OHIO LGBTQ FAMILY LAW

A Resource Guide for LGBTQ-Headed Families

Living in Ohio

October 2019

INTRODUCTION .............................................................................................................................................................. 2

RELATIONSHIP RECOGNITION ................................................................................................................................... 3

Marriage ....................................................................................................................................................................... 3

Civil Unions and Domestic Partnerships ............................................................................................................. 3

Common Law Marriage ............................................................................................................................................ 4

Divorce ......................................................................................................................................................................... 6

Federal Beneﬁts After United States v. Windsor and Obergefell v. Hodges .............................................6

CHILDREN AND PARENTAGE ....................................................................................................................................... 8

ADOPTION .................................................................................................................................................................. 8

Joint Adoption ...................................................................................................................................................... 9

Second-Parent Adoption ................................................................................................................................... 9

Stepparent Adoption .......................................................................................................................................... 9

Marital Presumption ...........................................................................................................................................10

Parentage Action ............................................................................................................................................11

SURROGACY, ASSISTED REPRODUCTION, & ARTIFICIAL INSEMINATION ..............................................11

BIRTH CERTIFICATES ..............................................................................................................................................13

CHILD CUSTODY & CHILD SUPPORT ................................................................................................................14

APPLYING FOR A SOCIAL SECURITY NUMBER AND CARD FOR A CHILD .............................................14

APPLY FOR A PASSPORT FOR A CHILD ...........................................................................................................15

NON-DISCRIMINATION PROTECTIONS ...................................................................................................................15

EMPLOYMENT ...........................................................................................................................................................16

State Law ..............................................................................................................................................................16

Federal Law .........................................................................................................................................................17

Company Policies ...............................................................................................................................................18

HOUSING ....................................................................................................................................................................19

State Law ..............................................................................................................................................................19

Federal Law .........................................................................................................................................................19

PUBLIC ACCOMMODATIONS .............................................................................................................................20

State Law .............................................................................................................................................................20

Federal Law .........................................................................................................................................................21

SCHOOL POLICIES AND ANTI-BULLYING ...............................................................................................................21

State Law ....................................................................................................................................................................21

Federal Law ...............................................................................................................................................................22

HEALTHCARE ..................................................................................................................................................................23

State Law ...................................................................................................................................................................23

Federal Law ..............................................................................................................................................................23

FAMILY AND/OR PARENTING LEAVE .......................................................................................................................25

CHANGES OF NAME AND GENDER.........................................................................................................................26

HATE CRIMES PROTECTIONS ....................................................................................................................................27

RECOMMENDED LEGAL DOCUMENTS FOR SAME-SEX COUPLES ...............................................................28

Last Will and Testament ........................................................................................................................................28

Advance Directive for Healthcare .......................................................................................................................28

Financial Power of Attorney ..................................................................................................................................28

Domestic Partnership Agreement .......................................................................................................................29

Co-Parenting Agreement .......................................................................................................................................29

TABLE OF CONTENTS

A Resource Guide for LGBTQ-Headed

Families

OHIO LGBTQ FAMILY LAW

DISCLAIMER

This handbook is not intended to be legal advice but an overview of

the current state of LGBTQ-family law in Ohio. The law is changing

quickly and dynamically, so it is important to consult an attorney or

contact the authors to discuss the details of your particular situation

and to ensure that information provided herein is still accurate.

This guide was drafted by Family Equality in collaboration with Equality Ohio.

It addresses many of the legal rights and issues that affect LGBTQ families

currently living in Ohio. As LGBTQ equality advances across the nation, there

are still signicant gaps in the rights of LGBTQ individuals and their families,

especially at the state level. Ohio has very few laws in place to protect LGBTQ

families from discrimination and ensure equal access to education, employment,

housing, healthcare, and public accommodations. In this environment, it is

important to understand what the law is in each area and how best to protect

your family.

INTRODUCTION

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Find more information at:

www.equalityohio.org

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RELATIONSHIP

RECOGNITION

MARRIAGE

Nationwide recognition of marriages

of same-sex couples came in June 2015

with the United States Supreme Court’s

ruling in Obergefell v. Hodges.

Obergefell

not only requires all U.S. states to issue

marriage licenses to same-sex couples,

but also requires them to recognize

marriage licenses issued in another state.

Ohio did not recognize marriages of

same-sex couples before Obergefell.

In 2004, the Ohio legislature passed

the Defense of Marriage Act (DOMA),

which amended the Ohio Code to state

that marriages of same-sex couples

would not be recognized in Ohio, even

if entered into legally in another state.

The Ohio DOMA further stated that no

statutory benets afforded to married

couples would be extended to same-sex

couples.

That same year, 62% of voters

voted in favor of “State Issue 1,” which

amended the Ohio Constitution to dene

marriage as between a man and a woman.

Despite the fact that these provisions are

unconstitutional in light of Obergefell,

they have not been repealed and remain

on the books today. Nonetheless, there

are no known cases of a marriage license

1 Obergefell v. Hodges, 135 S.Ct. 2584 (2015).

2 Obergefell v. Hodges, 135 S.Ct. 2584 (2015).

3 Ohio Rev. Code § 3101.01(C)(1)-(2).

4 Id. at (3).

5 http://www.cnn.com/ELECTION/2004/pages/

results/ballot.measures/.

being denied to a same-sex couple in Ohio

following Obergefell, and any such denial

would be unconstitutional.

CIVIL UNIONS AND

DOMESTIC PARTNERSHIPS

Although the State of Ohio has never had

a separate status of civil unions, several

cities and counties within the state have

established domestic partner registries.

In 2009, such an ordinance in Cleveland

was challenged on the basis that it violated

“State Issue 1” – the amendment to the

state constitution that dened marriage as

between a man and woman.

A State Court

of Appeals held that establishing such a

registry did not violate Ohio law because

domestic partnerships do not afford same-

sex couples a marriage equivalent and

do not provide the same rights, benets

6 For example, the cities of Columbus and

Cincinnati have established registries for domestic

partners. City of Cincinnati, Domestic Partnership

Registry, https://www.cincinnati-oh.gov/council/

domestic-partners-registry/ (last visited March

22, 2018); City of Columbus, Register a Domestic

Partnership, https://www.columbus.gov/council/

How-Do-I/Register-a-Domestic-Partnership/ (last

visited March 22, 2018); .

7 Cleveland Taxpayers for Ohio Constitution v.

Cleveland, 2010-Ohio-4685 (2007).

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or legal protections of marriage, such as

inheritance rights and tax benets.

Instead,

such a registry simply helped private

employers identify persons who may be

eligible for domestic partnership benets.

Any civil unions or domestic partnerships

entered into are legally recognized

relationships and must be legally dissolved

in court to be terminated. Not doing so

means the relationship remains legally

in effect and subsequent marriages will

be called into question. It is important to

consult with an attorney in Ohio concerning

the dissolution of a civil union or domestic

partnership.

COMMON LAW MARRIAGE

Common law marriages are recognized

only for couples who entered into such

an arrangement prior to October 10,

8 Id.

9 Id.

1991.

However, before Obergefell, Ohio

did not recognize any marriages of same-

sex couples. Ohio has not taken up the

question as to whether Obergefell would

be given retroactive effect such that same-

sex couples who entered into a common

law marriage prior to 1991 would be given

legal recognition as such. However, other

state courts have ruled that pre-Obergefell

common law marriages of same-sex

couples are legally valid.

Any couple who

believes they may have entered into a

common law marriage prior to 1991 should

consult with an attorney who has expertise

in LGBTQ family law to discuss whether the

criteria were met and whether the common

law marriage remains legally recognized.

This is important because some benets

(such as Social Security or spousal support

benets) require that a marriage be of

a certain length in order for a spouse

to access such benets. Common law

marriages come with all of the same

rights, benets and responsibilities of

legal marriage, including access to Social

Security survivor benets and access to

pensions and other assets. A declaration of

common law marriage also allows spouses

to take advantage of divorce laws, giving

them access to alimony determinations

and division of marital property through

equitable distribution.

10 Ohio Rev. Code § 3105.12(B)(1)-(3).

11 Charles W. “Rocky” Rhodes, Loving

Retroactivity, 45 Fl. State Univ. Law Review 383,

437-42 (2018) (discussing other states that have

given retroactive effect to common law marriages

of same sex couples, such as Pennsylvania).

IMPORTANT:

Any couple who has a civil

union or domestic partnership

issued from another state and

lives in Ohio should consult

with an attorney as to their

rights under Ohio and federal

law. Any such reliationship

must be disolved in court even

though Ohio state law does not

recognize them.

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www.equalityohio.org

www.familyequality.org

Find more information at:

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DIVORCE

In Ohio, except for an annulment, there are

two ways to end a marriage: a divorce or

a dissolution of marriage. The end result

is the same — parties are considered to

be divorced (a dissolution of marriage

is a no-fault divorce). In a dissolution

of marriage, the parties enter into a

separation agreement, which divides assets

and debts and addresses custody, child

support, spousal support, parenting time,

and other issues between the parties. The

agreement gets led with the court along

with a petition asking the court to set a

hearing to dissolve the marriage. The court

usually does not change the terms of the

parties’ agreement and simply orders it

into execution, meaning the agreement

becomes an Order of the Court. A divorce

is a more complicated proceeding requiring

grounds and the possibility of multiple

hearings. If issues are not resolved between

the parties, the case will be resolved after a

trial before a Judge or Magistrate.

Before anyone can get married in Ohio or

elsewhere in the United States, they must

be single and not currently married. A

person who fails to end a prior marriage by

divorce and re-marries is committing the

crime of bigamy, which can be prosecuted

in Ohio and elsewhere.

It is important for anyone seeking to end

their marriage to a same-sex spouse to

consult with a family law attorney who

is skilled and knowledgeable about LGBT

family law issues. Since marriage equality

is relatively new in Ohio, framing the

special issues that these divorce cases

may bring for Judges and Magistrates will

be critical to the advancement of LGBT

family law. For instance, in a situation

where the marriage itself may have only

lasted a short while due to the prior

unavailability of marriage but the parties

were in a long term relationship prior to

marrying, attorneys will need to educate

the court in looking beyond the length of

the marriage to determine appropriate and

equitable spousal support, and asset and

debt division, as well as issues involving the

parties’ children.

FEDERAL BENEFITS

AFTER UNITED STATES

V. WINDSOR AND

OBERGEFELL V. HODGES

In its 2013 decision in United States

For more information on how to access federal marriage beneﬁts visit the

post-Obergefell factsheets at: marriageequalityfacts.org

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v. Windsor, the U.S. Supreme Court

overturned the provision of the federal

Defense of Marriage Act (DOMA) that

denied federal marriage benets to

married same-sex couples.

This case

laid the foundation for marriage equality

nationwide, which was won two years

later.

As discussed above, in 2015, the Supreme

Court held in Obergefell v. Hodges that

same-sex couples have a fundamental

right to marry under the Constitution,

mandating that same-sex couples be

permitted to marry and have their

marriages recognized throughout the

country.

Following Obergefell, all federal

marriage benets have been extended to

married same-sex couples nationwide.

Such benets include, but are not

limited to, Social Security and Veterans

Administration benets, all federal tax

12 United States v. Windsor, 133 S.Ct. 2675 (2013).

13 Obergefell v. Hodges, 135 S.Ct. 2584 (2015).

benets, health insurance and retirement

benets for same-sex spouses of all

federal employees, and spousal benets

for same-sex spouses of military service

members.

14 In June 2017, the Texas Supreme Court held

IMPORTANT:

Because marriages of same-

sex couples are now recognized

nationwide, married couples

living in Ohio should be able

to access all federal beneﬁts

that are attendant to marriage.

Please alert the authors if you

ﬁnd such beneﬁts have been

denied to you as a result of the

agency failing to recognize your

marriage.

Please consult an attorney

experienced in LGBTQ law, or

the authors, if you experience

discrimination from state

agencies in recognizing your

family relationships on the basis

of marriage. Likewise, if you are

an LGBTQ person or same-sex

couple considering fostering and/

or adopting children either from

the public child welfare system

or through private adoption, it

is critical that you hire an Ohio

adoption attorney who has

experience working with LGBTQ

people and couples.

It is not enough to simply hire an

experienced family law attorney.

There are issues unique to LGBTQ

families that can, and should,

only be managed by an attorney

with particular experience and

expertise in this area of the law.

If you are unsure where to ﬁnd

an experienced LGBTQ adoption

attorney, please contact Family

Equality (familyequality.org), and we

will do our best to help you ﬁnd one.

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CHILDREN AND

PARENTAGE

LGBTQ people and same-sex couples

have diverse family structures and form

families in a variety of ways. Some have

children from prior different-sex or same-

sex relationships. Some LGBTQ people are

single parents by choice. Some same-sex

couples adopt or use assisted reproductive

technologies to build their families

together. While there is much progress to

be made in Ohio with regard to parental

recognition for LGBTQ individuals and

couples, there are some state rules, cases,

and statutes in place that recognize and

reect the evolving landscape of modern

families and diverse family structures.

that Obergefell “did not address or resolve the

specic issue…whether and the extent to which

the Constitution requires states or cities to provide

tax-funded benets to same-sex couples.” Pidgeon

v. Turner, 538 S.W.3d 73, 87 (S.Ct. Tx 2017). The U.S.

Supreme Court refused to hear the case and sent it

back to the Texas trial court. The case is pending.

This decision is only binding in Texas and is limited

to the extension of marriage benets under state

law, but it could have an impact on federal Social

Security benets.

Many of Ohio’s laws dealing with parentage

reference married couples in explicitly

gendered terms like “husband,” “wife,”

“mother,” and “father.” With the arrival of

marriage equality for same-sex couples,

the state of Ohio should now interpret

these statutory provisions in a gender-

neutral manner (i.e. “spouse” and “parent”);

however, to date, the Ohio courts have not

addressed this issue.

All same-sex couples raising LGBTQ

children should keep copies of the

following documents easily accessible:

• Adoption decree

• Birth certicate

• Standby Guardianship Nomination

• Marriage Certicate

• Medical Powers of Attorney

ADOPTION

Adoption decrees are irrefutable and

undeniable proof of parentage. Once an

adoption decree is validly issued in one

state, it must be recognized and enforced

in every state.

Ohio’s adoption law states that any

unmarried adult or “a husband and wife

together” may adopt.

There is no law that

prohibits adoption by LGBTQ individuals or

couples, but there is no explicit statutory

protection against discrimination either.

For this and other reasons, it is advisable to

contact an adoption attorney experienced

in LGBTQ family law in Ohio and to engage

with foster and adoption agencies who are

15 Ohio Rev. Code § 3107.03.

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welcoming and afrming to LGBTQ people

and couples.

Joint Adoption

As stated above, Ohio law allows for the

joint adoption of a child by “a husband and

wife.”

With the arrival of nationwide marriage

equality, same-sex married couples

should be permitted to adopt under the

same terms and conditions as different-

sex married couples. Thus, as long as

the couple is married and meets the

requirements for petitioning for adoption,

a same-sex couple should be eligible to

jointly adopt. While there should be no

question regarding the right of same-sex

couples to adopt jointly, since there are

no cases explicitly applying the gendered

language of the statute to joint adoptions

by married same-sex couples, consultation

with an Ohio adoption attorney who has

experience working with LGBTQ couples is

essential.

Ohio law does not permit unmarried

couples to petition to adopt jointly,

whether same-sex or different-sex.

Second-Parent Adoption

Second-parent adoption is the adoption of

a child by an additional parent who is not

married to the legal parent of the child. In

a second-parent adoption, the additional

parent can be recognized as such without

the rst parent losing any parental rights,

and the child is entitled to the benets of

16 Ohio Rev. Code § 3107.3.

two legally recognized parents.

Ohio does not currently allow unmarried

couples to obtain a second-parent

adoption in Ohio.

However, a validly-

granted second-parent adoption issued in a

different state must be recognized in Ohio

and nationwide.

Stepparent Adoption

Married same-sex couples can ensure that

both parents are legally recognized by

obtaining an adoption decree through the

stepparent adoption procedure. Stepparent

adoption is the legal adoption of a child by

the spouse of the child’s legal parent.

This can apply to LGBTQ couples in two

scenarios. First, if a married couple plans

the pregnancy and conceives the child

through the use of assisted reproductive

technology, such as sperm, egg, or embryo

donation, the biological parent may be

considered the sole legal parent. When a

woman gives birth through the use of a

sperm donor, her same-sex married spouse

should be entitled to a marital presumption

of parentage regardless of gender (see

section below), but until Ohio law explicitly

affords that protection, it is strongly advised

that the other spouse obtain an adoption

decree recognizing them as a legal parent.

This can be done through the stepparent

adoption procedure and is sometimes

referred to as a “conrmatory adoption”

to conrm the parental rights of the non-

genetic parent through adoption. Listing

17 In re Adoption of Doe, 719 N.E.2d 1071 (Ohio

App. 1998).

18 V.L. v E.L., 136 S.Ct. 1017 (2016).

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both parents on the birth certicate does

not establish parental rights and does not

guarantee parental rights as a stepparent

adoption does.

The second scenario arises if one of the

spouses already has a child when the

couple is married and that parent is the

child’s only legal parent.

In this scenario,

after the couple marries, the spouse of

the legal parent may adopt the child as a

stepparent and share equally in the rights

and responsibilities of raising the child.

In Ohio, stepparent adoptions are

permitted as long as the other spouse is a

parent of the child and he or she supports

the adoption.

Prior to marriage equality

in Ohio, same-sex couples could not adopt

as stepparents because they were not

legally recognized as “spouses” as required

by Ohio law.

Since Ohio gained marriage

equality through Obergefell in 2015,

however, a same-sex spouse is entitled

to adopt under this provision just as a

different-sex spouse would.

Adoption is a complicated proceeding,

and many factors must be considered to

determine if one is possible. Consultation

with as Ohio adoption attorney who has

experience working with LGBTQ families is

strongly encouraged when proceeding with

a stepparent adoption.

19 If the child may have another legal parent

(i.e., the child was from a previous relationship or

conceived with a known donor), it is important

to consult with an attorney to determine if that

individual’s parental rights have been terminated.

20 Ohio Rev. Code § 3107.03.

21 See Obergefell v. Wymyslo, 962 F.Supp.2d 968

(S.D. Ohio 2013).

Marital Presumption

The marital presumption is the idea

that, when a married woman gives birth,

her spouse is the other legal parent.

Historically, this concept has been applied

exclusively to different-sex spouses. With

nationwide marriage equality, the marital

presumption laws should be applied to

married same-sex couples on the same

basis as it would for opposite-sex couples,

but Ohio has yet to do so explicitly.

As with its adoption statutes, Ohio law

uses gendered terms regarding the

marital presumption and refers to it as a

presumption of paternity, meaning that the

husband of the woman who gives birth is

presumed to be the parent of that child.

While, in light of Obergefell, the law should

be interpreted to apply to the same-sex

spouse of a woman who gives birth, there

have been no appellate court decisions in

Ohio applying the presumption of paternity

in the context of a same-sex married couple.

22 Ohio Rev. Code § 3111.03.

An adoption decree is the single

best irrefutable and undeniable

proof of parentage. We strongly

recommend that same-sex

couples with children ALWAYS

get an adoption decree that

recognizes both parents as

legal parents, even if you are

married and appear on the birth

certiﬁcate.

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And, under Ohio law, the parental

presumption thus far has been interpreted

as a biological presumption, which can

be rebutted through genetic testing. As

such, same-sex couples conceiving a child

through assisted reproduction where only

one spouse has a genetic connection to the

child should consult an LGBTQ family law

attorney. While the marital presumption

may be applied to same-sex couples, until

the state legislature extends the martial

presumption to same-sex spouses, the

legal risk of relying on this presumption

alone is too great, so it is critical for the

non-birthing parent to secure parental

rights through a conrmatory/stepparent

adoption decree or a parentage action

to ensure that both spouses are legally

recognized as parents.

Some, but not all, Ohio counties have

adopted a protocol permitting married

same-sex couples to obtain a Parentage

Order in Juvenile Court. These actions

establish legal parental rights for both

spouses and are preferable to relying

on the marital presumption to establish

parental rights.

Parentage Action

The purpose of a parentage action is to

establish the parent-child relationship

between the non-biological or non-

adoptive parent and the child. In

some counties, there may be no other

mechanism than these new actions to

establish the parent-child relationship.

These relatively new actions in Juvenile

Court would result in the child’s birth

certicate being modied to add the

new parent and to create legal rights and

responsibilities for that parent.

As stated above, current law does not

require the marital presumption to be

applied to same-sex spouses and, even if

it is, it can be rebutted in divorce court

by genetic testing. A parentage action, as

with an adoption, would take away the

ability of the biological parent to rebut the

presumption.

As discussed below, current donor

insemination law in Ohio only recognizes

a husband’s right to parentage and the

statute has not been amended to protect

the non-biological married parent of

the child born as the result of donor

insemination. Obtaining a parentage action

would protect the same-sex non-biological

spouse if parentage is challenged in a

divorce proceeding.

SURROGACY, ASSISTED

REPRODUCTION, &

ARTIFICIAL INSEMINATION

Assisted reproductive technology (ART)

is the use of medical technology to assist

with pregnancy or childbirth and includes

methods such as in vitro fertilization or

use of an egg donor, sperm donor, embryo

donor, and/or a gestational carrier through

surrogacy. Surrogacy is the carrying

and delivering of a child by a woman

for another person or couple with the

intention of transferring all parental rights

to the intended parent(s). In “traditional

surrogacy,” the surrogate contributes her

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own egg, while in “gestational surrogacy,”

the surrogate has no genetic relationship

with the fetus -- an embryo created from

another woman’s egg is transferred to the

surrogate’s uterus.

Ohio has laws in place regarding non-

spousal articial insemination. Using

gendered language, the statute states that,

if a married woman uses donor sperm

to conceive a child and her husband

consents, the husband shall be treated in

law and regarded as the “natural father” of

any child conceived. Under Ohio law, the

sperm donor is not a parent and has no

parental rights or obligations to any child

conceived using the donated sperm so long

as the requirements of the statute are met,

including that the conception is initiated

under the supervision of a physician and

that both spouses consent.

Consultation

with an attorney is essential because if

all of the aspects of the statute are not

23 Ohio Rev. Code §§ 3111.88 - 3111.95.

followed, the donor cannot relinquish

parental rights or obligations. Further,

Ohio courts have not claried whether this

statute applies to a same-sex spouse.

Similarly, a woman who receives an embryo

donation is treated as the mother of the

child. If a married woman gives birth

to a child born as a result of an embryo

donation to which her husband consented,

her “husband” is treated in law as the

father.

There are no state statutes in Ohio that

govern surrogacy, but there is case law

that has upheld the legality of surrogacy

agreements that protect the rights of

intended parents who use a surrogate to

conceive a child and carry a pregnancy.

Surrogacy, and the related use of ART,

are common in Ohio. Ohio courts have

not yet ruled on the enforceability of

traditional surrogacy agreements but

24 Ohio Rev. Code § 3111.97.

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have held that gestational surrogacy

agreements are generally enforceable.

It is essential to enter into a written

surrogacy and/or donor contract with

any sperm, egg, or embryo donor to

document the expectations, intentions, and

responsibilities of all parties involved in a

surrogacy and/or donor arrangement and

to petition for an adoption to clarify the

rights of all parties.

It is imperative that any individual or

couple who is considering using surrogacy

and/or ART consult with an Ohio attorney

who has signicant expertise in surrogacy

and ART law, has worked with LGBTQ

individuals and same-sex couples, and

has experience drafting enforceable

contracts between intended parents,

donors, surrogates, and surrogacy agencies

to ensure that the parental rights of the

intended parent(s) are recognized. Further,

as an adoption decree is irrefutable proof

of parentage and is valid throughout the

country, it is strongly recommended that

same-sex couples consult with an attorney

about also petitioning for an adoption

decree for a child conceived through ART

even if a surrogacy or donor agreement is

in place and the name(s) of the intended

parent(s) appear on the birth certicate.

BIRTH CERTIFICATES

Ohio law states that, for the purposes of

the birth certicate, the mother is deemed

to be the woman who gives birth to the

child unless otherwise determined by law,

and if the mother was married at the time

25 J.F. v. D.B., 116 Ohio St. 3d 363 (Ohio 2007).

of either conception or birth, the name of

the “husband” shall be entered on the birth

certicate.

Nonetheless, as discussed

above, in light of the Supreme Court’s

decision in Obergefell, Ohio’s law should be

interpreted in a gender neutral fashion to

apply equally to all married couples.

Indeed, in June 2017, the U.S. Supreme

Court held that states cannot discriminate

against same-sex couples when listing

both spouses on a birth certicate. In that

case, the U.S. Supreme Court expressly

reiterated that equal access to birth

certicates is one of the many “rights,

benets, and responsibilities” associated

with civil marriage.

Accordingly, states

cannot discriminate against same-sex

spouses with regard to the naming of each

spouse on a child’s birth certicate.

As a birth certicate is not a Court Order

but rather is an administrative record, it is

still strongly recommended that same-sex

couples petition for an adoption decree

as soon as possible to ensure that both

parents are legally recognized. Unlike an

adoption decree, a birth certicate is not

given “full faith and credit” and does not

have to be recognized by other states.

The law regarding issuance of new birth

certicates after an adoption, however, is

gender neutral and states that, upon the

adoption of a child, a new birth record shall

be issued with the names of the “adoptive

parents.”

Therefore, there should be no

hurdles to listing two same-sex parents

26 Ohio Rev. Code § 3705.09.

27 Pavan v. Smith, No. 16-992 (June 2017).

28 Ohio Rev. Code § 3705.12.

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Families

OHIO LGBTQ FAMILY LAW

once an adoption is nalized. To ensure a

child’s birth certicate is updated properly

after an adoption decree has been entered,

contact Ohio’s Ofce of Vital Records.

Details on how to do so are available at

(https://www.odh.ohio.gov/vs).

CHILD CUSTODY & CHILD

SUPPORT

An LGBTQ individual who is not a legal

parent (i.e., is not a biological parent and

has not adopted a child) may be able to

petition for custody rights if he or she

is co-parenting the legal child of their

partner and has the legal parent’s consent.

If the non-legally recognized parent’s

relationship with the child began with the

consent of the legal parent and the legal

parent has discharged parental duties and

is found by the court to be “unsuitable,” the

non-legal parent may be awarded custody,

but this is not permanent and is subject

to modication by the court.

The non-

legally recognized parent has the burden to

establish “parental unsuitability,” which is a

difcult standard to meet. If met, the non-

legally recognized parent has physical care

and control of the child and has the right to

make decisions regarding the child’s health,

education, and well-being, but there are

certain rights and benets that are only

available to legal parents and their children

such as Social Security Survivor Benets

and inheritance rights.

It is recommended that parents of children

enter into “shared parenting” agreements

29 In re Hockstock, 98 Ohio St. 3d 238 (Ohio

2002).

in which the parents agree to certain

visitation, support, and decision-making

rights in regard to their children. However,

under Ohio law, these agreements are only

valid if both parties are legal parents of the

child.

A non-legal parent who wishes to

secure visitation rights may only do so with

the legal parent’s consent, preferably in

writing.

“Shared parenting” agreements

are subject to review and will only be

enforced if the agreement is in the best

interest of the child.

Similarly, a custodial parent will only be

able to collect child support from the

child’s legal parent.

Therefore, if a same-

sex couple never nalized an adoption, it

is possible that the child’s parent would

be unable to collect child support from

their former partner, although the law is

unsettled on this point.

APPLYING FOR A SOCIAL

SECURITY NUMBER AND

CARD FOR A CHILD

To apply for a Social Security Number

and Card for a child, the Social Security

Administration (SSA) requires a number of

different documents, including personal

information about the parent applying

for the Card or Number, the child, and

any other legal parent to the child, and a

completed SS-5 application form.

30 Ohio Rev. Code § 3109.04.

31 In re Mullen, 129 Ohio St. 3d 417 (Ohio 2011);

32 In re G.R.-Z., 2017-Ohio-8393 (Ct. App. Ohio

2019);

33 Ohio Rev. Code § 3109.05

OHIO LGBTQ FAMILY LAW

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Find more information at:

www.equalityohio.org

www.familyequality.org

These documents may be submitted to

the SSA via letter or in person at a local

SSA ofce, which can be found through

this link (https://secure.ssa.gov/apps6z/

FOLO/fo001.jsp). Two same-sex parents

may be listed on the application for a

Social Security Card or Number.

However, only parents listed on the child’s

birth certicate or on a court-ordered

adoption decree are permitted to be

included on the application.

For more information on the application

process, visit the SSA website at (https://

www.ssa.gov/ssnumber), or call the SSA

at 1-800-722-1213 or 1-800-325-0778. If

difculties arise, please contact Family

Equality.

APPLY FOR A PASSPORT

FOR A CHILD

To apply for a passport for a child, the State

Department requires documentary evidence,

a completed DS-11 form, a photograph of the

child, and personal information about the

parent applying for the passport, the child,

and the child’s other legal parent, if any.

These documents must be submitted to the

State Department in person at the nearest

accepted facility or regional passport agency,

listed here (https://iafdb.travel.state.gov/).

The required materials are listed here:

(http://travel.state.gov/content/passports/

english/passports/under-16/under-162.

html).

Two same-sex parents may be listed on

the application for a child’s passport. Only

parents listed on the child’s birth certicate

or on a court-ordered adoption decree are

permitted to be included on the application.

However, if the adoptive (or legal) parent

of the child is unavailable, the Department

of State permits a non-adoptive parent

who stands in loco parentis to the child to

complete the DS-11 form and application. In

loco parentis means an adult with day-to-day

responsibilities to care for and nancially

support a child but with whom the child does

not have a biological or legal relationship.

Questions about the application process

and acceptable materials can be directed to

the National Passport Information Center

at 1-877-487-2778. The State Department

website also provides helpful information at

(http://travel.state.gov/).

NONDISCRIMINATION

PROTECTIONS

There are currently no federal laws

that explicitly prohibit discrimination

against LGBTQ people in employment,

housing, and public accommodations.

Existing federal civil rights laws have

been interpreted to provide some limited

protections in housing, employment,

education and even in health care, but

without explicit and fully inclusive federal

protections against discrimination based

on sexual orientation and gender identity,

LGBTQ people and their families remain

vulnerable.

A Resource Guide for LGBTQ-Headed

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OHIO LGBTQ FAMILY LAW

Unfortunately, Ohio state law offers

no explicit protections against sexual

orientation-based or gender identity-based

discrimination in these areas. However, 20

cities -- including the ve most populated

cities in Ohio -- have nondiscrimination

ordinances that prohibit discrimination

on the basis of sexual orientation, gender

identity, or both.

Accordingly, LGBTQ

individuals in these municipalities who

are discriminated against in employment,

housing, or public accommodations may

le a complaint with the municipality.

EMPLOYMENT

State Law

Even with the arrival of nationwide

marriage equality, LGBTQ people are at

risk of being outed at work by simply ling

an amended W-4, potentially leading to

34 Equality Ohio, Equality Map, http://www.

equalityohio.org/city-map/ (last viewed

November 7, 2018). Additionally, a county-wide

ordinance offering protections for LGBTQ people in

housing, employment, and public accommodations

is under consideration in Cuyahoga County.

35 Because additional municipalities may add

protections, it is important to check http://www.

equalityohio.org/city-map/ for the most up-to-

date list.

discrimination in the workplace or even

the loss of a job. Unfortunately, there is no

state law in Ohio that prohibits employers

from discriminating against an employee

on the basis of sexual orientation and/or

gender identity. However, Ohio law does

prohibit employment discrimination on

the basis of “sex.”

As discussed in the next

section, some federal courts, including

the Sixth Circuit Court of Appeals (which

includes Ohio) have interpreted federal law

barring sex discrimination in employment

to include protection for LGBTQ individuals

in some circumstances.

Although there is no statutory protection,

Ohio has an executive order in place that

offers some protections from employment

discrimination to LGBTQ individuals

employed by the state. In 2007, Governor

Ted Strickland signed an executive order

that extends employment discrimination

protections to the LGBTQ community. This

order prohibited discrimination against

state employees on the basis of sexual

orientation or gender identity in making

hiring, layoff, termination, transfer, and

other employment-related decisions.

In 2011, Governor John Kasich signed

Executive Order No. 2011-05K to renew

the expired 2007 Executive Order, but this

Order does not include gender identity

as a protected class.

Thus, employees

36 Ohio Rev. Code § 4112.01.

37 State of Ohio, Ofce of the Governor,

Executive Order No. 2011-10S, Establishing Policy

Against Discrimination Based on Sexual Orientation

or Gender Identity (May 17, 2007).

38 State of Ohio, Ofce of the Governor,

Executive Order No. 2011-05K, Establishing an

Anti-Discrimination Policy in State Government

Employment (January 21, 2011).

OHIO LGBTQ FAMILY LAW

A Resource Guide for LGBTQ-Headed

Families

Find more information at:

www.equalityohio.org

www.familyequality.org

of the state may report allegations of

employment discrimination on the basis of

sexual orientation to the agency where the

discrimination occurred. Each state agency

has its own Equal Employment Ofcer

charged with investigating complaints

of discrimination, and the list of agency

contacts is available here: http://hr.ong.

ohio.gov/EEOEO.aspx. status.

Federal Law

While there is no explicit federal law that

bars discrimination against LGBTQ people

in the workplace, the denition of “sex”

in Title VII of the Civil Rights Act of 1964

has been interpreted by some courts

to provide employment protections for

LGBTQ people. The Equal Employment

Opportunity Commission (EEOC) hears

and investigates complaints of employment

discrimination under Title VII by all private

employers, state and local governments,

federal government agencies, employment

agencies, and labor unions, as long as

they have fteen or more employees or

members.

Since 2011, the EEOC has ruled several

times that claims of sexual orientation

and gender identity discrimination in

employment are actionable under Title VII

because such discrimination constitutes

discrimination based on sex stereotypes.

These EEOC decisions, while not binding to

39 Macy v. Holder, No. 0120120821, 2012 WL

1435995 (E.E.O.C. Apr. 20, 2012); Veretto v. US

Postal Service, No. 0120110873 (E.E.O.C. Jul. 1,

2011); Castello v. US Postal Service, No. 0120111795

(E.E.O.C. Dec. 20, 2011); Complainant v. Foxx, No.

0120133080, 2015 WL 4397641 (E.E.O.C. July 15,

2015).

courts, reect the EEOC’s view that LGBTQ

individuals are protected under Title

VII and may le a claim of employment

discrimination utilizing the law’s inclusion

of “sex” as a protected class.

Prior to the recent EEOC rulings, many

federal courts

concluded that Title VII did

not prohibit employment discrimination on

the basis of sexual orientation, including

the U.S. Court of Appeals for the Sixth

Circuit (which includes Ohio) in Vickers v.

Faireld Medical Center.

In Vickers, the

court held that sexual orientation is not a

protected class under Title VII and refused

to apply a sex stereotyping theory because

the gender non-conforming behavior

(his attraction to men) was not observed

at work and he did not argue that his

appearance or mannerisms on the job were

perceived as gender non-conforming.

Several federal appellate courts have

recently revisited their analyses in light of

the EEOC’s rulings. Since 2017, the Second

and Seventh Circuits have concluded that

sexual orientation discrimination is a form

of sex discrimination that is prohibited by

Title VII.

In March 2018, the Sixth Circuit

ruled that discrimination on the basis of

transgender and transitioning status is a

violation of Title VII.

Although the court

did not revisit the issue of whether sexual

40 E.g., Evans v. Georgia Reg’l Hosp., 850 F.3d 1248

(11th Cir 2017).

41 453 F.3d 757 (6th Cir. 2006).

42 Id. at 762-64.

43 Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d

Cir. 2018); Hively v. Ivy Tech Comm. College, 853

F.3d 339 (7th Cir. 2017).

44 EEOC v. R.G., 884 F.3d 560, 574-81 (6th Cir.

2018).

A Resource Guide for LGBTQ-Headed

Families

OHIO LGBTQ FAMILY LAW

orientation discrimination is a violation

of Title VII, it distinguished the case from

Vickers and wrote that “a plaintiff may state

a claim under Title VII for discrimination

based on gender nonconformance that is

expressed outside of work.”

Victims of discrimination on any protected

basis, including sexual orientation and

gender identity, must le a Charge of

Discrimination with a local EEOC ofce

prior to ling a lawsuit in court alleging

discrimination. The EEOC ofces serving

Ohio can be found at (https://www.eeoc.

gov/eld).

Generally, the Charge of Discrimination

must be led within 180 days of each

instance of discriminatory treatment. To

le a complaint based on sexual orientation

or gender identity, the complainant must

list the basis for the claim as discrimination

on the basis of “sex,” as this is the existing

basis that the EEOC and some courts have

linked to sexual orientation and gender

identity. More about the EEOC process

and a claimant’s rights and responsibilities

after ling a claim with the EEOC is

available at this website: (http://www.

eeoc.gov/employees/charge.cfm). Federal

employees and job applicants are subject

to a different timeline for making a claim

(typically 45 days) and procedures for ling,

which are available here: http://www.eeoc.

gov/federal/fed_employees/complaint_

overview.cfm).

Ohioans working for companies that

contract with the federal government have

access to additional protections against

45 Id. at 580.

discrimination in employment. These

protections stem from a 2014 Executive

Order that prohibits federal contractors

from discriminating against current or

prospective employees on the basis of

sexual orientation or gender identity.

Contractors who do business with the

federal government employ 20% of

American workers, all of whom are now

covered by non-discrimination protections

under this Order. LGBTQ individuals who

have been the victim of discrimination by

an employer that contracts with the federal

government, can le a complaint through

the U.S. Department of Labor Ofce of

Federal Contract Compliance Programs.

Information about the complaint process is

available here: (http://www.dol.gov/ofccp/

regs/compliance/pdf/pdfstart.htm).

Company Policies

Many employers, especially those that

operate in multiple states, have enacted

their own internal non-discrimination

policies that prohibit discrimination against

LGBTQ employees. While these policies

may not be legally binding, they can often

give an employee some recourse where

there would otherwise be none and, in some

cases, may be viewed as a contract between

the employer and employee, giving rise to

contractual rights as well. A company’s non-

discrimination policy should be available

in the company’s employee handbook or

46 Executive Order 13672 (July 21, 2014). On

January 31, 2017, President Trump issued a

statement that this Executive Order will remain

intact during his presidency. https://www.

whitehouse.gov/the-press-ofce/2017/01/31/

president-donald-j-trump-will-continue-enforce-

executive-order.

OHIO LGBTQ FAMILY LAW

A Resource Guide for LGBTQ-Headed

Families

Find more information at:

www.equalityohio.org

www.familyequality.org

through the human resources department,

and it is always important to be familiar with

it and understand the rights and protections

it affords.

Any person who has been or may have

been the victim of sexual orientation- or

gender identity-based discrimination in

the workplace should contact an attorney

familiar with LGBTQ employment law.

HOUSING

State Law

Ohio state law offers no protection against

discrimination on the basis of sexual

orientation or gender identity in housing

or nancial assistance. There are currently

no express prohibitions in the Ohio

Housing Code that prohibit discrimination

against LGBTQ people. The Code does,

however, prohibit discrimination on the

basis of sex.

As described above, in

employment discrimination cases, there

is case law supporting the argument that

prohibitions of discrimination based on

“sex” includes LGBTQ individuals because

such discrimination amounts to “sex-

stereotyping,” which is a prohibited form

of sex discrimination. However, the Ohio

Supreme Court has not yet ruled on

the application of this principle to the

prohibition against sex discrimination in

the Ohio Housing Code. Any person who

has been subjected to discrimination in

housing based on sexual orientation or

gender identity should consult with an

attorney.

47 Ohio Rev Code § 4112.01.

Further, as previously mentioned, some

localities have passed nondiscrimination

ordinances that prohibit discrimination in

housing on the basis of sexual orientation

and/or gender identity, so LGBTQ

individuals in those localities may seek

recourse through their local government.

Federal Law

The federal Fair Housing Act, which was

enacted as Title VIII of the Civil Rights Act

of 1968 and is enforced by the Department

of Housing and Urban Development (HUD),

does not explicitly prohibit discrimination

against LGBTQ people and their families.

However, an LGBTQ person experiencing

discrimination on the basis of sexual

orientation or gender identity may still be

covered by the Fair Housing Act on the

basis of such discrimination constituting

discrimination on the basis of “sex,” similar

to the employment context.

In 2012, HUD issued the “Equal Access Rule,”

which prohibits discrimination on the basis

of sexual orientation or gender identity

by any housing or service provider that

receives funding or insurance from HUD.

48 Equal Access to Housing in HUD Programs

Regardless of Sexual Orientation or Gender

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Families

OHIO LGBTQ FAMILY LAW

It also prohibits lenders from determining

a borrower’s eligibility for Fair Housing

Authority (FHA) insurance on the basis of

sexual orientation or gender identity. For

example, any landlord receiving funding

through HUD is prohibited from refusing

to rent, offering unequal and inated rental

prices, or mistreating potential renters

based on their sexual orientation, gender

identity, or HIV/AIDS status. Further,

any lender or operator of HUD-assisted

housing is prohibited from inquiring as to

the sexual orientation or gender identity

of an applicant and barred from using

such criteria in assessing an application.

A violation of this rule may result in HUD

pursuing a number of remedies, including

sanctions against the violator.

HUD allows individuals to submit housing

discrimination complaints by telephone at

1-800- 955-2232, by mail, or online (http://

portal.hud.gov/hudportal/HUD?src=/

topics/housing_discrimination). The HUD

maintains eld ofces in Cleveland and

Columbus, and the contact information for

both ofces is available at this link: (https://

www.hud.gov/states/ohio/ofces). To learn

more about ling a complaint, as well as the

process for ling a lawsuit, please read this

page: (http://portal.hud.gov/hudportal/

HUD?src=/program_ofces/fair_housing_

equal_opp/complaint-process).

PUBLIC ACCOMMODATIONS

State Law

Ohio law offers no explicit protection for

Identity, Final Rule (2012); 24 CFR § 5.106.

LGBTQ people in public accommodations.

Public accommodations are generally

dened as entities, both public and private,

that are open to or offer services for the

general public.

Examples include retail

stores, hotels, restaurants, educational

institutions, hospitals, public parks, libraries,

and recreational facilities, but private clubs

and houses of worship are generally exempt

from this denition.

As noted above, many localities in Ohio have

passed local non-discrimination ordinances

that prohibit discrimination on the basis of

sexual orientation and/or gender identity in

public accommodations, but without explicit

protection at the state level, many LGBTQ

individuals in Ohio have no protection from

discrimination. The U.S. Supreme Court

recently reafrmed the importance of state

law nondiscrimination protections. In its

recent decision in Masterpiece Cakeshop,

which involved a baker who refused to

bake a wedding cake for a same-sex

couple’s wedding celebration, the Supreme

Court underscored that the Constitution

protects LGBTQ individuals and families

from discrimination.

Further, the Court

explained that “it is a general rule that

[religious and philosophical] objections do

not allow business owners and other actors

49 Under Ohio law, “public accommodation”

is dened as “any inn, restaurant, eating house,

barbershop, public conveyance by air, land, or

water, theater, store, other place for the sale

of merchandise, or any other place of public

accommodation or amusement of which the

accommodations, advantages, facilities, or

privileges are available to the public.” Ohio Rev.

Code § 4112.01(A)(9).

50 Masterpiece Cakeshop v. Colorado Civil Rights

Commission, No 16-111 (June 4, 2018) at 9.

OHIO LGBTQ FAMILY LAW

A Resource Guide for LGBTQ-Headed

Families

Find more information at:

www.equalityohio.org

www.familyequality.org

in the economy and in society to deny

protected persons equal access to goods

and services under a neutral and generally

applicable public accommodations law.”

In other words, businesses that are open

to the public must be open to all.

Federal Law

Federal public accommodations

protection provisions can be found in

Title II of the Civil Rights Act of 1964 and

Title III of the Americans with Disabilities

Act of 1990.

Unfortunately, neither law

provides express protections based on

sex, sexual orientation, or gender identity.

However, in 1998, the Supreme Court

ruled that being HIV-positive is a physical

disability covered by the Americans with

Disabilities Act, even if the infection has not

yet progressed to the symptomatic phase.

Businesses that hold themselves open to

the public are therefore prohibited from

refusing service or business to individuals

because they are HIV-positive.

STATE LAW

As with employment, housing, and public

51 Id.

52 Each federal law has its own denition of

“public accommodations,” (42 U.S.C. § 12181 & 42

U.S.C. §2000a(b)). For either federal law to apply,

the public accommodation must affect interstate

commerce.

53 Bragdon v. Abbott, 524 U.S. 624 (1998).

accommodations, the State of Ohio offers

no explicit statutory protections against

discrimination, harassment, or bullying

on the basis of sexual orientation and

gender identity for LGBTQ students and

employees in the public education system.

School boards of every school district

in Ohio are required to develop a policy

prohibiting bullying.

The law does not

delineate what groups are protected

but denes bullying as “[a]ny intentional

written, verbal, electronic or physical

act that a student has exhibited toward

another particular student more than

once and the behavior both (i) Causes

mental harm to the other student; and

(ii) Is sufciently severe, persistent, or

pervasive that it creates an intimidating,

threatening, or abusive educational

environment for the other student.”

The Ohio Department of Education has

published a model anti-bullying policy

that includes the “overt intent to ridicule,

54 Ohio Rev. Code § 3313.666.

55 Ohio Rev. Code § 3313.666(A)(2).

Ultimately, because school district

policies are determined at the

local level, there can be wide

variations on the degree to which

a school district is proactive and

protective of LGBTQ students,

families, and employees. It is

important to be familiar with

your school district’s policies

protecting LGBTQ individuals and

to reach out to your school board

with questions or concerns.

SCHOOL POLICIES

AND ANTI-BULLYING

A Resource Guide for LGBTQ-Headed

Families

OHIO LGBTQ FAMILY LAW

humiliate or intimidate another student or

school personnel” as an example of bullying

behavior.

While the model policy does

not specify particular groups that are to

be protected, the broad language would

likely encompass protections for LGBTQ

individuals against bullying based on their

sexual orientation or gender identity or

expression. This does not take the place

of comprehensive legislation, but it offers

some recourse for LGBTQ harassment,

bullying, and discrimination in education.

Further, many individual schools have

created fully inclusive enumerated anti-

bullying policies that expressly protect

LGBTQ students. However, without

explicit statutory language or authoritative

decisions from the state or appellate courts

in Ohio, LGBTQ students and public-

school employees remain vulnerable and

should consult an attorney if experiencing

harassment or discrimination at school.

FEDERAL LAW

Federal law, specically Title IX of the

United States Education Amendments

of 1972, also provides some protections

and support to students facing bullying

or discrimination based on their sexual

orientation or gender identity. Title

IX prohibits discrimination against

students in schools and other educational

56 Ohio Department of Education, Anti-

Harassment, Anti-Intimidation, or Anti-Bullying

Model Policy, October 9, 2012, available at http://

education.ohio.gov/getattachment/Topics/

Other-Resources/School-Safety/School-Safety-

Resources/Anti-Harassment-Intimidation-and-

Bullying-Model-Po/Anti-HIB-Model-Policy-FINAL-

update-incl-HB116-100912.pdf.aspx.

programs that receive federal funding if

the discrimination is based on a student’s

sex or gender. While Title IX does not

explicitly include sexual orientation or

gender identity as bases for a claim of

discrimination, the law has been applied

to prohibit discrimination where a student

is mistreated for being sex or gender non-

conforming,

meaning the student faces

discrimination for not subscribing to the

stereotypical notions of femininity or

masculinity. In past policy statements, the

Department of Education (DOE) included

transgender students in those classes

protected by Title IX, and lesbian, gay, and

bisexual students have successfully led

claims of discrimination under Title IX.

In a May 2016 statement, the DOE and

Department of Justice (DOJ) explained

that compliance with Title IX requires

schools to treat transgender students

consistent with their gender identity and

does not allow schools to impose a medical

diagnosis or treatment requirement.

However, in February 2017, under the

57 Videckis v. Pepperdine Univ., 150 F. Supp. 3d

1151 (C.D. Cal. 2015).

58 United States Dept. of Education Ofce for

Civil Rights, Dear Colleague Letter on Transgender

Students (May 2016).

OHIO LGBTQ FAMILY LAW

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Families

Find more information at:

www.equalityohio.org

www.familyequality.org

Trump Administration, the DOE and

DOJ rescinded this guidance.

Despite

the DOE and DOJ’s withdrawal of the

guidance, the underlining law that the

guidance interpreted remains. Since then,

the U.S. Court of Appeals for the Seventh

Circuit unanimously held that transgender

students are protected from discrimination

under Title IX and the Equal Protection

Clause of the U.S. Constitution.

Federal district courts in Maryland and

Virginia have recently reached the same

conclusion.

The DOE’s Ofce for Civil Rights (OCR)

investigates claims of discrimination on

the basis of race, sex, national origin, sex,

and disability in programs or activities

that receive funding from the DOE

(such as public elementary or secondary

schools, vocational schools, colleges and

universities, museums, libraries, and public

after-school programming,). To open an

OCR investigation, an individual must

le a complaint on behalf of himself or

herself, a group, or another person facing

discrimination within 180 days of the last

instance of discrimination. Since Title IX

does not list sexual orientation or gender

identity as separate bases for a claim, the

complaint must indicate “sex” as a basis for

the claim.

59 United States Dept. of Education Ofce for

Civil Rights, Dear Colleague Letter on Title IX (Feb

2017): https://www2.ed.gov/about/ofces/list/

ocr/letters/colleague-201702-title-ix.docx.

60 Whitaker v. Kenosha Unied School District,

No. 16-3522 (7th Cir. 2017).

61 Grimm v. Gloucester County School Board,

No. 4:15cv54 (E.D. Va May 22, 2018); M.A.B. v. Bd.

of Educ. of Talbot Cty., 286 F.Supp. 3d 704 (D. Md.

2018).

More details on drafting a complaint, as

well as an electronic complaint form, are

available on the OCR website, located here:

(https://www2.ed.gov/about/ofces/list/

ocr/docs/howto.html).

STATE LAW

The State of Ohio offers no statutory

protections against discrimination in

healthcare and health insurance on the

basis of sexual orientation or gender

identity.

Some State employers cover gender

reassignment surgery in their employee

healthcare plans.

FEDERAL LAW

Each year, the federal government opens

enrollment for individual and family

healthcare coverage under the Affordable

Care Act (ACA). Historically, enrollment for

the following year opened in November

and closed mid-February of the following

year. However, beginning in 2017, the open

enrollment period was much shorter.

Open enrollment for coverage in 2019 is

from November 1 to December 15, 2018.

Individuals who experience a major life

change, such as moving, getting married,

or having a baby, may qualify to enroll

62 Such employers include the public library,

Ohio State University, Ohio University, and Franklin

County.

HEALTHCARE

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Families

OHIO LGBTQ FAMILY LAW

in one of the ACA’s Special Enrollment

Periods during another part of the year. For

detailed information about plans, Special

Enrollment Periods, or to nd out where

and how to enroll, go to (www.healthcare.

gov) and select a state of residence.

The ACA prohibits denial of coverage for

an individual or family member because

of a pre-existing condition. This includes

a current illness or a history of chronic

illness or disease, HIV status, receiving

or having received transgender-related

care, or a prior pregnancy. However, it is

important to note that, despite the fact

that the ACA prohibits insurance providers

from discriminating against individuals

and families by denying them the ability

to obtain healthcare coverage, the ACA

does not mandate that insurance plans

offer coverage that is inclusive of the many

needs of LGBTQ individuals and families.

For example, the ACA does not require

insurers to cover transgender-related care

or treatment for HIV and AIDS. However,

insurers are prohibited from categorically

denying coverage for transition-related

care, nor can they refuse to cover

transition-related care if they cover that

same treatment for other people. While

insurers are not required to cover these

treatments, they may offer plans that do so;

any person seeking coverage of transition-

related care should investigate plans

thoroughly to nd the best option. Further,

when looking for family coverage, keep in

mind that denitions of “family” may be too

narrow to include many dependents in an

LGBTQ family structure, given the myriad

LGBTQ family structures that exist.

Section 1557 of the ACA prohibits

discrimination based on sex in all health

programs and activities receiving federal

nancial assistance.

The nal agency

rule implementing Section 1557 prohibits

discrimination based upon gender identity,

requiring that any healthcare provider

receiving federal funding (i.e. Medicaid or

Medicare, any health program administered

by the federal government, and any

health insurance marketplace) must treat

individuals consistent with their gender

identity.

The nal rule also prohibits

discrimination based on sex stereotyping,

providing potential protections to lesbian,

gay, and bisexual people.

Additionally,

an insurance company that offers health

coverage to opposite-sex spouses must do

the same for same-sex spouses and must

treat married same-sex couples the same

as married opposite-sex couples when they

apply for premium tax credits and lower

out-of-pocket costs on private insurance

plans.

Anyone who has experienced

discrimination on the basis of their

sexual orientation or gender identity in

a health care setting should immediately

le a complaint with the United States

Department of Health and Human Services

Ofce for Civil Rights. More details

on drafting a complaint, as well as an

63 42 U.S.C § 18116.

64 45 CFR 92 (2016); 81 FR 31375 (2016). In

Franciscan Alliance v. Burwell, Case No. 7:16-cv-

00108-O (N.D. Texas 2016), a district court judge

issued an injunction against enforcing this rule, but

an appeal is pending.

65 45 CFR 92 (2016); 81 FR 31375 (2016).

66 https://www.healthcare.gov/married-same-

sex-couples-and-the-marketplace/.

OHIO LGBTQ FAMILY LAW

A Resource Guide for LGBTQ-Headed

Families

Find more information at:

www.equalityohio.org

www.familyequality.org

electronic complaint form, are available at

the HHS website, located at (http://www.

hhs.gov/civil-rights/ling-a-complaint/

index.html).

For more information on how the

Affordable Care Act and the insurance

marketplaces benet LGBTQ-headed

families, this is a helpful resource

developed by multiple LGBTQ advocacy

organizations: Where to Start, What to Ask:

A Guide for LGBTQ People Choosing Health

Care Plans.

FAMILY AND/OR

PARENTING LEAVE

Ohio does not have a state family or medical

leave law requiring employers to provide paid

family leave. Ohio employees are entitled

to the rights of the federal Family Medical

and Leave Act (FMLA). The FMLA entitles

eligible employees of covered employers

to take unpaid, job-protected leave for

specied family and medical reasons. Eligible

employees are entitled to up to 12 unpaid

workweeks of leave in a 12-month period for:

• the birth of a child and to care for the

newborn child within one year of birth;

• the placement with the employee of a

child for adoption or foster care and to

care for the newly placed child within

one year of placement;

• the care of the employee’s spouse, child,

or parent who has a serious health

condition;

• a serious health condition that makes

the employee unable to perform the

essential functions of his or her job;

• any qualifying exigency arising out of

the fact that the employee’s spouse, son,

daughter, or parent is a covered military

member on “covered active duty.”

FMLA applies to all public agencies (state,

local, and federal) and all local education

agencies (schools). The FMLA also applies

to private sector employees who employ

50 or more employees for more than 20

workweeks in the current or preceding

calendar year.

Further, military caregiver leave entitles

eligible employees up to 26 work-weeks

of leave during a single 12-month period

to care for a covered servicemember with

a serious injury or illness if the eligible

employee is the servicemember’s spouse,

son, daughter, parent, or next of kin.

In 2010, the Department of Labor issued

a clarication of the denition of “son or

daughter” to include a child for whom a

person provides a certain amount of day-

to-day care or nancial support, regardless

of whether there is a legal or biological

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Families

OHIO LGBTQ FAMILY LAW

relationship. This clarication ensures

the ability of a same-sex parent and/or

partner to take time off from work to care

for their child without fear of losing their

job. The text of the Department of Labor’s

clarication is available at: (http://www.

dol.gov/whd/opinion/adminIntrprtn/

FMLA/2010/FMLAAI2010_3.htm)

In 2014, following the Windsor decision

and the repeal of the DOMA, the FMLA’s

benets were extended to married same-

sex couples. Because of this, married

same-sex couples became entitled to take

time off to care for their spouses. This was

solidied further in 2015 when the denition

of “spouse” in the FMLA was expanded

to include all employees in a same-sex

marriage regardless of whether their state

of residence recognized their marriage.

Finally, the Obergefell decision led to all

federal marriage benets being extended

to all married same-sex couples across the

country.

CHANGES OF NAME

AND GENDER

A transgender individual in Ohio may

submit a petition to a court to obtain a

legal name change.

The court will return

the scheduling order to the petitioner

with a date and time for a hearing. Prior

to the hearing, the applicant must publish

a notice in two newspapers stating that a

name change petition has been led and

providing the date of the court hearing,

but publication requirements can be

67 Ohio Rev. Code § 2717.01.

waived and records can be sealed for the

applicant’s safety.

Ohio statutes do not offer any guidance on

updates to the gender marker on a birth

certicate, and a 1987 case provides that

the gender marker on birth certicates

cannot be updated following sexual

reassignment surgery.

Thus, as a general

matter, Ohio courts will not issue a court

order of gender change for transgender

individuals born in Ohio; however, this is

currently being litigated in Ohio federal

court.

Ohio will, however, update names and

gender markers on driver’s licenses. Name

change requests require a court order

documenting the name change.

To update

the gender marker, an individual must

complete a “Declaration of Gender Change”

form and have a licensed medical or social

service provider complete a portion of

the form certifying the applicant’s gender

identity.

No court order is required for

this form.

68 Ohio Rev. Code § 2717.01.

69 In re Ladrach, 32 Ohio Misc.2d 6 (1987).

70 Ray v. Himes, Case No. 2:18-cv-00272-MHW-

CMV (S.D. Ohio, led March 29, 2018), https://

www.usnews.com/news/us/articles/2018-03-29/

aclu-sues-ohio-to-allow-gender-changes-on-

birth-certicates.

71 Ohio Bureau of Motor Vehicles, DMV, Driver

License & ID Card available at http://bmv.ohio.gov/

dl-renewal-current.aspx (last visited March 2018).

72 National Center for Transgender Equality, ID

Documents Center - Ohio, last updated January

2018, https://transequality.org/documents/state/

ohio.

OHIO LGBTQ FAMILY LAW

A Resource Guide for LGBTQ-Headed

Families

Find more information at:

www.equalityohio.org

www.familyequality.org

PENNSYLVANIA LGBTQ FAMILY LAW

A Resource Guide for LGBTQ-Headed

Families

Find more information at:

www.equalitypa.org

www.familyequality.org

TIPS FOR LEGAL DOCUMENTS

9 Always have copies of these forms with you, we

recommend carrying electronic copies on a thumb drive

attached to your keychain.

9 Keep several signed original copies of the forms.

9 Write with a blue pen when completing or signing forms so

health care providers don’t question whether the document is an

original.

9 Always have original copies with you when you travel out of state.

9 Keep an extra copy of your forms somewhere easy for a close

friend of family member to ﬁnd.

9 Keep copies online on a secure server.

HATE CRIMES

PROTECTIONS

Ohio state law does not currently include

protections for LGBTQ people who are

targeted by hate crimes; however, several

municipalities offer this protection at

the local level. The federal government

offers some protection, however. In

2009, Congress enacted the Matthew

Shepard and James Byrd, Jr. Hate Crimes

Prevention Act, which expands federal

hate crimes to LGBTQ people.

The

law allows federal law enforcement

agencies, such as the FBI, to investigate

and prosecute hate crimes against

LGBTQ individuals when local or state

authorities fail to act. Victims of a hate

crime should report the crime both to the

local authorities and to the FBI. The FBI

maintains eld ofces in Cleveland and

Cincinnati, and contact information is

available through the following webpage:

(https://www.fbi.gov/contact-us/eld-

ofces).

73 18 U.S.C. § 249.

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Families

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www.equalityohio.org

www.familyequality.org

Find more information at:

A Resource Guide for LGBTQ-Headed

Families

OHIO LGBTQ FAMILY LAW

LAST WILL AND TESTAMENT

A Will is a legal document by which a person directs how real estate and personal

property will be distributed upon death. Unmarried same-sex couples must have Wills

in which their partners are designated beneciaries, so that the partner will be able to

inherit any of the deceased partner’s property. Even if married, it is best to have a Will.

In addition to deciding property distribution, a Will also provides the opportunity to

designate who should become guardian to any minor children. If both parents are not

legally recognized as such, and the legal parent dies, a judge will decide who the guardian

will be. A legally recognized parent naming the other parent in a Will expresses their

wishes and increases the likelihood that a judge will respect those wishes about who

should raise the children after the death of the legally recognized parent.

A Will does not affect beneciaries that have been designated on bank accounts,

insurance policies, or retirement accounts. The company that holds those funds will

disburse them to the designated beneciary. It is important to keep such designations

up-to-date.

More information is available from the Ohio State Bar Association at: (https://www.

ohiobar.org/ForPublic/Resources/LawFactsPamphlets/Pages/LawFactsPamphlet-19.

aspx).

ADVANCE DIRECTIVE FOR HEALTHCARE

An Advance Directive for Healthcare allows Ohioans to direct whom they want to make

medical decisions for them, as well as providing for end-of-life choices in the event they

are unable to express that intent at the time that care is required. More information

on Advance Directives in Ohio is available at: (https://www.ohiobar.org/ForLawyers/

MemberResources/LegalResources/Pages/StaticPage-269.aspx).

FINANCIAL POWER OF ATTORNEY

It is important that partners consider providing each other with the power to handle

personal nances on their behalf through a “nancial power of attorney” in the event that a