Escape from the red states

Gay parents can wake up to find that their home state wants to break up their family. Some fight back; others simply leave for friendlier locales

BY Kelly Griffith

July 05 2005 12:00 AM ET

Boxes are stacked
in the garage, the walls are barren, and an air
mattress on the den floor serves as bed for the night in the
Orlando, Fla., home of Janine Kirchgassner, 45, and
Julia Robertson, 43, and their children, Jessica, 6,
and Matthew, 4. It’s their last day living here,
and the moms look tired. They have a right
to—it’s their second move in three
years.

Determined to
keep hopping state to state until they find
“home,” a place where they feel secure
and valued as a family, they have jumped from Texas to
Florida and now from Florida to Vermont. They hope this is
the last time. “We thought things would be
better moving to a bigger city,” says
Kirchgassner of their move in 2002 from rural Texas to
Orlando, a city of about 200,000. “You
know—more metropolitan, more liberal. Well, the
laws stink here even more.”

Kirchgassner and
Robertson are among the millions of gay Americans with
children who face uncertainty fueled by a sea of
ever-changing state laws and statutes that affect
everything from who is a legal parent to who may have
what when a loved one dies. For families headed by gay and
lesbian couples, an out-of-state move means
considering things even more basic: Can I become a
parent? Can I take time off work if my mate or child is
gravely ill? Will I be able to inherit the home I live in
and assets built over my lifetime and pass them along
to my children?

Laws vary so
widely from state to state on some issues that a person who
is in many ways secure in one state can cross into a
bordering state and be in hostile territory. For
example, Maryland and Virginia, two Beltway states
that many Washington, D.C., commuters opt to live in,
couldn’t be more different for a gay family.

Legal differences
among states can have shocking fallout: Washington
State couple Ed Swaya, 44, and Gregory Hampel, 36, knew
their baby would be born in Oklahoma. They found out
at the 23rd week of pregnancy when the baby’s
birth mother was due and immediately began readying for the
adoption of their baby girl, Vivian. When she was born three
years ago, hospital staff in the rural Oklahoma
hospital shocked them with treatment fit for kings.
“People went out of their way to make sure it was a
positive experience for us,” Swaya says.

What they
weren’t prepared for was Oklahoma’s refusal to
amend the birth certificate to show both men as
Vivian’s fathers, even though the state of
Washington had already approved adoption paperwork. Shortly
after legal wrangling that resulted in the state
caving in on Vivian’s case, the Oklahoma
legislature quickly passed a law that would disallow
same-sex couples from being adoptive parents—even if
they come from another state where they are legally
recognized.

“What they
were doing did nothing to stop the fact that Gregory and I
were [Vivian’s] legal parents,” Swaya says.
“All it did was give her an inaccurate birth
certificate.” Gay rights group Lambda Legal is now
challenging the new law in court, with Swaya and Hampel
among the plaintiffs.

Oklahoma
isn’t unique. Gay parents moving between states are
well-served not only to do thorough research but also
to hire early on an attorney well-versed in local
legal issues.

The District of
Columbia and eight states—Connecticut, California,
Illinois, Massachusetts, New Jersey, New York, Pennsylvania,
Vermont—allow same-sex couples to complete a
second-parent adoption, which makes a same-sex partner
a child’s legal parent without affecting the
other partner’s parental status. Certain counties in
15 other states have allowed such adoptions.

“This
patchwork means your rights as a parent fluctuate based on
geography,” says Carrie Evans, state legislative
director for gay rights group the Human Rights
Campaign. “Most gay parents probably have no idea
when they move that they can change the legal status of
their family.”

Kirchgassner and
Robertson admit they didn’t conduct enough research
before moving from east Texas to Florida—a state with
the nation’s most stringent ban on adoptions by
gays and lesbians. The couple had become parents while
living in Texarkana, Texas, population 35,000 and the
birthplace of Ross Perot. After a five-year journey
involving fertility clinics, sperm donors, and medical
problems, Jessica was born; two years later came
Matthew.

While Robertson
carried the children, Kirchgassner was the stay-at-home
mother. But Robertson’s employer, International
Paper, the world’s largest forest products
company with 83,000 employees, did not offer
domestic-partner benefits to her in Texas.

When Kirchgassner
became ill and required three surgeries, Robertson was
unable to take family leave to care for her or the children
as a married couple could. Under Texas law
Kirchgassner was no more the children’s legal
parent—or Robertson’s spouse—than the
next-door neighbor.

“It was a
total freak-out of mine that I had no legal rights,”
Kirchgassner says. “I realized our life just sucks
when you can’t take time off to take care of
your family when they need you.”

They picked
Orlando since they already had family there. When
Kirchgassner took a job in Florida with Verizon
Communications, a 210,000-employee telecom giant, she
also got domestic-partner benefits. This time around
Robertson would stay home with the kids while
Kirchgassner worked.

They were in
disbelief to find out later that Robertson could have
insurance as Kirchgassner’s domestic partner but the
children could not be covered since the insurance did
not extend to children of domestic partners. Many gay
parents don’t think to ask such specific questions
when they are interviewing for a job, or they assume
domestic-partner benefits will mean the whole family
can get coverage.

Kirchgassner
learned from the experience and immediately began looking
for a job that would offer benefits for the entire family.
When Lockheed Martin, a major defense contractor with
130,000 employees, offered her a job with such
benefits and she accepted, they were thrilled.

Then, three
months later, devastation: Hourly employees didn’t
have domestic-partner benefits at all, only salaried
workers. Kirchgassner’s hourly status meant the
family was now even worse off.

A change in
company policy this year to extend the benefits to hourly
employees came too late. Finally fed up, they sold their
home and decided to move to Vermont in May. They
believe being a family in Vermont will be vastly
different than being a family in Florida.

In Vermont,
Kirchgassner can be a legal mother. After registering in a
civil union the couple will have the same state rights as a
married couple, including automatic rights such as
hospital visitation and being able to make end-of-life
decisions for each other.

Such disparities
among states are common. In places such as Hawaii and
Maryland, laws have evolved to be gay-friendlier, but in
other areas, including Oklahoma and Virginia, things
have moved backward.

In 1997,
Hawaii’s legislature passed a statute allowing
couples to register as “reciprocal
beneficiaries,” entitling them to about 60 rights
and responsibilities given to married couples. In
Massachusetts gay married couples have the same rights
in state matters as straight ones.

Last year in
Virginia the general assembly banned civil unions and even
contracts between same-sex couples if it appeared they gave
each other the legal privileges of marriage.

The political
climate may sway and shimmy even if laws aren’t on
the books. Companies may change policies on insurance
benefits without fanfare or publicity. Even staying in
one place requires constant vigilance as more and more
states consider discriminatory laws to restrict the
rights of gay-led families. Gay couples are left to do
thorough research and should leave no question unasked
before making life-changing decisions.

When Virginia
passed its law last year, that rendered moot many contracts
between gay partners, Barbara Kenny, 66, and Tibby
Middleton, 67, knew it was time to leave their home
state of more than 35 years.

For years the
couple had numerous legal documents protecting them in case
of sickness or death, but the law seemed to make many of
them useless. “I said, ‘Tib,
let’s go,’ ” Kenny says.

The couple, who
have been together for 39 years, feared staying in a
hostile state because Kenny has been diagnosed with a brain
aneurysm, a condition that, though currently dormant,
could worsen at any time. The prospect of that
happening without legal protections in place frightened
them.

The ramifications
of not having legal protections for a family can be
many. Middleton, for instance, has children and one
grandchild. The family is close, and she enjoys
spending time at a Virginia mountain cabin with her
daughter and granddaughter. Could they be barred from a
hospital room if Kenny were admitted? Could Kenny be barred
from making an emergency medical decision for a
grandchild that is officially Middleton’s if
she needed to? The new Virginia law seems to throw it all
into question.

“To stay
and do the kind of battle it would take is more than
I’m willing to do,” says Kenny.
“To keep my blood pressure down I’m not going
to be the poster child.” They moved to nearby
Maryland and are hoping for the best.

When
David-Matthew Barnes, 34, and partner Nick Moreno, 27, moved
from Sacramento to Atlanta with two teenagers for whom
they were legal guardians, they knew little about what
to expect. They knew they could be legal domestic
partners in California, but that was not the case in
Georgia. “It was a slap in the face, really,”
says Barnes, a professional writer.

Such quirky state
disparities are one reason federal protections are so
important, and a Supreme Court decision ruling for equal
rights in marriage and parenting is the only real way
to resolve the issue once and for all, says
HRC’s Evans.

The Christian
Coalition of America has made no secret that its state
chapters are working hard to get antigay measures on state
ballots, a move the group says can help sway
politically hungry congressmen into thinking the
masses are antigay when public opinion and voter exit polls
show otherwise.

Groups such as
the coalition and Focus on the Family, Christian-based
organizations that claim to put a priority on family life
and protecting children, have devoted their resources
to fighting measures that would give the most basic
rights to countless children now and in the future.

Such groups seem
to ignore the fact that 99% of counties in the United
States have self-identified cohabiting same-sex couples,
according to the 2000 census, and many of them already
have children or will have children in the future. The
results of many of the antigay measures on state
ballots affect the children as much as anyone, making some
of them legal orphans or robbing them of basic rights
such as access to a parent’s Social Security
benefits should the parent die.

“Not to
allow a child to receive Social Security benefits from a
parent who has raised them their entire life and who
has paid into the system is just so immoral,”
says HRC’s Evans. Such rights would be bestowed
automatically if gay parents were legally able to marry.

Fighting such an
organized antigay effort and the inequalities that exist
have fueled something some people never expected: anger that
leads to action. Kirchgassner and Robertson, for
instance, leave the Sunshine State with a renewed
vigor to continue their fight. Even though with a
civil union they will have legal access to many of the same
benefits in the state as married couples, they are not
ready to rest. “I’m angry. I’m
going to be more politically active up there,”
Kirchgassner said. “I’m going to be more
involved.”

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