The XX Factor

Four Lesbian Couples Are Suing Tennessee Over a Law That Could Restrict Their Parental Rights

Equal marriage means equal parental rights and responsibilities.

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Four lesbian couples in Tennessee are suing the state over a law they say could violate their parental rights. All four couples are expecting children later this year and, according to the lawsuit, a new law restricting all words in the state’s legal code to their “natural and ordinary” meanings may prevent the non-pregnant women from becoming legal parents to their future children.

Gov. Bill Haslam signed the law on Friday, and attorney Julie Tate-Keith filed the suit the same day. Conservative legislators wrote the bill after several dozen tried to intervene in a Knoxville custody case to prevent a woman from claiming parental rights over a child she and her ex-wife had together while they were legally married. Those legislators were backed by the Family Action Council of Tennessee (FACT), an anti-gay activist group. The ex-wife, who got full custody, was the child’s biological mother, so the Tennessee judge ruled that the other mother didn’t have any biological or contractual relationship to the child.

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The 1977 Tennessee law that bolstered the judge’s decision holds that “a child born to a married woman as a result of artificial insemination, with consent of the married woman’s husband, is deemed to be the legitimate child of the husband and wife.” Advocates say the “natural and ordinary” law will allow judges and other state officials to deny the parenthood of members of same-sex couples who aren’t biologically related to their children. In the wake of the Supreme Court’s 2015 Obergefell v. Hodges decision that extended marriage rights to same-sex couples across the country, Attorney General Herb Slatery interpreted the 1977 law to apply to all married couples who conceive a child through artificial insemination.

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Now, thanks to the “natural and ordinary law” and the Knoxville judge’s decision, same-sex couples in Tennessee might see the rights related to their marriages curtailed. “Undefined words shall be given their natural and ordinary meaning,” the new statute reads. If interpretations of words like “husband,” “wife,” “mother,” and “father” are limited to what conservative politicians deem “natural and ordinary,” there is little room for queer families under Tennesee law. In a statement released when he signed the new law, Haslam insisted that it did not conflict with Obergefell at all. “While I understand the concerns raised about this bill, the Obergefell decision is the law of the land, and this legislation does not change a principle relied upon by the courts for more than a century, mitigating the substantive impact of this legislation,” he wrote.

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Advocates are wondering why, if there’s little substantive impact, Haslam, Republican legislators, and FACT have backed the law at all. FACT leader David Fowler said the law will require Tennessee courts to uphold a “traditional” notion of family, encouraging judges like the one in Knoxville to restrict the rights and responsibilities conferred on same-sex couples by marriage. One of the legislation’s sponsors, Republican senator John Stevens, said he wanted the law to force officials to “do what Justice Scalia emphasized people should do” in his Obergefell dissent.

“The Supreme Court said that gay people could get married,” Tate-Keith told NBC News. “If that’s to be meaningful, then same-sex couples have to be treated the same way that opposite-sex couples are, and that means parentage just like anyone else.” She and her clients are hoping to see the law thrown out and a court affirmation of the equal rights of parents of all genders and sexual orientations.

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Slatery, a Republican, wrote in an opinion in April that the “natural and ordinary” law could violate Obergefell if applied to gendered words in statutes about marriage. He also noted that the new law conflicts with an existing Tennessee law that says “words importing the masculine gender include the feminine and neuter, except when the contrary intention is manifest.” In his opinion, he wrote that courts would be “likely” to apply this law over the “natural and ordinary” one. The Knoxville decision should worry him, along with anyone who’d hope judges would abide by the inclusive spirit of a law over the discriminatory letter. Slatery also wrote that plenty of laws unrelated to marriage and parenthood include gendered words like “foreman” that might make them inapplicable to women if interpreted through the lens of “natural and ordinary.”

The law does the most harm to LGBTQ parents and families, though, who may find that they’re no longer guaranteed the same rights as straight ones. They may face obstacles when they try, for example, to make decisions about a child’s medical care, collect life insurance when a spouse dies, or demand child support from an ex-spouse. Without these rights, Tennessee’s version of equal marriage is an unconstitutional sham.

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