Family Law, Gay, Health Care / Medicine, Kids

Anti-Obergefell Forces Pass 'Natural' Meaning Law

While gay marriage has been settled by SCOTUS, some states continue to fight the result.

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gay-lesbian-parents-child-family-lgbt-familiesSometimes, people can’t help but hold onto the past.  For the brave new world of assisted reproductive technology (ART), many legislators in the United States are trying to make end runs around the law.  While ART is used to bring the joy of a child to traditional heterosexual families, it has also expanded the possibilities and the new reality of families formed in non-traditional forms. Gay couples and singles can have genetically-related children thanks to the new technology. And while gay marriage has been settled by the United States Supreme Court, individuals and organizations in a number of states continue to fight the result. The latest attack comes in an interesting form.

The “Natural Meaning” Law. Tennessee governor Bill Haslam just signed a bill into law that would legally require “undefined words be given their natural and ordinary meaning.” As in, “husband” in the state law that a “child born to a married woman as a result of artificial insemination, with consent of the married woman’s husband, is deemed to be the legitimate child of the husband and wife,” could not be read to mean “spouse” or “wife.” Thus, the child of a female spouse of a woman giving birth would not be deemed the “legitimate” child of the other parent/mother (aka not “father”).

Sound familiar? A few months ago I wrote about efforts in Tennessee to repeal that same artificial insemination statute. The new “natural meaning” law achieves the goal of the failed repeal attempt.

Fighting For Inequality. There is little question that the purpose of the law is specifically to deny equal rights to LGBT persons. The Family Action Council of Tennessee — who notes its mission and vision is a “Tennessee in which marriage [of the traditional heterosexual variety] is honored, families thrive, life is cherished and religious liberty is protected” — actively campaigned for the “natural meaning” law. The campaign made clear that the law’s purpose is to prevent judges from defining Tennessee legal references to “husband” and “wife” and “mother” and “father” as meaning “spouse” or “parent” or some other gender-neutral interpretation.

These gender-neutral interpretations are necessary to apply old laws as to parental rights to same-sex families and have naturally followed from the Supreme Court’s Obergefell decision.

The “natural meaning” bill was sponsored by John Stevens, a Republican Senator. Stevens said he had “no idea” (lol!) if the law would result in LGBT individuals being denied equal rights. He said “he simply wants undefined words to mean what they meant at the time lawmakers put them into the law.” (Make sure that telegraph deliverer is paid overtime after eight hours on horseback!)

First Lawsuit Filed in Response. Prominent — at least in my world — Tennessee attorney Julia Tate-Keith wasted no time before suing the Governor, the State Health Commissioner, and the Tennessee Department of Health in response to the new law. I guess you might as well sue everybody.

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The suit by Tate-Keith, filed Monday, May 8, is on behalf of four same-sex female couples, each pregnant by donor sperm. The suit argues that with the new “natural meaning” law in place, Tennessee law would protect a heterosexual couple that used a sperm donor to conceive, naming the male spouse as the “father” of the child and bestowing full parental rights to him, despite a lack of genetic connection to the child. However, married same-sex female couples that used artificial insemination to conceive would not be treated equally. Under the new law, the female spouse of a woman giving birth by donor sperm may be interpreted to not be a parent to the child or to have any parental rights.

Tate-Keith was quoted explaining “because the legislature has shown that they are not interested in protecting these families and children, these couples have no choice but to ask the courts to protect them.”

Given that the purpose of the law appears to be blatant discrimination of the type the United States Supreme Court has firmly squashed, I am placing my money on Tate-Keith. Hopefully any resulting legal trouble and heartache for Tennessee gay parents under this law will be short-lived and remedied quickly.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at babies@abovethelaw.com.

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