Local
Uncertainty remains after Md. marriage opinion
Even the experts are uncertain how Maryland courts will now treat legally married same-sex couples.
Gov. Martin O’Malley (D) promised state agencies would comply with Attorney General Doug Gansler’s finding two weeks ago that Maryland may legally recognize out-of-state same-sex marriages.
But circuit courts that handle family violence protection orders and divorce cases are not bound by O’Malley’s directive and must consider the opinion on its own merits, according to several legal experts who spoke with DC Agenda.
“It’s certainly their prerogative whether to follow that. I would like to think the courts would accept the opinion, but we don’t know,” said Barbara Babb, director of the University of Baltimore’s Center for Families, Children and the Courts.
“Legislative direction would certainly be a help to the courts, but I don’t think it’s necessary for them to do the right thing.”
Family law contains several rights and administrative advantages reserved for married couples and designed to protect families in the event of divorce. If the courts choose to recognize Gansler’s opinion, same-sex married couples would have access to family breakdown services, child support, alimony and division of marital property.
Other safety-net statutes that are currently available to same-sex families but made easier with legal marriage recognition include child-in-need and civil protection orders in the event of neglect or domestic violence.
But it gets more complex during the creation of a family. Stepchild adoption would be significantly streamlined for married same-sex couples, Babb said, but not all marriage certificates are equal.
“Although Maryland currently authorizes second-parent adoption, it would be very clear — assuming the judges follow the attorney general’s opinion,” she said.
But children who have not been formally adopted by their non-biological parent could be left in legal limbo, Babb said, because presumptive parenting rights have not traditionally been recognized in Maryland courts.
“That would be one of the really interesting questions,” she said. “If the second parent hasn’t adopted the child, [would] the court give legal guardianship or legal authority to the non-biological parent? That’s a remaining question that isn’t as clear under the family law statute.
“I would suspect that in the law in the state where the couple was married, both parents would be seen as the child’s parent. If that’s the case, then Maryland would honor that. But the courts have chosen not to follow the de facto parent doctrine, so there are certainly areas of law that the court has taken pretty strident stand on with regard to same-sex couples raising children already.”
Other areas of law where courts extend benefits to married couples, such as the establishment of trusts, wrongful death suits, presumptive claims on estates, mutual debt responsibility and spousal legal immunities, also are dependent on whether courts accept Gansler’s opinion.
A further set of rights for married couples required of third parties are automatic in theory, but may ultimately have to be decided by courts, such as extending health insurance benefits to a spouse, the right to hospital visitation and making funeral decisions.
Jana Singer, a University of Maryland law school professor, said the attorney general’s opinion was legally sound and would be treated with greater weight than an ordinary “friend of the court” brief.
She said that one case could be all that is required to clarify the issue, or it could take many cases in different areas of law.
“If they decide to be narrower, they could say within this particular statute, Maryland law extends recognition in this context,” Singer said. “It’s more likely that we’ll get a broader opinion where they say recognition applies widely to Maryland law statutes.”
Equality Maryland’s study of state law found 425 statutes that utilize marital status of familial relationship as a basis for granting a right, privilege or restriction. Such restrictions, where a spouse has fewer rights than an individual, include conflict of interest prohibitions on areas like awarding of contracts to family members, corporate directorship limitations and exemptions from first right of purchase.
Dan Friedman, Gansler’s counsel and a former University of Maryland professor of constitutional law, was unable to speak publicly on how the courts should rule, but said that Gansler’s opinion was constitutionally valid and the attorney general could not be removed from office for issuing it.
Friedman wrote to House Speaker Michael Busch this week regarding the powers of attorney general after state Del. Don Dwyer (R-Anne Arundel County) threatened impeachment proceedings against Gansler.
The American Civil Liberties Union of Maryland is standing in support of Gansler’s opinion saying the state should recognize out-of-state same-sex marriages due to the doctrine of comity, in which contracts are valid anywhere in the United States if they are valid in the state they were created.
“Unless and until something contrary is said, same-sex families should consider themselves married in the state of Maryland and expect to be treated as such,” said David Rocah, staff attorney for ACLU of Maryland. “But it will take some time for it to be clear what rights are extended to them. All of the things couples did to protect their families, they should continue to do, in addition to expecting to be treated like the married couples they are.”
ACLU, Lambda Legal and Equality Maryland have created an informational sheet on the issue and are publishing it online at www.aclu-md.org.
Virginia
Miyares joins efforts to fight Title IX changes
Republican Va. AG part of multi-state effort
BY NATHANIEL CLINE | Virginia Attorney General Jason Miyares has joined a multi-state effort to stop new Title IX rules from going into effect.
The list of new rules designed to protect victims of campus sexual assaults and the rights of LGBTQ students has come under attack by Republican attorneys general in several states.
Miyares called the changes a “dangerous overhaul” of Title IX, and said the new rules would negatively impact students, families and schools in the commonwealth. The ruling also comes after Gov. Glenn Youngkin’s administration overhauled the commonwealth’s transgender student policies.
“The Biden administration’s unlawful rule would jeopardize half a century of landmark protections for women, forcing the administration’s social agenda onto the states by holding federal funding hostage,” Miyares said in a statement. “They are avoiding Congress and the constitutional process because they know it will not pass. We cannot roll back Title IX in the name of false equity.”
Attorney generals from Tennessee, Indiana, Kentucky, Ohio, and West Virginia have also signed onto the suit, which was filed in Tennessee. Separate lawsuits have been filed in other states, including Louisiana and Texas.
Title IX, which has undergone several transformations based on the political party in office, was created to address women’s rights and prohibits any federally funded school or education program from discriminating against any student based on sex since it was established in 1972.
The Department of Education said some differences compared to the previous version developed under the Trump administration, include protections against all sex-based harassment and discrimination, prohibits schools from sharing personal information, and supports students and families.
Narissa Rahaman, executive director for Equality Virginia, said in a statement that the rule prevents opponents from weakening “crucial” civil rights protections including for LGBTQ students by ensuring that pregnant and parenting students have a right to equal education opportunities, protecting student survivors and guaranteeing the rights of LGBTQ students to come to school as themselves without fear of harassment or discrimination.
“Students across races, places, and genders prove every day that they can do great things, especially when there are strong Title IX protections in place, which is why the Biden administration’s updates to the Title IX rules are essential to ensure every student can thrive at school,” said Rahaman.
The new rule is slated to take effect on Aug. 1 and will apply to complaints of alleged conduct that occurs on or after that date, according to the Department of Education.
Protections
While the ruling protects students and employees from all sex-based harassment and discrimination, it will also impact LGBTQ students and employees, including providing complete protection from sex-based harassment, and prohibiting schools from sharing personal information.
Schools must act “promptly and effectively” to protect and treat all students and staff who make complaints “equitably.” Schools must also provide support measures to complainants and respondents, and act to end any sex discrimination in their programs and prevent any recurrence.
The rule further clarifies the definition of “sex-based harassment,” which means to treat someone unfairly because of their gender; and the scope of sex discrimination, including schools’ obligations not to discriminate based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.
The federal agency said the changes will empower and support students and families by requiring schools to disclose their nondiscrimination policies and procedures to all students, employees, and other participants in their education programs so that students and families understand their rights.
The final rule also protects against retaliation for students, employees, and others who exercise their Title IX rights, and supports the rights of parents and guardians to act on behalf of their elementary school and secondary school children.
The rule also protects student privacy by prohibiting schools from disclosing personally identifiable information with limited exceptions, which is something the Youngkin administration has opposed.
Advocates say one of the rights students should have is the power to decide who finds out about their transgender status, to protect them from being bullied or harassed.
Virginia policies
In 2021, the first model policies for trans students were designed under former Gov. Ralph Northam to provide school officials guidance on the treatment of trans and nonbinary students and to protect the privacy and rights of these students.
However, some schools declined to adopt the model policies, and the state law that led to them lacked enforcement incentives or penalties.
The current policies adopted by the Youngkin administration were revised to require parental approval for any changes to students’ “names, nicknames, and/or pronouns,” direct schools to keep parents “informed about their children’s well-being” and require that student participation in activities and athletics and use of bathrooms be based on sex, “except to the extent that federal law otherwise requires.”
Virginia schools have also not fully adopted the newly revised policies, and state law has not changed since the policies were overhauled in 2023.
The Virginia Department of Education faces two lawsuits over the policies adopted by the Youngkin administration.
“All Virginia students, including our transgender and nonbinary students deserve to feel safe and welcomed at schools,” said Wyatt Rolla, a senior trans rights attorney with the ACLU of Virginia. “Accessing restrooms, locker rooms and other facilities that are necessary when you are at school learning is a key part of our schools being inclusive of those transgender [and] non binary students that are part of our community.”
Athletics not included
The provisions under the new Title IX rule did not mention anything about requiring schools to allow trans students to play on teams that align with their gender identity. Virginia has taken its own shot at banning trans athletes from competing in sports through legislation.
In February, the Youngkin administration attempted to challenge the Virginia High School League’s policy on transgender athletes, the Daily Progress reported.
The proposed policy would have matched with the administration’s current policies that students should be placed on teams based on their biological sex rather than their gender identity.
The Virginia High School League, which oversees interscholastic athletic competition for Virginia’s public high schools, allows for trans athletes to participate on teams that match their gender identity, but under certain conditions.
Simultaneously, lawmakers in the Virginia General Assembly controlled by Democrats killed bills, including Senate Bill 68, during the previous session that would have essentially banned transgender students from competing in sports.
State Sen. Tammy Brankley Mulchi (R-Mecklenburg), who carried Senate Bill 723, said students like her 6-year-old granddaughter should have a choice to play with their own gender during a Feb. 1 Senate Education subcommittee hearing.
Mulchi’s bill would have required schools and colleges to have separate sports for boys and girls based on their biological sex. Any dispute would require a note from a doctor.
“If she [my granddaughter] wants to play an all-girl sport, I want her to play against girls that were born girls and not play against someone that is much stronger than her or can hurt her and take away her chances of a scholarship,” Mulchi said.
However, state Sen. Stella Pekarsky (D-Fairfax) argued during the February hearing that whether students are competing with their respective biological sex or not “children of all ages, sexes have different builds and strengths and no children are alike on the same team.”
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Nathaniel is an award-winning journalist who’s been covering news across the country since 2007, including politics at the Loudoun Times-Mirror and the Northern Neck News in Virginia as well as sports for the Plain Dealer in Cleveland, Ohio. He has also hosted podcasts, worked as a television analyst for Spectrum Sports, and appeared as a panelist for conferences and educational programs. A graduate of Bowie State University, Nathaniel grew up in Hawaii and the United Kingdom as a military brat.
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The preceding article was previously published by the Virginia Mercury and is republished with permission.
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The Comings & Goings column is about sharing the professional successes of our community. We want to recognize those landing new jobs, new clients for their business, joining boards of organizations and other achievements. Please share your successes with us at: [email protected].
The Comings & Goings column also invites LGBTQ+ college students to share their successes with us. If you have been elected to a student government position, gotten an exciting internship, or are graduating and beginning your career with a great job, let us know so we can share your success.
Congratulations to Manny Cosme, owner of CFO Services Group, who was named Small Business Owner of the Year, for Washington, D.C., by the Small Business Administration.
SBA Administrator Isabel Castillas Guzman said, “Our 2024 National Small Business Week award winners exemplify excellence, innovation, and commitment, and the SBA is proud to showcase their incredible achievements and impact on their communities and our economy.” Upon being notified of the award Manny said, “I am incredibly honored and humbled to receive the Small Business Owner of the Year award from the Small Business Administration. This recognition serves as a testament to my team’s hard work, dedication, innovation, and impact in our local community. As a small business owner, I have always strived to embody excellence in my company’s services and commitment to my clients. My team and I are proud to represent the thriving small business communities across the country, and we remain committed to driving innovation, growth, and positive change in our industry.”
Cosme is the founder and current president and CEO of CFO Services Group. The firm is focused on providing bookkeeping, outsourced accounting departments, and fractional CFO advisory services, to growing small businesses and non-profit organizations. The company is headquartered in D.C., with team members and clientele throughout the United States. In addition to working with private business and non-profit clients, CFO Services Group partners with various economic development agencies, such as local governments, chambers of commerce organizations, CDFIs and SBDC centers, to provide free financial literacy and technical assistance to businesses in underserved communities.
Manny has served as the Vice President of Finance & Administration for the United States Hispanic Chamber of Commerce. He recently served as the Finance Chair for the Greater Washington Hispanic Chamber of Commerce, and Vice President of the Equality Chamber of Commerce. He is often sought after in keynote discussions on entrepreneurism and finance for fellow business owners.
Maryland
What Anne Arundel County school board candidates think about book bans
State lawmakers passed Freedom to Read Act in April
BY ROYALE BONDS | Parents’ efforts to restrict content available to students in school libraries has become a contentious issue in Maryland. Conservative parent groups, such as Moms for Liberty, have been working to get books they believe are inappropriate removed from libraries in Carroll and Howard counties, sparking protests, new policies, and even a state law.
The Freedom to Read Act, passed in April, sets standards that books cannot be removed from public and school libraries due to an author’s background. Library staff that uphold the standard are protected under this act. The law, however, does not prohibit removing books deemed “sexually explicit,” the stated reason local Moms for Liberty chapters challenged school library books.
The rest of this article can be read on the Baltimore Banner website.
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