As we head into an era where “same-sex marriage” is more appropriately characterized as just “marriage,” there are some lingering questions about whether attorneys should distinguish ourselves as practitioners of “LGBT Estate Planning,” “LGBT Family Law,” and any other iteration. As an attorney with a prominent estate planning firm in Madison, I wholeheartedly believe the answer is “yes.”
For anyone who believes LGBT individuals have achieved full equality with this most recent Supreme Court ruling, I challenge you to reconsider. As an author for The Washington Post most aptly described it, “Legally married today, legally fired tomorrow.” Indeed, it is an unsettling juxtaposition we now face in Wisconsin, and the transgender community is bearing the brunt of it.
Let’s take the case of a transgender man living in Fond du Lac, WI. We’ll call him Sam. Sam was female assigned at birth, raised as a girl, and started transitioning to male in his late 20s. Let’s say Sam has a girlfriend and they would like to get married. Although there are many legal documents Sam will want to amend to reflect his new name and true gender, he now has the opportunity to maintain the sex designation of “female” on his birth certificate if he wants to get hitched. Why? Wisconsin, unlike Illinois, requires certified copies of our couple’s birth certificates in order to apply for a marriage license. Prior to Judge Crabb’s monumental decision and the Seventh Circuit overturning Wisconsin’s constitutional ban on same-sex marriage last year, Sam would have had very little choice in the matter. He would have had to endure the onerous and expensive process of changing the sex designation on his birth certificate to “male” if he wanted to make his matrimonial union legal. If Sam was born in Wisconsin, he would need a court order granting him both a name and gender change.
However, now that same-sex marriage is legal, Sam and his beloved can enjoy the benefits of marriage without the burdens of Sam’s outdated sex designation. Happy day! Sam and his beau get engaged and start planning for their perfect wedding. Sam, bursting with pride, shows up to the office. He decides to share his good news with his supervisor, Joe. Joe holds himself out to be a man who opposes same-sex marriage, and spent the past few weekends angrily grumbling about this new affront to his masculinity and occasionally throwing his power tools against the wall. Despite Joe’s personal beliefs, he is a law-abiding man and knows well enough he cannot fire any of his employees for being lesbian or gay. However, on that particular day, while recanting the nearly-missed birth certificate snafu, Sam let it slip that he had been born female. Joe fires him on the spot, shouting transphobic obscenities as Sam rushes out the door.
While this tale is technically fiction, it is an unfortunate reality for many transgender individuals in Wisconsin. Worse yet, although it is abhorrent behavior, it is perfectly legal in our state. Wisconsin is one of the 25 states that does not provide statewide legal protection against gender identity discrimination in the workplace. There are a handful of cities and just one county (Dane) that provide protection on a local level, but for Sam and other transgender individuals who live elsewhere, the law is not on their side.
There are many unique legal issues the LGBT community faces. In the estate planning realm, for example, it is not as easy as merely substituting “husband/wife” for “wife/ wife.” The term “estate planning” includes wills, trusts, guardianships, health care and financial directives, and probate, to name a few. Let’s say that Sam gets into a terrible car accident and experiences a traumatic brain injury. He is declared temporarily incompetent to make his own health care decisions. Without specifically including instructions in Sam’s health care power of attorney regarding his continued use of testosterone, there is a legitimate concern that a Fond du Lac court would disallow this desired care. An LGBT estate planner intrinsically knows what to ask and how to write it in order to legally effectuate and maintain his hard-fought transition.
What does this mean for attorneys? As an estate planning attorney, I need to protect you and your family where the law does not. When a transgender client comes in, it is imperative we get a firm understanding of where the client is regarding his or her emotional, physical and legal transition. When an LGBT person sets up a will, there is a chance of the will being contested by prejudiced family members after death. Getting a good grasp on the situation before it occurs might cool off some of the hotheads and avoid disputes which are costly and stressful for the decedent’s beloved surviving partner. A private, “revocable trust” rather than a “simple will” better serves this purpose. An “LGBT” lawyer understands this. We are experienced in these legal processes and can navigate these waters, thus minimizing client stress and maximizing desired results.
The fight for LGBT equality is far from over in Wisconsin. I dream of the day when it becomes unnecessary for us to advocate for the LGBT community. Until that day comes, we need to continue to create safe spaces for LGBT clientele. Until that day arrives, I urge attorneys to bravely designate themselves as practitioners of “LBGT Law.”
Abigail Churchill is an attorney with Horn & Johnsen SC. A 2015 graduate of the University of Wisconsin Law School, she focuses her legal practice in the areas of probate, trust administration, and estate planning.