Family Law & LGBTQ+ Rights

Legal Considerations and Emerging Trends in Florida

If you live in Florida and are going through a divorce or family law issue, you may be worried about the legal considerations and emerging trends in LGBTQ+ laws. How will these laws affect your rights and your ability to care for your children? Family law is constantly evolving, and keeping up with the latest changes and how they affect you can be challenging. Fortunately, resources are available to help you understand your rights and navigate the legal system.

One important consideration for LGBTQ+ individuals in Florida is the recognition of same-sex relationships. Although same-sex marriage is legal throughout the United States, legal issues still arise when it comes to divorce, child custody, and other family law matters.

Transgender issues are another emerging issue that is impacting Florida family law. Families with transgender children face high levels of scrutiny when seeking custody and retaining parental rights. Emerging laws threaten those parental rights even more. Obtaining or denying gender-affirming care for your trans child may be risky.

As LGBTQ+ families or individuals with LGBTQ+ loved ones, it is important to protect your rights and your beliefs in this ever-changing legal landscape. No matter how you identify or where you stand on current issues, understanding the emerging trends in Florida can help you better navigate complicated family issues.

Emerging Trends in LGBTQ+ Rights

As LGBTQ+ rights continue to evolve, several emerging trends are shaping the legal landscape in Florida. These trends include decriminalizing homosexuality, marriage equality, and transgender rights.

Several organizations in Florida provide support and resources for the LGBTQ+ community. These organizations include Equality Florida, the LGBT Community Center of Central Florida, and the Pride Center at Equality Park.

Decriminalization of Homosexuality

Florida officially decriminalized homosexuality in 1971. This was the first step towards same-sex couples having greater rights, although there was still a lot of work to be done. Before this, laws criminalizing same-sex sexual activity were in place across the United States. Individuals could be prosecuted and imprisoned simply for engaging in consensual relationships with members of the same sex.

Marriage Equality

Despite decriminalizing homosexuality in Florida, the state resisted granting legal recognition to same-sex couples for many years. It wasn’t until 2015 that the Supreme Court’s landmark decision in Obergefell v. Hodges legalized same-sex marriage across the United States. However, even after this decision, some states continued to resist implementing it, and it took until 2019 for Florida to officially repeal its ban on same-sex marriage.

This repeal was a significant victory for the LGBTQ+ community in Florida, as it finally provided legal recognition and protection for same-sex couples. It meant couples could finally marry and enjoy the same legal rights and protections afforded to opposite-sex couples, such as inheritance rights, tax benefits, and hospital visitation rights. It also represented an important step towards greater acceptance and equality for LGBTQ+ individuals in Florida and across the United States.

LGBTQ+ Laws in Florida

In March 2022, the Parental Rights in Education Bill was signed which prohibited the instruction of sexual orientation and gender identity in schools for students in third grade and under. This bill was often dubbed the “Don’t Say Gay” bill, but it addressed a broader concern about teachers instructing or guiding students on sexual issues that may be better left to their parents. In May 2023, Governor DeSantis signed an expansion of that bill that prohibited this instruction to any child in eighth grade and under.

Transgender Rights

In recent years, Florida has passed several laws that address transgender issues across the state. In May, Governor Ron DeSantis signed several of those bills into law.

Senate Bill 254 makes it a first-degree misdemeanor for physicians and healthcare workers who provide gender-affirming medication or surgeries for minors. It also gives the state the right to obtain a warrant and take away physical custody of a child who is “subjected to sex reassignment, prescriptions, or procedures.” This legislation would treat gender-affirming care, endorsed by the American Medical Association, as child abuse.

House Bill 1069 was recently signed into law as well. This expansion defined the state’s education code when it came to gender and sex. According to this law, teachers and educators can’t be required to use a child or co-worker’s preferred pronouns if they don’t correspond to that person’s sex.

Furthermore, an additional bill titled “Ensuring Women’s Safety” was ratified. This bill imposed restrictions on individuals who identify as transgender from utilizing restrooms, locker rooms, or other public facilities that align with their affirmed gender and not their biological sex.

Florida stands as one of at least 19 that have implemented regulations prohibiting gender-affirming care or surgeries, specifically for young individuals exploring gender transition.

Opponents of these Florida bills claim that they’re discriminatory and harm trans youth and LGBTQ+ families. Proponents of these bills believe that they promote parental involvement in education which is crucial for child development.

According to statistical data compiled by the Williams Institute at the University of California-Los Angeles School of Law, the population of transgender youth aged 13 to 17 comprises approximately 1.32% of Florida’s corresponding age group. If your child is one of these children, these laws will undoubtedly affect you and your family. If you’re also going through a divorce in Florida, these new laws may change the way you parent and could even impact your ability to retain custody of your children.

Legal Considerations in Family Law for LGBTQ+ Couples

When it comes to family law issues, LGBTQ+ couples face very different legal challenges than heterosexual couples. Your relationship status, how you chose to have children, and even your gender could all influence your rights during a divorce or family law issue. Understanding those issues is critical, so you can navigate these ever-changing waters in a way that best protects your families and your beliefs. 

In Florida, there are several critical legal aspects that LGBTQ+ couples should be familiar with.

Adoption and Parenting

Adoption and parenting are crucial issues for LGBTQ+ couples seeking to start a family. In Florida, same-sex couples have the legal right to adopt children, and there is no legal distinction between same-sex and opposite-sex couples in the adoption process. However, the adoption process for LGBTQ+ couples can still be complex.

This is especially true in cases where the couple is not legally married or has not completed a second-parent adoption. If one partner is the biological parent of a child, the other partner may need to adopt the child to establish their legal parental rights. Without adoption, the non-biological parent may risk losing their custody rights during a divorce.

Overall, while same-sex couples have the legal right to adopt children in Florida, you can lose valuable parenting rights if you aren’t proactive. Some adoption agencies in Florida will not work with same-sex parents due to their religious or political beliefs, which can further complicate the adoption process for LGBTQ+ families.

Assisted Reproductive Technology

Assisted reproductive technology (ART) can be vital for LGBTQ+ couples who want to start a family. ART can involve various techniques, including in vitro fertilization (IVF), intrauterine insemination (IUI), and surrogacy.

In Florida, same-sex couples have the legal right to use ART to conceive children. However, it is important to proactively establish legal parental rights and ensure that all parties involved are protected.

Establishing legal parental rights is one of the key legal considerations when using ART. This can be especially important in cases where one partner is not biologically related to the child. In some cases, it may be necessary to complete a second-parent adoption to establish legal parental rights for both partners. It is crucial to meet all legal requirements in Florida when using ART so that both partners have legal standing to make decisions on behalf of the child and provide care and support.

Surrogacy is another form of ART that can be especially complex for LGBTQ+ couples. In Florida, same-sex couples can use surrogacy to conceive a child, but you must have a legally binding agreement to protect all parties’ rights. This agreement should outline the roles and responsibilities of the surrogate, the intended parents, and any other parties involved. When using a surrogate, it is essential to ensure that the surrogacy agreement is legally valid and that your parenting rights are protected.

Divorce

Same-sex marriage has been legally recognized in Florida since 2015, giving same-sex couples the same legal rights and protections as opposite-sex couples. However, like any couple, same-sex couples can face challenges regarding divorce, including disputes over property division, child custody, and other issues.

In a divorce, property division can be especially complex, as it may be unclear which assets are jointly owned and which are separate. During your divorce, all property must be properly identified and divided fairly.  In addition, all debts must be properly allocated and joint accounts must be closed or divided appropriately.

Child custody can also be a contentious issue in a divorce, especially if one partner is the biological parent of a child and the other partner has adopted the child or has no legal parental rights. You must establish legal parental rights and advocate for a custody arrangement that is in the child’s best interests.

Other issues that may arise during a divorce include spousal support and the distribution of retirement accounts or other financial assets.

Issues Parents with Transgender Children Face During Divorce in Florida

If you are a parent going through a divorce and have a transgender child, you may face a few unique issues. These issues can range from legal battles over custody to discrimination and harassment from your former spouse or family members. Here are some of the most common issues parents with transgender children face during divorce.

Custody Battles

For parents of transgender children, custody battles during divorce can be especially complex and emotionally charged. One parent may seek sole custody of the child simply because the other parent supports gender-affirming care, such as puberty blockers or hormone replacement therapy.

The introduction and passage of bills like SB 254 in Florida make these custody issues even more contentious. SB 254 prohibits gender-affirming care for transgender minors. Parents who support their transgender children and who try to provide them with necessary gender-affirming medical care could face legal repercussions, including losing custody of their child.

What Can I Do If I Want to Provide Gender-Affirming Care for My Child?

If you support gender-affirming care for your transgender child, you may face significant opposition from your ex and from the state of Florida. During a divorce, this may become an area of contention. You must present crucial medical evidence, including statements from the American Medical Association, to fight back against the loss of parenting rights for promoting gender-affirming care. 

Parents who support their transgender children and seek to provide them with gender-affirming care are not automatically considered unfit to have custody of their child. The American Medical Association and other medical organizations recognize the importance of providing gender-affirming care to transgender youth, and courts should take this into consideration when making custody decisions.

What Can I Do If I Don’t Support My Child’s Transition?

For some parents, their child’s transgender issues may be scary. Having a child identify as another gender than the one they were assigned at birth is terrifying and you may envision a harsh world for them in the future. In an effort to protect them, you may not wish for them to receive gender-affirming care. This might mean refusing to use their preferred pronouns and refusing to let them undergo medical transitioning or hormone blockers.

You have rights as their parent and Florida laws recognize this. If you’re opposed to medical transitioning or gender-affirming care, and your ex is not – you need to advocate for your parenting rights during this time.

Maybe you’re not against it forever, but you believe your child is simply too young to make this decision. Or perhaps you wish for them to undergo therapy before taking such a big leap. You have the right to voice your concerns and you and your ex must work together to provide the best care possible for your transgender child.

Discrimination and Harassment

Another issue that parents with transgender children may face during divorce is discrimination and harassment. Verbal abuse, physical violence, and even legal challenges to the gender-affirming parent’s custody rights can threaten LGBTQ+ families.

Unfortunately, some parents and their family members may not accept their child’s gender identity and may try to use it against the other parent during the divorce proceedings. This is especially true when the two parents do not see eye-to-eye about gender-affirming care and their child’s transition.

Discrimination and harassment can be felt on both sides during this process.

Lack of Legal Protection

Many states, including Florida, do not have specific laws or protections in place that address the unique needs and challenges faced by families with transgender children. Without clear legal protections, parents often face discrimination or bias from judges and attorneys involved in the divorce process. For example, a judge may be unfamiliar with the needs of transgender children and make custody decisions based on outdated or inaccurate information.

Furthermore, without legal protections, parents may struggle to secure gender-affirming care for their children during divorce. This could include access to medical treatment such as hormone therapy or gender-affirming surgeries, which may be critical to a child’s health and well-being.

On April 20th, the Florida Department of Health issued guidance prohibiting gender-affirming care, including social gender transitioning. This involves recognizing and respecting a young person’s gender identity, using their preferred pronouns and name, and supporting their decision to live openly as their authentic gender, rather than their assigned sex at birth.

This guidance is in direct opposition to the decades of research that has consistently shown that gender-affirming treatment effectively reduces depression, suicidality, and other harmful outcomes for preteens and teenagers who identify as transgender and are forced to undergo puberty in the sex they were assigned at birth.

To address these issues, parents with transgender children must understand the unique challenges they face. You are your child’s best advocate and your beliefs and ideals matter. You need to take all the necessary steps to protect your child from harm while securing your parenting rights.

Issues Transgender Parents Face During Divorce

Going through a divorce is never easy, but for transgender parents, it can be even more challenging. Numerous anti-trans bills are being passed in Florida and across the country, eroding the rights of parents who come out as transgender. When going through a divorce, transgender parents face unique legal issues and discrimination.

Custody Battles

Despite legal protections against discrimination based on gender identity in Florida, transgender parents can still face significant challenges during a divorce. This is especially true if the other parent does not support their gender identity or transition. Let’s face it, custody battles often become contentious even in the best of circumstances. Transgender issues can inflame already existing custody issues. For example, one parent may use their former partner’s gender identity as a weapon against them to gain an advantage in the custody dispute.

This is particularly true in the current political climate across the country. Emerging laws and trends in Florida continue to make it difficult for transgender parents to secure custody and visitation rights.

Furthermore, some judges may hold outdated or discriminatory views about gender identity, impacting their decisions in custody disputes. This can lead to transgender parents being unfairly labeled as unfit or a danger to their children based solely on their gender identity.

Transgender parents must not go through divorce of family law issues alone, especially right now in Florida. Protecting your parenting rights is paramount. You must show the courts that your gender identity does not threaten your children or the care they receive. This might be more difficult than you realize. However, it is a necessary step to protecting your rights as a transgender parent in Florida.

Transgender parents may also want to consider seeking the support of LGBTQ+ advocacy organizations, which can provide resources and guidance on legal and social issues affecting the transgender community.

Legal Status as a Parent

Transgender people who form families after transitioning can encounter additional legal hurdles regarding parental rights.

It is not uncommon for opposing attorneys and judges to question the validity of their marriage or recognize them as real “parents” during divorce or custody proceedings. In some cases, the other parent may argue that the transgender parent’s gender identity confuses or threatens the child’s well-being. They may use this to restrict or deny custody or visitation or seek sole custody or the children altogether.

With the recent passage of anti-trans laws in Florida, transgender parents may face an even greater uphill battle during a divorce or custody case. These new laws are now being used to justify denying custody or visitation rights to transgender parents. This is especially true for transgender parents who have undergone gender-affirming medical treatments.

Discrimination and Harassment

Transgender parents can often face harsh discrimination and harassment during divorce proceedings. This discrimination and harassment can come from court personnel, attorneys, and even judges. Sadly, these outdated and discriminatory attitudes create a hostile environment that makes it difficult for transgender individuals to navigate the legal system.

Transgender individuals facing discrimination or harassment during divorce should know that they are not alone and there are legal options available to them. The Florida Bar and the Florida Commission on Human Relations can provide information and support for individuals facing discrimination or harassment. Filing a complaint with one of these organizations can help ensure that your rights are protected and that you are treated fairly during the divorce process.

Judges and attorneys are not supposed to let their own personal beliefs and feelings cloud their legal judgment. They have a professional and ethical responsibility to provide unbiased and fair representation to all parties involved in a divorce case. However, in reality, bias and discrimination can still occur. This is why it is important for transgender individuals to understand their legal rights and seek out the support of advocacy organizations.

Transgender Students in Florida and Divorcing Families

Title IX is a federal law prohibiting sex-based discrimination in education programs or activities that receive federal financial assistance. This includes all public K-12 schools and almost all colleges and universities.

As a transgender student in Florida, you have the right to be treated fairly and without discrimination in your school. This means that your school should not discriminate against you based on your gender identity, including your name, pronouns, or use of restrooms and locker rooms that match your gender identity.

However, new Florida laws challenge this. Teachers, faculty, and students no longer have to use your preferred pronouns in school and you must use the bathroom that matches your biological sex and not your gender identity. This includes schools, prisons, and Florida state universities.

Unfortunately, divorcing couples may not see eye-to-eye regarding gender transitions and affirming care for their children. A parent who champions their child’s gender transition in school may face an uphill battle when seeking custody of their children during a divorce. Likewise, a parent who wishes to prevent social transitioning for their child in school may be labeled as anti-trans and face public scrutiny.

Even though parents have legal protections, you need extensive knowledge of LGBTQ+ issues to help you navigate these unfamiliar waters – especially as Florida laws continue to change.