Same-Sex and Transgender Parents

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Special Considerations

Following the historic Supreme Court ruling in Obergefell v. Hodges, same-sex couples have a right to marry.  Courts in Texas still interpret and apply the Texas Family Code in a manner that may impose additional requirements and hurdles  for transgender individuals and same-sex couples to gain full legal recognition as parents of their children.  


Even when there is a real and operative parent-child relationship, courts in Texas have not extended standing in the case of same -sex and transgender parents.  The consequences in these cases have been tragic.  For example, the Beaumont Court of Appeals recently held that, in spite of the Obergefell ruling, there is no presumption of parentage for married same-sex female couples, even though such a presumption is explicit in the Texas Family Code for fathers  in heterosexual marriages.  Likewise, the San Antonio Court of Appeals recently ruled that a non-birth mother cannot assert standing as an "intended parent," because "intended parent" standing is only available in a paternity suit.  Because the appellant was a woman seeking recognition of maternity rather than a man seeking recognition of paternity, her case requesting recognition as a parent was summarily dismissed.  The San Antonio Court of Appeals also denied standing to a transgender male seeking rights in a paternity suit, holding that he was not entitled to seek standing as a "man."


While many fertility clinics require certain forms before moving forward with assisted reproduction services, it appears that those forms are not enough to legally establish the status of a parent who does not have a genetic relationship to the child.  This may be true even if both parents are on the birth certificate.  While the Texas Family Code and the Uniform Parentage Act contain robust provisions for establishing paternity, these statutes are much less helpful with respect to establishing maternity.  For this reason, same-sex female couples in particular should strongly consider solidifying the status of the non-birth mother with an adoption proceeding, even if they are married.  


The law in this area is still evolving.  If you are a transgender person or a same-sex parent who does not have a genetic tie to your child, the state of the law in Texas leaves you particularly vulnerable.  Consulting with an attorney experienced in these unique and complex issues is crucial.  Sarah Anne advocates for equal protection under the law, regardless of gender identity or sexual orientation, and is ready to consult with you about your case.