Navigating the post-Obergefell World: Marriage Equality did not fix all of the legal challenges facing LGBT people

by Joesph Kemmerling

In 2015, the Supreme Court ruled that all states were required to recognize same-sex marriages. As a gay man, this ruling was one of the most significant days of my life. As a future law student, I knew that it would have a profound impact on the way many States handled LGBT relationships. Since then, I have become an attorney, and I now primarily practice family law. As I practice law, I am thankful for how LGBT people’s lives have been improved thanks to updates in the law. However, I also understand that LGBT people still have unique legal problems and issues. 

The first thing that comes to mind when thinking about the law and LGBT people is protecting those who have been partners for a long time but have decided not to marry. Many of these couples live together as if they are married but do not have the legal protection that comes with it. This can expose them to significant legal issues if they split up and a fight ensues over property and assets. The divorce process provides many safeguards and protections that may not be available to unmarried people, especially since Pennsylvania ended common law marriage. This can lead to difficult, drawn-out litigation. Speaking with an attorney who can draft cohabitation or other agreements makes this process easier. It gives peace of mind to partners who want to ensure they are protected if something alters their relationship.  

In addition, many LGBT people are looking to start families, which often involves adoption and/or surrogacy. These processes can be complicated and require legal documents to ensure that all parties’ interests are protected. Surrogacy can involve surrogacy contracts. The laws around surrogacy contract enforcement can be particularly complex. In addition, there are specific procedures that need to be followed in adoption proceedings depending on what type of adoption it is. Therefore, it is beneficial to have an attorney go over these processes with future parents, so they know what to expect when they are making a choice about how to start a family. Doing this allows future parents to understand the legal procedures involved. It can make this deeply personal choice easier and give confidence to the parties who are deciding to have children about how to protect all their interests. 

Perhaps the thing that affects LGBT people most on a day-to-day basis is anti-discrimination protection. Right now, the Commonwealth of Pennsylvania does not protect against discrimination based on sexual orientation or gender identity. Similarly, no federal law expressly protects against discrimination based on sexual orientation and gender identity. These protections impact the most intimate moments of people’s lives: Housing, public and private spaces, employment, and healthcare. The United States Supreme Court has ruled that Title VII includes sexual orientation and gender identity in employment. However, the ruling did not automatically extend protection to other parts of LGBT people’s lives. It still leaves LGBT people without express legislative anti-discrimination protections. This means that LGBT people are often unsure of when they are protected from discrimination and when they are not. Unfortunately, this issue is not one that can be easily solved without legislative intervention or further rulings by the courts, but it can give people peace of mind to know where they stand and what they can do to try to protect themselves in the meantime.  

LGBT Americans lead complex and meaningful lives just like many other Americans. However, they still face considerable legal hurdles and unique legal challenges. Having the knowledge of what those needs consist of can help LGBT people have their bases covered so they can focus on spending time with those they care about. If you are an LGBT person thinking about starting a family or wondering whether you’re protected, talking to a family law attorney that is knowledgeable about LGBT legal issues can help you proceed into the next chapter of your life, confident that your legal rights are protected.

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