Legislation has made legal protection of our families more complicated
DAVID TAFFET | Senior Staff Writer
taffet@dallasvoice.com
Protecting our families used to mean making sure adoption papers for both parents were in order. But as the attack on LGBTQ families has intensified over the last few years, attorney Karri Bertrand said, things have gotten more complicated.
For same-sex couples having children, Bertrand said, it’s more important than ever to have paperwork in place that defines who the legal parents are.
Karri Bertrand
She said she’s currently dealing with a judge in another county who can’t wrap his head around the idea that there can be two mothers. Yet the couple harvested the egg from one mom, fertilized it outside the body and then implanted it in the other mom, who carried the child to birth.
The judge understands that the women who gave birth is the child’s mother. But he doesn’t accept the DNA evidence that the egg was from the other woman. In other words, he doesn’t understand — or refuses to accept — the concept of surrogacy.
So he’s letting his personal religious beliefs or his lack of understanding science — or both — affect how he’s ruling in this case.
Bertrand said one option her clients have is for the biological mother to do a second parent adoption of her own child. She argues this shouldn’t be necessary since Texas law assumes that when a couple is married, any child born during that marriage is the child of both of those parents. Straight couples, she points out, don’t have to do DNA tests to prove paternity in such cases, and the man is assumed to be the father even if the woman was impregnated by a different man.
It’s through use of this paternity statute that Bertrand would like to establish maternity. Since the couple is married, both mothers should be legally recognized as parents of the child automatically.
She points out that Texas does have a sensible restriction in its paternity law: “A lot of parents go turkey baster,” she said. “Or one partner [in a female couple] has an affair with a man.”
Should a father decide he wants to establish paternity, there’s a four-year statute of limitations. By the age of four, she said, a child has bonded with the parents and claiming parenthood later than that could be very disruptive to the child’s life.
Bertrand’s advice for couples who don’t use surrogacy is to use an anonymous sperm donor or for a known sperm donor to formally terminate parental rights.
Legally, Bertrand said, things are getting worse politically. And, she advises same-sex couples, “It’s more important than ever to adopt a non-biological child.”
Bertrand said she’s seen an uptick in the number of cases of divorce between couples with transgender kids. One parent is trying to protect the child while the other is refusing to accept the child’s gender identity.
“The problem in a divorce situation is these kids get distressed quickly,” she said. That often results in the child running away, cutting themselves or engaging in other self-destructive behaviors, in cases Bertrand has witnessed.
And, she added, parents that don’t accept their trans children’s identity often resort to abuse. “In one case, the dad was a Marine and was beating his trans kid,” she said.
In court, Bertrand argues there’s a mental health situation going on. Her goal is to get exclusive custody for the supportive parent.
That’s not as much of an issue in Dallas as it is in surrounding counties. But even in courts where the judge is not sympathetic to the rights of a transgender child, she said she’ll argue that, “Hey, whether or not you agree, we have a mental health situation here.”
Bertrand said she’s had good results getting mental health interventions and getting the child time away from the non-accepting parent to get the help they need.
Some judges, however, have taken the opposite approach and given the trans child to the non-affirming parent. That’s when, Bertrand said, “I argue the child will run away and will self-harm.”
To make things worse, these kids get bullied in school. “My interactions with school districts have been frustrating,” she said.
Schools comply with state law mandating zero tolerance for bullying, but most districts have refused to enumerate target groups. So when it comes to trans kids, it’s not recognized as bullying and there’s very little compliance with laws protecting the children.
When formal complaints are filed, the child who’s the target of the bullying is often the one removed from class rather than the child doing the bullying, and the bully feels as if he’s won.
Bertrand says she’s talked to police officers, but to no avail.
“Bullying is something we address at the school level,” she said. And although she’d like to file assault charges in cases where the attack becomes physical, police departments don’t want to get involved.
She said things are going in the wrong direction for LGBTQ kids in schools.
“Teachers used to have safe spaces,” she said. But after a teacher in Irving was fired for having a safe space sticker on her door a few years ago, more school districts have banned the practice.
“And resources are being removed from school libraries,” Bertrand continued.
Students who are questioning their sexual orientation or gender identity used to be able to go to the school library and find books that addressed those issues. Because of legislation passed last year, more and more schools have removed books from their libraries leaving children with fewer resources.
And for parents who have been getting medical care for their transgender kids — counseling, hormones or hormone blockers — options in Texas are getting slimmer.
“Most of the parents that have gotten medical care for their transitioning kids are going out of state for medications,” Bertrand said. “And some have picked up and moved. Doctors are afraid of losing their licenses and even of being arrested.”
Some parents have received injunctive relief. P-FLAG filed a lawsuit on behalf of its members to put on hold the new law that forbids doctors from prescribing hormones or hormones blockers to anyone under the age of 18 as a treatment for gender dysphoria.
An injunction that applies to members of P-FLAG was granted as the appeal of this law works its way through the courts. Bertrand’s best legal advice to parents of transgender youth in Texas is to join P-FLAG to be covered by the ruling.
Bertrand wondered how far Texas officials would go to strip LGBTQ Texans of their rights. She noted Attorney General Ken Paxton is suing doctors in other states for their medical records of former Texans.
“Medical records are protected by HIPPA,” she said. “Why he thinks he has the rights to records — and records in another — state is beyond me.”
Bertrand said she’ll keep fighting for the legal rights of trans youth to get the medical care and emotional support they need.
Speaking about one family that decided to leave Texas, Bertrand said, “How incredibly sad to pick up and leave home with their other children just for their daughter to be safe.”
Although her work can be frustrating, she summed it up saying, “I’m sticking around because there are people who need help.”
