GEORGIA
This guide was drafted by Family Equality Council, on behalf of Georgia Equality. It
addresses many of the legal rights and issues that affect LGBT families currently living in
Georgia. As LGBT equality advances across the nation, there are still significant gaps in the
rights of LGBT individuals and their families, especially at the state level. Unfortunately, the
climate in Georgia remains somewhat hostile towards the LGBT community, despite recently
gaining access to marriage equality. LGBT families experience discrimination and are still
denied equal access to education, employment, housing, healthcare, and public
accommodations. In this type of an environment, it is important to understand what the law
in each area is and how you can protect your family.
1
RELATIONSHIP RECOGNITION
In 1996, the State of
Georgia passed a statute DISCLAIMER:Thishandbookisnotintendedtobelegaladvicebutan
declaring
the
public overviewofthecurrentstateofLGBT-familylawinGeorgia.Thelawis
policy of the state, “to changingquicklyanddynamicallysoitisimportanttoconsultan
recognize the union only attorneyorcontacttheauthorstodiscussthedetailsofyourparticular
of man and woman,” situationandtoensurethatinformationprovidedhereinisstillaccurate.
meaning that no marriage
license would be issued to
same sex couples, and no marriage between same-sex couples, performed elsewhere, would
be recognized.1 In 2004, just 5 months after Massachusetts became the first state to legalize
same-sex marriage, the State of Georgia ratified Constitutional Amendment 1 to amend the
Georgia State Constitution to ban all legal recognition of marriage between same-sex couples
and any non-marriage unions such as domestic partnerships and civil unions.2 This included a
same-sex marriage or domestic partnership entered into in another state that does recognize
these unions.
Prior to the Supreme Court’s ruling in Obergefell v. Hodges on June 26, 2015, which
recognized same-sex marriage for all U.S. states and territories,3 the Georgia ban on samesex marriage, like many similar laws, was challenged in federal court. On January 8, 2015,
the U.S. District Court for the Northern District of Georgia acknowledged some
understanding of the importance of same-sex marriage by finding that the case could not be
dismissed simply on the State’s assertion that the ban served to encourage procreation and
child welfare.4 Following Obergefell, Georgia and all other states must grant marriage
licenses to same-sex couples and must also recognize same-sex marriages performed in other
states.
Just before the Supreme Court’s ruling in Obergefell, Georgia nearly passed a Religious
Freedom Restoration Act, which would have created religious exemptions for businesses and
individuals, including government employees. The bill, which was broader than the federal
bill that it was based on, provided a license to discriminate on the basis of religion,
particularly against LGBT individuals and couples.5 It is telling that proponents of the bill
1
Ga.CodeAnn.§19-3-3.1;seealso§19-3-30(b)(1).
Ga.Const.art.I,§4.
3
Obergefellv.Hodges,135S.Ct.2584,(U.S.2015)
2
4
Innissv.Aderhold,80F.Supp.3d1335,1340(N.D.Ga.2015)
2015GeorgiaSenateBillNo.129,GeorgiaOneHundredFifty-ThirdGeneralAssembly-2015-2016Regular
Session.
5
2
immediately tabled the bill when it was amended to make discrimination more difficult, with
one representative stating, “this is the amendment that will gut this bill.”6
In 2016, the Georgia legislature successfully passed a bill, eventually vetoed by Governor
Nathan Deal, which would have allowed businesses and organizations to discriminate against
LGBT people on the basis of personally-held beliefs. House Bill 757 also included a broad
Religious Freedom Restoration Act, which would have allowed child welfare service
providers to refuse to place children with LGBT individuals or couples. While this bill was
vetoed following a significant backlash, its passage through the Georgia legislature shows
that the legal landscape in Georgia can be unpredictable and occasionally hostile.
FEDERAL BENEFITS POST-UNITED STATES V. WINDSOR AND OBERGEFELL V.
HODGES
In 2012, The United States Supreme Court, in United States v. Windsor, found Section 3 of
the federal “Defense of Marriage Act” (DOMA), the law that denied federal marriage
benefits to married same-sex couples, unconstitutional. In 2015, the Supreme Court found in
Obergefell v. Hodges
FOR MORE INFORMATION ON HOW TO ACCESS FEDERAL
that same-sex couples
have a fundamental MARRIAGE BENEFITS PLEASE SEE THE POST-DOMA
right to marry under FACT SHEETS AT::http://www.lambdalegal.org/after-doma
the
Constitution,
creating
same-sex
marriage and recognition of same-sex marriages nationwide.7
Because of Windsor, married same-sex couples who live in Georgia became recognized by
the federal government for federal benefits purposes. Such benefits include, but are not
limited to Social Security and Veterans Administration benefits, all federal tax purposes,
health insurance and retirement benefits for same-sex spouses of all federal employees, and
spousal benefits for same-sex spouses of military service members. Following Obergefell, all
federal marriage benefits have been extended to married same-sex couples nationwide.
6
PatrickSaunders,Georgia‘ReligiousFreedom’BillStallsafterDiscriminationAmendmentPasses,TheGA
Voice,(Mar.26,2015),http://thegavoice.com/georgia-religious-freedom-bill-stalls-after-discriminationamendment-passed/.
7
Supraat3
3
IMPORTANT – It should be noted that some federal benefits are available to married
couples ONLY. Unmarried couples are unable to access spousal benefits from these
programs. However, because same-sex marriage is now recognized nationwide, married
couples living in Georgia should be able to access federal benefits provided by these
federal agencies, as well as any others. 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.
CHILDREN AND PARENTAGE
LGBT people and same-sex couples form families in various ways. Some have children from
prior different-sex or same-sex relationships. Some LGBT people are single parents by
choice. Some same-sex couples adopt or use assisted reproductive technologies to build their
families together. The current state of Georgia law has not explicitly accounted for these
changes in what families look like, which leaves many families vulnerable. To add yet
another layer of uncertainty, there are a handful of parentage rights that flow directly from
the marital relationship; however, it is not yet clear how married same-sex couples will be
treated with regard to these provisions.
Please consult an attorney experienced in LGBT law, or the authors, if you experience
discrimination from state agencies in recognizing your family relationships on the basis of your
same-sex marriage.
Likewise, if you are an LGBT person or same-sex couple thinking about fostering and/or
adopting children either from the public child welfare system (foster care) or through private
adoption, it is critical that you hire an adoption attorney who is experienced in LGBT family
law in Georgia. It is not enough to simply hire an experienced family law attorney. There are
issues unique to LGBT family law in Georgia 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 LGBT family law attorney, please contact either Georgia Equality
(www.georgiaequality.org) or Family Equality Council (www.familyequality.org) and we will do
our best to assist you.
If you and your spouse/partner are raising children together in Georgia, we recommend
keeping copies of the following documents easily accessible:
4
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Adoption decree
Birth certificate
Guardianship agreement
Co-parenting agreement
Marriage License
Medical Powers of Attorney
ADOPTION
The first provision of Georgia’s general adoption provisions allows any adult person to
petition for adoption, as long as “the person:
(1) Is at least 25 years of age or is married and living with his spouse;
(2) Is at least ten years older than the child;
(3) Has been a bona fide resident of this state for at least six months
immediately preceding the filing of the petition; and
(4) Is financially, physically, and mentally able to have permanent custody
of the child.”8
While Georgia law neither explicitly allows nor prohibits adoption by LGBT individuals and
couples, the adoption court’s general inquiry is focused on what would be in the best interests
of the child. While this is an important inquiry, because there is no explicit prohibition
barring discrimination against prospective LGBT parents, it may work against them. For
example, a Superior Court Judge may decline to finalize the adoption process for a same-sex
couple because of a personally-held belief that it is in the best interests of a child to be placed
with a different-sex couple. Such a decision is unlikely to be so explicit, but the subjective
nature of the “best interests” inquiry combined with the lack of protections for LGBT parents
creates the potential for a discriminatory opinion to become a part of the decision-making
process.
The second provision of Georgia’s general adoption provisions may also allow for
discrimination based on sexual orientation and gender identity. Although LGBT parents
meeting the four criteria above “shall be eligible to apply to the department or a child-placing
agency,” departments and agencies, like the Superior Court Judges, may have quite a bit of
discretion, as the application must still be “in accordance with the policies of the department
or the agency.”9 Therefore, while there is no language in the law that explicitly prohibits
LGBT people and married same-sex couples from adopting, adoption departments and
agencies may have the ability to discriminate against prospective foster or adoptive parents
simply because they are LGBT.
8
9
Ga.CodeAnn.§19-8-3(a).
Id.at§19-8-3(b).
5
Finally, the third provision of Georgia’s general adoption provisions requires married couples
to petition using the names of both spouses, unless the child is the stepchild of the party
seeking to adopt, in which case the stepparent would petition alone.10
It should be noted that there is also a provision of Georgia law that allows a court to
terminate parental custody based on the “immoral” behavior of the parents. Specifically, a
parent may lose custody of their child, “…if it is found that the child is being reared under
immoral, obscene, or indecent influences which are likely to degrade his moral character
…and it appears to the appropriate court by competent evidence, including such examination
of the child as may be practicable, that by reason of … lewd or other vicious habits, or other
behavior of the parents or guardians of the child, it is necessary for the welfare of the child to
protect the child from such conditions….”11
Unfortunately, the Supreme Court of Georgia has removed the parental rights of a mother
due to behavior that they deemed immoral, making a connection to LGBT people. The Court
questioned the mother’s suitability as a parent, and decided to remove the child from her
custody in large part because she left her child with four female friends who, among other
allegations, “taught the child about the gay life.”12 While this case was from 1973, it was
cited favorably in a case in 2001 to support the proposition that a trial court may substitute its
own judgment when a parent's behavior has offended the court.13 Because of a judge’s wide
discretion in family law cases, this case could make LGBT parents vulnerable to custody
challenges, if the judge has a bias against LGBT people or parents. However, following
Obergefell, courts should have more trouble justifying the use of such a provision to remove
custody from LGBT parents solely on the basis of sexual orientation or gender identity.
JOINTADOPTION
As stated above, as long as LGBT couples meet the four requirements for petitioning for
adoption, they should be eligible to adopt. With the arrival of marriage equality to the state
of Georgia, married same-sex couples should be treated equally to married different-sex
couples. Under state law, married couples should petition for adoption using both spouses’
names.14
However, as noted above, although there is nothing in state law that acts as a prohibition on
joint adoption by LGBT couples, there is also no explicit protection preventing
discrimination, and agencies may implement discriminatory policies. For this and other
reasons, it is advisable to contact an adoption attorney. While it is critical to hire an adoption
attorney who is experienced in LGBT family law in Georgia, it is equally important to
10
Id.at§19-8-3(c).
Id.at§19-7-4
12
Bennettv.Clemens,230Ga.317,319(1973).
13
Clarkv.Wade,273Ga.587,592(2001).
14
Ga.CodeAnn.§19-8-3(c).
11
6
engage with foster and adoption agencies who are welcoming and affirming to LGBT people
and same-sex couples. Please research adoption agencies and service providers before
engaging in the foster care and/or adoption process.
SECOND-PARENTADOPTION
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 first parent losing any parental rights. There is no Georgia law
that explicitly prohibits second-parent adoption, and case law seemingly supports the
practice. In two Georgia cases, the court has not set aside second-parent adoptions for LGBT
parents, even after the parents have separated:
In 2007, the Supreme Court of Georgia refused to hear an appeal challenging a second-parent
adoption decree challenged when a lesbian couple separated.15 In 2012, a Georgia Appeals
Court held that a previous second-parent adoption decree for a lesbian couple was binding.16
However, the Court stated, “we decide nothing in this case about whether Georgia law
permits a ‘second parent’ adoption.”17 The Georgia Supreme Court denied certiorari, thereby
upholding the Court of Appeals ruling.
In 2016, the United States Supreme Court determined that other jurisdictions should
recognize a same-sex second-parent adoption validly granted in Georgia. In V.L. v. E. L., the
plaintiff and the defendant were a lesbian couple. The defendant had given birth to three
children and the plaintiff adopted them through a second-parent adoption with a formal
adoption decree from the state of Georgia. The couple relocated to Alabama and split up, at
which point the defendant restricted plaintiff’s access to the children. The Supreme Court of
Alabama sided with defendant, declaring the Georgia adoption decree void. However, the
United States Supreme Court unanimously reversed that decision, determining that the
adoption is valid.18
STEPPARENTADOPTION
Stepparent adoption is the legal adoption of a child by the spouse of the child's legal parent.
Georgia law allows stepparent adoption. Procedurally, a stepparent petitioning to adopt
should petition using their name alone, as opposed to using both spouses’ names.19
Under Georgia’s stepparent adoption law, the child’s other parent must give consent to the
adoption, and any other legal parent or guardian(s) must voluntarily surrender all rights to the
child in writing. 20
15
Wheelerv.Wheeler,281Ga.838(2007).
Batesv.Bates,317Ga.App.339(2012).
17
Id.at344.
18
V.L.vE.L.etal,577U.S.___
19
Ga.CodeAnn.§19-8-3(c).
16
7
For voluntary surrender of parentage rights, there are two options, which vary based on the
circumstances. In the case of a child whose “legal father and legal mother are both living but
are not still married to each other,” the child may be adopted by the stepparent, “only when
the other parent voluntarily and in writing surrenders all of his rights to the child to that
spouse for the purpose of enabling that spouse to adopt the child, and the other parent
consents to the adoption…”21 Note that the definition of “legal father” under Georgia law is
not the same as “biological father,” and requires the father to either legitimate or adopt the
child, or otherwise have legal rights through a presumption of paternity.22
Under the circumstances where a child “has only one parent still living,” a stepparent may
adopt the child with the consent of the sole living parent.23 Both provisions require the
voluntary and written surrender of rights to the spouse/stepparent by any guardian of the
child.24
There is nothing in Georgia’s stepparent adoption statute that would prohibit a same-sex
spouse from completing a stepparent adoption of their spouse’s child. However, it is
advisable to contact an attorney for the same reasons mentioned above.
PARENTALPRESUMPTION
An adoption decree is the single best irrefutable and undeniable proof of
parentage. We strongly recommend that married same-sex couples with
children ALWAYS complete a stepparent adoption.
Georgia has recognized the presumption of paternity. Because “[a]ll children born in
wedlock or within the usual period of gestation thereafter are legitimate,” married same-sex
couples should be presumed to be the legal parents of a child born to one of the spouses
under Georgia law, as this provision uses gender-neutral terms.25 However, the use of the
gendered terms, “mother” and “father,” in the rest of the laws regarding the parental
presumption, may lead to conflicts.26
Georgia has also recognized the presumption of paternity within the definition of “legal
father,” which creates legal rights to a child for a man if he and the child’s mother were
married when the child was born, or if he marries the mother after the child is born and
§19-8-6.
§19-8-6(a)(1):Surrenderofrightstochildbeingplacedforadoptiontospouseofparent
22
Compare§19-8-1(1):“biologicalfather”with§19-8-1(6):“Legalfather.”
23
§19-8-6(a)(2).
24
§19-8-6(a)(1)-(2).
25
§19-7-20(a).
26
See§19-7-20(b)-(c);§19-8-1(6)(B)-(C).
20
21
8
recognizes the child as his own.27 While this provision specifically refers to a male as a
presumed parent, this “parental presumption” exists in most states and now that same-sex
couples can marry, the parental presumption should apply equally to married same-sex and
different-sex couples. For example, if one spouse in a lesbian marriage gives birth to a child
then the non-birth spouse should be considered the second legal parent to the child. The nonbirth parent’s name should placed on the birth certificate and all rights and responsibilities of
parentage apply.
It is unclear at this time whether Georgia’s “Presumption of Paternity” will be interpreted in
a gender-neutral way to apply to married same-sexcouples.
SURROGACY
Georgia law has a separate section of its adoption code related to surrogacy.
Georgia law allows gestational surrogacy, a process in which the surrogate mother does not
contribute her own egg to the pregnancy. Under Georgia law, a gestational surrogate, or
“legal embryo custodian,” may relinquish all rights and responsibilities for an embryo and
the resulting child to the intended (i.e. the non-birth) parents before an embryo transfer, as
long as there is a written contract, which is notarized, witnessed, and signed by all parties.28
After the relinquishment of the legal rights to the embryo, the resulting child is presumed to
be the child of the intended parents.29
Georgia law also states that where “the embryo was created using donor gametes, the sperm
or oocyte [egg] donors who irrevocably relinquished their rights in connection with in vitro
fertilization shall not be entitled to any notice of the embryo relinquishment, nor shall their
consent to the embryo relinquishment be required.”30 So, a sperm or egg donor does not
inherently have any say over the eventual placement of the child resulting from their
donation once they have relinquished their rights as a part of the in vitro fertilization process.
Both before and after the birth of the child, the intended parents may petition the courts for
an expedited order of adoption or parentage, and courts have discretion to waive technical
requirements, “[i]n the interest of justice, to promote the stability of embryo transfers, and to
promote the interests of children who may be born following such embryo transfers.”31 Once
a petition for adoption or parentage is granted, it is considered final and “any future parental
rights and responsibilities of any past or present legal embryo custodian or gamete donor in a
27
§ 19-8-1 (6)(B)-(C).
§19-8-41(a).
29
§19-8-41(d).
30
§19-8-41(b).
31
§19-8-42(a),(d).
28
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child which results from the embryo transfer” are terminated and transferred to the recipient
intended parents.32
Because of the intricacies and technical requirements of Georgia Surrogacy law, it is critical
that LGBT people and same-sex couples engaging in a surrogacy arrangement do so with the
assistance of an experienced family law attorney well versed in LGBT surrogacy and family
law issues in Georgia.
ASSISTEDREPRODUCTIONANDARTIFICIALINSEMINATION
In Georgia, there is a potential conflict in the law governing artificial insemination, as the
law that regulates the practice and procedure uses gendered terms, while the laws governing
the presumption of parentage in this context do not.
Specifically, the provisions surrounding the procedure itself require that only licensed
physicians and surgeons administer or perform artificial insemination. It releases the
physicians from civil liability as long as they obtain “written authorization signed by both the
husband and the wife.”33
The gendered terms “husband” and “wife” are in contrast to the presumption of parentage
provisions for artificial insemination, which state that “all children born within wedlock or
within the usual period of gestation thereafter who have been conceived by means of
artificial insemination are irrebuttably presumed legitimate if both spouses have consented in
writing to the use and administration of artificial insemination.”34 The law regarding rights of
inheritance for children conceived through artificial insemination similarly uses the genderneutral term “parents”.35
Thus, under Georgia law, although married lesbian couples should have full legal status as
parents of children conceived through artificial insemination, there is a potential for conflict
and discrimination due to the wording of the relevant provisions. Consequently, because an
adoption decree is irrefutable proof of parentage and valid everywhere in this country, we
strongly recommend that any married same-sex couples using Assisted Reproduction to have
children complete a stepparent adoption as soon as possible.
32
§19-8-43.
33
§43-34-37.
34
§19-7-21.
§53-2-5.
35
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BIRTHCERTIFICATES
Georgia law states that for purposes of the birth certificate, the name of the “natural father or
putative [the person generally considered to be the] father shall be entered” differently based
on whether he and the mother were married.36 If the mother was married at the time of either
conception or birth, the name of the “husband” shall be entered on the birth certificate, unless
paternity is disputed.37 If the mother is not married, “the name of the putative father shall not
be entered on the certificate of birth without the written consent of the mother and the person
to be named as father.”38 However, if the father is not named on the birth certificate, no other
information about the father should be entered.39 Because the law is unsettled with regard to
the presumption of paternity, it also remains unsettled with regard to issuance of birth
certificates to children born to married same-sex couples.
The law regarding issuance of new birth certificates after an adoption is, however, clear. The
statutory language uses gender-neutral terminology and therefore allows same-sex parents to
be listed.40 As stated above, whenever possible, we strongly urge married same-sex couples
to complete a stepparent adoption to ensure irrefutable recognition of both parents’ rights and
responsibilities to the child.
APPLYINGFORASOCIALSECURITYNUMBERANDCARDFORACHILD
To apply for a Social Security and Card for your child, you will need to provide your local
Social Security Administration (SSA) office with a number of different documents, personal
information about you, your child, and any other legal parent to the child, and a completed
SS-5 application form.
You can apply at this link from the SSA website: (http://www.ssa.gov/pubs/EN-05-10023.pdf).
You can provide SSA with these documents via letter or in person by visiting your local SSA
office (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 certificate, or on a court-ordered adoption decree, are permitted to be included
on the application.
For more information on the application process, please see Family Equality Council’s FAQ
(http://www.familyequality.org/get_informed/advocacy/know_your_rights/ssa_faqs/)
You can also contact the SSA at 1-800-722-1213 or 1-800-325-0778 or visit the SSA website
(www.socialsecurity.gov). 36
37
§ 31-10-9 (e).
§ 31-10-9 (e)(1).
§31-10-9(e)(2).
39
§31-10-9(e)(4).
40
§31-10-14.
38
11
If you have difficulty obtaining a Social Security Card or Number for your child, please
contact us for assistance.
APPLYFORAPASSPORTFORACHILD
To apply for a passport for your child, you must provide the State Department with
documentary evidence, a completed DS-11 form, a photograph of the child, and personal
information about you, your child, and the child’s other legal parent. You must provide these
documents to the State Department in person at the nearest accepted facility or regional
passport agency, listed here(https://iafdb.travel.state.gov/)
The materials you must provide 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 certificate, 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 financially support a child, but with
whom the child does not have a biological or legal relationship.
If you have questions about the application process, acceptable materials, or how to best
proceed with your child’s passport application, you can contact the National Passport
Information Center at 1-877-487-2778. You can also visit the State Department website here
(http://travel.state.gov/).
This information and more is located in our FAQ on applying for a U.S. passport for your
child, located here:
(http://www.familyequality.org/get_informed/advocacy/know_your_rights/passport_faq/).
If you have difficulty obtaining a passport for your child, please contact us for assistance.
NON-DISCRIMINATION PROTECTIONS
There are currently no federal laws that explicitly prohibit discrimination of LGBT 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, LGBT people and our
families remain vulnerable under the law.
12
Georgia provides no statewide protections in any of these areas, which means that state law
does not protect LGBT people from being fired, denied housing, refused service in a
restaurant, or bullied at school, simply because they are LGBT. Again, in some instances
(explained in detail below), federal law and policy may nevertheless provide protections for
LGBT Georgians from discrimination.
Georgia is a “Dillon’s Rule” state, which means that municipal and county governments are
prohibited from acting unless granted the power to do so by the State.41 The Dillon’s Rule
usually prohibits local governments from enacting ordinances that would provide nondiscrimination protections for LGBT people that go beyond those provided by the State – so
local municipalities throughout Georgia could face difficulty when attempting to pass any
LGBT non-discrimination protections.
However, while there is no state-wide non-discrimination protection for LGBT individuals,
the city of Atlanta does have a non-discrimination ordinance that prohibits discrimination
based on sexual orientation and gender identity, in the areas of employment,42 housing,43
public accommodations,44 and all city decisions and actions.45
Although the ordinance was challenged based on Dillon’s Rule, the Georgia Supreme Court
upheld the ordinance in 1995.46 The Court, in holding that Atlanta had the authority to enact
the non-discrimination protection, reasoned that the city had general police power to prohibit
sexual orientation discrimination related to city employment, events, and vendors.47 Thus,
although Georgia is a Dillon’s Rule state, local municipalities may be able to enact nondiscrimination protections based on sexual orientation and gender identity, at least as they
relate to the municipality’s own employees, events or vendors. Check with your local
government or with Georgia Equality to determine if your municipality provides such
protections.
EMPLOYMENT
Georgia state law does not protect LGBT people from discrimination based on sexual
orientation or gender identity in the workplace. Even with the arrival of marriage equality,
LGBT people are at risk and the simple act of filing an amended W-4 with your employer
could inadvertently out you, leading to discrimination in the workplace or the loss of a job.
41
Ga.CodeAnn.§§36-35-5—6;seealsoMatthewSellers,NationalAssoc.ofCounties,CountyAuthority:A
StatebyStateReport,40(Dec.2010),
http://www.naco.org/sites/default/files/documents/County%20Authority%20a%20State%20by%20State%20R
eport.pdf.
42
Atlanta,Ga.,CodeofOrdinances,§§94-112,2-1381,2-1414.
43
Atlanta,Ga.,CodeofOrdinances,§§94-91–94-97.
44
Atlanta,Ga.,CodeofOrdinances,§§94-68,10-223,10-224(a).
45
Atlanta,Ga.,CodeofOrdinances,§§3-502,114-121,114-452(5),114-166(a),142-12(b)(1),46-1(b),46-37.
46
CityofAtlantav.McKinney,265Ga.161(1995).
47
Id.
13
FederalLaw
While there is no explicit federal law that bars discrimination against LGBT people in the
workplace, the definition of “sex” in Title VII of the Civil Rights Act of 1964 has been
interpreted to provide employment protections for LGBT people in limited circumstances.
The Equal Employment Opportunity Commission (EEOC) hears and investigates complaints
of employment discrimination under Title VII, and looks into claims against all private
employers, state and local governments, federal government agencies, employment agencies,
and labor unions, as long as they have fifteen or more employees or members.
In 2012, the EEOC ruled in Macy v. Holder that discrimination against a transgender woman
was discrimination under Title VII’s prohibition of discrimination based on sex.48 In Veretto
v. US Postal Service49 and Castello v. US Postal Service,50 the EEOC held that employment
discrimination on the basis of sexual orientation violated prohibitions of sex-discrimination
because it constituted discrimination based on sex-stereotypes. Most recently, the EEOC
strengthened the protections for those who may face discrimination on the basis of sexual
orientation by ruling in Complainant v. Foxx that claims of discrimination based on sexual
orientation inherently amount to claims of sex discrimination and are therefore actionable
under Title VII.51 These EEOC decisions, while not binding to courts, suggest that LGBT
individuals are protected under Title VII, and may file a claim of employment discrimination
utilizing the law’s inclusion of “sex” as a protected class.
If you believe that you have been the victim of discrimination in hiring or in the workplace
based on your sexual orientation or gender identity, you must file a Charge of Discrimination
with your local EEOC office before you can file a lawsuit in court alleging discrimination.
The EEOC office serving Georgia is located in Atlanta, and can be reached at 1-800-6694000.
If filing a complaint with the EEOC, you must list the basis for your claim as discrimination
on the basis of your “sex,” as this is the existing basis that the EEOC has linked to sexual
orientation and gender identity. Generally, you must file your Charge of Discrimination
within 180 days of each instance of discriminatory treatment. You can read more about the
EEOC process, and your rights and responsibilities after filing a claim with the EEOC, here
(http://www.eeoc.gov/employees/charge.cfm). Do note that federal employees and job
applicants are subject to a different timeline for making a claim (typically 45 days) and
procedures for filing, which you can read about here:
48
No.0120120821,2012WL1435995(E.E.O.C.Apr.20,2012)
No.0120110873(E.E.O.C.Jul.1,2011)
50
No.0120111795(E.E.O.C.Dec.20,2011)
51
No.0120133080,2015WL4397641(E.E.O.CJuly16,2015)
49
14
(http://www.eeoc.gov/federal/fed_employees/complaint_overview.cfm).
Georgians working for companies that contract with the federal government have access to
additional protections against discrimination in employment. These protections stem from a
2014 Executive Order issued by President Obama 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. If you believe that you have been the victim of discrimination by an employer that
contracts with the federal government, you can file a complaint and learn more about the
complaint process here:(http://www.dol.gov/ofccp/regs/compliance/pdf/pdfstart.htm)
CompanyPolicies
Many employers, especially ones that operate in multiple states, have enacted their own
internal non-discrimination policies that prohibit discrimination against LGBT employees.
While these policies may not be legally binding, they can often give an employee some
recourse where there would otherwise be none. A company’s non-discrimination policy
should be available in the company’s employee handbook or through the human resources
department. You should therefore familiarize yourself with your employer’s own human
resources policies to see if they cover discrimination against LGBT persons.
In every case, if you believe that you’ve been the victim of discrimination on the basis of
your sexual orientation or gender identity you should contact an attorney familiar with LGBT
employment law.
HOUSING
There are currently no express prohibitions in the Georgia Housing Code that prohibit
discrimination against LGBT people. Georgia, however, does prohibit discrimination on the
basis of sex and familial status, consistent with the federal law.52 As described above, in the
EEOC employment discrimination cases, it is currently being argued that discrimination on
the basis of sexual orientation or gender identity fall into the category of prohibited
discrimination on the basis of “sex.” There is little history on how judges within Georgia
have addressed such claims of discrimination in the housing context, but nationally there has
been increasing recognition that discrimination of LGBT people qualifies as sex
discrimination. As such, if you have been denied housing because of your sexual orientation
or gender identity, you should file a claim with the municipal housing authority.
Ga.CodeAnn.§8-3-200-205.
52
15
FederalLaw
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 LGBT people and their families. However, an
LGBT 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. 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 the Department of Housing
and Urban Development (HUD) is prohibited from refusing to rent, offering unequal and
inflated 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, as
well as barred from using such criteria in assessing an application.53 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 (1-800669-9777), online (http://portal.hud.gov/hudportal/HUD?src=/topics/housing_discrimination), or
via mail. The HUD Office of Fair Housing and Equal Opportunity Georgia Regional Office
is located at Five Points Plaza Building, 40 Marietta Street, Atlanta, GA 30303. To learn
more about filing a complaint, as well as details regarding taking your claim to court, please
read this page:
(http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/complaintprocess).
PUBLICACCOMMODATIONS
Public Accommodations are generally defined as entities, both public and private, that are
used by the public. Examples include retail stores, restaurants, educational institutions,
recreational facilities, etc. Private clubs and religious institutions are generally exempt from
the definition.
53
EqualAccessinHUDPrograms–RegardlessofSexualOrientationorGenderIdentity,Availableat
http://portal.hud.gov/hudportal/documents/huddoc?id=5359-F-02EqAccessFinalRule.pdf
16
Georgia law does not protect LGBT people from discrimination in places of public
accommodation. In fact, Georgia is one of the few states that only prohibit discrimination in
public accommodations based on disability.54
FederalLaw
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 of these contain protections on the basis of 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.55 Businesses that hold themselves open to the
public (restaurants, stores, hotels, etc.) are therefore prohibited from refusing service or
business to individuals because they are HIV-positive.
SCHOOL POLICIES AND ANTI-BULLYING
StateLaw
Although Georgia has enacted state-level anti-bullying policies, these policies do not
enumerate the bases on which bullying is prohibited, specifically failing to mandate that
schools recognize harassment of an LGBT student for their sexual orientation or gender
identity, or the sexual orientation or gender identity of their parents, as bullying. In addition,
Georgia has not passed any laws that specifically prohibit discrimination based on sexual
orientation or gender identity in public state schools.
However, Georgia strengthened its laws related to bullying in 2010, and again in 2015. In
2010, although the legislature failed to enumerate the bases on which bullying is prohibited,
including sexual orientation, the law provided a definition of bullying, and required the
Department of Education to develop a model policy.56 This model policy does specifically
enumerate categories on which harassment and intimidation can be based, and explicitly
includes gender and sexual orientation, but not gender identity.57
With the passage of the "The End to Cyberbullying Act," in May of 2015, Georgia still failed
to enumerate the bases on which bullying is prohibited, but expanded the definition of
54
Ga.CodeAnn.§30-4-2.SeealsoNationalConferenceofStateLegislatures,StatePublicAccommodation
Laws,(Mar.13,2015),http://www.ncsl.org/research/civil-and-criminal-justice/state-public-accommodationlaws.aspx.
55
Bragdon v. Abbott, 524 U.S. 624 (U.S. 1998)
56
Ga.CodeAnn.§20-2-751.4(c).
57
JohnD.Barge,StateSchoolSuperintendent,PolicyforProhibitingBullying,Harassment,andIntimidation,
GeorgiaDep’tofEdu.,5(May12,2015),http://www.gadoe.org/Curriculum-Instruction-andAssessment/Curriculum-and-Instruction/Documents/GaDOE%20Bullying%20Policy_May%202015.pdf.
17
bullying to include acts of cyber bullying and online harassment, even if the bullying was not
committed on or using school property. Georgia’s broad definition of bullying, although not
specifically prohibiting bullying based on sexual orientation and gender identity, has great
potential to protect and help LGBT students. Ultimately, because school district policies are
determined at the local level, there can be wide variations on how proactive and protective a
school is towards bullying and LGBT students, or students with LGBT parents. It can
therefore be helpful and important to find out what the school district’s policies and history
on the issue are.
FederalLaw
While Georgia state law fails to explicitly provide comprehensive protections for LGBT
students, federal law – specifically Title IX of the United States Education Amendments of
1972 – does provide some protections and support to students facing bullying or
discrimination based on their sexual orientation or gender identity. Title IX specifically
prohibits discrimination against students in schools and other programs that receive federal
funding, where that 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. On these
grounds, the Department of Education has specifically stated that transgender students are
protected by Title IX, and lesbian, gay and bisexual students have successfully filed claims of
discrimination under Title IX.58
If you believe that you or another person have been the victim of sexual orientation or gender
identity discrimination in a program or activity that receives funding from the Department of
Education (such as a public school, a publicly-run sports team or program, public afterschool
programming, etc.), you can file a complaint with the Georgia Department of Education
Office of Civil Rights (OCR) located in Atlanta, GA. (Tel. 404-974-9406)
You must file within 180 days of the last instance of discrimination, and you may file a
complaint on behalf of yourself, a group, or another person facing discrimination. Since Title
IX does not explicitly cover sexual orientation or gender identity, your complaint must list
“sex” as the basis (or one of the bases) of your claim.
You can find more details on drafting a complaint, as well as an electronic complaint form, at
the OCR website, located here(http://www2.ed.gov/about/offices/list/ocr/complaintintro.html).
58
UnitedStatesDept.ofEducationOfficeforCivilRights,QuestionsandAnswersonTitleIXandSexual
Violence,http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf
18
HEALTHCARE
FederalLaw
Each year, the federal government opens enrollment for individual and family healthcare
coverage under the Affordable Care Act (ACA). Typically, enrollment for the following year
opens in November and closes mid-February of the following year – although you may be
able to enroll for a given year at another time if you experience a big life change, such as
moving, getting married, or having a baby, which may qualify enroll in one of the ACA’s
Special Enrollment Periods. For detailed information about plans, Special Enrollment
Periods, or to find out where and how to enroll, go to this site (www.healthcare.gov) and
select your state of residence.
Under the ACA, insurers and marketplace navigators – the people whose job it is to help you
select an insurance plan that best matches the needs of you and your family – are prohibited
from discriminating against consumers based on their sexual orientation or gender identity,
or the sexual orientation or gender identity of a family member
Under the ACA, no individual or family may be denied coverage because of a pre-existing
condition. This includes a current or 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 LGBT individuals and families. For example, the ACA does
not require insurers to cover transgender- related care, or treatment for HIV and AIDS.
Further, definitions of “family” may be too narrow to include many dependents in an LGBT
family structure, given the myriad LGBT family structures that exist. While insurers are not
required to cover these treatments, they may offer plans that do so; we encourage you to
speak with a navigator and investigate plans thoroughly to find the option that works best for
you and your family.
For more information on how the Affordable Care Act and the insurance marketplaces
benefit LGBTQ-headed families, check out Where to Start, What to Ask: A Guide for LGBT
PeopleChoosingHealthCarePlans
FAMILY AND/OR PARENTING LEAVE
19
Georgia does not require employers to provide paid family leave. However, the federal
Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to
take unpaid, job-protected leave for specified 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;
to care for 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.
The Act also entitles eligible employees to 26 workweeks of leave during a single 12-month
period to care for a covered service member with a serious injury or illness if the eligible
employee is the service member’s spouse, son, daughter, parent, or next of kin (military
caregiver leave).
In 2010, the Department of Labor issued a clarification of the definition of “son or daughter”
to include a child for whom a person provides a certain amount of day-to-day care or
financial support, regardless of whether or not there is a legal or biological relationship. This
clarification ensures the ability of a same-sex parent and/or partner has the ability to take
time off from work to care for their child without fear of losing their job. You can read the
text of the Department of Labor’s clarification here:
(http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.htm).
In 2014, following the Windsor decision and the repeal of the Defense of Marriage Act, the
FMLA’s benefits were extended to married same-sex couples. Because of this, married samesex couples became entitled to take time off to care for their spouses. This was solidified
further in 2015 when the definition 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 benefits being
extended to all same-sex couples across the country.
20
CHANGES OF NAME AND GENDER
Transgender individuals may request an amended birth certificate to reflect their true sex and
name but only may do so after they have legally changed their name, and undergone a
change of sex by “surgical procedure”. Georgia will amend birth certificates only “upon
receipt of a certified copy of a court order indicating the sex of an individual born in this state
has been changed by surgical procedure and that such individual's name has been changed.”59
The amended birth certificates will be issued as new, and will not note that the sex on the
certificate has been changed.60
An applicant for a legal name change must submit a petition to the court, and within seven
days of filling the petition, publish notice of the name change in the county’s "official legal
organ" once a week for four weeks.61
In regard to updating names and gender markers on driver’s licenses, Georgia law has a
provision requiring any legal name changes to be registered within 60 days, but does not
specify with regard to gender changes.62 To change the gender marker on a driver’s license,
the Georgia Department of Driver Services requires applicants to submit a court order or
physician's letter certifying the gender change, which states the person's name, date of birth,
date of gender reassignment operation and other identifying information.63
Ga.CodeAnn.§31-10-23(e).
Ga.Comp.R.&Regs.511-1-3-.31(d).
61
Ga.CodeAnn.§19-12-1.
62
Ga.CodeAnn.§40-5-33.
63
GeorgiaDepartmentofDriverServices,ChangesToYourLicense:Address,NameandPhysicalChanges,(last
updatedJune29,2015),http://www.dds.ga.gov/drivers/dldata.aspx?con=1748208403&ty=dl
59
60
21
HATE CRIMES PROTECTIONS
Georgia state law does not define a crime motivated by homophobia or transphobia as a hate
crime. In fact, the state no longer has any hate crime statute in force. In 2004, the Georgia
Supreme Court struck down the state’s hate crime law,64 which allowed enhancement of
criminal penalties for defendants who “intentionally selected any victim…as the object of the
offense because of bias or prejudice….”65 The Court held that the statute was
unconstitutionally vague, in part for not specifying classes of protection.66
However, in 2009, Congress enacted the Matthew Shepard and James Byrd, Jr. Hate Crimes
Prevention Act, which expands federal hate crimes to LGBT people. The law allows Federal
law enforcement agencies, such as the FBI, to investigate and prosecute hate crimes against
LGBT individuals when local or state authorities fail to act. If you or your family has been
the victim of a hate crime, you should report the crime both to the local authorities and the
FBI. The FBI maintains a field office in Atlanta, Georgia:
FBI Atlanta:
Suite400
2635CenturyParkway,Northeast
Atlanta,GA30345-3112
Phone:(404)679-9000
Website:atlanta.fbi.gov
64
Bottsv.State,278Ga.538(2004).
Ga.CodeAnn.§17-10-17,invalidatedbyBottsv.State,278Ga.538(2004).
66
Botts,278Ga.at540.
65
22
RECOMMENDED LEGAL DOCUMENTS FOR SAME-SEX
COUPLES
LastWillAndTestament
DOCUMENTS:
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
beneficiaries, 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 you are
not both legal parents, and the legal parent
dies, a judge will decide who the guardian
will be. Naming your partner in your Will
expresses your wishes and increases the
likelihood that a judge will respect those
wishes about who should raise your children
after your death.
A Will does not affect beneficiaries you have
designated on bank accounts, insurance
policies, or retirement accounts. The
company that holds those funds will disburse
them to your designated beneficiary. You
should make sure such designations are upto-date.
More information is available from the State
Bar of Georgia, at:
23
http://www.gabar.org/newsandpublications/consumerpamphlets/upload/wills_09.pdf
AdvanceDirectiveForHealthcare
Allows Georgians 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. You can find more information and guidance
on drafting an Advance Directive for Healthcare specifically for the State of Georgia
at:
http://www.gabar.org/newsandpublications/consumerpamphlets/upload/healthcaredirecti
ve_09.pdf
FinancialPowerOfAttorney
It is important that partners consider providing each other with the power to handle
personal finances on their behalf through a “financial power of attorney” in the event
that a partner becomes unable to manage his/her own finances due to sickness,
disability, etc.
We recommend consulting a Georgia attorney in drafting this document.
DomesticPartnershipAgreement
A Domestic Partnership Agreement expresses a couple’s understanding as to how
they will share income, expenses, assets and liabilities. It also discusses a plan for
how those things will be divided in the event the couple separates. This document is
especially important for unmarried couples.
Co-ParentingAgreement
An agreement that expresses a couple’s understanding of how they will raise children
and what each parent’s rights and obligations are with respect to each child while they
are together and in the event that the parents separate.
Although the Co-parenting and Partnership agreements are not “standard” and will
require the advice of an LGBT aware attorney licensed in Georgia (and, could still
prove to be not legally binding) they are often useful to have. These documents can
establish clear understanding between the parties and can provide clarification about
the intent and wishes of all involved. They may be useful, at some future time, should
an issue ever come before a court/judge in the case of death or dissolution of the
relationship, etc.
24
This document prepared and distributed by:
[email protected]
www.familyequality.org
[email protected]
www.georgiaequality.org
25