Illegitimate LGBT Parents
Susan Hazeldean, Brooklyn
Many states’ parentage regimes
exclude unmarried same-sex parents from legally recognized relationships with
their children. Before marriage equality became the law of the land in Obergefell v. Hodges, some commentators expressed concern
that winning access to marriage would restrict, rather than enhance, LGBT
people’s liberty. Leaders in the battle for marriage equality countered that
they were fighting to make marriage available, but not mandatory, for same-sex
couples. But it appears that the concern about marriage becoming mandatory had
some validity, at least for same-sex couples who want to be parents.
In many states, the only way a
same-sex couple can both be legal parents of their child is to be married so
that they can benefit from the marital presumption of parentage or access
step-parent adoption. Unmarried same-sex couples, who cannot both be the
genetic parents of their children, often cannot obtain legal recognition as
co-parents even if one of them is biologically related to the child. Unmarried
heterosexual couples can have children without worrying that one of them will
not be recognized as a parent. Beginning in the 1970s, the Supreme Court
repeatedly held that non-marital fathers could assert rights to their children.
But the impact of these decisions is limited because they focus on the
biological relationship between the parent and child. This article explores the
constitutional implications of this exclusion, arguing that same-sex
relationships will not truly be treated equally until LGBT people can freely
choose to marry (or not) without fear of losing their children if they decline.
Disaggregating Title IX
Emily Suski, South Carolina
This article explores the stark differences between Title IX policies and
procedures at the K-12 level and the college and university level. Despite the
significant disparities in specificity and process, the courts treat all Title
IX claims the same. This article critiques this treatment in the context of the
Title IX deliberate indifference standard. It proposes doctrinal and policy
changes to remedy the disparity focused on disaggregating the treatment of
Title IX claims in the K-12 context and the college and university context.