In Wake of Marriage Ruling, Virginia Code Needs an Overhaul

While the Supreme Court has struck down all state marriage bans and found a constitutional right to same sex marriage, here in Virginia, the Code of Virginia still requires a major overhaul in order to bring it in alignment with the high Court's ruling.  Many provisions as worded still make references to "husband and wife" and will continue to impair the rights of same sex couples.  For example, question about how married same sex couples can hold title as "tenants by the entirety with right of survivorship."  While most of the statutory provisions refer to "spouses,"  One section does not: 

§ 55-20.2. Tenants by the entireties in real and personal property; certain trusts.

A. Any husband and wife may own real or personal property as tenants by the entireties. Personal property may be owned as tenants by the entireties whether or not the personal property represents the proceeds of the sale of real property. An intent that the part of the one dying should belong to the other shall be manifest from a designation of a husband and wife as "tenants by the entireties" or "tenants by the entirety."

B. Any property of a husband and wife that is held by them as tenants by the entireties and conveyed to their joint revocable or irrevocable trusts, or to their separate revocable or irrevocable trusts, shall have the same immunity from the claims of their separate creditors as it would if it had remained a tenancy by the entirety, so long as (i) they remain husband and wife, (ii) it continues to be held in the trust or trusts, and (iii) it continues to be their property

This provision is important because it protects jointly owned property from creditors of only one of the spouses.  A piece in the Richmond Times Dispatch looks at the need for significant changes to the Code of Virginia.  Here are highlights:

[N]ow, following the final resolution of one of the nation’s most divisive social issues, work already has begun in the state legislature and in the regulatory and administrative agencies to update hundreds of sections and regulations in the Code of Virginia to reflect the inclusion of legally recognized marriages between same-sex couples.

Possibly the biggest challenge — the issuing of marriage licenses to include same-sex marriages — already was implemented nine months ago, when gay marriage became legal in the commonwealth. On Oct. 6, the Supreme Court left standing a decision from lower federal courts that invalidated the 2006 amendment to the state Constitution defining marriage as between a man and a woman.

[L]awmakers and attorneys for the state also must address areas such as tax, inheritance and property laws; medical care; end-of-life decisions; adoption; child custody; and many others.
 

“It certainly will be a massive undertaking in terms of the number of areas of the law that might be affected,” said A.E. Dick Howard, a professor of constitutional law at the University of Virginia and the author of the modern Virginia Constitution.

[D]uring this year’s General Assembly session, Del. Marcus B. Simon, D-Fairfax, sponsored legislation that would have revised references to certain gender-specific terms in the code, replacing “husband and wife” with the gender-neutral “spouse.”

“The bill would have simply said that any reference to husband and wife could be read as spouse and references to mother and father could be read as parent, to reflect the new reality that same-sex marriage is permitted and is the law of the land, even in Virginia,” Simon said in an email Sunday.

But Republican state legislators remained leery of adopting regulatory changes ahead of a final Supreme Court ruling on gay marriage, blocking attempts by Democrats to update the code.

That changed Friday in light of the Supreme Court ruling, when House of Delegates Speaker William J. Howell, R-Stafford, announced that Republican leadership would no longer stand in the way of updating state laws to reflect legalization of same-sex marriage.

However, in addition to updating existing code sections, gay-rights advocates are asking for new legislation aimed at protecting same-sex couples from discrimination.

“We still are a state where openly gay or transgender people can be fired at work, denied housing and denied services and businesses in restaurants. There are people in the state who will not be putting their wedding photos on their desk because of that,” Parrish said.

The question that remains is what is going to happen with Marshall’s marriage amendment, backed by 57 percent of Virginia voters in 2006, after the highest court in the land has deemed it unconstitutional.

To remove it would require a new amendment, which the state legislature would have to pass twice, with one House of Delegates election in between, before it would be put before voters on a ballot.

Time will tell if the Virginia GOP lives up to its promise to update the Code.

Trans-Man Denied Name Change By Virginia Judge

Jacob Haley

One of the niche areas of my law practice is assisting transgender clients in securing amendments to their birth certificates once they have completed the sex reassignment process.  Virginia has no set form of petition for the process although statutory authority for such amendments and the Virginia  Code section is cited in the petitions and court orders I prepare.  I almost never get involved in securing court orders for name changes since typically the process is so easy that clients usually handle that process themselves, especially since a standard application form is available on the Virginia Judiciary web page in a fill in the blank PDF format.  Unless, apparently one is in Louisia County before judge, Timothy Sanner, who seemingly makes up his own rules that differ from the requirements of the Virginia Code.  Sadly, many judges in Virginia appear to feel that they can do whatever they want when it comes to LGBT clients and from my experience, the Judicial Review Commission never disciplines judges who abuse LGBT clients.  I was interviewed by GayRVA which has an article on the situation.  Here are highlights from that article:

A trans-man from Louisa County, Virginia, has been denied a name change by a Circuit Judge who, contrary to current Virginia law, said medical documentation was required for legal name changes.

Jacob Haley went to the Louisa County Courthouse in February of this year. When he handed the clerk the forms to change his legal name from his female birth name to his male name, the clerk, according to Haley, said ”more than likely (you’re) going to need a hearing, the judge is going to want to know the reasoning.”

Haley realized this might happen and asked if he would need to bring anything with him when he returned to court. He was told to bring “anything that would help explain the name change.”

Haley currently works two jobs and receives health care form one of his employers. But his health care does not cover transgender-related services, including hormone treatment or therapy. Unable to afford treatment, Haley has been working with local groups and has been raising funds independently. But it has not been easy. “It’s a struggle,” said Haley. “I’ve been trying to get money together since 2011 when I came out.”

The judge, Hon. Timothy Sanner, told Haley that in previous name-changing cases involving transgender individuals, a note from a doctor or some medical record was brought to help prove the need for a name change. According to Haley, Judge Sanner said “The prior case had been seen by a therapist for years, had been through hormone therapy, and had a letter and things to back their story up.”

Sanner then told Haley he would need to see paperwork from a medical professional before approving the name change.  ”[The judge said] the courts would like to see something of that nature,” Haley said. ”He didn’t say anything about the law.”

Medical documentation is required for changing genders on a birth certificate, and similarly for Virginia state ID’s like driver’s licenses. Hamar said the judge could have confused the two, but denying a simple name change because there is no doctor’s note is not in line with the law. “The forms are standardized, you print them out and pay your money, and you may or may not have to appear. You usually don’t even have to show,” according to Hamar.

Other transgender people in Virginia told GayRVA that they received their legal name changes in similarly simple circumstances. In an email, Ryan O’Donnell changed his name in 2010. “I did it through the mail, so I didn’t have to go before a judge, I just had to get the form notarized and send it to the county clerk’s office. I got the form back in a couple of weeks with no hassle… I have plenty of trans friends in Virginia who changed their names with little to no hassle.”

Haley has 60 days to go back before the judge with a medical letter. He’s not sure why the judge singled him out for this case, especially after hearing about the ease so many other trans individuals had with the name change process. ”It blows my mind that people can have their name changed to whatever they want,” said Haley, “but when it comes to someone needing their name changed for their mental health, they get roadblocked.”

When one reads the instructions to the application form for seeking a name change, when it comes to supporting documentation, the instructions state "None."  The only issues covered in the application are assurance that the name change is not being done for fraudulent purposes or to hide from creditors or probation officers.  Apparently none of this means anything to Judge Sanner who makes up his own rules - especially for LGBT petitioners.   Welcome to Virginia which has a well deserved anti-gay reputation.