutionally pro- tioner join with his or her spouse, lets that child end up with four hibited from marrying access to the equitable-parent doctrine legal parents. In addition, the Michigan Attorney General issued perpetuates the constitutional harms inicted by the state’s un- an opinion in 2004 stating that “couples of the same sex who constitutional prohibition of same-sex marriage.” Id at 1000. marry in a state that recognizes same-sex marriages as valid are not Presently, members of the LGBT community, who were legally authorized to adopt children in Michigan as a couple; one part of a same-sex relationship during the period that Michi- member of a same-sex couple may adopt a child in Michigan as a gan prohibited them from marrying, who co-parented their single person.” OAG 2004, No 7160 (September 14, 2004). children during their relationship, can nd themselves unilat- 6 In Atkinson, after more than eight years of marriage, a couple erally erased from their children’s lives, at the whim of their gave birth to their rst child. About three and half years later, former partner, the biological or legal parent. As far as Michi- the couple separated. e husband then led for divorce and gan courts are concerned, the marital status of the parties al- requested visitation. e wife asserted that he was not the bio- ways takes precedence over what might be in the children’s logical father. In response, the husband argued that he should nonetheless be treated as a parent due to the close father-son best interests. e Michigan Supreme Court, in its myopic fo- relationship the two shared. cus on whether or not the parties married (when Michigan law prohibited them from having that choice), has chosen to dis- 7 Van involved an unmarried heterosexual couple who had cohab- regard the full meaning and intent of the Obergefell marriage ited for ve years, during which one child was born. ey then ceased living together, although Scott Van said he and defen- equality decision, while undermining the stability of LGBT dant Mary Zahorik continued to have a relationship. Two years families. Unlike other state courts, Michigan appellate courts after they began living apart, another child was born. ree have chosen to perpetuate the collateral damage caused by the years after the birth of the second child, plainti Van began unconstitutional denial of the fundamental right to marry. living with another woman and Zahorik forbade Van from seeing either child. A blood test administered revealed that Van About the Author was not the biological father of either child; Van argued that nevertheless the equitable parent doctrine nonetheless gave him Jay Kaplan has been the sta attorney for the ACLU of visitation rights. Michigan’s LGBT Project since its founding in 2001. He has 8 e majority uses an adult-centered approach to resolve a dispute worked on cases including challenging undercover sting operations that primarily aects the lives and development of children. Be- targeting gay men, ghting Michigan’s constitutional amendment cause children do not participate in the formation of their bio- prohibiting same-sex couples from marrying, defending the validity logical or legal child-parent relationships, they are wholly blame- of second parent adoptions granted in Michigan, and recently ad- less for the shortcomings of their relative—legal, biological, or vocating for a transgender high school student to be able to run for otherwise. By placing an articial restriction on the denition of prom court. Jay was honored with the 2006 Unsung Hero Award ‘parent’ the majority absolves itself from addressing, as mandated by the legislature, the organizing principle of the Child Custody from the Michigan State Bar and the 2010 Virginia Uribe Civil Act- the best interests of the child.” Id. at 333. Rights Award from the National Education Association (NEA). 9 Unpublished opinion per curiam of the Michigan Court of Ap- peals, issued July 8, 2010 (Docket No. 297968), lv den,Harmon Endnotes v Davis, 489 Mich 986 (2011). 1 Section 3 of the Defense of Marriage Act, which denied federal 10 See also In re Madrone, 350 P3d 495 (2015) (holding that a stat- recognition of legal marriages between same-sex couples, was ute creating parentage by operation of law applies to same-sex struck down as unconstitutional in United States v Windsor, 133 couples who have a child through articial insemination if the S Ct 2675; 184 L Ed 2d 602 (2013). partner of the biological parent consented to the insemination and the couple would have chosen to marry had that choice 2 28 U.S.C.1738C. been available to them). 3 Const 1963, art 1, 25. 11 Lake v Putnam, unpublished opinion per curiam of the Court of 4 https://williamsinstitute.law.ucla.edu/demographics/michigan/ss- Appeals, issued July 5, 2016 (Docket No. 330955). couples-summary-june-2014-3/. 12 In re Madrone, 271 Ore App 116; 350 P 3d 495, 507-508 5 Some trial courts erroneously relied on In re Adams, 189 Mich (2015). App 540 (1991), to assert that two people who are not married could not adopt together. at is not, in fact, the holding of 13 Mabry v Mabry, unpublished order of the Court of Appeals en- Adams. e parties in Adams were not unmarried-they were mar- tered December 18, 2015 (Docket No. 329786). ried, and therein lay the problem for the court with regards to

22 M F L J J /J T T A W: H OBERGEFELL C LGBT A

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When the ght for marriage equality was rising through ously issued second parent adoption orders in favor of same- the courts, many attorneys saw it as a battle for equal rights sex petitioners living together with their non-biological chil- by consenting adults to enter into relationships of their choos- dren prior to Obergefell.4 ing. Others saw it as a chance for more business. After all, However, in 2002, Washtenaw County Circuit Court they would say (half-joking, of course) more marriages meant Chief Judge Archie C. Brown issued a directive which said, more divorces. What most overlooked was the eect same-sex regarding the Adoption Code, “… it is clear that the statute, marriage would have on LGBT adoption. Since the Supreme and our case law, bars adoptions by both gay couples and Court decision in Obergefell v Hodges,1 and especially since the unmarried heterosexual couples.” e directive indicated most recent presidential election, gay and lesbian couples have “[t]his decision comes after … concerns about the legality of been seeking legal routes to secure their families. Putting the this program expressed to me by judges … including mem- pieces together now that they have access to legal marriage and bers of the Supreme Court.”5 Two years later, in 2004, the the parental rights that come along with it can be challenging Michigan Attorney General issued an opinion which stated when the law still remains in ux. “couples of the same sex who marry in a state that recognizes same-sex marriages as valid are not legally authorized to 6 Michigan LGBT Adoption Before DeBoer and adopt children in Michigan as a couple.” As a result, until at Obergefell least 2014, it was the general legal consensus that second parent or step-parent adoption by same-sex couples was func- e challenge for gay and lesbian couples seeking to start a tionally illegal in the state of Michigan.7 family in Michigan is that both parents cannot be biologically related to the child. Some couples are able to parent children DeBoer v Snyder: Challenging the Ban on Same- conceived by one or the other partner as the result of a pre- Sex Second-Parent Adoption vious, typically heterosexual relationship. For others, though, the route to parentage must necessarily go through adoption. e Michigan marriage equality case, DeBoer v Snyder,8 e Michigan Adoption Code has never explicitly laid out later consolidated with Obergefell at the Circuit Court level,9 whether two unwed people could adopt the same child. Sec- sought to challenge that assumption. e plaintis, April De- tion 24(1) states in relevant part: Boer and Jayne Rowse had each individually adopted children Except as otherwise provided in this section, if a whom the couple were raising together as a family. ey add- person desires to adopt a child or an adult and to ed their children as plaintis in a lawsuit against the State of bestow upon the adoptee his or her family name, or Michigan, asking the federal court to determine “that the pro- to adopt a child or an adult without a name change, visions of MCL 710.24, which prohibits second parent adop- with the intent to make the adoptee his or her heir, tions by unmarried persons, violates the plainti children, parents and step parents’ rights under the Equal Protection that person, together with his or her spouse, if married, 10 shall le a petition with the court of the county in Clause . . . of the United States Constitution.” Although the initial complaint briey mentioned that the Michigan Mar- which the petitioner resides, where the adoptee is 11 found or, where the parent’s parental rights were riage Amendment (MMA), which dened marriage as “the terminated or are pending termination.2 union of one man and one woman,” prohibited them from marrying, their focus was on closing the gap created by the LGBT rights advocates, including the ACLU of Michigan 2002 directive. and the Human Rights Campaign, have taken the position United States District Court Judge Bernard Friedman, that this language does not bar an adoption by two unwed for the Eastern District of Michigan, felt the issue was larger petitioners.3 In fact, certain judges, including the Honorable than simply adoption. He encouraged the plaintis to amend Nancy Wheeler of the Washtenaw County Circuit, had previ- their complaint to challenge the constitutionality of the

J /J M F L J 23 MMA itself.12 In so doing, he converted DeBoer from an adop- tected as a central part of the fundamental right to marry.19 tion case to a marriage equality matter. e amended lawsuit ese choices also confer rights and benets on the children included the much broader claim: that “the disparate treatment of such marriages: of same sex couples, and their children, in Michigan violates Under the laws of the several States, some of marriage’s the Equal Protection Clause of the United States Constitution,” protections for children and families are material. But and “the Michigan Marriage Amendment also violates the Due 13 marriage also confers more profound benets. By Process Clause of the United States Constitution.” giving recognition and legal structure to their parents’ e opinion resulting from the lengthy bench trial was relationship, marriage allows children to ‘understand singularly focused on whether the MMA could survive ratio- the integrity and closeness of their own family and its nal basis review by proscribing conduct rationally related to a concord with other families in their community and conceivable legitimate governmental purpose.14 e plaintis’ in their daily lives.’ Windsor, supra, at __, 133 S. Ct. request for the court to overrule the Adoption Code passed with 2675, 186 L.Ed.2d at 828. Marriage also aords the merely a mention–that the harm caused by Section 24 was de- permanency and stability important to children’s best rived from the plaintis’ inability to marry.15 us, while Michi- interests. . . . gan marriage equality progressed, the rights of non-biological parents to adopt their children were put on hold. Without the recognition, stability, and predictability marriage oers, their children suer the stigma of Obergefell On Marriage Equality and knowing their families are somehow lesser. ey also Children’s Rights suer the signicant material costs of being raised by unmarried parents, relegated through no fault of their By the time DeBoer and its companion cases, including own to a more dicult and uncertain family life.20 Obergefell v Hodges, made their way to the Supreme Court, the issue of adoption had been all but swallowed up by the us, the fundamental right of same-sex couples to marry themes of marriage equality. In his majority opinion, Justice was based, in signicant part, on the rights of their children to Anthony Kennedy stated that the petitioners were all adults enjoy a stable, predictable, and understandable family structure. who wished to enter into consensual, legal marriage relation- However, as Judge Friedman appropriately noted, “pro- ships with members of the same gender, or whose partners had hibiting gays and lesbians from marrying does not stop them 21 died while waiting for the opportunity to marry.16 However, from forming families and raising children.” At the time of the best interests of a child of same-sex parents remained cen- the Obergefell decision, hundreds of thousands of children tral to the case. were being raised by same-sex couples, whether biological or 22 e Court outlined four principles and traditions which adopted. In the nearly two years that have elapsed since the demonstrated the reasons marriage is fundamental under the decision, the questions of adoption and a non-biological par- Constitution: (1) the right to individual autonomy in choos- ent’s legal rights have once again come to the fore. ing whether and whom to marry; (2) the right to enjoy intimate association; (3) safeguarding children and families’ rights Religious Exemptions for Agencies Make LGBT regarding child-rearing, procreation, and education; and (4) Adoption Harder marriage as a keystone of social order.17 With respect to the third principle, the role of the DeBoer-Rowse children, and of Fifteen days before the Obergefell decision, the Michigan the Michigan Adoption Code became obvious: legislature passed a set of laws that have the potential to place a signicant burden on LGBT couples seeking adoption. Michigan, however, permits only opposite-sex married On June 11, 2015, Governor Snyder signed Public Acts 53, couples or single individuals to adopt, so each child 54, and 55. ese laws, eective September 9, 2015, amend can have only one woman as his or her legal parent. If the Social Welfare Act,23 the Probate Code,24 and the Child an emergency were to arise, schools and hospitals may Care Organizations Act25 to allow agencies responsible for treat the three children as if they had only one parent. foster care, adoption, and child placement to refuse a referral And, were tragedy to befall either DeBoer or Rowse, the other would have no legal rights over the children or placement based on that agency’s written, sincerely held she had not been permitted to adopt. is couple seeks religious belief or policy. ey prohibited state and local relief from the continuing uncertainty their unmarried governments from taking adverse action against the placement status creates in their lives.18 agency, including denying funding or discontinuing a contract, because of the agency’s refusal to take a referral for religious e court noted that choices regarding family relation- reasons. at scal year, Michigan adoption agencies had a ships, procreation, and child-rearing are some of the most budget of $19.9 million in state and federal money. Nearly intimate decisions a person can make, and are therefore pro- $10 million of that went to faith-based agencies covered under

24 M F L J J /J the religious exemption laws.26 Particularly in northern and e Adoption Code (quoted above) allows a person to western Michigan, it can be dicult for prospective parents petition to adopt the children of his or her spouse.33 It is pre- to nd an adoption agency that is not faith-based. Given that mised on the idea that the adoptive parent assumes the place many faith-based agencies are operated by organizations that of the child’s natural or legal, non-custodial parent. is oc- traditionally oppose same-sex marriage and parenting,27 this curs either when a child’s parents are divorced, or when the leaves would-be adoptive parents with few options when they child is born out of wedlock.34 It states: are seeking placement through an agency referral or need a “Born out of wedlock” means a child conceived and home study in a jurisdiction that refers such matters to an born to a woman who was not married from the outside agency that does not want to provide services and conception to the date of birth of the child, or a child 28 seeks protection under these laws. whom the court has determined to be a child born during a marriage but not the issue of that marriage.35 The Technical Mineﬁeld of “Wedlock” Under the Michigan Adoption Code e statute provides that the rights of the non-custodial parent must be terminated, either through consent or follow- In the wake of Obergefell, numerous same-sex couples have ing a hearing in which it is determined that the non-custodial turned to the state’s juvenile courts to preserve and protect parent either (1) had the ability to aid in supporting the child families’ rights. ese couples, whose marriages are now rec- and failed to do so for 2 years or more prior to the petition or ognized, are asking the courts to award step-parent adoptions, (2) had the ability to visit, contact, or communicate with the granting the non-biological parent rights and obligations for child and regularly and substantially failed to do so for 2 years his or her child’s benet. is can raise the interesting, and or more prior to the petition, before the adoption can be nal- sometimes heartbreaking question, about what it means for a ized.36 e statute also provides a procedure to terminate the child to be born out of wedlock when a legal marriage is not rights of a putative father (the language is gender-specic), for legally recognized. a child if he cannot be identied or located.37 Under Obergefell, “spouse” should no longer be read as a gen- e Adoption Code is not well-equipped to address the der-specic term.29 Statutes and doctrines containing “husband” realities of modern reproductive technology. Lesbian couples or “wife” are being read in a gender-neutral way to include same- who used a known or unknown sperm donor to conceive be- sex couples and award them the benets of marriage.30 Based on fore they were permitted to marry must terminate that donor’s this reading, the Public Health Code provides that “a child con- unknown and unexercised parental rights before unifying their ceived by a married woman with the consent of her [spouse] fol- families. Male gay couples who utilize a surrogate (either with- lowing the utilization of assisted reproductive technology is con- out compensation or out of state38) are well advised to start a sidered to be the legitimate child of the [spouse] and [spouse].”31 direct placement adoption immediately, even before the child Similarly, the Estates and Protected Individuals Code states: is born, as the statute does not provide for the termination of If a child is born or conceived during a marriage, both an uncooporative putative mother’s rights. spouses are presumed to be the natural parents of the e opaque legal status of same-sex couples who were wed child for purposes of intestate succession. A child between 2004 and 2015 further complicates the issue. ese conceived by a married woman with the consent couples did everything they could to be considered a family, of her [spouse] following utilization of assisted often traveling out of state at great expense to obtain a valid reproductive technology is considered as their child marriage certicate. However, until Obergefell, Michigan law for purposes of intestate succession. Consent of the had provided that “[a] marriage contracted between individu- 39 [spouse] is presumed unless the contrary is shown als of the same sex is invalid in this state.” e natural result by clear and convincing evidence. If [two people] of this law was that when a same-sex couple had a child to- participated in a marriage ceremony in apparent gether in this state, the non-biological parent was excluded compliance with the law before the birth of a child, as a legal parent of that child. Obergefell overturned this law, even though the attempted marriage may be void, the ruling that “there is no lawful basis for a State to refuse to child is presumed to be their child for purposes of recognize a lawful same-sex marriage performed in another 40 intestate succession.32 State on the ground of its same-sex character.” However, “[d]ignitary wounds cannot always be healed with the stroke ese statutes provide some certainty for those lesbian cou- of a pen.”41 Non-biological parents whose names were omit- ples forming families in the days since Obergefell. A child con- ted from birth certicates now nd themselves in the dicult ceived or born during a valid marriage will be treated as a prod- situation of trying to petition for the adoption of a child that uct of that marriage, in some cases even if later developments in was not technically born out of wedlock. Because termination the law render it void. However, for gay couples, and those who proceedings only apply when a case meets the “born out of started their families prior to Obergefell, the law is far less clear. wedlock” criteria, non-biological parents may face challenges

J /J M F L J 25 Att’y Gen. 7160 (2004), available at http://www.ag.state.mi.us/opinion/ obtaining adoption orders clarifying their rights as the legal datales/2000s/op10236.htm. parents of the children they helped to conceive and raise. 7 See In re Adams, 189 Mich. App. 540, 473 N.W.2d 712 (1991). e substantial implications of this tricky wedlock issue 8 DeBoer v. Snyder, 973 F.Supp.2d 757 (E.D. Mich. 2014) (hereinafter become evident when LGBT couples’ relationships fall apart DeBoer I). and the parties end up in Family Court. If they were permitted 9 DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014) (hereinafter DeBoer II). to complete the adoption process, the biological and non-bi- 10 Original Complaint at para 6-7, DeBoer v Snyder, 973 F. Supp.2d 757 ological parents’ rights would be identical.42 is includes the (E.D. Mich. 2014). right to petition the Family Court for custody, parenting time, 11 Mich. Const. art. I, § 25. 43 or child support. However, if a non-biological parent has not 12 Crystal Proxmire, “Adoption Rights Suit Amended to Include Same- been permitted to adopt his or her children, then that par- Sex Marriage,” Between e Lines, Sept. 13, 2012, available at http:// ent must instead meet the heightened burden of establishing www.pridesource.com/article.html?article=55644. standing under the Equitable Parent Doctrine.44 If the couple 13 Amended Complaint at 1, DeBoer v. Snyder, 973 F. Supp.2d 757 (No. never married (including the many couples whose relation- 12-10285). ships dissolved while waiting for marriage equality to come to 14 DeBoer I, 973 F.Supp.2d at 760. Michigan) even that option is unavailable.45 15 Id. ese technical legal challenges will not go away any time 16 Obergefell, 135 S. Ct. at 2593. soon. Children conceived and born to committed couples 17 Obergefell, 135 S. Ct. at 2598-2601. prior to Obergefell will continue to be the subjects of adoption 18 Obergefell, 135 S. Ct. at 2595. petitions and custody battles for another fteen years. Adult 19 Obergefell, 135 S. Ct. at 2599. adoptions will continue far longer. Without clear guidance 20 Obergefell, 135 S. Ct. at 2600-2601. from the legislature or the State’s appellate courts on the ap- 21 DeBoer I, 973 F.Supp.2d at 771. plication of the Adoption Code to cases where a child was 22 Obergefell, 135 S. Ct. at 2600. born within a marriage not then recognized, a generation of 23 MCL 400.5a. children raised by LGBT parents will face the same instabil- 24 MCL 710.23g. ity and stigma that April DeBoer, Jayne Rowse, and the U.S. 25 MCL 722.124f . Supreme Court in Obergefell sought to avoid. 26 Kathleen Gray, “Religious Objection Bills Reemerge in State Legisla- ture,” Detroit Free Press, Feb. 22, 2015, available at http://www.freep. com/story/news/politics/2015/02/22/religious-liberty-bills-resurface-state- About the Author legislature/23846599/. 27 Gray, supra at xxvi. Lisa J. Schmidt is a Partner at Schmidt & Long, PLLC. She 28 See MCL 710.46. handles divorce, family, and juvenile matters (including adop- 29 See Stankevich v. Milliron, 313 Mich.App. 233, 882 N.W.2d 194 tion) with an emphasis on non-traditional and LGBT families. (2015) (applying the Equitable Parent Doctrine to the wife of a child’s She also serves as Secretary to the American Civil Liberties Union mother when the rule was articulated only as to husbands). of Michigan Board of Directors, and as Vice-Chair for the Fern- 30 See id. dale Area Chamber of Commerce. 31 MCL 333.2824(6). 32 MCL 700.2114(1)(a). Endnotes 33 MCL 710.24. 34 Stephanie L. Benedict, “Handle a Stepparent Adoption”, (Ann 1 Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Arbor, MI: Institute of Continuing Legal Education 2017), 2 MCL 710.24. available at http://www.icle.org/modules/howtokits/how-to-kit. 3 Wyatt Fore, “DeBoer v. Snyder: A Case Study In Litigation and Social aspx?kit=2004TK3521&q=step%20parent%20adoption. Reform,” Michigan Journal of Gender & Law 22 (2015): 169. Available 35 MCL 710.22(h). at: http://repository.law.umich.edu/mjgl/vol22/iss1/4. 36 MCL 710.43(7); MCL 710.51(3), (5) and (6). 4 Lester Graham, “How Judges Were Stopped From Granting Two-Parent 37 MCL 710.37(2). Adoptions to Gay and Lesbian Parents,” Michigan Public Radio, Jun. 11, 38 See MCL 722.851 et. seq. 2013, available at http://michiganradio.org/post/how-judges-were-stopped- granting-two-parent-adoptions-gay-and-lesbian-parents. 39 MCL 551.1. 5 Supplemental Brief in Support of Motion to Disqualify Judge 40 Obergefell, 135 S. Ct. at 2608. at 9-10, In re: Adoption Cases, Nos. 02-0130-AO/02-0129- 41 Obergefell, 135 S. Ct. at 2606. RB, 01-0120-AO/02-0119-RB, 01-0092-AO/02-0091-RB, 42 MCL 710.60(2). 02-0148-AO/02-0149-RB, 02-0151-AO/02-0150-RB, 43 MCL 722.22(i). 02-0145-AO/02-0146-RB, 02-0143-AO/02-0144-RB, (Washtenaw Co. Cir. Ct. Jul. 31, 2002), available at https://www.clearinghouse.net/ 44 Stankevich, supra. chDocs/public/PB-MI-0007-0003.pdf. 45 Lake v. Putnam, No. 330955 (Mich. App., Jul. 5, 2016). 6 Validity of Out-of-State Same-Sex Marriages in Michigan, Op. Mich.

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Coverage under health, pension and other welfare ben- ing a court to invade the parties “separate” property, if needed, ets oered by private employers, is evolving. While couples to reach a fair judgment, will loom large in these cases. is is in “traditional” marriages may see little or no change, same-sex so particularly if nancial need issues, contribution, joint asset married couples and others in domestic partnership arrange- or comingling issues are found. 6 ments (whether “gay” or “straight”) may well wish to follow It is a fact that some domestic partners in Michigan have the developments. Government-related retirement benets always had the option to marry. But others have not, and and the coverage provided—Social Security for example—are it would seem the elimination of common law marriage in also evolving to recognize marriages of same-sex couples and Michigan (in January of 1957) should not be used as a club the Obergefell v. Hodges1 case. Attorneys must keep equitable to beat up on same-sex couples. However, a warning of sorts remedies in mind when engaged by a party to unravel a same- might be found in an Illinois case from 2016 involving a cou- sex relationship that was long-term in nature, but in which the ple who had been together 26 years, without availing them- marriage itself was of a short duration. selves of marriage at all. In a widely reported, and sometimes Benets provided by employment, especially retirement criticized decision, the justices there held that Illinois did not benets, as well as health coverage extending to family, can be act irrationally or discriminatorily by refusing certain benets a real boon to clients. Many private employer pensions and and claims under the Marriage and Dissolution Act of the health plans are subject to the Employee Retirement Income state since in that case the couple had never married despite Security Act of 1974 (ERISA), a federal law setting require- their 26 years together.7 If a same-sex couple lived together for ments and standards for plans to help protect eligible individ- a decade or more before marriage, should judges be hamstrung uals and to assist with plan solvency. 2 And these very benets, in setting out an equitable remedy? May a judge only divide whether vested or not, can also be apportioned, if need be, to “marital” assets, which might only represent a fraction of a come up with a fair agreement or judgment.3 Likewise, public couple’s time together? pensions and state of Michigan pensions might be available I would argue that we must ght for clients—and this for sharing or splitting according to statute and the Sommer- will mean greater fact and theory development. We should ville v Sommerville case of 1987.4 look at the sometimes murky “intent” of the parties when they Before Obergefell, many employers, particularly in the acquired or shared property, and look harder at contributions non-prot and university setting, as well as some major cor- of all kinds to the marriage or partnership. A review of the porations, were oering “domestic partnership” benets or Michigan case in which a man and women cohabited together coverage. Unmarried employees might have been able to pro- for 13 years prior to their marriage of ten years is in in or- tect a partner or loved one, if their relationship coincided with der. In that 2003 case the court almost admonished the lower the plan denition set out by the employer or union contract. court for looking at the length of the “relationship” instead of Typically, however, there was little protection in a break up. the length of the “marriage.”8 And the extension of benets to non-married couples might Of course, until just recently, same sex couples in Michigan be winding down since same-sex couples can now marry. e could not marry, and this case and others like it must be dis- Society for Human Resource Management reported in July tinguished. Remember, even if a court will not broaden the of 2015 that business polling or surveys indicated businesses concept of “marital property” in a same-sex divorce situation, might eliminate coverage for “domestic partners,” albeit over “separate property” can be put on the table to do equity. As time and not abruptly.5 attorney James J. Harrington, III, wrote in 2014, cases involv- What, then, about same-sex couples who were together, ing separate and marital property are constantly evolving and and partners in life, long before they married? If they later the courts seem willing to consider unpublished cases too. seek a divorce will attorneys and their clients nd Michigan For more on the topic of marital versus separate property, see law exible enough to do justice to their situation? Provisions the article in the Michigan State Bar Journal by James J. Har- under Michigan divorce and separate maintenance law allow- rington, III, from February of 2014.9

J /J M F L J 27 Endnotes One looks with more hope at developments reported by way of the online ABA Journal--where judges in at least two 1 Obergefell v. Hodges, 576 U.S. ___ (2015). other states have applied a sort of common law approach to 2 29 U.S. Code 18. same-sex marriages and divorces. ese include Pennsylvania, 3 MCL 552.18. where common law marriage was eliminated in 2005, and in South Carolina, where common law marriage still exists.10 4 Sommerville v. Sommerville, 164 Mich App 681; 417 NW2d 574 (1987). Attorneys helping clients unwind a same-sex relationship should also be mindful that the Department of Labor, 5 see https://www.shrm.org/resourcesandtools/hr-topics/benets/pages/ the IRS, the Department of Defense and others have provided domestic-partner-benets-poll.aspx. guidance about QDROs and taxability of pension and benets 6 See MCL 552.401 and MCL 552.23, for example. (including retroactivity issues). Some links to those resources 7 Blumenthal v. Brewer, 2016 IL 118781 (2016). are listed in these endnotes,11 but the few links are far from 8 Korth v. Korth, 256 Mich App 286; 662 NW2d 111 (2013). dispositive—to cover those issues would take another article. In terms of a Michigan divorce or separate maintenance action 9 Harrington III, James J. “Yours Ours Mine: Separate and Mari- for a same sex-client, you will nd that case law right now is tal Property,” Michigan Bar Journal, February 2014. thin, so the statutes cited and general concepts of equity will 10 See http://www.abajournal.com/news/article/another_state_ be your tools. recognizes_pre_obergefell_common_law_marriage_be- tween_gay_cou/, and also http://www.abajournal.com/news/ article/obergefell_applies_retroactively_says_family_law_ About the Author court_judge. Brad Vauter is an attorney with a practice in Grand Ledge, 11 https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/re- and handled some of the rst “gay divorces” in Michigan. He’s source-center/faqs/retirement-plans-and-erisa-consumer. worked both in non-prot settings and private practice. He gradu- http://www.aaml.org/sites/default/les/MAT103_9.pdf. ated from the Detroit College of Law in 1983 and most of his practice now focuses on elder law, estate planning, LGTB client https://www.irs.gov/uac/answers-to-frequently-asked-questions-for- same-sex-married-couples. representation and also works with small businesses and non-prof- its. To learn more see: www.theplaceforgoodcounsel.com

28 M F L J J /J Family Law Focused. LGBTQ Advocate.

Advocating for the LGBTQ community has always been an important focus for Tim Cordes. He understands what’s at stake and will be your voice in and out of the courtroom. Whether you’re looking to adopt, going through a divorce or are dealing with challenges related to being part of the LGBTQ community, you have an ally in Tim Cordes. Learn more at cordeslaw.com.

Family Law Adoption Guardianship Probate C U : M E ’ F S

B T C

Prior to the United States Supreme Court’s decision in legal interpretations to civil unions and domestic partnerships Obergefell v. Hodges,1 more than a dozen states enacted various in dissolution actions. statutory schemes to oer “marriage-like” rights to gay and In 2000, the legislature of the State of Vermont created lesbian couples. While the debate over marriage equality raged a new legal entity, the civil union, which provided some of on in the media and statehouses across the county, legislatures the benets and protections of marriage to same-sex couples, created new laws to oer some stability to same-sex couples, through a statutory system entirely separate from that of mar- while avoiding the political backlash over granting them out- riage. In an explicit acknowledgment of the turbulent state of right marriage. ese new legal rights went by the titles “civil aairs across the country on the issue of same-sex marriage, unions” and “domestic partnerships.” While these new statu- Vermont enacted a new statute (15 V.S.A. § 1206(b)), which tory creations were sometimes open to heterosexual as well as allowed for dissolution of Vermont civil unions for couples homosexual couples, it is believed that very few straight cou- where “[n]either party’s state of legal residence recognizes the ples availed themselves of these laws. couple’s Vermont civil union for purposes of dissolution” (15 Once the United States Supreme Court ruled that it was V.S.A. § 1206(b)(4)(C)(iv)). In 2016, the Vermont Supreme unconstitutional for states to deny same-sex couples the ability Court was confronted with the case of Solomon v. Guidry, in to marry and have those marriages recognized in all fty states, which two women, now residing in North Carolina, sought gays and lesbians were free to marry and divorce and enjoy all to have their civil union dissolved in Vermont, where it was it the protections of domestic relations laws available to hetero- was entered into in 2001. After a dismissal by the trial court sexual couples in every jurisdiction. While each state has its because the parties had not attempted to le for dissolution in own laws regarding marriage and dissolution, long-established North Carolina rst, the Vermont Supreme Court ruled that principles of comity oered predictability for couples—both they could dissolve their civil union pursuant to 15 V.S.A. § gay and straight— when their marriages ended in divorce. 1206(b), Obergefell notwithstanding. However, for gay and lesbian couples in pre-Obergefell In making its ruling, the Court observed: statutory creations like civil unions and domestic partnerships, However, because civil marriage and civil unions no such protection or predictability was available. By and remain legally distinct entities in Vermont and large, states with such statutory creations allowed residents to because Obergefell mandated that states recognize convert their civil unions to formal marriages, or to dissolve only same-sex marriage, uncertainty remains as to their civil unions through specic statutory provisions or or- whether Obergefell requires other states to recognize dinary domestic relations law applicable to marriage. But for and dissolve civil unions established in Vermont. For couples that had relocated to a dierent state after becoming that reason, § 1206(b) is still necessary to remedy “civil-unioned” with their partner, predictability in dissolution the issue originally addressed by the Legislature in may remain elusive. 2012-that “there are many same-sex couples who Before the Obergefell ruling, most states that enacted civil established a civil union . . . in Vermont who are no unions or domestic partnerships crafted provisions within their longer together, yet they continue to be legally bound statutes that allowed couples to dissolve their legal relation- with no recourse other than moving to Vermont ship without meeting strict residency requirements (see e.g., and becoming residents.” us, nonresident couples Vermont, New Jersey), but such provisions were often only who wish to dissolve their Vermont civil unions may available to couples that resided in states that did not recognize do so in Vermont courts, as long as they follow the same-sex marriages. Now that the Obergefell ruling has elimi- requirements of § 1206(b). (Solomon v. Guidry, 2016 nated all such “non-recognition” states, couples in these kinds V.T. 108, 2016 Vt L.E.X.I.S. 111 (Vt. 2016)). of relationships will now have to establish residency, or avail themselves of the courts in their home jurisdiction. And here For couples that do try to avail themselves of dissolution is where the problem lies: dierent states are applying dierent proceedings in their local jurisdiction, it is not entirely clear

30 M F L J J /J how their “marriage-like” rights will be handled. e State held that its application should include any civil unions en- of New York was faced with one such couple in late 2015, tered into before that date. “us, we hold that section 60 in the case of O’Reilly-Morshead v. O’Reilly-Morshead, which operates to recognize, as of the Act’s eective date, any civil involved two women who entered into a Vermont civil union union that was, at any time, legally entered into in a foreign in 2004, and later married in Canada in 2006. At issue was jurisdiction.”4 Similar to the New York couple in O’Reilly-Mor- how the property division should be determined for assets ac- shead, referenced above, the women in Illinois had married in quired prior to the 2006 Canadian marriage, but subsequent Canada in 2003, following their 2002 Vermont civil union. to the parties’ 2004 civil union. In a ruling that oered the In its analysis, the Illinois court drew no material distinction couple the worst of both worlds, the New York court ruled in property rights between the civil union period and the that while it did have the authority to recognize and dissolve beginning of the parties’ Canadian marriage, even analyzing the parties’ civil union, the court held that “as a matter of law, whether the imposition of maintenance (alimony) against one [n]either party is entitled to equitable distribution of any as- party would be appropriate. sets, acquired in their own names during the period of the civil While Illinois relied upon its own express statutory provi- union, prior to the date of marriage.” is ruling would deny sions to equitably divide property acquired during a Vermont the parties the ability to dissolve their civil union under Ver- civil union, and New York rejected any such division based mont’s nonresident dissolution law (§ 1206(b)), while at the upon its caselaw, Pennsylvania applied a more general prin- same time denying them the property protections intended by ciple of comity to address the problems arising from the prob- Vermont’s civil union statute. lem of how to handle the dissolution of civil unions. In 2003, the couple before this court acquired, e application of the principle of comity to Vermont under Vermont law, “the same benets, protections, civil unions further promotes interstate uniformity and responsibilities” as granted to parties to a civil and would limit forum shopping aimed at avoiding marriage. … However, in 2003, the laws of Vermont the responsibilities imposed by Vermont law in the did not recognize the parties’ civil union as a marriage. event of dissolution. For instance, if a party to a us, at the time this couple entered the civil union, Vermont civil union wished to avoid the equitable Vermont did not recognize that union as a marriage.” distribution of “marital” property or other domestic [O’Reilly-Morshead v. O’Reilly-Morshead, 50 Misc. 3d support obligations, that party could search for a 402 at 405, 19 N.Y.S.3d 689 (NY: Supreme Court, jurisdiction that would decline to recognize such Monroe 2015) citations omitted]. obligations even though they are expressly provided under the Vermont statute.” [NEYMAN v. Buckley, In a long and technical analysis, the court stated: 2016 P.A. Super 307 (Pa. Super. Ct. 2016)]. Under these circumstances, this court does have jurisdiction to dissolve this civil union, but that does Following an analysis of Vermont’s civil union statutes, not solve the property distribution dilemma. e and noting that Obergefell removed any public policy excep- court must decide whether it can distribute “civil tions to the recognition of same-sex relationships, the Supe- union property” that is outside the scope of “marital rior Court of Pennsylvania ruled that their courts should cut property” as dened in the Domestic Relations Law. through the distinctions between civil unions and marriage, e mere fact that this court has the power to dissolve and look to the underlying nature of what the parties intended the civil union does not dictate that it must apply New their 2002 civil union to mean. York’s statutory rules to relief under the dissolution. For the foregoing reasons, we conclude that a In that respect, it is important to note that other New Vermont civil union should be considered the York courts have concluded that a civil union is not the legal equivalent of a marriage for the purposes of equivalent of a marriage in New York.” (Id. at 406). dissolution under the Pennsylvania Divorce Code. Precluding family court jurisdiction simply due In contrast, Illinois applied their state’s traditional divorce to the use of the word “marriage” and “divorce” in rules in determining the property rights in the dissolution of Pennsylvania jurisdictional authority elevates mere the 2002 Vermont civil union of a lesbian couple in 2015, semantics over the fundamental domestic character 2 immediately following the Obergefell decision. Because the of the relationship at issue.” (Id.) Illinois Marriage and Dissolution of Marriage Act expressly refers to “civil unions,” and provides explicit reciprocity of civil Pennsylvania’s ruling in Neyman presents a compelling ar- unions entered into in other states,3 the Illinois court used gument for applying divorce protections to the dissolutions of their divorce rules and caselaw to eect an equitable distribu- civil unions. In contrast, New York’s formalistic approach in tion of the parties’ signicant corporate interests. Even though applying caselaw and precedent in rejecting those same protec- the act in question was not implemented until 2011, the court tions presents a complicated and unpredictable environment

J /J M F L J 31 for the various “marriage-like” statutory creations enacted for same-sex couples in the run-up to Obergefell’s mandate of full Register Now! marriage equality for gays and lesbians. Michigan has yet to have its own case of rst impression at the appellate level ad- 2017 Family Law Section dressing civil unions or domestic partnerships for same-sex couple. Family law practitioners in our state who serve mem- Mid-Summer Conference bers of the LGBT community need to be aware that this is far from a settled issue in other jurisdictions. Because Michigan July 20 – 23, 2017 has no statutory authority like Illinois, nor a well-developed Mission Point Resort, Mackinac Island history of caselaw like New York, Michigan attorneys should be prepared to argue compellingly for application of principles http://connect.michbar.org/familylaw/ of comity for their clients.

Links to cases on Google Scholar: • Obergefell v. Hodges, 135 S. Ct. 1732 (U.S. 2015) • Solomon v. Guidry, 2016 V.T. 108, 2016 Vt L.E.X.I.S. 111 (Vt. 2016) • O’Reilly-Morshead v. O’Reilly-Morshead, 50 Misc. 3d 402 at 405, 19 N.Y.S.3d 689 (NY: Supreme Court, Monroe 2015) • IN RE CIVIL UNION OF HAMLIN & VASCONCEL- LOS, 42 N.E.3d 866, 397 Ill. Dec. 620 (App. Ct. 2015) • NEYMAN v. Buckley, 2016 P.A. Super 307 (Pa. Super. Ct. 2016)

About the Author Tim Cordes focuses his solo practice on family law and probate administration. He is currently Secretary/Treasurer for the LGBTQA Law Section of the State Bar of Michigan, and is proud to be one of the Section’s founding members. He is also a member of the Family Law Section of the State Bar, and the Oakland County Bar Association Family Court Committee. Tim has been a member of the Stonewall Bar Association of Michigan since 2008, and served as President of the group from 2011 through 2014. As a straight ally, Tim has sought to be an advocate for the LGBT com munity on the issues of marriage equality and the discrimination that same-sex families with children face in our courts. Following a career in software and management consulting, Tim began law school in 2002 at what was then the Detroit College of Law at Michigan State University. By the time he graduated in 2005, the school had merged identities and become Michigan State University College of Law. In his spare time, Tim enjoys sailing the Great Lakes and writing and performing plays at the Players Club in downtown Detroit. He and his wife (and their little dog, Spike) live in Bloomeld Township.

Endnotes 1 135 S. Ct. 1732 (U.S. 2015). 2 IN RE Civil Union Of Hamlin & Vasconcellos, 42 N.E.3d 866, 397 Ill. Dec. 620 (App. Ct. 2015). 3 750 ILCS 75/60. 4 42 N.E.3d 866 at 878.

32 M F L J J /J T I A N C G M M P

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Understanding the importance of attorneys in the name ate between LGBT identities, it is the largest single study of change process requires rst understanding the make-up of the LGBT populations on record, and the rst study to include transgender community, the basics of the name change and sample sizes large enough to provide estimates of LGBT popu- gender marker modication process, and how these dynamics lations by state. A follow-up study estimates that 3.8 percent play out in the legal system. of Michigan residents personally identify as LGBT.6 In June Taking measures to become culturally competent is one of 2016, utilizing responses from the Center of Disease Control’s the rst steps attorneys should take toward providing the best Behavioral Risk Factor Surveillance System, the Williams In- legal support in this area. Much of the terminology used in stitute estimated that at least 1.4 million adults in the country the last decade is considered antiquated. Contemporarily, the identify as transgender, including as many as .43 percent of term transgender refers to a broad spectrum of individuals who Michigan residents.7 Analyses also show that transgender sta- identify with a gender dierent from the gender assigned at tus is more prevalent in younger generations.8 birth; whereas the term cisgender describes individuals whose As the transgender community is socioeconomically di- gender expression aligns with that assigned at birth. Gender verse, attorneys should also have an understanding of the identity refers to whether an individual identies as male, fe- complexities that present from intersectionality. In general, male, or some other category, such as non-binary.1 Gender ex- racial and ethnic minorities represent a larger percentage of pression is the manner in which someone presents externally. the transgender community than in the general population. As this expression may be conscious or subconscious,2 the best e persistence of poverty may also be relevant. One study es- policy for an attorney to take when meeting a new client is to timated that when compared to the general population, trans- inquire regarding preferred gender pronouns. Attorney famil- gender individuals were both “more likely to be non-White iarity with other frequently used terms is also helpful.3 Overall (40.0% vs 27.3%) and below the poverty line (26.0% vs improvement of intake forms to be more inclusive shows a 15.5%).”9 e inability to obtain identication that matches strong commitment to serving diverse populations. appearance often leads to negative experiences with law en- Attorneys should also be aware that the process of tran- forcement, employers, and government agencies. For exam- sitioning is lengthy, and may involve extensive medical treat- ple, transgender individuals are more regularly singled out by ment. e decision to transition is not made lightly and sev- health insurance companies for blanket denials of coverage eral years may elapse before an individual takes permanent for medical services.10 ey are also 4.4 times more likely to measures, including legally changing one’s name or gender face police violence,11 and 1.8 times more likely to experience marker. Moreover, contrary to popular belief, though some intimate partner violence.12 An individual who is a member pursue the option, for others, gender reassignment surgery of multiple marginalized groups (e.g., a person who is both may be unnecessary, not recommended, or simply irrelevant African-American and FTM)13 may be even more likely to fear to an individual’s preferred gender identity.4 Nonetheless, a contact with law enforcement. Moreover, the law may provide myriad of applicable but outdated policies across the coun- little protection in these situations. For example, some courts try require surgery to change a gender marker. ese policies have determined that transgender status receives Title VII pro- make it dicult to obtain documentation that matches both tection against discrimination, but judicial ndings remain one’s name and gender identity. inconsistent overall.14 Having an awareness of the underlying demographics of Transgender individuals generally experience obstacles at the transgender population also leads to more eective advo- every level of social interaction, including in accessing the legal cacy. Until recently, the transgender population was largely system. ey may risk being outed or experience negative or invisible, as national polls did not track lesbian, gay, bisexual, discriminatory exchanges with clerks, judges, security person- and transgender (LGBT) status. According to a 2012 Gal- nel, past associates, or general bystanders. As a result, attorney lup poll, LGBT individuals represent 3.5 percent of U.S. support is valued even in what are generally considered mun- residents, on average.5 ough the poll does not dierenti- dane, uncontested actions.

J /J M F L J 33 Name Change Primer Gender Marker Primer Outside of restoring maiden names, many attorneys have Correcting one’s gender marker on a state identication very little experience with providing name change support. card or birth certicate varies substantially by state law. Strict Once attorneys understand the basics of the process, the hid- physician documentation of gender transition “surgery” con- den barriers to vulnerable populations become apparent. tinues to present substantial barriers to transgender individu- First, there are two legal mechanisms for performing a als, depending on a person’s state of birth.23 name change in Michigan. e common law remedy only As some states prohibit changing a gender marker on a addresses changes to children’s surnames or spousal surnames. birth certicate, and most require surgery,24 attorneys must In general, a surname may be restored to a spouse in a divorce advise clients of the value of obtaining an accurate U.S. pass- proceeding, and a child’s surname may be changed as part of a port. A passport works as an alternative form of identica- custody action where the change is in the best interests of the tion to a birth certicate when addressing local, state, national, child.15 To change one’s given name in Michigan, an individ- and international aairs. In March 2016, federal policy eased ual must utilize the statutory remedy under the probate code. access to obtaining accurate passports by allowing physician If done correctly, a name change can be completed in ap- documentation to determine the appropriate gender marker.25 proximately ninety days and only requires one hearing. Adult An individual whose physician veries that an applicant is in name changes are permitted where the petitioner has resided the process of transition can obtain a two year passport; an in the county for at least one year, has shown “sucient reason individual whose physician veries that an applicant has com- for the proposed change,” and where “the change is not sought pleted transition receives a passport with the usual ten year with fraudulent intent.”16 A showing of sucient reason need expiry.26 Both passports accurately state an individual’s pre- not be more than a sentence. Suggested language to meet this ferred gender identity, regardless of whether an individual has requirement includes: “I would like my name to be consistent completed any surgeries. with my identity/appearance,” or “is is the name that I go In 2015, in response to a lawsuit by the ACLU, the Michi- by with friends/family.” Fraudulent intent might be triggered gan Secretary of State deferred to this policy by allowing state by the ngerprinting process. All individuals twenty-two or identication to issue in accord with the gender marker listed older must complete ngerprinting and a criminal background on an individual’s passport.27 Prior to this decision, it was dif- check. Any petitioner with a criminal history must overcome cult to obtain a state identication card that accurately re- the presumption of fraudulent intent before a name change is ected gender identity because the state utilized the gender granted.17 Petitioners must publish the proposed name change marker listed on the birth certicate. Without physician doc- and hearing date three weeks prior to the hearing.18 Finally, umentation that an individual has “completed necessary sex in what generally amounts to nothing more than a procedural reassignment surgery,” statute prohibits the Michigan Depart- measure, at the hearing, the judge may ask whether anyone ment of Health from modifying the gender marker on a birth objects to the name change as “an individual having the same certicate.28 ough the current passport policy provides name” may intervene in the proceeding.”19 As long as these some respite, it may be vacated at any time due to a change in requirements are met, the overwhelming majority of name department policy or leadership.29 changes are granted without incident. ere is no explicit statutory provision that allows an in- Statutory name changes for individuals seventeen years dividual to incorporate a gender marker modication into a of age and under are more likely to be contested by nature. name change petition; however, some attorneys utilize creative In general, the “mother and father” must petition the court mechanisms for accomplishing this task. For example, the de- jointly for a minor’s name change to be granted.20 However, claratory judgment provision under MCR 2.605 may be used there are exceptions where one parent is not available. For to have a court “declare the rights and other legal relations of example, only one parent is required to sign o where a parent an interested party seeking” relief. Having a court order that is deceased, or a guardian can sign o on behalf of a legally addresses both the name change and proper gender designa- incompetent parent or where both parents are deceased.21 Fi- tion can be a powerful tool for a client working to obtain con- nally, the statute allows one legal parent to sign o where there sistent identifying documentation. is substantial neglect or abuse. In particular, the consent of a When performing a name change, it is incumbent upon parent who has failed to support or visit a child for a two years an attorney to review what documentation is needed in a cli- or more prior to ling of the petition, despite having the abil- ent’s state or home country of birth to correct a birth certi- ity to do so, is not required; though sucient notice must be cate. ough obtaining a U.S. passport is currently the best provided to the absent parent.22 mechanism available for obtaining accurate identication, individuals are often required to show multiple forms of identication to receive a benet or clarify account matters. Simi- larly, a U.S. passport is not an option for immigrants who have

34 M F L J J /J not naturalized. Consultation with an immigration attorney Fraudulent intent may be construed from non-criminal or practitioner in another state may be necessary to provide activity as well. At the name change hearing, a judge may in-depth advice, or address barriers that present during the inquire into whether a creditor might be misled by the pro- agency application process. posed name change. Attorneys should know whether a client recently divorced, is undergoing bankruptcy, or is otherwise Anticipated Challenges engaged in atypical nancial transactions. If so, helping the client prepare by taking armative measures to notify inter- Having knowledge of procedural, statutory, and social bar- ested parties may be helpful in rebutting the presumption. riers provides insight into anticipated challenges. ese include ough not always possible, it is important to respect a addressing criminal concerns, overcoming the presumption of client’s privacy, and seriously regard any client concerns re- fraudulent intent, privacy and safety concerns, inexible surgery garding being outed. Not all transgender individuals are open requirements, problematic health insurance policies, and issues about their status. Being open about one’s transgender sta- surrounding obtaining parental consent for minors. tus—even where the disclosure is to obtain a legal remedy— Attorney support is highly recommended where there is may not be safe for the client. ough statistics are sparse and any criminal history. e results of the criminal background vary in reliability, crime rates reported by the U.S. Department check are provided directly to the court and not to the peti- of Justice are startling. “One in two transgender individuals tioner. To reduce the risk of arrest, attorneys can assist with a are sexually abused or assaulted at some point in their lives.” 31 preliminary background check and help resolve any warrants Some reports estimate that up to 66% of transgender survivors prior to initiating name change proceedings. Attorneys can are victims of sexual assault, often coupled with physical as- also advocate to ensure that the presumption of fraudulent in- saults or abuse.32 Attorneys can guide individuals through the tent does not operate as a prohibition for name change appli- name change process and help reduce anxiety by taking extra cants. ough the presumption is intended to prevent abuse measures to protect privacy, where available. of name change policy, the statute includes mechanisms to One option available to attorneys seeking to protect cli- prevent individuals with a criminal history from using a name ent privacy is to draft an ex parte motion to have proceedings change to escape their past. e law distinctively requires the go forward under seal. A court may waive publication of the following action to ensure that criminal databases are updated hearing and/or keep the record of the proceeding condential with aliases: where good cause is shown. 33 Good cause includes evidence (3) If the court enters an order to change the name that the client could be placed in physical danger. A client af- of an individual who has a criminal record, the court davit, attesting to the criminal activity is generally sucient shall forward the order to the central records division to meet this requirement. However, it is important to note of the Michigan state police and to 1 or more of the that proof of an arrest or conviction is not required for a judge following: to grant the motion. Due to negative experiences with law enforcement, transgender community members are often too (a) e department of corrections if the individual intimidated to pursue criminal charges, despite compelling named in the order is in prison or on parole or facts to support a case.34 Even if aware of the option, navigat- has been imprisoned or released from parole in ing a courthouse to obtain this form of relief is generally too the immediately preceding 2 years. dicult for a pro se petitioner. As such, having an attorney may be determinative as to whether a client moves forward (b) e sheri of the county in which the individual with a name change at all. named in the order was last convicted if the ough public interest organizations continue to advocate individual was incarcerated in a county jail or for improving state policies, in many cases obstacles will per- released from a county jail within the immediately sist. A client may successfully obtain a name change through a preceding 2 years.30 Michigan court, but later nd it impossible to obtain an accurate birth certicate that does not reveal transgender status. For Reminding the court of these systemic protections can be example, though a Michigan court provides the option to seal helpful in rebutting the presumption. Similarly, supportive an original birth certicate after a name change,35 other states adavits from medical personnel or community members will require that the birth name be included on the updated that conrm the transition process, or the fact that the peti- birth certicate. Iowa, for example, will always reect the origi- tioner is known by their preferred name in the community, are nal name on a birth certicate,36 and Texas requires that the new helpful in showing that a petition is for a legitimate purpose. name be added only as an amendment to the original birth cer- Note that a court should not require this, though a client may ticate.37 Unless a petitioner can utilize alternative documenta- choose to present such documentation to help overcome the tion, like a passport, the risk of being outed during normative presumption. government and business transactions remains.

J /J M F L J 35 Attorneys should also be aware of nuances in the transi- some knowledge of the trend and be able to quickly assess tion process. An individual who requests support for a name what might need to happen for such a request to be granted change may not be aware that there is a recommended order in Michigan. in which documents should be updated to reduce costs and other complications. In Michigan, the recommended order Conclusion is that an individual obtain a court-ordered name change, and then update identifying documents in this order: social Acknowledging endemic social stigma and its impact on security card, passport, birth certicate, state identication the transgender community is the rst step toward cultural card, and other miscellaneous accounts. Although this order competency. Beyond that, attorneys should be informed, ac- is not required, clients who use this strategy are likely to nd cessible, and prepared to help clients navigate the court pro- this more ecient and cost eective than utilizing any other cess, as well as various administrative procedures. As the de- order.38 Special care should also be taken when advising im- mand is much higher than the number of attorneys available, migrant clients, as amending identifying documents through some organizations are both recruiting and training interested U.S. Citizenship and Immigration Services, or from client’s attorneys.41 ese programs often also have resources to assist home country, may be expensive, time-consuming, and de- clients with associated court costs. pending on a client’s country of origin, impossible. Clients should also be advised to consider unintended About the Author consequences when updating their gender marker with a health insurance agency. ough the Aordable Care Act in- Kerene Moore is currently a supervising attorney for Legal cludes antidiscrimination provisions intended to prevent this Services of South Central Michigan, a division of the Michigan problem, insurance agencies have traditionally denied cover- Advocacy Program. She has represented underserved Michigan age for routine procedures based on the sex of the claimant. residents in civil legal matters for the past ten years. Kerene gradu- For example, companies have a history of denying coverage ated from the University of Michigan where she earned a Bachelor of hysterectomies for individuals whose documents have been of Arts and Juris Doctor degree. Due to her strong commitment to 39 modied to reect that they are male. In some instances, public service, she was recognized as a Dean’s Public Service Fel- a client may consider completing certain medical procedures low by the University of Michigan Law School. roughout her prior to updating their gender marker to avoid lengthy admin- career, Kerene continues to advocate for members of many mar- istrative proceedings required to challenge denials of coverage. ginalized groups, including undocumented immigrants, disabled Providing support for a name change and/or gender mark- persons, survivors of domestic violence, and LGBTQ community er modication for a minor also presents obstacles. Parents members. Kerene serves as a board member for Equality Michi- may disagree as to whether the child should be transitioning gan, Co-Chair of the Washtenaw County Bar Association’s LGBT at all. e name change may be part of a larger contested legal Rights section and supervises the Jim Toy Community Center’s custody battle between parents. Having an attorney to help Know Your Rights Project, which provides legal support for LGBT educate judges, Friend of the Court personnel, and mediators community members in southeastern Michigan. will be instrumental in receiving a meaningful resolution for the parties and child. Pro se clients dealing with an absent Endnotes parent may simply need advice on how to complete necessary 1 “What Is Gender Dysphoria?,” American Psychiatric Associa- notice requirements to complete the process. e legal value tion, last modied February 2016, https://www.psychiatry.org/ of a last known address may not be apparent to a custodial patients-families/gender-dysphoria/what-is-gender-dysphoria. parent who does not have a current mailing address for an ab- 2 Id. sent parent. Attorney guidance can help a client expeditiously navigate these processes. 3 For example, FTM stands for female-to-male and refers to Keeping a pulse on national and international LGBT is- someone who was designated female at birth but identies and sues is also helpful in providing informed answers to client expresses himself as a man. Many FTM persons also prefer the term “trans man.” inquiries. ough Michigan has not confronted the issue yet, California, Oregon, and New York have permitted non-binary 4 e World Professional Association for Transgender Health gender designations to individuals who do not identify with (WPATH) is the leading international, interdisciplinary au- the male or female sex.40 As stated above, transgender com- thority devoted to understanding and treatment of transgender individuals. ough gender arming surgeries should not be munity members are more numerous in younger generations. dened as cosmetic or elective for health insurance purposes, e cultural concept of gender is evolving and attorneys WPATH stresses that it is “important to understand that ev- have to be prepared to respond to novel requests for support. ery patient will not have a medical need for identical proce- Even if there is no mechanism for pursuing this under cur- dures. Clinically appropriate treatments must be determined rent Michigan law, a culturally competent attorney will have on an individualized and contextual basis, in consultation with

36 M F L J J /J the patient’s medical providers.” See WPATH, Position State- April 24, 2017, http://www.lambdalegal.org/know-your-rights/ ment on Medical Necessity of Treatment, Sex Reassignment, and article/trans-identity-document-faq. Insurance Coverage in the U.S.A., accessed April 14, 2017, 24 Id. http://www.wpath.org/site_page.cfm?pk_association_webpage_ menu=1352&pk_association_webpage=3947. 25 “Gender Change,” US State Department Foreign Aairs Manual, 7 FAM 1300 Appendix M (March 31, 2016), 5 “LGBT Percentage Highest in D.C., Lowest in North Da- https://fam.state.gov//FAM/07FAM/07FAM1300apM.html. kota,” Gallup, accessed April 24, 2017, http://www.gallup.com/ poll/160517/lgbt-percentage-highest-lowest-north-dakota.aspx. 26 Id. 6 Andrew R. Flores, Jody L. Herman, Gary J. Gates, and Tay- 27 Love v. Johnson, 2:15-cv-11834 (E.D. Mich. 2015). lor N. T. Brown, How Many Adults Identify As Transgender in 28 MCL 333.2831(c). the United States? (Los Angeles: e Williams Institute, 2016), 29 “Transgender Americans Race To Finish Paperwork Before https://williamsinstitute.law.ucla.edu/wp-content/uploads/How- Trump Administration,” NPR: All ings Considered, accessed Many-Adults-Identify-as-Transgender-in-the-United-States.pdf Dec. 24, 2016, http://www.npr.org/2016/12/17/503753624/ 7 Id at 2. transgender-americans-race-to-finish-paperwork-before-trump- administration. 8 Id. 30 MCL 711.1(3). 9 Halley P. Crissman, Mitchell B. Berger, Louis F. Graham, and Vanessa K. Dalton, “Transgender Demographics: A Household 31 “Responding To Transgender Victims of Sexual Assault,” O ce Probability Sample of US Adults, 2014,” American Journal of of Justice Programs: O ce of Victims of Crimes, accessed April Public Health 107, n. 2 (February 2017): 213–215, https:// 24, 2017, https://www.ovc.gov/pubs/forge/sexual_numbers.html. www.ncbi.nlm.nih.gov/pmc/articles/PMC5227939/. 32 Id. 10 Lisa Gillespie, “Transgender people still denied health services 33 See MCL 711.3(1). despite Aordable Care Act,” PBS Newshour, July 23, 2015, http://www.pbs.org/newshour/rundown/transgender-people-still- 34 Matthew J. Breiding, et al., “Prevalence and Characteristics of Sexual Violence, Stalking, and Intimate Partner Violence denied-health-services-despite-aordable-care-act/. Victimization — National Intimate Partner and Sexual Vio- 11 Matthew J. Breiding, et al., “Prevalence and Characteristics of lence Survey,” Center for Disease Control, September 5, 2014, Sexual Violence, Stalking, and Intimate Partner Violence Victim- https://www.cdc.gov/mmwr/preview/mmwrhtml/ss6308a1.htm?s_ ization — National Intimate Partner and Sexual Violence Survey,” cid=ss6308a1_e. Center for Disease Control, September 5, 2014, https://www.cdc. 35 MCL 333.2872. gov/mmwr/preview/mmwrhtml/ss6308a1.htm?s_cid=ss6308a1_e. 36 Iowa Ann. Code § 674.9 (“Any new birth certicate issued to a 12 Id. person granted a change of name shall reect the former name 13 “FTM” is an abbreviation for “Female to Male.” of the person issued the new birth certicate.”). 14 “Examples of Court Decisions Supporting Coverage of LGBT- 37 Texas Health and Safety Code § 192.010(a) (“Subject to depart- Related Discrimination Under Title VII,” U.S. Equal Employ- ment rules, an adult whose name is changed by court order, or ment Opportunity Commission, https://www.eeoc.gov/eeoc/news- the legal representative of any person whose name is changed by room/wysk/lgbt_examples_decisions.cfm. court order, may request that the state registrar attach an amend- 15 “Parental disputes regarding a child’s surname should be re- ment showing the change to the person’s original birth record.”). solved in accordance with the best interests of the child.” Gar- 38 is may not be the most ecient strategy if a client is seeking to ling v. Spiering, 203 Mich. App. 1, 4; 512 N.W.2d 12 (1993). update a gender marker contemporaneously with the name change. e trial court had interviewed the minor child to determine 39 Andre A. Wilson, M.S. and Jamison Green, Phd, “Health in- whether the use of the Gregory surname was being imposed surance coverage issues for transgender people in the United for the purpose of frustrating the plainti father’s relationship States,” University of California, SF: Center of Excellence for with his child and to foster ill feelings. Rappleye v. Rappleye, 183 Transgender Health, June 2016, http://transhealth.ucsf.edu/ Mich. App. 396, 399-400 (1990). trans?page=guidelines-insurance. 16 MCL 711.1(1). 40 Corinne Segal, “Nation’s First Intersex Birth Certicate Issued 17 Id. in New York,” PBS NewsHour (January 5, 2017), http://www. pbs.org/newshour/rundown/new-york-city-issues-nations-first- 18 Id. birth-certicate-marked-intersex/. 19 MCL 711.1(4). 41 Two organizations include the national Name Change Project 20 MCL 711.1(6). (http://www.transgenderlegal.org), which utilizes volunteer attor- 21 Id. neys from corporate law rms, and the Jim Toy Community Center’s Know Your Rights Project, which utilizes both law stu- 22 MCL 711.1(7). dents from the University of Michigan Law School and volun- 23 “FAQs About Identity Documents,” Lambda Legal, accessed teer attorneys (http://www.jimtoycenter.org/know-your-rights).

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Most people take reasonable access to restroom facilities became the rst openly transgendered judge in America in for granted. However, transgender people often face the bur- 2010.4 During this time, a number of well-known transgen- den of being confronted or questioned about which gender’s dered entertainers, such as Laverne Cox and Chase Bono, rose restroom they should use. A number of states, municipalities to popularity. In 2015, Caitlyn Jenner (formerly Olympian and school districts have specic guidance in place regulating Bruce Jenner) revealed herself as a transgendered woman. a transgendered person’s bathroom access. Although the na- Despite the relative advances in social acceptance, trans- tional spotlight is currently focused on transgender people’s gendered people still face discrimination today and are often bathroom usage, the ght for transgendered equal rights victims of violence due solely to the fact that they are trans- clearly extends beyond the bathroom. gendered. Although hate violence has an adverse impact on From Native American tribes to Civil War soldiers, histo- all LGBTQ, transgender people and communities are severely ry is replete with stories of transgendered people. Often these impacted by such violence.5 Transgender people also face dis- people lived in hiding and were subject to scorn if discovered. proportionate levels of poverty, homelessness, and unemploy- Beginning in the 1950s and 1960s, the rise of a number of ment while facing discrimination in employment, housing, transgendered organizations and publications gave a voice for public accommodations, health care, and abuse from police— transgendered individuals. In 1966, one of the rst recorded all of which may increase their vulnerability to hate violence. transgendered riots in U.S. history took place at the Compton Transgender rights are on the forefront of the legal land- Cafeteria in the Tenderloin district in San Francisco after the scape right now, particularly with the rise in so-called “bath- cafeteria refused to allow transgendered people from entering.1 room laws.” In 2013, for example, California enacted a law Transgendered people were also heavily involved in the Stone- aimed at protecting transgendered students. e School Suc- wall Riots of 1969 at the Stonewall Inn in New York. ese cess and Opportunity Act declared that every public student in riots are widely considered to have begun the LGBT rights California must be “permitted to participate in sex-segregated movement in America.2 school programs and activities, including athletic teams and e increase in transgender activism during this period competitions, and use facilities consistent with his or her gender unfortunately coincided with increased discrimination toward identity, irrespective of the gender listed on the pupil’s records.”6 trans people. In 1966, one of the rst cases to consider trans- In sharp contrast, however, North Carolina enacted the genderism in the United States was heard, Matter of Anony- Public Facilities Privacy & Security Act, commonly known mous v. Weiner, 50 Misc. 2d 380, 270 N.Y.S.2d 319 (1966). as “HB2” in March 2016.7 HB2 has been described as the is case involved a trans person who had undergone sex reas- most anti-LGBT legislation in the United States.8 e most signment surgery and wanted name and gender change on a divisive part of this legislation is that it provides that transgen- birth certicate from male to female. e court denied the dered people may only use restrooms and changing facilities litigant’s request. Two years later in Matter of Anonymous, 57 that correspond with the gender on their birth certicate.9 A Misc. 2d 813, 293 N.Y.S.2d 834 (1968), a similar request was number of local municipalities have enacted similar require- made by a trans person. In that case, the court granted a re- ments, including school boards mandating that students use quest for a name change but denied the request to change the the bathrooms corresponding with the sex indicated in their sex on the birth certicate. birth certicate. Supporters of this requirement assert these Today, transgendered people are often widely known laws protect privacy rights and claim that without this restric- throughout their communities. A number of openly trans- tion, pedophiles and sexual deviants will see public restrooms gendered people have made inroads in politics. In 2010, for as opportunities for unlawful behavior.10 example, Amanda Simpson became the rst openly transgen- Both sides had hoped that the Supreme Court would pro- dered presidential appointee in America when she was ap- vide a denitive answer in the case of Gavin Grimm. Gavin pointed as senior technical advisor in the Commerce Depart- is a transgendered boy who was diagnosed with gender dys- ment’s Bureau of Industry and Security.3 Victoria Kolkowski phoria and as part of his treatment his therapist recommended

J /J M F L J 39 that he begin “living in accordance with his gender identity a divided panel of the Fourth Circuit Court of Appeals gave in every possible respect, including using the appropriate re- great deference to the DOE’s interpretation and opined that stroom.”11 Grim, who identies as male but has yet to have because the statute “is silent as to which restroom transgender sex reassignment surgery, was initially allowed to use the boys’ individuals are to use,” the DOE’s interpretation was enforce- restroom at his school. However, after a number of parents able.19 After this ruling, however, the political environment complained, the school issued a policy that the use of boys’ changed dramatically with the election of Mr. Trump. e and girls’ rest and locker rooms “shall be limited to the corre- Trump administration revoked the Obama-era guidance from sponding biological genders, and students with sincere gender the Justice and Education Departments regarding transgender identity issues shall be provided an alternate private facility.”12 students’ access to school restrooms consistent with their gender As an alternative, the school provided a unisex or gender-neu- identity.20 In revoking the guidance, the Trump Administration 13 tral bathroom that Gavin or any other student could use. asserted that the guidance was arbitrarily devised, “without due e ACLU sued the school on behalf of Gavin, arguing regard for the primary role of the states and local school districts that the policy violated the Equal Protection Clause of the in establishing educational policy.”21 ey further stated that th 14 Amendment and Title IX of the Educational Amend- the withdrawal of the earlier guidance was “in order to further ments Act of 1972, which prohibits discrimination of the and more completely consider the legal issues involved.”22 basis of sex in any educational program that receives federal Although many hoped that the United States Supreme 14 funding. Although the Department of Education (DOE) Court would review the Grimm case and provide a denitive regulations implementing Title IX specically allow schools ruling on the issue of transgendered rights in this context, the to provide separate restrooms on the basis of sex, in 2015 the Supreme Court remanded the case back to the Fourth Circuit DOE issued a memo saying that when a school decides to Court of Appeals to be reconsidered in light of the Trump Ad- treat students dierently based on sex, it “generally must treat ministration rescinding of the Obama Administration’s Title transgendered students consistent with their gender iden- IX guidance clarifying protections for transgender students.23 tity.”15 e DOE advanced two legal arguments to support A number of other cases raising similar issues continue its position that discrimination against transgendered students to percolate through the federal courts seeking to arm that is prohibited under Title IX.16 First, discrimination against transgendered children can use restrooms in schools consistent a transgendered student is sex discrimination because being with their gender identity.24 In addition, the EEOC continues transgendered is dened as having a dierent gender identity to enforce its stance that discrimination based on transgen- than the individual’s assigned sex at birth. is, it is argued, dered status is unlawful sex discrimination. e EEOC has inherently links an individual’s status as transgender to his or initiated signicant litigation, arguing that Title VII’s prohibi- her sex. e second argument is rooted in Title IX’s exist- tion on sex discrimination includes gender identity and trans- ing prohibition of sex discrimination based on gender-based stereotypes: because the very acts that dene students as transgendered status. While less than half of the states prohibit gendered contradict gender stereotypes, when one discrimi- these forms of discrimination, the EEOC continues to accept nates against a transgendered student, one is doing so because charges and pursue cases from employees in any state who be- the student does not conform to gender-based stereotypes.17 lieve they have been discriminated against by their employer. Opponents to the DOE’s position argue that Title IX’s Although supporters of bathroom laws say the EEOC is over- prohibition on sex discrimination does not apply to the reaching, the EEOC fact sheet is clear that “these protections dierential treatment of transgendered students because the do not require an employee to change beliefs. Rather they 25 term “sex,” as opposed to “gender,” is primarily dened by seek to ensure appropriate workplace treatmen[t].” an individual’s reproductive organs.18 Opponents assert that For many transgendered people, the issue isn’t just about this interpretation of the word “sex” is reected in Title IX bathrooms but about the right to exist fully in public spaces. (20 USC 1686) and the DOE’s implementing regulations e Grimm case and others like it could ll an existing gap in (34 CFR 106.32(b), 106.33), which allow for the provision civil rights laws. Since under most state laws and federal law, of “separate toilet, locker room, and shower facilities on the transgender people aren’t explicitly protected from discrimi- basis of sex, but such facilities provided for students of one nation, such a person can be red from a job, evicted from a sex shall be comparable to such facilities for students of the home, kicked out of a business, or denied the correct bath- other sex.” e separate bathrooms expressly allowed under room facility for no other reason than because they are trans- Title IX, they observe, are thus permitted based on a person’s gendered. Without a denitive ruling from the nation’s high- birth sex, not gender. Opponents further raise concerns est court, a patchwork of state laws will continue to emerge. regarding the constitutional right to bodily privacy. Absent such a ruling from the Supreme Court, transgendered After the District Court ruled in favor of the school dis- people will be left to the political whims of their state, local trict, Gavin appealed. In overturning the lower court’s ruling, municipalities or school district.

40 M F L J J /J About the Authors regardless of legislative requirements, transgendered individuals are likely to continue using bathrooms that correspond to their Amanda Shelton is a founding member of the Shelton & gender identity. Eective policing of the legislative require- Deon Law Group in Royal Oak, Michigan. She is a tenacious ments in legislation like HB2 appears dicult at best. advocate for same-sex partners and their families and practices 11 G.G. v. Gloucester County School Board, 822 F.3d 709 (4th Cir. family law, employment and labor law and estate planning. 2016) Amanda has been recognized as a Super Lawyers Rising Star and 12 G.G. v. Gloucester County School Board, 132 F. Supp. 3d 736 a Top Woman Attorney in Michigan. Amanda is a cum laude (E.D. Va. 2015) graduate of Wayne State University Law School. 13 Id. Mary Deon is a founding member of the Shelton & Deon 14 Id. Law Group in Royal Oak, Michigan. She is a compassionate family law, employment and labor law and estate planning attor- 15 Department of Justice and Department of Education Dear Col- ney. Mary ghts diligently for all of her clients and is passionate league Letter, May 13, 2016. about defending and furthering LGBTQ rights. Mary is a cum 16 Id. laude graduate of Wayne State University School of Law. 17 More than a dozen states challenged the Obama administration’s position that Title IX requires that transgendered students use bathrooms and other facilities that correspond with their Endnotes gender identity. In August 2016, an injunction was issued out 1 “Compton’s Cafeteria and Dewey’s Protest,” Transgendered of the Northern District of Texas banning enforcement of the Center, Transgendered Foundation of America, December 19, Education Department policy. e Obama administration ap- 2009. pealed the injunction and further requested that it only apply to states involved in the lawsuit, and not nationwide. e new 2 Richie, Andrea J., “Living the Legacy of Rhonda Copelon,” administration, however, withdrew the appeal and is allowing CUNY Law Review (2012). the injunction to stand. 3 “Amanda Simpson, rst Transgendered Presidential Appointee, 18 is interpretation was also accepted by the dissenting judge in Begins Work at Commerce Department – ABC News,” Abc- Grimm who stated that when Title IX was enacted, “virtually news.go.com, January 5, 2010. every dictionary denition of ‘sex’ referred to the physiologi- 4 Sheridan, Michael, “California elects nation’s rst openly trans- cal distinctions between males and females, particularly with gendered judge, Victoria Kolakowski – New York Daily News,” respect to reproductive functions.” Articles.nydailynews.com, November 17, 2010. 19 G.G. v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016) 5 e 2013 national report on hate violence against lesbian, gay, 20 Department of Justice and Department of Education Dear Col- bisexual, transgender, and HIV-aected communities by the league Letter, February 22, 2017. National Coalition of Anti-Violence Programs (NCAVP). 21 Id. 6 Wetzstein, Cheryl, “California enacts nation’s rst law protecting transgender students,” e Washington Times, (August 12, 22 Id. 2013) 23 On remand, the Supreme Court required the 4th Circuit Court to consider the following: “(1) whether courts should extend 7 HB2 is ocially called “An Act to Provide for Single-Sex Mul- deference to an unpublished agency letter that, among other tiple Occupancy Bathroom and Changing Facilities in Schools things, does not carry the force of law and was adopted in the and Public Agencies and to Create Statewide Consistency in context of the very dispute in which deference is sought; and (2) Regulation of Employment and Public Accommodations.” whether, with or without deference to the agency, the Depart- Gordon, Michael; Price, Mark S.; Peralta, Katie, “Understand- ment of Education’s specic interpretation of Title IX and 34 ing HB2: North Carolina’s newest law solidies state’s role in C.F.R. § 106.33, which provides that a funding recipient pro- dening discrimination,” e Charlotte Observer, charlotteob- viding sex-separated facilities must ‘generally treat transgender server.com, (March 26, 2016). students consistent with their gender identity,’ should be given 8 Id. eect.” See Gloucester County School Board v. G.G., by his next 9 is is problematic, for in North Carolina only people who friend and mother, Deirdre Grimm, Supreme Court Docket 16- undergo sex reassignment surgery can change the sex on their 273 (March 6, 2017) birth certicates. erefore, those transgendered people who 24 See e.g., Whitaker v. Kenosha Unied School District, 2016 U.S. do not or cannot have their birth certicates legally changed are Dist. LEXIS 129678 (E.D. Wis. 2016); Doe v. Board of Edu- prevented from using restrooms consistent with their gender cation of the Highland School District, 2016 U.S. Dist. LEXIS identity. 131474 (S.D. Ohio 2016). 10 Given that transgendered men and women have been using 25 EEOC Fact Sheet: Bathroom/Facility Access and Transgen- bathrooms that correspond to their gender identity all along dered Employees, https://www.eeoc.gov/eeoc/publications/fs-bath- without incident, this reasoning seems meaningless. Moreover, room-access-transgender.cfm

J /J M F L J 41 F M, N F W A Marriage Bed . . . But No Bank Account Balance

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Introduction Other parties to Obergefell recounted equally compelling facts. Ijpe DeKoe served in the United States military in Af- Wedding bells for same-sex couples rang from sea to shin- ghanistan, but when he and his husband moved to Tennes- ing sea after the United States Supreme Court’s 2015 opinion see after his deployment, their union was not recognized. In in Obergefell v Hodges1 became the law of the land. Title VII Michigan, two nurses barred from marriage under Michigan of the Civil Rights Act of 1964 confers equal employment law were prohibited from adopting children as a couple.6 opportunities without regard to “race, color, religion, sex, e Supreme Court recognized that the treatment of or national origin.”2 Whether Title VII’s prohibition on sex- these plaintis violated their rights to equal protection and based employment discrimination includes protection based due process under the 14th Amendment. e right to marry on sexual orientation or gender identity has produced inhar- is a fundamental liberty; same-sex couples are no less entitled monious results.3 to this right than their opposite-sex counterparts. e deci- First, two years after Obergefell, Michigan’s lesbian, gay, sion to marry, like “choices concerning contraception, family bisexual and transgendered (LGBT) workers remain without relationships, procreation, and childrearing … are among the federal or state protection against discrimination and harass- most intimate that an individual can make,” the court said.7 ment. ough free to marry and to have families, their ability e due process right “safeguards children and families.”8 e to support their families free from workplace harassment can court stated marriage aords the permanence and stability im- be arbitrarily denied. Marital injustice is remedied, but un- portant to a child’s best interests and is a keystone of our social equal treatment persists in the workplace. order. And the equal protection clause, like the due process Second, on April 4, 2017, in Hively v Ivy Tech Community clause, prohibits an unjustied infringement of a fundamental College of Indiana,4 the Seventh Circuit became the rst circuit right — the right to marry. to grant Title VII employment protections to LGBT plaintis. e Obergefell court acknowledged legalizing same-sex mar- Other circuits, including the Sixth Circuit, disagree. us, the riage was not the end of the discussion. “Outlaw to outcast may issue of whether Obergefell’s recognition that LGBT people be a step forward, but it does not achieve the full promise of are a protected class entitled to constitutional protection from liberty,” the Court stated.9 is prediction has proved accurate: state action should be extended to statutory employment LGBT people may no longer be outlaws, but remain outcasts, as rights is ripe for review by the United States Supreme Court. demonstrated by their unequal rights in the workplace. In 2015, more than 9,000,000 LGBT adults and 1,000,000 Obergefell v Hodges same-sex couples resided in the United States (21,782 lived in Michigan).10 According to the Williams Institute, an indepen- Obergefell v Hodges included several plaintis, each of dent think tank at the UCLA Law School, employment dis- whom told a story of injustice. James Obergefell of Ohio crimination against the LGBT workforce is common: 21 per- had lived with his partner Arthur for more than 20 years. cent of LGBT workers reported being discriminated against When Arthur was diagnosed with Lou Gehrig’s disease, the in hiring, promotions, and pay.11 Across the country, same-sex couple vowed to marry before he died. But, to do so, they couples with children earn approximately $7,600 less annu- had to y to Maryland, where same-sex marriage was legal. ally than their heterosexual counterparts, a number reduced Since the ailing Arthur found it dicult to move, they were to $4,300 in states with anti-discrimination laws, but rises to wed “inside a medical transport plane as it remained on the $11,300 in states without such protections.12 But the eects of tarmac in Baltimore.”5 Arthur died three months later. e employment discrimination against LGBT people go beyond state of Ohio refused to recognize the marriage; Obergefell dollars and cents, aecting compelling interests in preserving was not even acknowledged as the surviving spouse on the mental health, family structure, and social relationships. death certicate of his husband and longtime love.

42 M F L J J /J Title VII and Case Law women. Vickers was harassed because his friendship with the doctor led co-workers to believe Vickers engaged in sex with Lack of protection from discrimination in the workplace men. e Sixth Circuit denied his claim and held that em- stems from narrow judicial interpretation of Title VII, which ployment discrimination based on sexual orientation, whether was drawn to ensure employees and job applicants are judged perceived or real, is not protected.19 based only on skills, qualications, and performance. But as To establish a claim of failure to adhere to a sex gender ste- interpreted, this lofty goal is not uniformly applied to LGBT reotype, held the Vickers court, plaintis must exhibit behavior workers. Until Hively, courts declined to nd Title VII protec- “stereotypically inappropriate for their gender.”20 e court re- tion for discrimination “because of …. sex” for claims of dis- jected Vickers’ argument that homosexuality itself is a violation crimination based on sexual orientation or gender identity.13 of gender stereotypes. To accept it would “have the eect of de In 1989, the Supreme Court unexpectedly provided some facto amending Title VII to encompass sexual orientation as a LGBT plaintis a way to get their day in court. In the plural- prohibited basis for discrimination.”21 e court reasoned that ity opinion of Price Waterhouse v Hopkins,14 the court held that because Congress had not included sexual orientation in Title discriminating against those who failed to adhere to a sexual VII, sexual orientation was therefore specically excluded. Vick- stereotype in conformity with their biological gender is dis- ers, decided in 2006, is still the law in the Sixth Circuit. crimination because of sex. e plainti in Price Waterhouse, a Vickers’ argument fared better in the district court for the successful female associate at the well-known accounting rm, District of Columbia in Terveer v Billington.22 e plainti was denied promotion. e problem with heterosexual Ann there, a “straight-acting” gay man, argued simply that he was a Hopkins was not her work performance; the plain-spoken homosexual male “whose sexual orientation did not conform and assertive businesswoman was — apparently — insuf- to the defendant’s gender stereotypes ….”23 But even while ciently feminine. e partners at the rm advised her that arguing that sexual orientation discrimination is included as her chances of promotion would improve if she would “wear discrimination because of sex under Title VII, the plainti in makeup, have her hair styled, and wear jewelry.”15 Now, under Terveer also relied on a sex gender stereotyping theory: noth- Price Waterhouse, LGBT plaintis could analogize they were ing is less stereotypically masculine than having sex with an- discriminated against because they were not stereotypical in other man. their attire, mannerisms, or behavior for their biological gen- e Terveer court’s expansive view of what constitutes a sex der, thus bypassing the prohibited argument that their dis- gender stereotype permitted LGBT people with imperceptible crimination or harassment was based on sexual orientation or sexual orientation, as well as visibly eeminate gay men and gender identity. masculine lesbians, to survive summary judgment. e Terveer is theory has had haphazard results. It requires LGBT court’s view, however, bore little resemblance to the outwardly plaintis to present themselves as “gay” stereotypes no less invisible stereotyping described in Price Waterhouse. In most vidious than the traditional female stereotype at issue in Price cases where the sex gender stereotyping theory is argued, it Waterhouse to survive summary judgment.16 A member of a wrongly presupposes that sexual orientation is consistently at protected class should not have to behave in a particular man- odds with behavioral norms. e conicting decisions under ner to be entitled to equal employment opportunities. How- this theory expose the unreliable stereotypes upon which it ever, without some visibly identifying stereotypical behavior precariously balances. e plainti in Terveer succeeded, like or appearance at work, LGBT people remain vulnerable to prevailing plaintis before him, because of his conduct, not unequal treatment under Title VII. because of his status. In essence then, the expanded sex gender For example, in Vickers v Faireld Medical Center,17 the stereotyping theory avoids the issue of whether equal employ- Sixth Circuit denied plainti’s request for relief under a sex ment opportunity should be based upon how people act as op- gender stereotyping theory. When hospital security guard posed to who they are. Christopher Vickers befriended an openly gay doctor at work, his co-workers jumped to the conclusion that Vickers must also be gay. As a result, Vickers’ colleagues subjected him to Equal Protection and Title VII sexually based slurs, stamped his report forms with the word While earlier court decisions failed to understand that “FAG,” and deled his food and personal property with irritants sexual orientation is not a matter of personal preference,24 and chemicals.18 ere was no allegation that Vickers presented Obergefell recognized that orientation is an inherent trait and himself as gender non-conforming or “un-masculine.” that LGBT people are a protected class. e issue is not only Vickers’ complaint against the hospital and his co-work- whether discrimination based on sex encompasses sexual ori- ers alleged he was harassed and discriminated against because entation and gender identity, but also whether Title VII’s ex- his co-workers believed his sexual practices — whether real clusion represents an unconstitutional interpretation of the or imagined — did not conform to traditional stereotypes of word “sex.” When Congress enacted Title VII, sexual orienta- how men behave. Real or “stereotypical” men have sex with tion was not only unprotected, but misunderstood and reviled.

J /J M F L J 43 Title VII’s goal was to ensure equal employment opportunity lower court decision allowing discrimination against an LGBT for those groups then recognized as needing a legal remedy. plainti on the grounds, simply, that “Title VII is not intend- As society’s understanding of human sexuality has evolved, ed to cover discrimination against homosexuals.”33 Although exclusion of LGBT people from constitutional protections is the case was remanded to allow the plainti to develop a sex unsupportable and cannot be tolerated. gender stereotyping argument, the Eleventh Circuit stuck by e eect of Obergefell was to pave the way for a statu- its precedent and armed that portion of the district court tory claim under Title VII and the need to consider due pro- opinion holding there is no Title VII protection for sexual ori- cess and equal protection issues. Many courts and the Equal entation. e decision is being appealed. Employment Opportunity Commission (EEOC), however, At the end of March 2017, in Anonymous v Omnicom continue to wrestle with the sow’s ear of existing precedent Group, Inc, the Second Circuit reversed a district court opin- and futilely attempt to make it into the silk purse of equal op- ion that dutifully, but reluctantly, ruled for the employer and portunity in employment. denied plainti’s claim to Title VII protection. e Second Circuit, like the Eleventh Circuit, avoided articulating an ar- Sex, or Sex-based? EEOC Expands the Deﬁnition gument other than sex gender stereotyping. e court held, in part, that it lacked authority to reconsider existing precedent In 2015, the EEOC expanded the already broadened view that held Title VII did not cover discrimination against LGBT of sex gender stereotyping expressed in Terveer, and used both people.34 Reversing the employer’s victory, however, the court statute and precedent to nd employment protections for some also held that summary judgment had been improperly grant- LGBT plaintis. In Baldwin v Foxx,25 the agency ruled for the ed because there was evidence the plainti was an eeminate- rst time that discrimination due to sex-based considerations acting man. Plainti was allowed to proceed under a sex gen- — like sexual orientation or gender identity — is discrimina- der stereotyping theory on remand. tion “because of sex” and prohibited under Title VII. e Seventh Circuit is the rst circuit to hold that sexu- e agency did not view Title VII’s “lack of an express ref- al orientation and gender identity are protected under Title erence to sexual orientation” as controlling. e agency quoted VII. In October 2016, it vacated a panel decision and granted the Supreme Court’s opinion in Oncale v Sundowner Oshore rehearing en banc in Hively v Ivy Tech Community College of Services, Inc,26 holding that “statutory prohibitions often go Indiana35 — a decision that had followed precedent while si- beyond the principal evil [they were passed to combat] to cover multaneously decrying it. In a plurality opinion issued April reasonably comparable evils. . . .”27 e EEOC dened sex to 4, 2017, the en banc Hively court acknowledged Obergefell had encompass gender, a term that includes “socially constructed changed more than the law on same-sex marriage and echoed roles, behaviors, and attitudes.”28 e agency emphasized its the panel’s concerns that “[t]he cases as they stand … create a expanded denition did not create a new class of persons, any paradoxical legal landscape in which a person can be married more than protecting Ann Hopkins — the no-nonsense ac- on Saturday and then red on Monday for just that act.”36 Five count executive in Price Waterhouse — created a new protected judges of the en banc court, including the chief judge, held class of “masculine women.”29 Including sexual orientation “that a person who alleges that she experienced employment as part of the category “sex,” the EEOC proclaimed, merely discrimination on the basis of her sexual orientation has put applied existing Title VII principles to sex discrimination. In forth a case of sex discrimination for Title VII purposes.”37 e 2016 the agency revised its guidelines to reect its holding and ve judges concluded that “[i]t would require considerable denition of “sex” in Baldwin.30 calisthenics to remove the “sex” from “sexual orientation.”38 LGBT advocates and others hailed the EEOC’s new Insisting its decision did not overstep or “amend” Title guidelines and the opinion in Baldwin as potential game- VII, the en banc court, citing Oncale, Obergefell, Price Water- changers. Courts, however, have declined to uniformly em- house, and Loving v Virginia,39 maintained that its holding brace the EEOC’s reasoning. Some courts continued to follow only interpreted Title VII “in light of the Supreme Court’s pre-Obergefell precedent by grasping onto existing case law authoritative interpretations.”40 e lead opinion makes clear with unyielding dogmatism.31 Other courts question the in- that, at least in the Seventh Circuit, LGBT plaintis no longer consistency of granting LGBT people the legal right to slum- need to argue a sex gender stereotyping theory and present ber in their marriage beds, but withholding from them the evidence they are eeminate men or masculine women to have right to provide economic support to their union.32 their day in court. Where the Hively panel described the line between a gender nonconformity claim and sexual orientation Circuits Weigh In as “gossamer thin,” the en banc court concluded the line “does not exist at all” and that discrimination based on sexual orien- ese competing views have made their way to the federal tation41 is discrimination on the basis of sex.42 circuit courts. In early March 2017, in Evans v Georgia Re- Concurring in the result, two judges opined that Title VII, gional Hospital, the Eleventh Circuit upheld an unpublished as written, allowed the plainti to proceed under a contempo-

44 M F L J J /J rary meaning of the word “sex” to include sexual orientation Endnotes 43 and to hold otherwise would create “statutory obsolescence.” 1 576 US ___ ;135 S Ct 2584, 192 L Ed 2d 609 (2015). A second concurring opinion reasoned that Ivy Tech discrim- 2 42 USCA § 2000e-2. inated against the lesbian plainti because she was sexually attracted to a person of the same sex, and, therefore, the dis- 3 Hively v Ivy Tech Community College (On Rehearing), No. 15- crimination she suered was “because of sex.”44 In a lengthy 1720 (CA 7, April 4, 2017), slip op at 5, quoting Hively v Ivy Tech Community College, 830 F.2d 698, 709 (CA 7, 2016). dissent, three judges lamented the problematic existence of the “paradoxical legal landscape” after Obergefell.45 e dissent 4 No. 15-1720 (CA 7, April 4, 2017). concluded, however, that interference with the fundamental 5 Obergefell, 135 S Ct at 2594-2595. right to marry under state action was distinguishable from the 6 Id. at 2595. private action of employers regulated by Title VII, thus rais- 7 Id. at 2599. ing the issue of Title VII’s constitutionality, post-Obergefell, with respect to sex-based employment discrimination. After 8 Id. at 2600. discounting the Supreme Court’s decision in Price Waterhouse 9 Id. as a plurality opinion, the discrepancy between the constitu- 10 https://williamsinstitute.law.ucla.edu/datablog/just-the-facts-data- tional rights conferred by Obergefell and the statutory rights overview_2015. conferred by Title VII, stated the dissent, was “a matter for 11 Kurin Baksh Blog, “Workplace Discrimination: e LGBT legislative, not judicial, correction.”46 Workforce,” e Hu ngton Post, 6/22/2016, http://www. huffingtonpost.com/kurina-baksh/workplace-discrimination- _b_10606030.html. On to the Supreme Court? 12 https://williamsinstitute.law.ucla.edu/datablog/just-the-facts-data- With the circuits divided, and congressional amendment overview_2015/. of Title VII unlikely, will the United States Supreme Court 13 See Vickers v Faireld Medical Center, 453 F3d 757 (CA 6, recognize the eect of its own precedent in Obergefell and 2006); Bibby v Coca Cola Bottling Co, 260 F3d 257 (CA 3, grant LGBT workers the protected status aorded them un- 2001). der that decision? Presently, in all circuits but one, the right 14 Price Waterhouse v Hopkins, 490 US 228; 109 S Ct 1775, 104 L to work, to be hired, promoted, or red based on skill, expe- Ed 2d 268 (1989). rience, and qualications remains unequal for LGBT people 15 Id. at 236. under Title VII. Denying LGBT people the right to be free of workplace discrimination denies them equal protection and 16 Bibby, 260 F3d 257; Dawson v Bumble & Bumble, 398 F3d 211, 218 (CA 2, 2005); Prowel v Wise Business Forms, 579 F3d due process. In a nation that strongly professes to be pro-fam- 285 (CA 3, 2009); EEOC v Boh Brothers Construction Co, 731 ily, employment discrimination based on sexual orientation or F3d 444 (CA 5, 2013). gender identity harms the stability of our entire social order in 17 453 F3d 757 (CA 6, 2006). this brave land of the free. 18 Id. at 759-760. Id About the Authors 19 . at 763. 20 Id. quoting Dawson, 398 F3d at 218. Daniel A. Gwinn is a Senior Partner at the law rm of 21 Id. at 764. Gwinn Tauriainen PLLC, in Troy, Michigan, where he focuses his practice on employment law and litigation. He is a regular 22 ___ US App DC ___; 34 F Supp 3d 100 (2014). conference presenter and published author of numerous articles 23 Id. at 116. on employment issues. He graduated from Wayne State University 24 DeSantis v Pacic Tel & Tel Co, 609 F2d 327 (CA 9, 1979). Law School in 1995. 25 EEOC DOC 0120133080, 2015 WL 4397641 (July 15, Laura Bradshaw Tucker is an associate at Gwinn Tau- 2015), slip op at 6. riainen PLLC in Troy, Michigan, a rm with a practice con- 26 523 US 75, 79-80; 118 S Ct 998; 140 L Ed 2d 201 (1998). centration in employment law, business litigation, and probate and estate planning. Ms. Bradshaw Tucker is a member of the 27 Baldwin, EEOC DOC 0120133080, slip op at 9. Employment Law Section of the Oakland County Bar Associa- 28 World Health Organization, “What Do We Mean by ‘Sex’ and tion. She is a graduate of the University of Michigan Law School. ‘Gender’?” http://apps.who.int/gender/whatisgender/en/. e authors would like to thank the Hon. Vesta Svenson and 29 Baldwin, EEOC DOC 0120133080, slip op at 9. Laura Athens, Esq., for their editing assistance.

J /J M F L J 45 30 “What You Should Know About EEOC and the Enforcement 36 Hively (On Rehearing), No. 151720, slip op at 5, quoting Hively, Protections for LGBT Workers,” https://www.eeoc.gov/eeoc/ 830 F3d at 714 newsroom/wysk/enforcement_protections_lgbt_workers.cfm 37 Id. slip op at 23 31 Evans v Georgia Regional Hospital, No. CV415-103, 2015 WL 38 Id. slip op at 20 5316694 2 (SD Ga, September 10, 2015); slip op at 2; Hinton v Virginia Union University, No. 3:15CV569, 2016 WL 3922053 39 388 US 1; 87 S Ct 1817; 18 L Ed 2d 1010 (1967) (ED Va, July 20, 2016) 40 Hively, No 151720, slip op at 7, 19, 20, 21 32 Hively v Ivy Tech Community College, 830 F3d 698 (2016); 41 In addressing gender identity, the lead opinion stated, “[t]he EEOC v Scott Medical Center, No. 16-255, 2016 WL 6569233 discriminatory behavior does not exist without taking the (WD Pa, Nov 4,2016) victim’s biological sex (either as observed at birth or as modied, 33 Evans v Georgia Regional Hospital, No. 15-15234, (CA 11, in the case of transsexuals) into account.” Slip op at 14. March 10, 2017), a’g in part, vacating in part, and remanding 42 Id. slip op at 22, 23 Evans v Georgia Regional Hospital (SD Ga, 2015) 43 Id. slip op at 34 (POSNER, J, concurring) 34 Anonymous v Omnicom Group, Inc, No. 16-748 (CA 2, March 44 Id. slip op at 37 (FLAUM and RIPPLE, JJ, concurring) 27, 2017), slip op at 2, rev’g Christianson v Omnicom Group, Inc, 167 F Supp 3d 598 (SD NY 2016) 45 Id. slip op at 67 (SYKES, BAUER, KANNE, JJ, dissenting) 35 830 F3d 698 (CA 7 2016), Reh’g en banc granted, opinion 46 Id. slip op at 60, 66-67 (SYKES, BAUER, KANNE, JJ, vacated, 2016 WL 6768628 (Oct 11, 2016) dissenting)

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46 M F L J J /J T E A P U T VII

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Introduction Analysis From politics to pop culture—with the controversy over e Sixth Circuit and majority rule is that the same-sex North Carolina’s bathroom laws to television shows and tele- stereotyping analysis that applies to gender conforming indi- vision personalities like Orange is the New Black and Caitlin viduals under Price Waterhouse also applies to transgender and Jenner—the transgender community is experiencing a time of gender non-conforming individuals.10 All sex stereotyping for unprecedented visibility. Furthermore, the estimated number gender non-conforming behavior is impermissible under Title of people identifying as transgender in the U.S. has doubled VII, regardless of the cause.11 If the reason that someone is in the last ve years to 1.4 million.1 And that number is only gender non-conforming is because that person is transgender, expected to rise. as long as that person “suered discrimination because of his With increased visibility and with an increased number of or her gender non-conformity,” that person is protected under people openly identifying as transgender, attorneys are eld- Title VII.12 ing questions from businesses who want to know how to best A transgender person does not need to begin undergo- accommodate potential and current transgender employees. ing treatment before being protected against sex-stereotyping is article seeks to answer some of the more common ques- discrimination.13 Surgery or a desire for surgery is NOT an tions attorneys may face. essential component for a sex-stereotyping discrimination claim. As soon as the person exhibits gender non-conforming 14 Background behavior, that person is protected by Title VII. erefore, an employer may not require medical treatment or proof of Title VII of the Civil Rights Act of 1964 bans discrimina- medical treatment as a condition to accommodating a trans- tion “because of . . . sex.” In the immediate aftermath of Title gender employee or job applicant. VII’s passage, courts narrowly dened the term “sex” to mean only discrimination based on “anatomical sex,” rather than dis- Accommodating a Transgender Employee crimination based on “gender.”2 ese cases reasoned that “sex” referred only to “biological males” or “biological females.”3 Employers may not take an adverse employment action In direct contradiction to cases interpreting “sex” to have a against a person for dressing in conformance with their gender narrow meaning in Title VII, the Supreme Court in Price Water- identity either during work hours or at home. 15 So, employers house v. Hopkins interpreted “sex” broadly to include “sex stereo- should allow transgender employees to wear clothing, includ- typing.”4 In Price Waterhouse, a plainti alleged that her employer ing uniforms, at work that matches their gender identity. discriminated against her not because she was a woman, but be- e same goes for bathrooms. Although the Department cause she was a “macho” woman who did not conform to gender of Education and Department of Justice have withdrawn stereotypes.5 In response, for the rst time, the Court held that guidance requiring schools to allow transgender students to the plain meaning of the word “sex” included “gender.”6 use the bathroom that accords with their gender identity,16 e Supreme Court continued to broaden the term dis- the EEOC has not.17 e EEOC continues to require that crimination “because of . . . sex” in its 1998 decision, Oncale employers allow transgender employees to use the restroom v. Sundowner Oshore Services, Inc.7 e Court interpreted and changing facilities that accords with their gender identity, Title VII to cover same-sex sexual harassment.8 Importantly regardless of whether they have undergone any surgery or hor- for transgender plaintis, though the Court acknowledged mone therapy.18 that Congress probably was not concerned with male-on- Finally, employers should update and enforce their harass- male sexual harassment when it enacted Title VII, the Court ment and non-discrimination policies to include transgender stated, “statutory provisions often go beyond the principal evil employees. Most employers know that harassment policies to cover reasonably comparable evils.”9 cover obvious forms of bullying and intimidations, through

J /J M F L J 47 4 Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989). words or physical conduct, which may create a hostile work environment. is includes derogatory language, sexually-ori- 5 Id. at 235. ented comments, or disparaging remarks.19 However, referring 6 Id. at 239. to a female transgender employee with male pronouns or fail- 7 523 U.S. 75 (1998). ing to revise company records pursuant to changes in gender 8 Id. at 79-80. identity are also forms of actionable harassment.20 Because not all employees are aware of this, employers may wish to consid- 9 Id. at 79. er additional workplace sensitivity training for supervisors and 10 Smith v. City of Salem, 378 F.2d 566 (6th Cir. 2004); see also employees. Workplace training may also assuage any concerns Glenn v. Brumbly, 663 F.2d 1312 (11th Cir. 2011); Rosa v. Park coworkers might have with the updated company policies. West Bank & Trust Co., 214 F.3d 213 (1st Cir. 20000); Schwent v. Hartford, 204 F.3d 1187 (9th Cir. 2000). Conclusion 11 Smith, 378 F.2d at 575. 12 Id. is is a rapidly evolving area of law, and one that at- 13 Barnes, 401 F.3d 729. torneys need to constantly monitor in order to give accurate advice to their clients. Two areas to pay close attention to in 14 Id. the coming months are cases involving restroom facilities and 15 Barnes, 401 F.3d 729; Smith, 378 F.2d at 575. religious employers. e Sixth Circuit is currently hearing an 16 Department of Education, Department of Justice, Dear Col- appeal on an Eastern District of Michigan case that allowed league Letter, Feb. 22, 2017, http://stmedia.startribune.com/docu a funeral home director to discriminate against a transgender ments/1atransletterpdf022317.pdf. employee, notwithstanding Title VII, citing Burrell v. Hobby 17 EEOC, Bathroom/Facility Access and Transgender Employees, 21 Lobby Stores, Inc., 134 S.Ct. 2751 (2014). at decision https://www.eeoc.gov/eeoc/publications/fs-bathroom-access-trans- should be released within the year. gender.cfm. In the meantime, there are certain best practices that at- 18 Id. torneys can recommend to employers: 19 EEOC, What You Should Know About EEOC and the Enforce- • Update harassment and nondiscrimination policies to in- ment Protections for LGBT Workers, https://www.eeoc.gov/eeoc/ clude transgender and gender non-conforming employees. newsroom/wysk/enforcement_protections_lgbt_workers.cfm. • Consider workplace training for all employees; and 20 Lusardi v. McHugh, EEOC Appeal No. 0120133395 (Apr. 1, 2015); Complainant v. Dep’t of Veterans Aairs, EEOC Appeal • Allow transgender employees to wear the clothing and No. 0120133123 (Apr. 16, 2014); James v. U.S. Postal Service, use the bathroom and changing facilities of their gender EEOC Appeal No. 0120130992 (May 21, 2013). identity. 21 EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., Case No. 16-2424.

About the Author DIVORCE & FAMILY LAW Sam Richman is an associate at Dickinson Wright. His MEDIATOR practice focuses on employment law, commercial litigation, and Ralph K. Mayers, Esq. securities litigation. As an associate member of the rm’s employ- Garber and Mayers, PLLC ment law practice, Sam works both to prevent litigation and resolve lawsuits quickly and e ciently. Exculsively Endnotes family law  divorce mediation 1 Homan, Jan. Estimate of U.S. Transgender Population Doubles to and arbitration 1.4 Million Adults, New York Times. June 30, 2016. https://www. nytimes.com/2016/07/01/health/transgender-population.html. Since 1998 2 Abigail S. Clough, e Illusion of Protection: Transsexual Em- 30150 Telegraph Road ployment Discrimination, 1 G. J. G L. 849, 862 (2000); see also Grossman v. Bernards Twp. Bd. of Educ., No. Suite 444 74-1904, 1975 WL 302 (D.N.J. Sept. 10, 1975) a’d, 538 Bingham Farms, MI 48025 F.2d 319 (3d Cir. 1976). 3 Ulane v. Eastern Airlines Co., 742 F.2d 1081, 1085-86 (7th Cir. (248) 352-6880 1984).

48 M F L J J /J I A J LGBT S-R L

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The Need for Free Legal Resources by legal services and cannot aord an attorney. In April 2010, then–Chief Justice Marilyn Kelly of the Michigan Supreme Court Imagine you are an LGBT teenager whose family rejected you convened the Solutions on Self-Help Task Force with the goal of and kicked you out of your home; you think you can support your- promoting greater centralization, coordination, and quality of sup- self, but you’re not sure where to turn. Imagine you are a domestic port for self-represented litigants. e task force led to the creation violence survivor in a same-sex relationship, and you feel uncom- of the Michigan Legal Help Program. fortable asking for help in your small town. Imagine you and your e Michigan Legal Help website, michiganlegalhelp.org, is a wife are happily expecting your rst child conceived with the help free, statewide resource that is easily accessible to anyone with an of a sperm donor, but you don’t know how to ensure that both of internet connection on a mobile phone or computer. Its mobile- you have a secure legal relationship with your child. friendly format is especially useful for low-income people who For any person without a legal background, resolving a legal may not own a computer and may lack reliable transportation problem can be intimidating. LGBT individuals may face addi- to a physical resource center. is format also enables LGBT tional anxiety about potential bias in the court system or uncer- people who feel unwelcome in their communities to access legal tainty about their legal options. For LGBT families and individu- information and tools anonymously. An LGBT youth shunned als with nancial means, a knowledgeable attorney is integral to by her family can quickly nd information to determine whether accessing the court system and obtaining important protections. emancipation might be an option, and can access tools that will In such important matters as securing legal parental rights for a help her ask the court for emancipation on her own. Domes- growing family or obtaining a fair division of assets in a divorce, tic violence survivors can access information and tools to le a the value of an eective attorney cannot be overstated. petition for a personal protection order, and will be directed to Unfortunately for many, access to justice is limited by a lack of information about local domestic violence organizations that can nancial resources. e network of legal services oces through- help them create a safety plan. Couples planning for or expecting out Michigan attempts to address this imbalance by providing free a child can access reliable information about securing parental civil legal assistance to low-income people. Pursuant to federal rights. Transgender individuals looking to change their names guidelines, legal services attorneys may represent clients who have can nd the forms and information they need to accomplish this household incomes less than 200% of the federal poverty level with task successfully on their own. certain eligible expenses. For example, a family of four qualies e MLH sta of six produces and maintains this statewide if their household income is $47,400 or less. However, legal ser- website—michiganlegalhelp.org— where Michigan residents can vices cannot meet the needs of all people who qualify for help, as access legal information and resources. Some visitors are simply there are 22,000 Michigan residents eligible for the services of each looking to educate themselves about their legal matter. For oth- dedicated legal services attorney. Among these qualifying residents ers, MLH may be the only legal resource they have in prepar- are a signicant number of LGBT people. e Williams Institute ing to represent themselves in court. MLH is statewide and gives at UCLA School of Law published data in 2016 indicating that only information, not legal advice. Anyone can use the website LGBT people in Michigan experience poverty at a higher rate than regardless of income, location, or conict. e goal of MLH is to non-LGBT people, as is generally true across the United States.1 turn visitors into supported self-represented litigants, increasing Poverty disproportionately aects LGBT people, especially people their chances of success in resolving their legal matters. of color, due to “persistent and severe discrimination in employ- To that end, MLH provides people who can represent them- ment, housing, health care and education.”2 selves a set of tools so they can prepare documents that will be easy for the court to process, and so they can gain an understand- A Way to Address This Need: Michigan Legal Help ing of the procedural steps and substantive law applicable to their legal matter. Our sta attorneys develop and maintain informa- e Michigan Legal Help Program (MLH) was created to tional content and Do-It-Yourself document assembly tools to help bridge the gap for Michigan residents who cannot be helped guide self-represented persons through a variety of civil matters.

J /J M F L J 49 MLH covers such matters as divorce, expungement, debt collec- tance provided by Self-Help Center “navigators.” ey are housed tion defense, landlord-tenant disputes, wills, and special educa- in public libraries, law libraries, courthouses, and community or- tion, with many other areas in between. To ensure that the con- ganizations. MLH also partners with several Legal Resource Cen- tent is accessible to a wide audience, MLH materials are typically ters that operated prior to the launch of Michigan Legal Help. written at or near a sixth-grade reading level.3 Each main topic (Family, Housing, Personal Safety, etc.) is The Utility of Self-Help Resources further divided into dierent toolkits based on specic types of motions, complaints, and other needs. Each toolkit features In 2016, self-represented people used MLH to create 86,824 relevant informational articles, common questions and answers, sets of court forms —an average of 241 per day. In 2014, the and step-by-step procedural instruction checklists. Most tool- Michigan Legal Help Program received a grant to study MLH’s kits also include an automated Do-It-Yourself tool that allows ecacy in assisting self-represented litigants to resolve a divorce.4 visitors to prepare the appropriate form or forms needed for e evaluation analyzed quantitative and qualitative data to de- their specic legal matter. e Do-It-Yourself tool poses a series termine how successful Michigan Legal Help website users were of questions to the user and inputs the user’s answers in the cor- in completing the divorce process. Success was primarily dened rect spaces on SCAO-approved forms. e series of questions as reaching a judgment within a reasonable time frame. e ex- is based upon a logic tree that ensures people are using the ap- perience of MLH website users was compared to that of other propriate form for their problem, ensures that all necessary facts self-represented litigants and attorney-represented litigants. get into the pleadings, and takes into account dierent factual e evaluators made the following key ndings: scenarios and legal issues that may arise. 1. In Michigan in 2013, 48% of divorce cases were led by self- In addition to providing forms for simple civil matters, another represented plaintis and 68% of cases had one or more self- goal of MLH is to steer people and cases that are not appropriate represented litigants. 42% of divorce cases had no attorney for self-representation to attorneys who can help them. e Do-It- involvement at all. Yourself tools screen for complex legal issues and factual scenarios, and in some cases users are told they should consider hiring an at- 2. 74% of litigants using the MLH website obtain a judgment torney instead of representing themselves. In other instances, users of divorce, a rate virtually equal to that of other self-repre- are allowed to complete the forms but receive a warning that they sented litigants and attorney-represented litigants. should consult an attorney to nish their case. Some visitors also 3. Self-represented litigants conclude the divorce process in less realize that their case may be more dicult than anticipated after time than attorney-represented litigants, with MLH litigants reading MLH articles about their legal matter. In these ways, we concluding slightly more quickly than other self-represented help many people realize that they need to seek help from an attor- litigants. is nding is true even when controlling for other ney. MLH provides visitors information about legal services organi- factors, such as complexity. zations, the State Bar Lawyer Referral and Information Service, local bar referral services, and other options for accessing representation. ese ndings suggest that the MLH website is achieving MLH currently has sixty-one toolkits and forty-seven Do- its desired result of supporting self-represented litigants in suc- It-Yourself tools in ten subject areas, and we are always develop- cessfully resolving civil legal matters. e ndings also support ing new content and updating existing information. Visitors the need for Michigan Legal Help resources, given the very large can get additional assistance through LiveHelp, a chat-based number of self-represented litigants. feature where website visitors can get assistance navigating the website and answers to other questions that do not require legal Content Helpful to LGBT Individuals advice. Website visitors can also access brief videos discussing topics such as “How to Serve Divorce or Custody Papers.” Much of the content on MLH is equally useful to all peo- Ayuda Legal de Michigan, the Spanish-language version of the ple seeking legal information, regardless of sexual orientation or Michigan Legal Help website, was launched in September 2014. gender identity. However, there are certain topics on MLH that Six videos, 57 toolkits, and 3 Do-It-Yourself tools are available in are specically useful to the LGBT community. For example, the Spanish at this time. We continue to add new translated content Name Change toolkit is an important resource for transgender (including form tools) as quickly as possible. people, and the Emancipation toolkit oers tools and information to LGBT teens who have been shunned by their families. Self-Help Centers Tools to Combat Poverty In addition to the Michigan Legal Help website, there are Other MLH resources on topics such as unemployment, pub- thirteen MLH Self-Help Centers across the state, with two more lic benets, and expungement can help some LGBT visitors address coming in 2017. Self-Help Centers are public locations where legal issues related to poverty, criminal conviction, and juvenile ad- people can access computers, the internet, and additional assis- judication. Discrimination against LGBT people in employment,

50 M F L J J /J housing, health care, and education leads to disproportionate In addition to the website and self-help centers, the Michigan poverty, as discussed above, as well as “increased engagement in Legal Help Program works diligently with many other agencies sex and drug work in order to survive.”5 ese factors, combined to increase access to justice for everyone, including low-income with general criminalization of poverty and homelessness as well and potentially marginalized members of the LGBT population. as discriminatory policing, result in greater entry into the criminal MLH works closely with the State Court Administrative Oce justice and juvenile justice systems for transgender and gender- on court forms and policies, with the State Bar on increased ac- nonconforming people, LGBT youth, and LGBT people of color.6 cess to lawyers through various initiatives like Modest Means When searching for legal help or community services for fee structures and the MI Free Legal Answers pilot project, and problems related to poverty and crime, LGBT people may face with the State Bar Foundation and numerous legal services of- additional obstacles. “ose who seek legal and social services ces across the state which provide direct services to low-income often encounter ignorance or discrimination at the door. When individuals. Together, we hope to make Michigan a place where LGBT people are released from prison, they face these same con- everyone who needs legal assistance can get some form of direc- ditions with the additional stigma of a criminal conviction, and tion, guidance, information, and help. often nd themselves cycling back through poverty and into jails and prisons.”7 LGBT individuals trying to overcome poverty, as About the Authors well as those who face the additional impediment of a past juvenile adjudication or criminal conviction, can use MLH form Angela Tripp is the Director of the Michigan Legal Help (MLH) tools, instructions, and articles to learn about their legal options Program. MLH is responsible for the statewide website for self-repre- and take positive steps toward improving their situations. sented litigants (MichiganLegalHelp.org) and ten a liated Self-Help Centers around the state. In 2016, over 770,000 people visited the Family Matters MLH website and over 86,000 people used its resources to complete When the Obergefell v. Hodges decision was handed down, legal forms. Ms. Tripp has led the development and growth of MLH MLH sta identied areas of the website that needed updating from its inception in 2011. Ms. Tripp is also the Co-Director of the to address LGBT-specic legal issues around marriage, child cus- Michigan Poverty Law Program, the legal aid state support program in tody, and divorce, and to indicate gender neutrality. One of the Michigan. Ms. Tripp holds a JD from Northeastern University School of rst changes made was to remove unnecessary gendered language Law in Boston and a BA from the University of Cincinnati. wherever it existed on the website and in the Do-It-Yourself tools. Amy Billmire is a sta attorney at Michigan Legal Help. She devel- MLH sta attorneys also worked with the State Court Adminis- ops and manages the Family and Personal Safety sections of the Michigan trative Oce to change gendered language on domestic relations Legal Help website. Previously, she worked as a Judicial Advisory As- forms, stepparent adoption forms, and name change forms. For sistant for the Honorable F. Kay Behm in Michigan’s 7th Circuit Court. example, forms that referred to “Mother” and “Father” now say She obtained her undergraduate degree in English from Clemson Univer- (or will soon say) “Parent” and “Parent,” or “Parent” and “Spouse.” sity and her Juris Doctor from Michigan State University College of Law. Signicant changes were made to the Do-It-Yourself divorce tools to allow same-sex couples to use them for divorces with or Endnotes without minor children. Along with wording changes and chang- 1 Same-sex Couple and LGBT Demographic Data Interactive. (May es in the interview logic, new help text was added. Changes were 2016). Los Angeles, CA: e Williams Institute, UCLA School of Law. also made to the DIY custody complaint tool. https://williamsinstitute.law.ucla.edu/visualization/lgbt-stats/#density. In March 2017, MLH published two new articles geared to- 2 Catherine Hanssens, Aisha C. Moodie-Mills, Andrea J. Ritchie, ward parentage and divorce issues unique to same-sex families. As Dean Spade, and Urvashi Vaid, 2014, 54. “A Roadmap for Change: with all content on Michigan Legal Help, the articles were carefully Federal Policy Recommendations for Addressing the Criminaliza- reviewed for substantive accuracy by an attorney with expertise in tion of LGBT People and People Living with HIV.” New York: the topics covered. Kerene Moore of Legal Services of South Cen- Center for Gender & Sexuality Law at Columbia Law School. tral Michigan’s Ann Arbor oce provided valuable feedback and https://web.law.columbia.edu/sites/default/les/microsites/gender-sexuality/les/roadmap_for_change_full_report.pdf. information for these articles. “Growing Your Family: An Overview for Same-Sex Parents” summarizes ways in which same-sex parents 3 “Roughly 50% of native English-speaking Americans are unable to read at the 8th grade level; another 20% are only functionally liter- can establish or secure parental rights. “Separation and Divorce: An ate.” “Why Plain Language Matters,” Legal Assistance of Western Overview for Same-Sex Families” focuses on parentage issues that New York, Inc., accessed April 10, 2016, http://www.writeclearly.org. may arise during the course of a divorce between same-sex spouses. 4 Kerry Sheldon, “Michigan Legal Help Evaluation Report,” Michi- In the near future, MLH sta will update the DIY steppar- gan Poverty Law Program, January 2015, http://www.mplp.org/Task- ent adoption tool, articles, and checklist to allow for use by same- forces/technology/michigan-legal-help-evaluation-report-1-15.pdf. sex female couples. Unfortunately, the DIY tool will not accom- 5 Hanssens, 54. modate male couples who used a surrogate to have a child due to 6 Id., 10, 37, 54, 58. the legal complexities inherent in surrogacy. 7 Id., 54.

J /J M F L J 51 The Family Law Section Great Lakes Honor Roll

SSuperioruperior • Natalie• Natalie Alane Alane, Alane, Alane & Chartier,& Chartier, PLC PLC • Elizabeth• Elizabeth K. K. (Liz) (Liz) Bransdorfer Bransdorfer, ,Mika Mika Meyers Meyers Beckett Beckett && JonesJones PLC, Grand RapidsRapids

MMichiganichigan • Anthea E. Papista, Papista & Papista, PLC • Anthea E. Papista, Papista & Papista, PLC Huron H• Catchickuron Law, PC • Liisa• Liisa R. R. Speaker, Speaker Speaker, Speaker Law Law Firm, Firm, PLLC PLLC • Trish• Trish Oleksa Oleksa Haas Haas,, Haas Haas & Associates,& Associates, PLLC PLLC • Irika• Irika Mellin Mellin & &Kristen Kristen Robinson Robinso, n,Mellin Mellin Robinson, Robinson, PC P.C, Troy., Troy • Talarico & Associates, PC • Talarico & Associates, PC EErierie • James• Catchick Chryssikos Law, PC Law Firm, PLLC • •JosephJoseph W. W. Cunningham Cunningham, JD,, JD, CPA, CPA, PC PC • Mathew• Mathew Kobliska Kobliska, DeBrincat,, DeBrincat, Padgett, Padgett, Kobliska Kobliska & Zick& Zick • Mallory,• Mallory, Lapka, Lapka, Scott Scott & Selin,& Selin, PLLC PLLC • Steven D. Reinheimer, Reinheimer Law Office, PLC • Steven D. Reinheimer, Reinheimer Law Office, PLC • Jorin G. Rubin • Jorin• John G. J. Rubin Schrot, Jr., Berry Moorman, PC • John• Velzen, J. Schrot, Johnsen Jr. ,& Berry Wikander, Moorman, PC PC • Velzen, Johnsen & Wikander, PC

SpecialSpecia lthanks thank sto t othe th emembers member ofs o thef th Greate Gre aLakest Lak Honores Hon oRollr R oforll f otheirr the ir supportsupport ofof thethe FamilyFamily Law Law Section Sectio nand an dFamily Fami lLawy La wJournal Journ inal 2017in 2016 The Family Law Section GREAT LAKES HONOR ROLL The Family Law Journal serves as Family Law Council's forum to share ideas, announce new legislation, summarize and analyze case law and trends that affect our Section. Without question, the Journal represents a significant benefit of one's membership in the Family Law Section of the State Bar. Our readers receive advance notice of the most current pertinent legal developments which may impact our practice. We learn from The Best to be The Best. The Family Law Council analyzes, evaluates, testifies, and advocates for the best interest of the Family Law Section regarding all pertinent legislation; it likewise employs a skilled lobbyist to assert our positions on significant new laws.

As a way to express your support for the upcoming year, the Journal will be recognizing honorees on its "Great Lakes Honor Roll." To be included, our loyal readers, authors, and sponsors may participate at various levels as follows:

Superior: $1,000 - $1,500 Michigan: $750 - $999 Huron: $500 - $749 Erie: $150 - $499 There is no deadline for joining the Honor Roll. Your name, law firm name or business name will be added to the honoree list for a full year from the date you first join. Your listing may include a “clickable” link to your website if you so choose.

To be included in the Honor Roll for the Family Law Journal please complete the form below and send your check payable to "State Bar of Michigan" to:

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is article is not intended to encompass every element for bankruptcy relief together, pay one ling fee, and attend of bankruptcy practice that has been aected by the U.S. Su- the same mandatory meeting of creditors3 conducted by the preme Court’s decision in Obergefell v. Hodges, 576 U.S. ___, bankruptcy Trustee. 135 S.Ct. 2584, 192 L.Ed.2d 609, 83 U.S.L.W. 4592 (2015). Before Obergefell eectively settled the issue, same-sex mar- Instead, this article will highlight what impact Obergefell had ried couples had no choice except to le separate, individual on what this author believes are a couple of the more signi- bankruptcy petitions, each requiring payment of a ling fee -- cant and important considerations for one or more spouses currently, $335 under Chapter 7 and $310 under Chapter 13. in same-sex marriages seeking bankruptcy protection under And, because preparing two petitions involves more work than Chapters 7 (liquidation of debt) and 13 (repayment of debt) preparing a joint petition, especially under Chapter 13 (two ex- of the Bankruptcy Code. haustive repayment plans, for example), bankruptcy practitio- Bankruptcy is a federal matter, and all petitions for bank- ners often charge a higher total fee if the spouses le separately. ruptcy relief are led in the local United States District Court If a married couple therefore chooses to le a joint petition the and follow federal procedural rules. Michigan courts are not cost savings can easily exceed $1,000, a sum that is not chump involved in bankruptcy cases, but Michigan law generally de- change to parties seeking bankruptcy relief. nes a Michigan petitioner’s property rights. When someone les for bankruptcy protection, all of their e Bankruptcy Code begins its extensive exposition at assets become property of their bankruptcy estate and under 11 U.S.C. § 101. Congress has not yet deigned to change the control of the Trustee until a Discharge Order is entered. the bankruptcy laws “ocially” to address the implications e Bankruptcy Code species exemptions for lers to choose of Obergefell and, given the current composition of the Leg- to protect some or all of their assets from being “marshalled,” islative and Executive branches, it seems very doubtful that or sold by the Trustee for the benet of the bankrupt’s credi- any amendments to codify Obergefell are or will be in the im- tors. Exemptions vary in value and allow debtors to protect mediate ong. Nevertheless, as a practical matter, the U.S. a certain amount of equity in an asset. Generally speaking, Department of Justice (the executive agency that oversees and in a Chapter 7 bankruptcy case, the exemptions determine employs the U.S. Bankruptcy Trustees for each federal dis- what property the debtor gets to keep. Under a Chapter 13 trict) has not to date taken a stance in the Eastern District of bankruptcy petition, exemptions help determine how much Michigan to prevent same-sex married couples from taking the debtor must pay to certain creditors through the debtor’s advantage of the provisions of federal and state bankruptcy Chapter 13 repayment plan. laws that are available to straight married couples. It simply Debtors may choose from federal4 and state5 exemptions would be unfair and unconstitutional for a same-sex married when attempting to protect their assets. e federal exemp- couple to be denied the same protections of bankruptcy provi- tions are uniform and do not vary according to where the sions that a straight married couple can use. debtor resides. Married couples also (with some exceptions) e rst and perhaps most obvious of those provisions is are able to claim the full amount of each federal exemption a married couple’s ability to le a joint petition for bankruptcy – a practice informally called “doubling.” Each state has its protection and relief.1 When married people le bankruptcy, own set of exemptions that are anything but uniform from they have the option of ling jointly or separately.2 A married coast to coast. Debtors therefore have to make a strategic couple ling jointly for bankruptcy relief typically has their choice, because they can only use either the federal or the shares of joint estate property considered or treated individu- state exemptions; they cannot selectively pick the best provi- ally, and technically has their bankruptcy estates separately sions from each set to maximize the value of their exemp- administered. But, if both spouses want to le for bankruptcy tions. And a married couple ling jointly must choose the protection and do so at the same time, each spouse is not re- same set of exemptions – one spouse cannot choose to use quired to le a separate petition; instead, the spouses may le state law exemptions, and the other federal.6

54 M F L J J /J Regardless of the set of exemptions chosen, there are real property held by the entireties is entirely exempt from be- certain exemptions oered only to married couples. Since ing considered property of the estate (except for a claim based Obergefell, those exemptions that were previously available on a joint debt with the non-ling spouse).9 is exemption is only to straight married couples are now options that same- without limit regardless of the debts of the ling spouse. sex couples may elect to exercise. Even better, this Michigan exemption for entireties prop- As opposed to a community property state, Michigan is erty includes bonds, certicates of stock, mortgages, prom- a common-law property state. If one spouse les for bank- issory notes, debentures, or similar items of indebtedness ruptcy separately, only that spouse’s individual interest in payable to married couples.10 Having this exemption in the joint property becomes property of the bankruptcy estate. practitioner’s arsenal to protect same-sex spouses is a notewor- e non-ling spouse’s portion of joint property is not part of thy repercussion of Obergefell. the ling spouse’s bankruptcy. However, in a Chapter 7 case, Also important is another Michigan exemption that pro- the Trustee can sell any non-exempt assets to repay the ling tects the survivor of an owner of a homestead. If only one spouse’s creditors. And if a ling spouse cannot exempt the spouse of the same-sex married couple owns a homestead and value of their interest in a jointly-owned piece of property, the then dies, leaving a surviving spouse but no children, before Trustee may be able to sell the entire asset (but the Trustee is remarrying the surviving spouse may le for bankruptcy pro- still required to pay the non-ling spouse the value of his or tection and exempt the homestead and rents and prots from her interest in the property from the sale proceeds). it from their bankruptcy estate.11 is is a further important For a large number of people, their biggest asset is their development after Obergefell. home. Although housing prices are rebounding after the cata- So, while same-sex spouses may not use doubling of strophic downturn in the housing market in the late 2000s, Michigan exemptions like they can with federal exemptions, many homeowners do not have anywhere near the equity in having these Michigan exemptions available for homestead their homes that they had before prices fell so drastically. e and entireties property is a strong step forward. Obergefell’s current federal exemption for an individual’s equity in a home recognition of same-sex marriages already has had a signicant is $23,675 and by doubling, a married couple can protect practical impact on bankruptcy practice in Michigan. 7 $47,350 in value. It is therefore relatively easy to understand Before Obergefell, same-sex married couples who owned that if a married couple had $30,000 in equity in their home, property jointly could not take advantage of certain Michigan but only one of the parties led for bankruptcy protection exemptions. Even though not codied, since Obergefell the and was limited to only federal exemptions, the Trustee could advantages of certain exemptions available to straight married put the marital residence up for sale, pay the non-ling spouse couples are, as a practical matter, equally available to same-sex their share of the proceeds, and use the non-exempt proceeds married couples. In this author’s opinion, making those exemp- attributable to the ling spouse to pay creditors. Of course, in tions equally available to same-sex couples has been Obergefell’s that scenario, if both spouses led and used doubling, then biggest impact thus far on bankruptcy practice in Michigan. the entire equity in their marital residence would be exempt and they would be able to retain their marital residence.8 Yet for any number of reasons, an individual may not About the Author wish to le for joint bankruptcy protection with their spouse. Don Wheaton is a solo general practice litigation attorney For example, one spouse may have “perfect” credit and not who focuses on real people with real problems. About half of his need or want to take advantage of the bankruptcy laws, or practice involves divorce and family law matters, and the other the couple may wish to preserve that party’s perfect credit so half varies between bankruptcy, criminal defense, commercial that they could leverage it for future acquisitions (presumably) litigation, probate, and many other matters. A graduate of Alma at lower nancing costs. Before Obergefell, same-sex married College and the University of Michigan Law School, Don is an couples holding joint property had to make Hobson’s choices; active volunteer in his community, having served 24 years on the since Obergefell, however, same-sex couples may take advan- Lakeview Public Schools’ Board of Education, 15 years with the tage of Michigan exemptions to protect their equity interests St. Clair Shores Goodfellows, and 20 years as a highly-decorated in their homes. Boy Scout leader. e most signicant Michigan bankruptcy exemptions now available to same-sex married couples relate to the protection of their homestead. After Obergefell, a same-sex married Endnotes couple jointly owning real property may now be presumed to 1 In 2014 the federal government announced it recognized own that property by the entireties, that designation we all re- same-sex marriages for federal law purposes even if Michigan call from law school to be available only to couples recognized didn’t recognize them. is allowed same-sex married couples by the state as married. Accordingly, if only one spouse les for in Michigan to le joint bankruptcy petitions. However, that bankruptcy protection and elects Michigan exemptions, any policy applied only to those few couples who at that time had

J /J M F L J 55 left the state to get married, and those couples could not choose exemptions, so that neither had to use their entire $23,675 to to use Michigan exemptions to protect their assets, some advan- protect their share of the equity in the home, that would leave tages of which are discussed infra. additional funds available to each spouse to exempt and protect 2 11 U.S.C. § 302. other assets under the “wild card” bankruptcy exemption. 11 U.S.C. § 522(d)(5). 3 11 U.S.C. § 341. 9 MCL 600.5451(1)(n). 4 11 U.S.C. § 522(d). 10 Id., and MCL 557.151. 5 11 U.S.C. §§ 522(b)(2) and 522(b)(3)(A). 11 MCL 600.5451(1)(o). 6 11 U.S.C. § 522(b)(1). 7 ese numbers are adjusted periodically, and it is incumbent upon a practitioner to verify the current value of each exemption when it is being considered. 8 And because the spouses would split the equity between their

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Immigration options for members of the LGBTQA com- On the nonimmigrant side, U.S. citizens wishing to bring munity have increased markedly in recent years with changes a foreign national ancé(e) to the United States for marriage in social mores and landmark court rulings, such as the de- can le a Form I-129F, Petition for Alien Fiance(e).6 Follow- cisions in United States v Windsor and Obergefell v Hodges.1 ing issuance by the U.S. Department of State (USDOS) of a Against this backdrop, the United States Supreme Court ancé(e) visa, the ancé(e) may enter the United States for 90 has not only paved the way for legal recognition of same-sex days in order to marry. Once married, the new spouse may marriage, but has also extended numerous federal benets to apply for permanent residency and a green card via the I-485 same-sex couples, including benets under the immigration Adjustment of Status process.7 After the requisite period of system of the United States. permanent residency, the foreign national spouse may apply for U.S. citizenship via the naturalization process. Snapshot of Family Immigration Law Under the INA, eligibility for a wide range of benets depends on the denition of the terms “marriage” or “spouse.” e Immigration and Nationality Act of 1952 (INA)2 con- ese benets include those mentioned above. Also, the INA trols the ow of aliens into the United States, and provides for allows for various discretionary waivers of certain grounds of ancillary benets, such as employment authorization. e INA inadmissibility (such as health-related, criminal, or prior im- permits aliens to be admitted as nonimmigrants on a temporary migration violations) that would otherwise prohibit the en- basis, and also as immigrants on a permanent basis. On the try of some foreign nationals into the United States. Some immigrant side, the statute permits U.S. citizens and U.S. law- of these waivers require the applicant to be the spouse (or ful permanent residents (LPRs) to petition for foreign national son or daughter) of a U.S. citizen or LPR.8 Other spousal relatives to become LPRs and thereby obtain a Permanent Resi- benets under the INA pertain to aliens seeking to qualify dent Card, commonly known as a “green card.”3 To pursue as the spouses of employment-based immigrants and nonim- a green card, a U.S. citizen or LPR must le a Form I-130, migrants or of aliens granted refugee status or asylum. e Petition for Alien Relative, with the U.S. Citizenship and Im- Windsor and Obergefell decisions expanded the availability of migration Services (USCIS). is petition establishes the fam- these benets to same-sex couples. ily relationship that exists between petitioners and their relatives, the beneciaries. If there is no backlog for an immigrant Same-Sex Immigration Prior to Windsor visa and an alien beneciary is within the United States at the time of ling, the I-130 petition can be led together with a Before the Supreme Court’s decision in Windsor, the Form I-485, Application to Register Permanent Residence or Defense of Marriage Act (DOMA) governed marriages rec- Adjust Status.4 If the I-130 alien relative petition is led alone ognized under federal immigration law. Enacted in 1996, because the beneciary is residing abroad, the beneciary, upon DOMA dened a qualifying marriage as between one man approval, may apply for an Immigrant Visa at a U.S. embassy and one woman.9 us, as applied to the INA, DOMA creat- or consulate in the country where the beneciary resides. e ed an explicit barrier to same-sex couples seeking marriage-re- approval of either the I-485 Adjustment of Status application or lated immigration benets. One estimate placed the number the Immigrant Visa application results in the granting of LPR of same-sex couples unable to sponsor a partner for immigra- status and a green card to the alien relative. tion benets prior to 2013 at nearly 30,000.10 LPRs are eligible to apply for U.S. citizenship after a period of years. is process is known as naturalization. Using a Form The Impact of Windsor and Obergefell on N-400, Application for Naturalization, LPRs may apply for Immigration U.S. citizenship after holding a green card for ve years. is period is shortened to three years if the LPR has been married Windsor dramatically changed the immigration land- to and living with the same U.S. citizen throughout that time.5 scape for same-sex couples. Windsor struck down Section 3 of

J /J M F L J 57 DOMA as an unconstitutional violation of basic due process Nonimmigrant Visa Option for the Unmarried and equal protection principles. As a result, approximately e rights granted to same-sex partners following Wind- 1,138 federal rights previously only available to heterosexual sor apply to married couples only. One spouse in a legally couples were extended to same-sex couples.11 Following the recognized same-sex marriage may apply for a visa to enter Windsor ruling, the U.S. Department of Homeland Security the United States based on the other spouse’s lawful immigra- (DHS) directed USCIS to review immigrant visa petitions tion status. is is generally referred to as a “derivative visa.” led by same-sex spouses in the same manner as those led by Same-sex individuals in civil unions or domestic partnerships heterosexual couples.12 After the Windsor ruling, thousands of are not eligible for derivative visa status.18 However, long be- couples became eligible for immigration benets that would Windsor Obergefell have been denied previously.13 fore and , the United States routinely al- Adhering to the DHS’s 2013 guidance following Wind- lowed cohabiting partners to enter in B-2 visitor visa status to sor, USCIS began immediately accepting immigrant visa pe- join their partners who held long-term nonimmigrant status. titions, ancé visa petitions, and accompanying applications is was true for both opposite and same-sex partners. In 2001, USDOS revised its Foreign Aairs Manual to expressly for other immigration benets led by individuals in same-sex 19 marriages. In addition, USCIS reopened petitions and ap- incorporate this “long-standing interpretation.” us, the plications that had been denied solely on the basis of DOMA. B-2 visa remains one of the most cost-eective and simple so- 20 Unlike many other USCIS lings, no fees were required to lutions for most cohabiting partners. request USCIS to reopen and reconsider these cases.14 Initial B-2 visa status for a cohabiting partner is common- e Windsor decision has also had the eect of hastening ly granted for six months upon entry into the United States the acquisition of U.S. citizenship for some spouses of same- with a visitor visa and can be extended in one-year increments sex marriages. As stated above, the INA allows LPRs to obtain within the United States for the duration of the other partner’s naturalization after residing in the United States for ve years. nonimmigrant status. is is accomplished by ling a Form at period can be shortened to three years, if during that time I-539, Application to Extend/Change Nonimmigrant Status, the LPR has been living with the same U.S. citizen spouse. e with USCIS. It should be noted that B-2 visa status does not INA now treats same-sex marriages the same as opposite-sex allow for employment. marriages. us, LPRs in same-sex marriages can now natural- ize after living with their U.S. citizen spouses for three years, as LGBTQA Humanitarian Beneﬁts opposed to the longer ve-year statutory period. It should be noted that the U.S. citizen spouse must be a U.S. citizen for the Asylum, in short, is the legal protection aorded by the entire three years for this immigration benet to apply. U.S. government to those who have suered persecution or Following Windsor, the Supreme Court’s 2015 Obergefell have a credible fear of persecution in their home country be- decision struck down state laws denying marriage licenses to cause of their membership in one of several recognized classes same-sex couples. All valid marriages, whether between same (race, religion, etc.). Asylees are distinguishable from refu- or opposite sex couples, are now treated equally. e Oberge- gees in that asylees are already present in the United States or fell decision greatly eased immigration-related burdens on are seeking asylum at a U.S. land border or Port of Entry.21 same-sex couples because it spared many from having to travel In an LGBTQA asylum claim, the applicant would need to to other states or even other countries to obtain marriages le- produce evidence that the persecutor harmed or would try to gally valid for immigration purposes. harm the applicant because the persecutor knows or believes e Obergefell decision also made adoption by same-sex the applicant belongs to a sexual minority. Membership in couples legal throughout the United States. However, many a persecuted social group based on sexual minority status is U.S. couples, including some in the LGBTQA community well-recognized as providing a valid basis for an asylum claim. bring children into their families through international adop- LGBTQA individuals who have been granted asylee or refu- tions. e Windsor and Obergefell opinions have little impact gee status may now le a Form I-730, Refugee/Asylee Relative on foreign nations. Consequently, LGBTQA couples must Petition to bring their same-sex spouse to the United States as carefully investigate the feasibility of international adoptions a derivative beneciary. on a case-by-case basis. For example, in 2014, Russia passed a law prohibiting international same-sex couples from adopt- Conclusion ing children.15 On the other hand, some formerly restrictive countries are changing their policies. In 2015, Colombia lift- e U.S. immigration system has long treated LGBTQA ed same-sex adoption prohibitions, announcing that the for- cohabiting partners the same as opposite sex partners. e mer policy limited a child’s right to a family.16 Brazil also al- Windsor and Obergefell decisions expanded this equal treat- lows for international LGBTQA couples and singles to adopt, ment to same-sex spouses. Both USCIS and USDOS were subject to age restrictions.17 quick to comply with these Supreme Court rulings. ere-

58 M F L J J /J 8 See, e.g., INA §§ 212(a)(6)(C)(i), 212(a)(9)(B)(v); 8 USC 1182 fore, members of the LGBTQA community should not hesi- (a)(6)(C)(i), 1182(a)(9)(B)(v) (waivers of misrepresentation tate to avail themselves of U.S. immigration benets. and unlawful presence, respectively). 9 Defense of Marriage Act, 1 USC 7; 28 USC 1738C. About the Authors 10 Moni Basu, Cable News Network (CNN), “Love or Country? Michael E. Wooley, a partner in Warner Norcross & Judd Justices could put an end to hard choice for gay couples” http://www. LLP’s Midland o ce, focuses his practice on business immigra- cnn.com/2013/06/16/us/gay-rights-immigration. (accessed March tion. He concentrates on the healthcare, manufacturing, higher 29, 2017). education, agribusiness and information technology industries for 11 U.S. General Accounting Oce, Defense of Marriage Act: Up- both U.S. employers and foreign professionals. He also counsels date to Prior Report, GAO/04-353R (January 23, 2004). foreign investors. Mike represents domestic and multinational 12 Janet Napolitano, Department of Homeland Security, “State- companies and foreign professionals in obtaining nonimmigrant ment by Secretary of Homeland Security Janet Napolitano on the visas, PERM labor certication and U.S. permanent residency. Implementation of the Supreme Court Ruling on the Defense of He also advises permanent resident employees on maintaining Marriage Act” https://www.dhs.gov/news/2013/07/01/statement- U.S. status while working abroad, represents individuals in fam- secretary-homeland-security-janet-napolitano-implementation- supreme-court (accessed March 29, 2017). ily-based immigration and in acquiring U.S. citizenship. Mike is a former Peace Corps Volunteer and is uent in Spanish. He 13 Moni Basu, CNN, Love wins in gay couple’s 40–year immigration earned his law degree from the University of Michigan. ght, (accessed March 29, 2017). for businesses and individuals. He drafts wills, trust and estate 14 United States Citizenship and Immigration Services, “Same-Sex plans and counsels clients through the benets of succession plan- Marriages” ning and tax planning. His honest and approachable manner (accessed April 3, 2017). places clients instantly at ease and contributes to his success in 15 Human Rights Campaign, “Russia o cially bans LGBT interna- achieving his clients’ aspirations. Daniel enjoys building lasting tional adoption,” (accessed April 3, the United States Navy has reinforced Daniel’s organizational 2017). skills, bringing structure and dependability to his practice style. 16 BBC, “Colombia lifts same-sex adoption limits” http://www.bbc. Today, Daniel continues to serve the veterans’ community through com/news/world-latin-america-34729490 (accessed April 3, various charitable organizations. 2017). 17 Alex Temblador, e Next Family, “Countries at Allow Inter- national Adoptions by LGBT Prospective Parents,” (accessed April Endnotes 3, 2017). 1 United States v Windsor, 133 S Ct 2675, 2682 (2013) and 18 U.S. Dep’t of State, Cable R091817Z JUL 01, B-2 Classica- Obergefell v Hodges, 135 S Ct 2584 (2015). tion for Cohabitating Partners (2001). 2 PL 82-414; 66 Stat 163. 19 Id. 3 8 CFR § 204.2(a)(1). 20 See 9 FAM 402.2-4(B)(5) (U). 4 8 CFR § 245.2. 21 INA §§ 101(a)(42)(A), 208; 8 USC 1101(a)(42)(A), 1158. 5 8 CFR § 315.2. 6 8 CFR § 214.2(k)(1). 7 8 CFR § 214.2(k)(6)(ii).

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Marriage equality pursuant to Obergefell v Hodges1 did not tion (FHA), as well as lenders insured by FHA, are subject to change federal or Michigan law related to housing discrimi- HUD’s Equal Access Rule.5 is Rule requires equal access nation. Neither set of laws has sexual orientation or gender to HUD programs without regard to a person’s actual or per- identity as classes of people, protected from discrimination. ceived sexual orientation, gender identity, or marital status. erefore, under both state and federal law, one must look at e following examples are taken from material provided the facts to see what the range of protections/prohibitions are, by the Fair Housing Center of West Michigan and the Fair and if they can be applied to deal with the specic decision Housing Center of Southeast & Mid-Michigan: being made. • A gay man is evicted because his landlord believes he Very little help seems to be available at either the State or will infect other tenants with HIV/AIDS. is situation Federal level, but a few Federal statutes and rules can oer some constitutes illegal disability discrimination under the Fair viable protections if the facts are carefully tailored to meet the Housing Act because the man is perceived to have a dis- language. Federal laws and rules that are implicated include the ability-HIV/AIDS. Fair Housing Act and the HUD Equal Access Rule. e Federal Fair Housing Act2 prohibits housing discrim- • A transgender woman is asked by the owner of her apart- ination based on race, color, national origin, religion, sex, dis- ment building not to dress in women’s clothing in the ability, and familial status (which is dened as the presence of common areas of the property. is is a violation of the children under the age of 18 in the household or pregnancy, Fair Housing Act’s prohibition of sex discrimination. 3 not whether two adults are married or not). Housing dis- • A property manager refuses to rent an apartment to a pro- crimination includes sale, oer for sale, rental, oer for rental, spective tenant who is transgender. If the housing denial is willingness to list or show property for sale or rental (broker- because of the prospective tenant’s non-conformity with age services), price, and specically includes a prohibition gender stereotypes, it constitutes illegal discrimination on 4 against coercion and/or intimidation. e Fair Housing Act the basis of sex under the Fair Housing Act. does not specically include sexual orientation and/or gender identity as prohibited bases to dierentiate between people in • A female prospective tenant alleges that a landlord refused housing-related transactions. to rent to her because she wears masculine clothes and However, some protection is oered under previous in- engages in other physical expressions that are stereotypi- terpretations of the Act for discrimination against a lesbian, cally male. If true, this may violate the Fair Housing Act’s gay, bisexual, or transgender (LGBT) person if it is based on prohibition of discrimination based on sex. their non-conformity with gender stereotypes. One com- • An underwriter for an FHA-insured lender is reviewing monly used example is if a housing provider refuses to rent to a loan application by two males; both incomes are be- an LGBT person because he/she believes the person acts in a ing used as the basis for the applicants’ credit worthiness. manner that does not conform to the notion of how a person e underwriter assumes the applicants are a gay couple of a particular sex should act. e person may pursue the and, as a result, denies the application despite the fact that matter as a violation of the Fair Housing Act’s prohibition of the applicants meet all requirements for the loan. is discrimination on the basis of sex. violates HUD’s Equal Access Rule, which prohibits FHA- Another example of behavior that is prohibited is dis- insured lenders from taking actual or perceived sexual ori- crimination against people with HIV/AIDS and against entation into consideration in determining adequacy of people perceived to have HIV/AIDS. Both of these acts are an applicant’s income. illegal under the Fair Housing Act’s prohibition of disability discrimination. HUD has a webpage at www.hud.gov/lgbthousingdis- In addition, housing providers that receive HUD fund- crimination/ that may continue to be updated as administra- ing or have loans insured by the Federal Housing Administra- tive policy under the Equal Access Rule develops.

J /J M F L J 61 Michigan anti-discrimination law, specically, the Elliott two parent families, single parents, multi-generational families, Larsen Civil Rights Act6 does not oer protection based on sex- and those planning to marry and/or have children together. She is ual orientation or gender identity. It protects from discrimi- trained in the collaborative divorce process and assists clients who, nation in connection with the opportunity to obtain housing from the time they recognize there is a dispute, are committed to and other real estate on the basis of sex, familial status and settling their cases in ways that work for their particular families, marital status, among other named protected classes. “Famil- rather than having the court process impose decisions on them. Liz ial status” is dened under state law similarly to federal law also remains actively engaged in family law litigation, advocating to mean related to the presence of children in the household. for her clients to help achieve their goals through the courts. She is “Sex” is dened to include, but is not limited to, pregnancy, serving her third term on the Council of the Family Law Section childbirth, or a medical condition related to pregnancy or and is the Corresponding Secretary as well as co-chair of the Mid- childbirth that does not include nontherapeutic abortion not Summer Conference, which will be held this year at Mission Point intended to save the life of the mother. is cannot reason- on Mackinac Island July 20-23. Nancy L. Haynes ably be read to encompass behavior or appearance that would graduated from Indiana University – provide an argument for the LGBTQ community. Bloomington School of Law and practiced litigation at Mika ere are state laws in other states and local laws both in Meyers Beckett and Jones before leaving to become the Executive and outside Michigan which provide varying degrees of protec- Director at the fair Housing Center of West Michigan and Board tion to LGBTQ individuals from housing discrimination. An Secretary for the National Fair Housing Alliance. updated list of state laws can be found on the Human Rights Campaign website.7 A list of city protections for LGBTQ individuals that is kept up to date fairly well can be found on Equality Michigan’s website.8 e current status of the law on state and federal levels does not create much of a safe haven for Endnotes the LGBTQ community and their right to housing. Perhaps 1 576 US __, 135 S Ct 2071, 191 L Ed 2d 953 (2015). further challenges to the current status of the law will promote judicial decisions and changes in the statutory basis to create 2 42 UCS §3601 et seq. the needed protections. 3 42 USC §3602(k). 4 42 UCS §§ 3604, 3605, 3606 and 3617. About the Authors 5 (24 CFR Parts 5, 200, 203, 236, 400, 570, 574, 882, 891, and 982). Elizabeth K. Bransdorfer is a member of Mika Meyers in et seq. Grand Rapids. Liz’s practice emphasis is domestic relations. Re- 6 MCL 37.2101 gardless of the form a family takes, Liz has experience in assisting 7 http://www.hrc.org/state_maps. during times of divorce as well as transitions within unmarried 8 https://www.equalitymi.org/resources/cities-with-legalprotection.

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“I HATE GAYS,” read the caption of the Twitter post The Lack of Adequate Laws Presents Challenges in that was forwarded to LGBTQ Community Liaison Ocer Investigating Bias/Hate Crimes Against the LGBTQ Dani Woods of the Detroit Police Department on July 13, Community 2016. Posted a day earlier by Steven Drake Edwards, the video Currently, sixteen states and the District of Columbia showed a recording of a young man entering a store. Edwards have laws that recognize hate crimes against victims based on can be heard stating, “Gay as hell . . . dick in the booty ass their sexual orientation and gender identity.3 irteen states bro.” As the young man exits the store, Edwards, still lming, have enacted hate crime laws that include sexual orientation, calls out, “Hey, yo.” Confused, the man begins to walk toward but not gender identity.4 Michigan does not have a bias or the vehicle Edwards is sitting in. Edwards produces a rearm hate crime law that recognizes LGBTQ victims who have been and points it directly into his face, “Dawg . . . you on some targeted based on their sexual orientation or gender identity. gay shit, get the fuck on before I beat your ass you gay ass.” Michigan does, however, have an ethnic intimidation stat- Flinching at the sight of the weapon, the victim quickly hur- ute.5 e law makes it a felony to maliciously intimidate or ries away from the car. harass a person based on their race, color, religion, gender, or e victim didn’t call the police. He didn’t tell his family. national origin by either causing physical contact, damage to He didn’t tell his friends. or defacing property, or by threatening to cause physical con- Ocer Woods began reaching out to her contacts in the tact or damage to property.6 community in the hopes of identifying the young man who e ethnic intimidation statute does not consider the vic- had been victimized. tim in Edward’s case to be a victim of a bias or hate crime, A week before the incident, Wayne County Prosecutor, although the victim was targeted for no reason other than his Kym Worthy and Fair Michigan1 President Dana Nessel met sexual orientation. Because of Michigan’s omission of LGBTQ and agreed to form an unprecedented public/private partner- individuals under the ethnic intimidation or other hate crime ship to focus on crimes where the LGBTQ community is tar- statute, prosecutors are forced to rely on existing laws during geted based on their sexual orientation and/or gender identity. the charging phase. In the Edwards case, using a rearm to assault an individual is a felony.7 Intimidating someone using Detroit Police Chief James Craig quickly signed on to col- homophobic language is not. laborate. Worthy and Craig knew that crimes against LGBTQ Imagine a scenario where Edwards did not have a rearm, people were occurring within their jurisdiction and under- but used the same language to intimidate: “Dawg . . . you stood that the community faced challenges that could begin on some gay shit, get the fuck on before I beat your gay ass.” to be addressed through dedicated resources. ese threats alone, without a weapon, do not rise to the level Fair Michigan is an organization that is dedicated to ad- of a felony under Michigan’s ethnic intimidation law. Substi- vocacy, education and outreach regarding the LGBTQ com- tute a slur based on religion in the above scenario, and the munity. e Wayne County Prosecutor’s Oce partnered conduct would be a felony.8 with Fair Michigan to form the Fair Michigan Justice Proj- For threats motivated by bias or hatred for sexual orien- 2 ect. e Fair Michigan Justice Project’s primary focus is on tation or gender identity, prosecutors in Michigan can only crimes against the LGBTQ community but in addition, pro- charge under the simple assault statute9 for placing a person vides training for prosecutors and law enforcement in working in fear of an immediate battery. Assault is a misdemeanor. If with LGBTQ crime victims and advocates for the amendment the ethnic intimidation law included sexual orientation, this of Michigan’s inadequate laws to further protect the LGBTQ intentional targeting and victimization would be classied as community. a felony.

J /J M F L J 63 e Department of Justice relies on the Mathew Shepard According to the latest MICR system report from 2015, Act10 to investigate and prosecute hate crimes against the LG- there were fty-nine cases involving bias motivated crimes BTQ community. e law criminalizes willfully committing against the LGBTQ community reported by local police de- bodily injury, or attempting to do so with a rearm or danger- partments to the MSP for the entire state.15 e MSP label the ous weapon where the crime was committed because of actual crimes as “anti-homosexual” in its ocial report on Michigan’s or perceived race, color, religion, national origin, gender, sex- state website, www.michigan.gov. ual orientation, gender identity, or disability.11 e Act does Notably, the word, “homosexual,” is widely regarded as an not criminalize mere threats of violence. Because the federal inappropriate term for an LGBTQ person. GLAAD (Gay and law requires bodily injury, or attempting to commit bodily Lesbian Alliance Against Defamation) lists the term “homo- injury with a rearm or other dangerous weapon, there is no sexual” as an oensive word that should be avoided due to the remedy in federal court for LGBTQ victims who have merely aggressive use of the word by anti-gay extremists to suggest gay been threatened. is means LGBTQ victims who have been people are suering from an emotional or physical disorder.16 threatened with bodily injury (and no attempt to commit the Washington Post, the New York Times, and the Associated bodily injury occurred with a rearm or dangerous weapon) Press restrict sta from the use of the term “homosexual,” as it or property damage because they are LGBTQ have only state is generally considered oensive and unprofessional.17 law to rely upon. And because Michigan’s hate crime law does In 2014, the FBI reported that the MSP logged forty-two not include sexual orientation or gender identity, the perpetra- incidents involving sexual orientation.18 Neither the report- tors are subject to misdemeanor assault charges. ing statute nor the ethnic intimidation statute accounts for Victims of hate crimes in Michigan who are targeted based reporting or criminalizing oenses involving hate or violence on race, color, religion, gender, or national origin are in an elevat- against individuals based on their gender identity. However, ed class in that their tormentors are subject to felony charges. e the FBI keeps statistics based on hate crimes involving sexual verbally intimidated or harassed LGBTQ victim is not aorded orientation and gender identity. e FBI relies on the MSP to the same serious consideration by the Michigan Legislature. report bias or hate crimes to them. Since Michigan does not recognize bias crimes involving gender identity in its reporting Michigan Law and Law Enforcement Impede statute, it cannot report them to the FBI. erefore, data re- Accurate Reporting of Bias or Hate Crimes Against ported to the FBI about the prevalence of hate violence against the LGBTQ Community the LBTQ community is inaccurate. Further compounding the problem is that the MSP rely Surprisingly, although the Michigan Legislature refuses to on local police departments to self-report bias crimes. is criminalize bias and hate violence against the LGBTQ com- usually means fullling a requirement of checking a box or munity, it nevertheless requires local police departments to noting the incident in a report. If ocers respond to an in- report crimes motivated by prejudice or bias based on sexual cident and determine there is no law under which to charge orientation.12 e state has required such reporting to the (as is the case in Michigan), or the complainant does not Michigan State Police (MSP) since 1992. e MSP prepare want to follow through with a formal complaint, or if the and maintain Michigan’s only government reporting system: ocer does not take the bias complaint seriously, a report is the Michigan Incident Crime Reporting (MICR) system. In not issued and there is no box to check to track the bias or the MICR system, data is collected based on reported inci- hate crime incident. dents.13 e data is then reported to the FBI. In June 2016, the New York Times, in an article chroni- e MSP describe a hate or bias crime as “a criminal cling violence in the United States against the LGBTQ com- oense committed against a person or property which is munity, noted that even the Department of Justice found motivated, in whole or in part, by the oender’s bias against that crimes were frequently not reported to police, and of a race, religion, ethnic/national origin, sexual orientation those that were, the local police departments did not classify or disability group. Hate Crimes are not separate, distinct them as bias or hate crimes.19 is is not surprising. Twenty crimes, but rather traditional oenses motivated by the states, including Michigan, lack laws that criminalize bias/ oender’s bias.”14 hate crimes involving sexual orientation and gender identity. e description is troubling in that the MSP do not con- It is important to record incidents of bias/hate crimes. sider, or are unaware, that the legislature has in fact recognized Crime cannot be eectively combatted if the law enforcement hate crimes as separate and distinct crimes to be charged un- community and the state legislature are in denial that a certain der the ethnic intimidation statue where the crimes involve class of crime exists or only recognize the violence in a limited bias against race, color, religion, gender, and national origin. capacity. Eradicating violence against any community is For the MSP, reporting is necessary where an incident involves benecial to the safety and well-being of all. Without accurate bias based on sexual orientation, yet sexual orientation is not statistics, lawmakers can continue to deny that LGBTQ persons included in Michigan’s bias/hate crime law. are being victimized based on bias and hate.

64 M F L J J /J Victims Often Fail to Report Bias/Hate Crimes law25 is particularly expansive in that it not only includes sexual orientation and gender identity, but requires those con- Systemic, cultural and bias problems within law enforce- victed of a bias crime to undergo diversity training. ment agencies add another layer of complexity in eectively New York recognizes hate crimes against persons based on investigating, reporting and tracking bias and hate crimes sexual orientation.26 e New York Legislature, in enacting its involving the LGBTQ community. e LGBTQ commu- hate crime law, noted that hate crimes threaten the welfare and nity has long experienced discrimination and harassment by safety of all citizens and “tear at the very fabric of a free soci- the law enforcement community. In the recent past, sexual ety,” and that “hate crimes can and do intimidate and disrupt intimacy was criminalized by sodomy laws making private entire communities and vitiate the civility that is essential to sexual conduct a crime. Laws against lewdness, vagrancy, and a healthy democratic process.”27 e N.Y. Legislature went on disorderly conduct were used to harass LGBTQ people who 20 to state that “our laws must be strengthened to provide clear congregated in public. Liquor licensing laws were routinely recognition of the gravity of hate crimes and the compelling utilized to raid establishments that served the LGBTQ com- importance of preventing recurrence.”28 munity. It is hardly encouraging to LGBTQ victims that the ere is currently no proposal to amend Michigan’s re- ocial State of Michigan website, which houses the MICR porting statute to include gender identity.29 Absent a bias/hate system manned by the MSP, refers to victims in the pejorative, crime law criminalizing oenders who target the LGBTQ referring to them as “homosexuals.” community and a reporting statute that encompasses report- Systematic discrimination has contributed to a breakdown ing crimes in which a person is targeted based on their gender in trust between law enforcement and the LGBTQ commu- identity, Michigan will continue to report woefully inaccu- nity. A report by the National Coalition of Anti-Violence rate statistics to the FBI. is aects the visibility of violence Programs reported that 48% of LGBTQ violence survivors against the community. e rst step in addressing a problem reported experiencing police misconduct; of those reporting is acknowledging that there is one. crime, 27% reported that police treated them with hostility, Projects like the Fair Michigan Justice Project (FMJP) 21 and 31% reported being treated by police with indierence. bring to light the violence against the LGBTQ community Many victims struggle with reporting for fear of being fur- that the State of Michigan refuses to acknowledge. While the ther victimized by law enforcement or because they fear they MSP rely on local law enforcement agencies to self-report will not be taken seriously. Reporting a bias crime, by its very crimes that the legislature does not acknowledge the existence nature, may “out” the victim to family, friends, or co-workers. of, the FMJP is tracking bias/hate violence involving the LG- Victims often feel shame, or embarrassment, and may experi- BTQ community in Wayne County. ence a lack of social support. A person who is targeted for no Since its inception last July, the FMJP handled eighteen other reason than who they are continues to feel victimized cases in Wayne County that involved violence against the LG- 22 and re-victimized long after an attack. BTQ community. Seven of those cases, including the Edwards case, have been adjudicated at the time this article was written. State Efforts to Improve the Administration of Convictions were obtained in all seven of those cases. Justice for LGBTQ Victims of Bias/Hate Crimes e FMJP handled cases involving LGBTQ victims who had been shot, stabbed, threatened with rearms and/or knives, On February 8, 2017, Sen. Steven Bieda drafted Senate raped and murdered. irteen cases are pending, ve of those Bill (S.B.) No. 121. e bill proposes an amendment to the are still at the investigation stage. e FMJP also tracked seven ethnic intimidation statute23 to include “gender identica- cases of harassment and intimidation that would have been con- tion,” and “sexual orientation.”24 S.B. 121 has been referred to sidered felonious behavior if sexual orientation or gender iden- the Committee on Government Operations and is supported tity were included in the ethnic intimidation statute. and referred by Senate Democrats, Sen. Hoon-Yung Hop- One of those cases involved a seventeen-year old whose good, Sen. Vincent Gregory, Sen. David Knezek, Sen. Curtis guardian repeatedly referred to him as a “demon” because Hertel, Sen. Ian Conyers, Sen. Rebekah Warren, and Sen. Jim of his sexual orientation, smacked him, and refused to al- Ananich, and two Senate Republicans, Sen. Tory Rocca, and low him to sit on her furniture because she believed he was Sen. Rick Jones. Bi-partisan support will be essential in mov- “diseased.” Another involved neighbors who objected to a ing the bill out of committee and to the Senate oor for a vote. gay couple living in the home next to them. At night, they If enacted, Michigan would join California, Colorado, would sit on their patio and speak loudly about the “fag- Connecticut, Delaware, Illinois, New Jersey, Oregon, Mas- gots next door,” how “HIV infected people deserved to die,” sachusetts, Maryland, Minnesota, New Mexico, Missouri, and “someone should burn their house down.” While police Rhode Island, Nevada, Washington, Vermont and the District were contacted in both incidents, no felony charges could be of Columbia in recognizing hate crimes involving both sexual brought for lack of inclusion of sexual orientation in Michi- orientation and gender identity. Massachusetts’s hate crime gan’s bias/hate crime statute. Had these oenders targeted

J /J M F L J 65 victims based on race, color, religion, or ethnicity, felony Policy and ruled that the witness was to be addressed in the charges could have been brought. manner appropriate to the witness’s gender identity. e FMJP handled ve felony cases where the victim did e policy also assisted the Special Prosecutor in a case not feel comfortable reporting to police, but did come forward involving a serial rapist where the victim, since the time of the to report to Fair Michigan. Because LGBTQ victims frequent- rape, had transitioned and identied as a transgender man. ly mistrust law enforcement or feel that they will not be taken e written policy allowed the Special Prosecutor to assure the seriously, the FMJP established a hotline30 for reporting hate victim that his gender identity would be respected during the crimes. While this is not a substitute for contacting 911 for im- court proceedings, which he expressed to be one of his chief mediate service in an emergency situation, it nevertheless allows fears in coming forward to testify publicly. crime victims access to an organization that can facilitate work- Dedicated resources are successfully helping to close cases ing with law enforcement and meet their needs without fear of that involve violence against the LGBTQ community in Wayne confrontation or being demeaned. Julisa Abad, Fair Michigan’s County. e LGBTQ community needs, deserves, laws that dedicated Trans Advocate, works with victims and assists them address the bias and hate crimes committed against them. in nding housing when they feel unsafe, counseling services, In the case of Steven Edwards, the FMJP and Detroit Po- and working with the Special Prosecutor where a criminal com- lice Department worked together. Ocer Dani Woods in her plaint needs to be led, or has already been led; and the law search for the victim, spoke with FMJP Trans Advocate, Julisa rm of Hertz Schram, PC donated a “safe space” to the FMJP Abad. Abad, who has extensive resources and is well known to interview victims in a non-law enforcement setting. within the LGBTQ community, located and reached out to e FMJP utilizes a former assistant prosecutor and for- the victim. e young man, in the short time since Edwards mer police chief who maintain a good working relationship had posted the video, had been asked to leave his grandmoth- with local law enforcement. ese contacts assist the FMJP er’s home. He was told that it was his own fault for being tar- in ensuring the victim is meeting with professionals who are geted and that he should expect that kind of treatment so long trained to address the concerns of the LGBTQ community so as he continued to be gay. e victim refused to speak with that the victim has a positive interaction with law enforcement the police, but was willing to speak to the FMJP. He expressed during a dicult and stressful time. Making victims feel safe feelings that the police department would not care to help him and respected facilitates reporting, which enables law enforce- and he saw no point in ling a formal complaint, though he ment to solve crime and take violent oenders o the street. was concerned the oender would harm someone else. e FMJP also conducts training for prosecutors and police e FMJP addressed the victim’s concerns about com- when working with the LGBTQ community. Part of the training forward and following through with the prosecution of ing focuses on the importance of using correct and respectful Edwards. Like many LGBTQ victims, the young man faced language when working with LGBTQ victims. For example, “transvestite,” “transsexual,” and “homosexual,” are unaccept- ostracization from his family and friends. He was embarrassed able terms to use. Frequently, ocers with good intentions use and humiliated. Not only had he been targeted for being gay, oensive terms (see the MICR system’s use of “homosexual” on but the entire incident had been broadcast to anyone any- www.michigan.gov). is can damage a witness’s ability to trust where who wanted to see it. e FMJP met not only with the the ocer which hinders the quality and quantity of informa- victim, but also his family members. A community approach tion taken during an investigation. Empowering law enforce- assisted the victim by empowering him to speak up and report ment with the right language allows the ocer to behave in a in a safe environment. professional manner that assists them in solving crime. Edwards was ultimately charged and prosecuted for Feloni- 32 Wayne County Prosecutor, Kym Worthy, enacted this ous Assault and Possession of a Firearm During the Commis- 33 state’s rst Transgender Interaction Policy31 for the Wayne sion of a Felony. He is now serving two years in the Michigan County Prosecutor’s Oce (WCPO). e policy requires that Department of Correction, followed by a term of probation. Wayne County Prosecutor’s Oce employees treat transgen- While the case was certainly regarded as a hate crime by the vic- der, intersex, and gender non-conforming individuals in the tim and local law enforcement, it could not be charged as one. manner appropriate to the individual’s gender identity. Dedicated resources are making an impact for the victims e policy recently served as a resource during a con- of bias and hate crimes. Our lawmakers cannot continue to tentious hearing where a transgender woman was testifying deny that members of the LGBTQ community face bias and about how she was shot in the face. When the defense attor- hate violence. It is time for the Michigan Legislature to enact ney attempted to degrade and debase the witness by behaving laws acknowledging these victims by amending the ethnic in- amused and referring to her as “him,” “Mister,” and “it,” the timidation statute to include sexual orientation and gender Special Prosecutor objected. e Court adopted the Special identity and requiring the reporting of crimes involving gen- Prosecutor’s reference to the WCPO Transgender Interaction der identity.

66 M F L J J /J About the Author nytimes.com/interactive/2016/06/16/us/hate-crimes-against-lgbt. html?_r=0 Citing: U.S. Dept. of Justice: Hate Crime Victimiza- Jaimie Powell Horowitz served as a Wayne County assis- tion, 2004- 2012 Statistical Tables (February 2014). https://www. bjs.gov/content/pub/pdf/hcv0412st.pdf. tant prosecutor for more than a decade. During her tenure, she worked in the homicide unit, elder abuse unit, and on special 20 e Williams Institute, Discrimination and Harassment by assignment in the felony trial division. Law Enforcement O cers in the LGBT Community (March 2015). https://williamsinstitute.law.ucla.edu/wp-content/uploads/ Powell Horowitz was routinely assigned high prole cases in- LGBT-Discrimination-and-Harassment-in-Law-Enforcement- volving homicides, sexual assault, carjacking, robbery, home in- March-2015.pdf. vasion, and cases involving nancial exploitation of vulnerable 21 Id at 7, citing National Coalition of Anti-Violence Programs, Les- adults. She has successfully obtained convictions in over a hundred bian, Gay,Bisexual, Transgender, Queer, and HIV Aected Hate felony cases, including 27 murder convictions with no reversals Violence in 2012 39 (2013). http://www.avp.org/storage/docu- on appeal. ments/ncavp_2012_hvreport_nal.pdf. She has served as a member of the Wayne County Elder Abuse 22 Gregory M. Herek, Ph.D., “e Impact of Hate Crime Victim- Advisory Council, the State Bar Character and Fitness District ization,” University of California, Davis (1999). http://psychol- Committee, State Bar Representative Assembly, American Inns of ogy.ucdavis.edu/rainbow/html/summary.pdf. Court, advised and testied on behalf the Prosecutor’s Association 23 MCL 750.147b. of Michigan in legislative committee, and was recognized as an 24 Senate Bill No. 121 (February 2017). http://www.legislature. “Up and Coming Lawyer” by Lawyers Weekly magazine. mi.gov/documents/2017-2018/billintroduced/Senate/htm/2017- Currently, Powell Horowitz is in private practice, serves on SIB-0121.htm. the Ethics Board for the city of Huntington Woods, and is a sta 25 M.G.L. c. 235. sec. 39: Assault or battery for purpose of intimi- member for Fair Michigan. dation; weapons; punishment Section 39. (a) Whoever commits an assault or a battery upon a person or damages the real or personal property of a person Endnotes with the intent to intimidate such person because of such person’s race, color, religion, national origin, sexual orientation, 1 Fair Michigan. http://www.fairmichigan.org/. gender identity, or disability shall be punished by a ne of not 2 e Fair Michigan Justice Project. http://www.fairmichigan.org/ more than ve thousand dollars or by imprisonment in a house fair-michigan-justice-project/. of correction for not more than two and one-half years, or by 3 “Movement Advancement Project / Hate Crime Laws” last both such ne and imprisonment. e court may also order res- modied April 12, 2017 http://www.lgbtmap.org/equality-maps/ titution to the victim in any amount up to three times the value hate_crime_laws. of property damage sustained by the owners of such property. For the purposes of this section, the term ‘’disability’’ shall have 4 Id. the same meaning as ‘’handicap’’ as dened in subsection 17 of 5 MCL 750.147b. section one of chapter one hundred and fty-one B; provided, however, that for purposes of this section, the term ‘’disability’’ 6 Id. shall not include any condition primarily resulting from the use 7 MCL 750.82 & 750.227b. of alcohol or a controlled substance as dened in section one of 8 MCL 750.147b. chapter ninety-four C. 9 MCL 750.81. (b) Whoever commits a battery in violation of this section and which results in bodily injury shall be punished by a ne 10 18 U.S.C. sec. 249. of not more than ten thousand dollars or by imprison- 11 Id. ment in the state prison for not more than ve years, or by both such ne and imprisonment. Whoever commits 12 MCL 28.257a. any oense described in this subsection while armed with 13 “Michigan Incident Crime Reporting” http://www.micrstats. a rearm, rie, shotgun, machine gun or assault weapon state.mi.us/MICR/FAQs.aspx. shall be punished by imprisonment in the state prison for 14 Id. not more than ten years or in the house of correction for not more than two and one-half years. For purposes of this 15 “MICR 2015: Hate/Bias Crime,” 2015. http://www.michigan. section, ‘’bodily injury’’ shall mean substantial impairment gov/documents/msp/HateCrime_528359_7.pdf. of the physical condition, including, but not limited to, 16 GLAAD Media Reference Guide -Terms to Avoid http://www. any burn, fracture of any bone, subdural hematoma, injury glaad.org/reference/oensive. to any internal organ, or any injury which occurs as the result of repeated harm to any bodily function or organ, 17 Id. including human skin. 18 2014 FBI Hate Crime Report. https://ucr.fbi.gov/crime-in-the- ere shall be a surcharge of one hundred dollars on a ne u.s/2014/crime-in-the-u.s.-2014/cius-home. assessed against a defendant convicted of a violation of this 19 Haeyoun Park and Iaryna Mykhyalyshyn, “L.G.B.T People Are section; provided, however, that moneys from such sur- More Likely to Be Targets of Hate Crimes an Any Other charge shall be delivered forthwith to the treasurer of the Minority Group,” New York Times, June 16, 2016.. https://www. commonwealth and deposited in the Diversity Awareness

J /J M F L J 67 Education Trust Fund established under the provisions of ON DEPARTMENTAL DOCUMENTS: Employees prepar- section thirty-nine Q of chapter ten. In the case of convic- ing or completing a written document regarding a transgender, tions for multiple oenses, said surcharge shall be assessed intersex, or gender nonconforming victim, witness, suspect, de- for each such conviction. fendant, reporting party, or any other individual shall classify A person convicted under the provisions of this section the individual’s sex as listed on their ocial government-issued shall complete a diversity awareness program designed by identication. In the event that the individual does not have the secretary of the executive oce of public safety in con- their ocial identication in their possession, employees should sultation with the Massachusetts commission against dis- ask the individual what sex is listed on their identication. e crimination and approved by the chief justice of the trial individual’s answer and the employee’s verication of the infor- court. A person so convicted shall complete such program mation provided by the individual should be used to determine prior to release from incarceration or prior to completion the appropriate manner in which to classify the individual’s sex of the terms of probation, whichever is applicable. on the document. Any name used by the individual other than what is listed on his or her ocial government issued identi- 26 N.Y. Penal Law Article 485. sec. 05. cation card will be recorded as an alias. In the narrative of 27 Id. any report, the employee will use the individual’s gender iden- 28 Id. tity and corresponding pronouns. DEFINITIONS: Designated Sex (Synonymous with “Sex Assigned at Birth”): An individual’s 29 MCL 750.147b. sex (male or female) determined at birth based upon the indi- 30 1-877- FAIRMI (1-877-432-4764). vidual’s genitals, reproductive organs and/or chromosomes, and 31 WCPO Transgender Policy (2016). PURPOSE: is directive designated on the individual’s birth certicate. Gender Identity: establishes guidelines and operating procedures for employees An individual’s innate, deeply felt psychological identication when interacting with transgender, intersex, and gender non- as being a man or a woman, which may or may not correspond conforming individuals. POLICY: e Wayne County Prosecu- to the sex assigned to the individual at birth (as listed on the tor’s Oce employees will exhibit professionalism and courtesy individual’s birth certicate). Everyone has a gender identity. during all interactions with members of the public and fellow Gender Expression: An individual’s public manifestation of being employees including transgender, intersex, or gender non- male or female through external characteristics and behaviors, conforming individuals. RESPONSIBILITIES: e Wayne such as clothing, haircut, body characteristics, voice, and speech County Prosecutor is responsible for all policies maintained by patterns. “Gender expression” is determined by using stereotyp- the Wayne County Prosecutor’s Oce. is responsibility in- ical notions of what it means to appear as a man, a woman, mas- cludes the authority to issue, modify and approve policies per- culine and feminine. Typically, transgender people seek to make taining to employee interactions with transgender, intersex, and their gender expression match their gender identity, rather than gender nonconforming individuals. Supervisors will ensure that matching their sex assigned at birth. Gender Nonconforming: A this policy is adhered to by all employees. ey will set the stan- description meaning that an individual’s gender expression is dard for courtesy and provide a model for their subordinates to dierent from the stereotyped expectations of how the individ- follow. Employees will conduct themselves professionally and ual should look or act based upon the individual’s sex assigned courteously when interacting with the public and fellow em- at birth. Intersex: A general term used to describe a variety of ployees and shall follow this procedure when interacting with conditions in which a person is born with a variation in sex transgender, intersex, and gender nonconforming individuals. characteristics, including chromosomes, reproductive anatomy, VERBAL COMMUNICATION: In accordance with the pro- and/or genitals, and therefore cannot be distinctly identied as cedures herein, employees will treat transgender, intersex, and male or female. For example, a person may be born with geni- gender nonconforming individuals in a manner appropriate to talia that appear female, but with internal anatomy that is pre- the individual’s gender identity, which may be dierent from dominantly male. Being intersex is dierent from being trans- the sex that the individual was assigned at birth or listed on gender; the term “intersex” is not synonymous with the term their ocial government-issued identication. DETERMIN- “transgender.” Sex Assigned at Birth (Synonymous with “Desig- ING AN INDIVIUDUAL’S GENDER IDENTITY: Employ- nated Sex”): An individual’s sex (male or female) determined at ees may make an initial assumption about an individual’s gender birth based upon the individual’s genitals, reproductive organs identity based upon the individual’s general appearance, includ- and/or chromosomes, and designated on the individual’s birth ing clothing, body characteristics, behavior, voice, and hair cut/ certicate. Sex Reassignment Surgery (SRS): e surgical proce-

style. Employees should use pronouns that match the gender dures used to medically assist an individual’s transitioning from identity of the individual (e.g. “she,” “her” for an individual one sex to another. A person can be transgender and not have whose gender identity is female; “he,” “him” for an individual SRS. Not all transgender people choose to or can aord to have whose gender identity is male). Regardless of the individual’s SRS. “SRS” is a preferred term as compared with the term “sex public appearance, employees should classify an individual’s Transgender (often referred to as “Trans”): gender identity in accordance with statements or requests made change operation.” An by the individual, such as, if the individual asks the employee umbrella term for people whose gender identity diers from to use dierent pronouns. When requested, employees should their sex assigned at birth. e term includes transsexuals, cross- address transgender, intersex, and gender nonconforming in- dressers and many gender nonconforming individuals (not ev- dividuals by their chosen name rather than the name which is eryone whose appearance or behavior is gender nonconforming on their government-issued identication. Questions related will identify as transgender). to preferred pronouns should be asked in a respectful manner. 32 MCL 750.82. DISCRIMINATORY REFERENCES: Employees shall not refer to any person in a derogatory manner because of their gender 33 MCL 750.227b. identity or gender expression. GENDER CLASSIFICATION

68 M F L J J /J TAX TRENDS AND DEVELOPMENTS E B /P P V P

B J W. C , JD, CPA

When a business or professional practice is involved in a with a reputation for competence and integrity. divorce, there is often considerable diculty and expense in de- When using a neutral, it is often advisable to reserve the right termining a settlement value acceptable to both parties. is fre- to have his/her valuation analysis reviewed for reasonableness by quently is a major impediment to reaching settlement. another expert. is oers some protection against a valuation e fees to value a business or professional practice – and analysis performed erroneously by the neutral. But, to preserve time required - can be signicant, especially if two – or three – the benets of using a neutral, the review should be limited to a valuation experts are involved. “reasonableness check,” not a full-blown valuation analysis. e following presents two methods to facilitate resolution of the valuation issue on a cost-eective, expeditious basis. Example Abbreviated valuation analysis for mediation and/or settle- • e fee quote to value a mid-sized business for the divorce is ment negotiations is often eective at providing a reliable value a range of $8,500 - $10,000. without “going the whole 9 yards” on the valuation process. • If each party hires an expert, it could be twice that. ere Essentially the business valuation expert performs a sucient will be even more fees if a third expert is needed to resolve a level of analysis to enable him/her to provide a reliable estimate sizable dierence between the two values. of value–or range of values–for settlement purposes. e expert • e parties are somewhat “cash-strapped.” e business has will provide well-footnoted valuation schedules and a summary encountered challenges and has not paid a bonus in the last report if requested. couple years. e expert will generally be available for mediation to ex- • On the recommendation of counsel, an experienced business plain the valuation analysis. valuation expert with a “straight shooter” reputation is en- e expert could be a “neutral” working on behalf of both gaged to perform an abbreviated valuation analysis on behalf parties; or, each party may hire an expert to perform an abbrevi- of both parties to calculate a value the expert can recom- ated valuation analysis. If the case is not resolved at mediation, the mend they can rely on. expert(s) can perform a more comprehensive analysis and report let- • Both counsel reserve the right to have the neutral appraiser’s ter for trial or arbitration – generally with no duplication of eort. conclusion reviewed for reasonableness by another expert. Not all businesses are suitable for this approach. Some have • e case is settled at mediation using the neutral expert’s too much uncertainty about the future such that an in depth business valuation. analysis is required. However, based on the author’s experience, • e neutral expert’s fee is $5,000, including attendance at the abbreviated valuation approach applies to the vast majority of mediation. companies and professional practices. Use of a neutral expert is not be suitable for all cases. For If eective, this approach saves time and fees. e cost is instance, if there is strong suspicion that the business owner has generally about half the fee for a comprehensive valuation analy- been “cooking the books,” forensic accounting services may be sis and report. necessary. is may take the case out of the realm of a neutral Use of a neutral appraiser working on behalf of both parties business valuation expert. is often an eective method for resolving the valuation issue on Of course, in some cases, the parties cannot agree on any- an expeditious, cost-eective manner. thing. Each wants “my expert.” It is common for each party to retain a business valuation expert. But, it is not uncommon that the values calculated by About the Author such experts are meaningfully dierent. If they cannot resolve Joe Cunningham has over 25 years of experience specializing the disparity in values, often a third expert is engaged to opine on in nancial and tax aspects of divorce, including business valuation, value–causing considerable delay and additional fees. valuing and dividing retirement benets, and developing settlement However, if the parties can agree on one business appraiser proposals. He has lectured extensively for ICLE, the Family Law Sec- at the outset, they can avoid the possible “battle of experts”. ey tion, and the MACPA. Joe is also the author of numerous journal can also save time, fees and emotion. Experienced family law articles and chapters in family law treatises. His o ce is in Troy, practitioners know and can usually agree on a business appraiser though his practice is statewide.

J /J M F L J 69 R P U C

(S S B F L C A C M)

Guardian and Conservator May Commence an Support is Modiﬁable Despite Nature of Payment Action for Separate Maintenance and Placement of Support Provision in “Property” Section of Judgment of Divorce In re Fishman-Piku, Mich Ct. App No. 328023 (March 23, 2017) unpublished Anglin v Anglin, Mich Ct. App No. 331313 Oakland County Circuit Court (April 25, 2017) unpublished Kalamazoo Circuit Court e Court of Appeals armed the guardian and conservator’s authority to commence an action for separate maintenance Plainti Wife appealed by leave the trial court’s denial of her motion to modify child support and seek Friend of the on behalf of her ward. e Court rst analyzed whether MCR Court services. e Court of Appeals reversed the trial court 2.116(C)(5) barred the ling of a separate maintenance action on the ground that a party may bring a post judgment motion where a party lacked legal capacity to sue. e Court examined to modify spousal and child support based on a change of cir- MCL 552.6(1) and MCL 552.7 regarding the grounds required cumstances irrespective of the “property section” placement of to bring a separate maintenance action. e Court noted that the support terms in the parties’ Judgment of Divorce. they were identical for those required in a divorce action. e In 2014, the parties settled their divorce and entered a Court also observed that Defendant waived this issue by conced- Consent Judgment of Divorce. e property section of the ing on the record that Plainti could in fact initiate an action for divorce judgment provided that Defendant Husband was separate maintenance. e Court cited several published cases awarded 100% interest in Padea, Inc. and that a second en- that recognized a guardian and conservator’s authority to initiate tity, PAKK Pubs, Inc., was to be sold and the proceeds evenly a divorce action on behalf of a mentally incompetent person, See divided by the parties. e property section of the Judgment e.g., Smith v Smith, 125 Mich App 164, 166; 335 NW2d 657 further stated that Plainti was to continue to receive her an- (1983); Houghton v Keller, 256 Mich App 336, 337-338; 662 nual salary of $38,000.00 from these entities. NW2d 854 (2003); In re Burnett Estate, 300 Mich App 489- e Consent Judgment of Divorce also included an at- 497; 834 NW2d 93 (2013), and concluded, by analogy, that a tachment reecting Defendant’s child support obligation which amounted to $796.19 for the parties’ two children. guardian and conservator was similarly vested with authority to However, the Uniform Child Support Order (UCSO) also commence an action for separate maintenance. included a checked box that provided: “Standard provisions Defendant also challenged whether Plainti presented ad- have been modied.” e UCSO included a provision that missible evidence establishing a genuine issue of fact that the provided that Defendant’s total child support obligation was statutory grounds for separate maintenance had been met. e $0.00. An attachment to the Uniform Order stated that Plain- Plainti is required to present evidence “that there had been a ti-Wife shall continue to draw her regular salary from PAKK breakdown in the marriage relationship to the extent that the Pubs, Inc. and Padea, Inc. in lieu of any direct support from objects of matrimony have been destroyed and that there remains Defendant-Husband. e attachment also included a provi- no reasonable likelihood that the marriage can be preserved.” sion that upon the sale of PAKK Pubs, Inc., Defendant was MCL 552.7(4). e Court held that Plainti, as guardian and to pay Plainti an amount pursuant to the Michigan Child conservator, introduced “substantively admissible evidence to Support Formula (MCSF). e attachment further stated that create a genuine issue of material fact” regarding the statutory upon the sale of PAKK, Defendant was to pay Plainti child grounds for a judgment of separate maintenance which included support based on the MCSF and that at that time, Plainti testimony concerning Defendant’s physical abuse of his wife. shall have the right to le a motion to establish support in the e ward died during the appeal. On May 4, 2017, Defen- event the parties are unable to agree. e Uniform Spousal dant Husband led an Application for Leave to Appeal with the Support Order (USSO) contained nearly identical language as the UCSO. Michigan Supreme Court, Docket No. 155731. In 2015, Plainti brought a motion to modify child support and receive Friend of the Court services. Plainti countered that the parties had negotiated the support terms based

70 M F L J J /J on the 2012 tax returns and nancial information and that e Court of Appeals recognized that, in general, a party Defendant’s 2013 tax returns reected a substantial increase to a divorce “takes away from the marriage that party’s own in income. Defendant’s improved lifestyle also suggested that separate estate with no invasion by the other party.” Reeves v his income and cash ow had improved. Defendant countered Reeves, 226 Mich App 490, 494; 575 NW2d 1 (1997). e that child and spousal support were inextricably tied to the Court went on to acknowledge that separate property may lose property settlement so modication was inappropriate. its separate character and become marital property through e Court of Appeals held that although a party may not comingling. Pickering v Pickering, 268 Mich App 1, 12-13; collaterally attack a property settlement, a party may never- 706 NW 2d 835 (2005). theless bring a motion to modify support based on a change e Court agreed with the trial court that Defendant’s of circumstances. e Court observed that although the sup- IRA lost its separate character when she combined them with port provision was in the form of a salary to Plainti and was funds earned during the marriage and then further combined contained in the property section of the judgment, the Court them with plainti’s funds in order to construct their home. looked past the “property” placement of this provision and rec- e Court also acknowledged the trial court’s nding that the ognized that Plainti’s salary represented support. See Holmes parties agreed to spend down Plainti’s retirement account for v Holmes, 281 Mich App 575, 598; 760 NW2d 300 (2008). marital expenses while preserving Defendant’s because of the e Court rejected Defendant’s argument that Plainti more favorable tax treatment it received. e Court armed received more in the form of a salary versus what she would the trial court on the issue of the IRA losing its separate prop- have received through the MCSF. e Court cited Holmes, erty character. supra and observed that the Court has enforced agreements e Court further armed the trial court’s property to pay child support in excess of the required amount. At the award and rejected Defendant’s claim that it was inequitable. same time, the Court was unable to distinguish the “spousal” e Court reviewed the Sparks factors when it analyzed the versus “child” support portion of Plainti’s salary payments property award. e factors include: and remanded to the trial court to provide Plainti an op- 1. Duration of the marriage; portunity to present evidence of a change of circumstances to 2. Contribution of the parties to the marital estate; justify modication. 3. Age of the parties; Comingling of Separate Property Converts IRA to a 4. Health of the parties; Marital Asset Subject to Division 5. Life situation of the parties; Crosby v Crosby, Mich Ct. App No. 331367 (April 25, 2017) 6. Necessities and circumstances of the parties; unpublished Mecosta Circuit Court 7. Earning abilities of the parties; is was a twenty-three-year marriage. Plainti Husband 8. Past relations and conduct of the parties; and, was sixty-seven-years old and Defendant Wife was fty-nine- 9. General principles of equity. [Sparks v Sparks, 440 years old at the time of the divorce. During the marriage, Mich 159-160; 485 NW2d 893 (1992).] Defendant Wife rolled over a total of $415,407.33 from her retirement plan to an IRA. Defendant focused on $66,000 of e Court highlighted Defendant’s testimony regarding these funds which she claimed were premarital. e parties’ her ability to work, albeit limited, and Plainti’s poor health. then nancial planner testied that during the marriage, he es- e Court concluded that the “near 50-50 split of the marital tablished two accounts for the IRA in order to make a penalty- assets” was not inequitable. free distribution from the account pursuant to 26 USC 72(t). e Court reversed the trial court on the issue of Defen- e nancial planner further testied that the parties agreed dant’s claim to spousal support and remanded for further nd- to do this in order to make withdrawals from the IRA to make ings. e Court noted the absence of any express nding as to mortgage payments on a new farmhouse that the parties were Defendant’s income, either actual or imputed. constructing on property purchased from Defendant’s parents. Construction of the farmhouse was nanced by both parties School-Driven Child Custody Dispute through withdrawals from their retirement accounts. e trial court determined that because both parties had spent down Shimel v McKinley, Mich. Ct. App No. 334571 (April 27, their retirement accounts in order to fund the house construc- 2017) unpublished tion and because Defendant had preserved a greater portion of Presque Isle Circuit Court her IRA, this preserved portion was to be considered marital e Court of Appeals armed the trial court’s ruling that property. awarded primary custody to Plainti Father. Although the

J /J M F L J 71 parties shared joint physical and legal custody of their child a suit. Smith v Smith, 278 Mich App 198, 207; 748 NW2d after their divorce, the issue of which school the child should 258 (2008). e Court agreed with the trial court’s determina- attend gave rise to a dispute which in turn led to a change of tion that a party is not required to invade child support pay- custody proceeding. e Court had previously remanded the ments to pay attorney fees. custody issue to the trial court to determine whether Plainti Father had established by “clear and convincing” evidence that the ultimate modication of parenting time was in the child’s Plaintiff Bound by Settlement Agreement Despite best interest. e Court also rejected Defendant’s assertion Omission in Judgment of Divorce that the trial court erred in failing to disqualify itself pursuant Bertrand v Bertrand, Mich Ct. App. No.332836 (May 16, to MCR 2.003. 2017) unpublished Alpena Circuit Court Child Support Payments Irrelevant to Attorney Fee Award Analysis e parties signed a handwritten settlement agreement which, inter alia, provided that Plainti Wife would pay the Stumpe v Stumpe, Mich Ct. App Nos. 329142; 330000 (April outstanding balance on a Mastercard credit card account from 27, 2017) unpublished her share of the retirement accounts. is specic provision Genesee Circuit Court was omitted from the Judgment of Divorce. Defendant Hus- Plainti Father challenged three orders awarding attor- band led a Motion to Amend the Judgment to include this ney fees to Defendant Mother pursuant to MCR 3.206(C) provision. Notably, the parties’ settlement agreement was nev- (2)(a). e parties divorced in 2012. In December 2013, er incorporated by reference into their Judgment of Divorce. Plainti led a motion to modify parenting time which gave e Court cited Lentz v Lentz, 271 Mich App 465, 473; 721 rise to a protracted custody hearing. Defendant sought reim- NW2d 861 (2006), for the principle that a voluntarily nego- bursement of her attorney fees and asserted that she lacked the tiated agreements should be enforced as written. e Court ability to pay because she was a stay-at-home mother of three also cited McBride v Foutch, 140 Mich App 837; 366 NW2d children and that her only source of support was the child 58 (1985), for the principle that a “written judgment must support payments made by Plainti. Plainti countered that represent the terms stipulated by the parties.” e Court re- Defendant has the ability to pay her attorney based on her substantial child support payments and the fact that a major- jected Plainti Wife’s argument that the settlement agreement ity of her expenses were nanced by Plainti. e Court noted should have been incorporated by reference into the Judgment that a claim for attorney fees is governed by MCR 3.206(C) of Divorce. e Court armed the trial court’s order granting and MCL 552.13. e Court awarded fees to Defendant Defendant Husband’s Motion to Amend Judgment. based on Plainti’s ability to pay and Defendant’s inability to pay. MCR 3.206(C)(2)(a) permits an award of attorney fees e June/July Case Summaries were prepared by Anthea E. when a party needs nancial assistance to prosecute or defend Papista.

LAUREL STUART-FINK, PLLC DOMESTIC RELATIONS APPEALS 30+ years experience (248) 626-5450 [email protected] www.laurelfink.com

72 M F L J J /J G R A F L S S B M A C

1. Requests from litigants should be directed to the Amicus case eventually progressing to the Supreme Court (for cases Committee and may be submitted to any Council member. on which the Supreme Court has not yet granted leave); and 2. e amicus request must clearly indicate whether leave to practical considerations, such as the level of commitment of the requesting attorney and his/her client to pursuing the case. appeal has been requested and/or granted. If leave has been requested but not yet granted, the requesting attorney must 5. e requesting party shall furnish any additional material or indicate whether an amicus is requested to support granting information required by the Amicus Committee. leave or on the substantive issues. Absent exceptional circumstances, no amicus request will be considered until the Court has granted leave to appeal. Case Selection Criteria for Requests for Appearance of the Family Law Section of the State Bar of Michigan as 3. Amicus requests must be in writing, accompanied by ve Amicus Curiae copies of each of the following: a. A short and concise memorandum setting out the legal In passing on a request for appearance as Amicus Curiae, the issue(s) addressed by the appeal; Amicus Committee of the Family Law Section shall b. Previously submitted briefs (from both parties) and consider the following criteria: opinions in the case, together with the order granting l. Whether the legal issue involved is of substantial interest to leave to appeal, if appropriate, and a list of the ling the domestic relations bar. deadlines, including the deadlines for the amicus curiae 2. Whether the legal issue involves a conict in case law, or a brief; case of rst impression, or a novel or previously unresolved question, or whether there is a need for clarication of a legal c. A list of signicant cases that an amicus brief should issue, the disposition of which is likely to have broad range consider, together with copies of any cases outside of eects beyond the particular case. Michigan; 3. Whether the legal issue involved aects fundamental rights of d. A brief statement explaining why the Family Law individuals or involves a constitutional question. Council should grant the request. is statement should 4 . Whether the case presents an opportunity to ameliorate or specically reference the Case Selection Criteria and reverse prior judicial decisions or legislative enactments which the impact of the case on the domestic relations bar as a adversely impact domestic relations law. whole. e statement should also address the potential 5. Whether the issue or case impacts the practice of family law expenditure of Council time and resources; from the view of practitioners. 6. Whether the briefs of the parties before the court, or briefs e. For amicus requests prior to the Court granting of other amicus curiae, adequately address the legal issues leave to appeal, a statement setting out “exceptional presented. circumstances” to justify Family Law Council 7. Whether the facts presented are strong enough, and the involvement; record suciently developed, to support the position to be f. A proof of service indicating that all materials submitted asserted. to the Amicus Committee have been concurrently served 8. Whether the position to be asserted is appropriate in view on all other counsel in the matter. of the recent pronouncements of the appellate courts and 4. e requesting party may be required to meet with the Amicus consistent with the Family Law Council’s principles and Committee to discuss Family Law Council involvement. In philosophy. this event, the Amicus Committee shall notify the opposing 9. Whether there exists sucient time to request amicus status attorney of the date, time, and location of the meeting and and properly prepare a brief. invite them to be present and participate in the meeting. A 10. Whether sucient resources are available, given the Council’s meeting of the Amicus Committee will be convened for this amicus caseload, to grant the particular request. purpose at which the requesting party should be prepared 11. Whether the Court has requested the submission of briefs. to discuss the importance of the issue(s) presented; how 12. Whether the case should be referred to another Section of the Council support will benet the party, the bench, and the State Bar. Bar at the present state of litigation; the likelihood of the

J /J M F L J 73 Family Law Political Action Committee

In 1997, a voluntary Political Action Committee (PAC) was formed known as the Family Law Political Action Committee. e PAC advocates for and against legislation that directly aects family law. e PAC lobbyist has contact with, and access to, legislators involved with family law issues. Contributions to the PAC are the one way for you to help inuence legislation that directly aects your practice as a family law lawyer. e Family Law PAC is the most important PAC since it aects the lives of so many people, adults and children alike. Your assistance and contribution is needed to ensure that this PAC’s voice will continue to be heard and valued by the legislators in both the State Senate and the House of Representatives. Please help the PAC by making a contribution today!

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74 M F L J J /J F L H : OCBA Committee of the Year Award

FLS member Matt Catchick accepting the Committee of the Year Award from OCBA. Matt was chair of the Oakland County Bar Association Family Court Committee this year.

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J /J M F L J 75 M F L J F L S NON-PROFIT ORG S B M U.S. POSTAGE M F B PAID T S LANSING, MI L , M - PERMIT NO. 191