LGBTQ Family Rights in Illinois

 Posted on October 04, 2016 in Main

Given the difficult events of recent months and weeks, many members of the LGBTQ community are finding it necessary to become more acquainted with the law surrounding their civil rights to exercise many abilities that others would find standard. While the right to marry has been solidified in the law, there are other aspects of legal personhood that are still lacking in terms of codification. Illinois, while generally seen as one of the more progressive states in the U.S. in this regard, does still have specific regulations that must be observed.

Parenting and Adoption

After the right to marry, the right to have and/or adopt children might naturally be thought to come next. Illinois does recognize a same-sex couple's right to adopt children, as well as certain surrogacy contracts - not all, however. Only gestational surrogacy contracts are deemed legally valid in Illinois, while traditional surrogacy is seen as being against public policy. The rationale is that traditional surrogacy uses the carrier's eggs, thus giving them a personal and biological stake in the child being born. This renders any contract for surrogacy unconscionable, at least under Illinois law, as it is seen as not dissimilar to selling children.

In terms of adoption, it is possible for a same-sex couple to adopt in Illinois, but it is also possible for one spouse to legally adopt the other's biological children. For example, if a woman has a child with a man, then divorces him to marry another woman, her second spouse may be able to adopt that child (assuming she meets all the other relevant criteria). This is referred to as second-parent or stepparent adoption. This can help avoid custody problems if the couple ever divorces or if the biological parent passes away before their spouse.

Specific Issues Facing the Transgender Community

Transgender people may face unique challenges in legally transitioning, which may adversely affect other areas of life. It is permissible in Illinois to have the gender on one's birth certificate changed, but only if one has “undergone an operation” to “reflect, enhance ... or otherwise affect gender.” Many transgender people do not feel the need to medically alter their bodies, or they may not be able to afford the expense. Because of this, in Illinois, this means that they may not be able to legally transition, and it can be important to do so.

One of the major reasons why legal transition, either with or independent of medical transition, is important is the issue of parenting time and allocation of parental responsibilities. While Illinois has very little case law on the books regarding the rights of a parent who has transitioned, there is a mixture of opinions from around the country. Some courts have even barred transgender parents from any contact with their children, citing the best interests of the child and how ‘confusing' it would be for a young child to see their parent as the opposite sex. Some courts have treated cases involving transgender parents like any other parenting time determination. If you have legally transitioned, and you have an affidavit showing your adoption of any children involved, you are protected against many black-letter law challenges. If you have no paperwork, it is easier for your situation to be misunderstood.

Ask a Family Law Attorney for Help

You deserve to have your rights protected, regardless of gender identity or sexual orientation. If you are encountering problems with parenting time, or with other aspects of family law, it can help to consult a knowledgeable attorney. The compassionate Wheaton family lawyers at our firm are happy to assist you with your legal matters. Contact us today to set up an initial appointment.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2613

http://www.idph.state.il.us/vitalrecords/births/Pages/gender-reassignment.htm