The Status of Ohio Family Law for the LGBTQIA+ Community

In 2015, the United States Supreme Court decided Obergefell v. Hodges, which recognizes the constitutional right of same-sex couples to marry. Because of this landmark decision, same-sex couples in Ohio today have the right to marry. This affords same-sex couples federal benefits available to married people under Social Security, the Veterans Administration, and the tax code. It also affords protections for health insurance and retirement benefits, among others. In 2017, the United States Supreme Court further recognized the rights of same-sex couples in Pavan v. Smith, which recognizes that the right to marry includes the right of same-sex parents to sign the birth certificates of their children.

Despite this progress in recognition of the rights of same-sex couples and members of the LGBTQIA+ community over the past decade, there are still numerous and unique family law issues facing this community in the State of Ohio. An experienced family law attorney can help you navigate these issues.

Legal rights to a child is an extremely important issue facing LGBTQIA+ families. There is a marital presumption in the state of Ohio that a child born of a marriage is the biological child of both spouses in the marriage. However, the statute uses gendered language. It is unclear whether that presumption set forth in the statute applies to same-sex couples. There are also protections for a child born of assistive reproductive techniques. However it is unclear whether the presumption applies if the insemination is not supervised by a medical provider. Not all counties in Ohio apply the presumptions in the same manner.

Therefore, same-sex parents should not rely on these statutory presumptions and should implement protections by establishing the legal relationship between the non-birth parent or non-biological parent and the child. A parentage action in some courts is permitted to establish this relationship. However, an adoption affords more protection. Step parent adoptions are available to married couples. This allows a non-biological parent to adopt the biological child of his/her spouse to ensure full parental rights of the child. A second-parent adoption is an adoption by the second parent, in a situation of a non-married couple. Second-parent adoptions are not permitted in Ohio; however, a second-parent adoption from another state that allows them must be recognized in Ohio. Shared custody agreements are also a tool used to create contracts between parents by entering into an enforceable contract. These contracts do not create full parental rights but do protect a parent’s rights for visitation and legal decision making for a child.

LGBTQIA+ individuals, as well as parents of LGBTQIA+ minors, must also consider new restrictions specifically targeting transgender people. On December 13, 2023, the Ohio General Assembly’s House Bill 68 was passed by the Senate. This bill, dubbed the Saving Adolescents from Experimentation Act (“SAFE Act”), is part of a growing group of laws being passed across the nation that restrict the rights of LGBTQIA+ people, specifically through removing healthcare. The SAFE Act bans transgender minor individuals from obtaining gender-affirming care in the form of gender reassignment surgery and hormone therapy. The bill also regulates school districts and higher education institutions’ sports teams by sex and restricts schools from “knowingly permit[ting] individuals of the male sex to participate on athletic teams or in athletic competitions designated only for participants of the female sex.” While the bill contains a clause that allows minors currently undergoing gender-affirming care to continue, it impacts the majority of the transgender minor population in Ohio that is not currently undergoing gender-affirming care by physicians.

Not long after the Ohio Senate passed the bill, Governor Mike DeWine vetoed the bill on December 29. In a statement, DeWine cited his concerns with possible governmental overreach, explaining that the bill’s enactment would suggest that “the government knows what is best medically for a child rather than the two people who love that child the most, the parents.” Despite the governor’s veto, both the Ohio Senate and House overrode DeWine’s veto by a vote of 65-28 and 23-9 on January 24, respectively. This bill went into into effect on April 24.

In March, two months after the overruling, two Ohio families with transgender children argued against the bill’s implementation. The American Civil Liberties Union of Ohio (“ACLU Ohio”), the plaintiffs’ representatives, filed a lawsuit and argued that the bill violates multiple clauses on the Ohio Constitution. The main point of contention was the state’s single-subject rule. The rule states that “no bill shall contain more than one subject, which shall be clearly expressed in its title.” With the bill containing matters for both gender-affirming care and transgender athletes in sports, the plaintiffs believe they have a case that would prevent the bill from going into effect. ACLU Ohio requested a temporary restraining order on the bill until the lawsuit is resolved. The request was granted and later extended. The bill is currently prevented from going into effect until the case’s trial takes place.

The bill’s fate now lies with the Franklin County Court of Common Pleas, with trial scheduled to be heard on July 15.

Because Ohio has not passed state laws protecting the rights of LGBTQIA+ people, corporations and Ohioans with questions related to their family, healthcare protections, educational environment, and more should contact legal counsel to help navigate these issues.

‍