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    NCLR in the Courts

    The following represents NCLR’s most recent cases. In addition to those mentioned, NCLR  pioneered second-parent adoptions and other parenting protections. NCLR was also lead counsel on winning marriage at the California Supreme Court in 2013.

    E.L. v. V.L.

    V.L. and E.L. were in a long-term, same-sex relationship in which they raised three children together using a sperm donor. To ensure that both had secure parental rights, V.L., the non-biological mother, adopted the couple’s three children in Georgia in 2007, with EL’s support and written consent. When the two later broke up, E.L. kept V.L. from seeing the children, fighting her request for visitation, and arguing that the Georgia adoption was invalid in Alabama, where they live. NCLR joined as counsel when V.L appealed her case to Alabama’s highest court.

    The Alabama Supreme Court issued an order refusing to recognize V.L.’s Georgia adoption and declaring that it is “void.” Even though V.L. raised the children from birth and both women participated in the adoption hearing and consented to the adoption, the Court broke with more than a century of precedent requiring states to honor court judgements from other states.  Disregarding this clear precedent, the Alabama Supreme Court ruled that Alabama can treat the adoption as void based on the Alabama Supreme Court’s view that the Georgia court should not have granted the adoption in 2007.

    November 2015: NCLR filed a cert petition in the case, asking the U.S. Supreme Court to review the Alabama Supreme Court decision, and for an emergency order permitting V.L. to visit her children while her appeal was pending.

    December 2015: SCOTUS granted V.L.’s request for an emergency order permitting her to visit her three adopted children. The order suspended the Alabama Supreme Court decision refusing to recognize the mother’s adoption so that she could have visitation pending SCOTUS’ consideration of her case.

    March 2016: SCOTUS unanimously reversed the Alabama Supreme Court decision refusing to recognize V.L.’s prior adoption of her three children in Georgia. The summary reversal restored V.L.’s full rights as an adoptive parent.

    The impact of the SCOTUS decision is huge. It ensures that second parent adoption judgments from one state must be recognized in all other states. This means that same-sex couples have security knowing that they can travel from state to state without having their adoptions questioned in states that do not process second parent adoptions. The decision goes far beyond Alabama and impacts same-sex couples nationwide. More broadly, this decision emphatically underscored the reach and authority of Obergefell v. Hodges (the landmark civil rights case concerning same-sex marriage).

    Pavan v. Smith

     Marisa and Terrah Pavan were legally married in New Hampshire in 2011. The Pavans were living in Arkansas in 2015 when Terrah gave birth to their daughter. Marisa and Terrah jointly planned their daughter’s conception and arranged for an anonymous sperm donor. They completed the application to receive a birth certificate at the hospital when their daughter was born, listing both women as parents on the application. However, when the Arkansas Department of Health issued the child’s birth certificate, it did not include Marisa’s name on the birth certificate and named Terrah as the only parent.

    Leigh and Jana Jacobs were legally married in Iowa in 2010. They too were living in Arkansas when Leigh gave birth to their son in 2015. As with the Pavans, both parents arranged and paid for an anonymous sperm donor. Again, despite the Jacobs’ request that they both be placed on the birth certificate, they were issued a birth certificate naming only Leigh on their son’s birth certificate.

    The Jacobses and Pavans filed a lawsuit in Arkansas state court against the director of the Arkansas Department of Health seeking a declaration that Arkansas’ birth certificate law violated the United States Constitution by treating married same-sex couples differently than other married couples. The trial court agreed and ruled that the birth certificate law violated Obergefell because it categorically prohibited married same-sex couples from enjoying the same spousal benefits that are available to all other married couples. A divided Arkansas Supreme Court reversed that judgment and ruled that the birth certificate statute was constitutional.

    NCLR became counsel for the two couples and petitioned SCOTUS to overturn the decision of the Arkansas Supreme Court.

    June 26, 2017: SCOTUS granted these families’ petition and reversed the decision of the Arkansas Supreme Court. SCOTUS ruled that by treating married same-sex couples differently than other married couples, the Arkansas birth certificate law “denied married same-sex couples access to the ‘constellation of benefits that the Stat[e] ha[s] linked to marriage’” and therefore violated the Court’s decision in Obergefell.

    In Arkansas, NCLR’s work on Pavan resulted in certainty for same-sex parents that they will be treated equally when the birth of their child is documented in state records.  Pavan reaffirmed a clear message from SCOTUS that Obergefell, in its fullness, is the law of the land.

    Equality Utah v. Utah State Board of Education

     On October 21, 2016, Equality Utah and three students, represented by NCLR and the law firm of Ropes & Gray LLP, filed a federal lawsuit challenging state laws that ban positive speech about LGBT people in Utah public schools. The lawsuit also challenged a school district’s failure to protect a kindergarten student who was brutally harassed because of his gender non-conformity.

    NCLR became involved because Equality Utah was aware of students throughout the state who were being impacted by the law in the way our plaintiffs were—being silenced in class discussions and afraid to even come out at school, or having harassment ignored by school administrators because they believed the law prevented them from addressing anti-LGBT bullying. For example, one of the student plaintiffs was given a class assignment to give an oral family history report and wanted to report on his uncle’s marriage to his same-sex spouse, but was told he could not talk about his uncle in front of his classmates.

    NCLR filed the case and then filed a motion for preliminary injunction asking the court to halt enforcement of the law immediately. In response to the lawsuit and motion, the state legislature passed a bill repealing the law, which had prohibited supportive discussions of LGBT people in classrooms, clubs and school curricula. The NCLR Legal Director was very involved in outreach to the lead Utah legislator who sponsored the bill. At the state’s request, the judge ordered stay of the case once the legislation was introduced. NCLR continues to represent the plaintiffs in settlement negotiations, which are ongoing.

    This is the first lawsuit challenging an anti-LGBT school curriculum law. The repeal of the law is a major victory for LGBT students and safe schools. It paves the way for challenges to similar anti-LGBT school laws that remain on the books in at least eight states. In March 2017, Utah Governor Gary Herbert signed SB196, repealing the contested law. 

    Walsh v. Friendship Village Sunset Hills

     NCLR, Relman, Dane & Colfax PLLC, and co-counsel filed a lawsuit in July 2018 on behalf of married lesbian couple Mary Walsh, age 72, and Bev Nance, age 68, against St. Louis senior housing community Friendship Village Sunset Hills. The complaint alleges that Friendship Village violated the federal Fair Housing Act and Missouri Human Rights Act by discriminating against Walsh and Nance on the basis of sex, denying them a unit because they are a same-sex married couple.

    Friendship Village told Walsh and Nance that it would not accept them because it followed the “Biblical definition” of marriage and “defined marriage as between a man and a woman.” Friendship Village is not affiliated with, or operated by, any religion or religious order; it is open to the public and does not inquire about the religious beliefs or affiliations of residents. Walsh and Nance considered seeking housing elsewhere, but Friendship Village is the only senior housing community in St. Louis that can provide increased levels of care without an increased monthly cost to residents.

    “We’ve been together for nearly 40 years and have spent our lives in St. Louis. We want to grow older here by each other’s side,” said plaintiff Mary Walsh. “We should not be prevented from accessing the housing and care we need.”

    Walsh and Nance have both lived in St. Louis since childhood and have been in a committed relationship together since 1978. They first heard about Friendship Village from several friends who lived there. Nance became acquainted with it when she met a former colleague and his wife for lunch there. Then, Walsh and Nance went to dinner at Friendship Village to visit a friend living there with her husband. Walsh and Nance’s friends enthusiastically recommended Friendship Village and encouraged the couple to move there.

    Before deciding on Friendship Village, Walsh and Nance made multiple visits, had extensive conversations with staff and paid a $2,000 deposit. They even canceled a long-planned vacation, losing their nonrefundable airfare, because Friendship Village told them that they could get advantageous rates if they signed all of their paperwork quickly and moved within a short timeframe. After being actively encouraged by Friendship Village for several months to obtain housing there, Walsh and Nance were shocked to be denied housing because they are a same-sex couple.

    Equality Arizona v. Hoffman

     On April 11, 2019, Arizona Gov. Doug Ducey signed into law an amendment that repeals the state’s anti-LGBTQ curriculum law that barred LGBTQ students from receiving medically accurate, age-appropriate information about non-heterosexual people in their health education classes. The amendment removes language that had prohibited instruction in HIV/AIDS curriculum that “[p]romotes a homosexual life-style,” “[p]ortrays homosexuality as a positive alternative life-style,” or “[s]uggests that some methods of sex are safe methods of homosexual sex.”

    These actions came exactly two weeks after NCLR and Lambda Legal, along with law professor Clifford Rosky and pro bono counsel Perkins Coie LLP, filed a federal lawsuit on behalf of Equality Arizona, including its members who are public school students, challenging the anti-LGBTQ curriculum law.

    The lawsuit, Arizona Equality v. Hoffman, was filed March 28, 2019, in the U.S. District Court for the District of Arizona. The plaintiff, Equality Arizona, is a non-profit organization that advocates for the equality of LGBTQ people. The organization includes student members, two of whom were described in the complaint. One student, referred to by the anonymous initials “A.A.,” is a gay freshman in a greater Phoenix high school. Another student, who is identified by the initials S.C. and is also named as a plaintiff, is a seventh-grade student at a middle school in Tucson. The lawsuit argued the anti-LGBTQ curriculum law violated the equal protection clause of the U.S. Constitution.

    Arizona’s anti-LGBTQ curriculum law was enacted nearly thirty years ago in 1991. Kathy Hoffman—the Arizona Superintendent of Public Education and a defendant in the lawsuit—herself acknowledged that the law needed to be repealed, and she, in fact, welcomed the filing of the lawsuit. There were repeated failed legislative efforts to repeal the law before the historic vote.

     Paul E. v. Courtney F.

     On April 25, 2019, the Arizona Supreme Court issued a decision holding that family law judges may limit a custodial parent’s authority when necessary to protect a child from harm, including by ordering that a child receive counseling, but that such orders must be narrowly tailored to the specific circumstances in each case.

    Paul E. and Courtney F. disagreed about the appropriate response to their child’s gender dysphoria. After a week-long trial, the judge issued an opinion awarding primary custody to the father, but also ordering that the child’s then-current therapist continue treating the child. The court also appointed an expert in the mental health of transgender children to advise the parties and the court about ongoing treatment. The father appealed, claiming that the trial judge did not have the authority to make those decisions. The Arizona Court of Appeals agreed and reversed the trial court, holding that family law judges cannot require that a custodial parent provide counseling for a child or appoint a specific counselor. The Arizona Supreme Court then granted the mother’s request to review the Court of Appeals’ decision.

    The Arizona Supreme Court reversed, holding that Arizona law authorizes the family court to limit a custodial parent’s authority to protect a child from physical or emotional harm, including requiring a parent to provide a child with medically needed counseling or care. As the Supreme Court explained, “refusing to retain particular therapeutic services could justify an order requiring such services if refraining from doing so would endanger the child’s physical health or significantly impair the child’s emotional development.”

    In this particular case, however, the Supreme Court found that the trial court’s order did not include the specific findings to support requiring the father to send the child to a particular therapist. The Court explained: “If the evidence showed that [the child] would be placed at risk for physical danger or significantly impaired emotionally if Father chose not to maintain therapy for [the child] or consult with a gender expert, the court could compel therapy and consultation. But absent evidence demonstrating that Father would choose an unqualified or ineffective therapist or gender expert, [the statute] did not authorize the court to select a specific therapist and expert.”

    The Supreme Court remanded the case to give the trial court judge an opportunity to issue a new order based on the issued opinion, stating: “The evidence supports findings implicit in the court’s orders … that [the child] would be physically endangered or suffer significant emotional impairment if Father fails to maintain therapy for [the child] or retain a gender expert or if he declines to allow [the child] to gender explore. On remand, if the court makes any or all these findings, it may order Father to continue [the child’s] therapy, retain a gender expert, and/or permit [the child] to gender explore.”