LINCOLN, Neb. – Two Omaha women and their teenage sons filed a lawsuit today in the District Court of Lancaster County, seeking to establish full parenting protections and ensure same-sex parents in similar situations no longer face discriminatory treatment under outdated state laws and regulations.
The ACLU of Nebraska and Omaha law firm Koenig | Dunne have teamed up to serve as co-counsel on the case.
The lawsuit challenges unconstitutional discrimination toward same-sex applicants in the parental acknowledgement process.
Erin Porterfield and Kristin Williams started their family through Assisted Reproductive Technology in 2002. Each woman gave birth to one of their boys and each has always been an active and loving parent to both children. Each also has a court order establishing an in loco parentis relationship with the other son – a temporary legal status that acknowledges a person has put themselves in the position of a parent but stops short of full parental rights.
The women have unsuccessfully tried to work through options so that each mother is fully legally recognized as a parent of both sons. In 2018, the Nebraska Department of Health and Human Services (DHHS) denied an application to amend one son’s birth certificate and denied the request again after a hearing. This summer, the women submitted Voluntary Acknowledgments of Parentage using amended gender-neutral versions of the current form used by DHHS, a Voluntary Acknowledgment of Paternity that only serves to identify fathers. DHHS denied the acknowledgments on Sept. 29, listing “the only routes to legal parentage” in a letter, all of which are unavailable to the women.
The lawsuit argues DHHS is violating constitutional guarantees of equal protection and due process by refusing to follow state law for same-sex parents on the same terms as it does for unmarried opposite-sex parents.
“While we spend our parenting time the same as most good parents — showing up for show choir and band competitions, making sure homework is done, teaching values and manners, and gently guiding our boys to be their truest selves regardless of cultural expectations — we haven’t had the luxury of peace of mind that should something happen to one of us our boys would seamlessly be afforded the government benefits other families take for granted,” Williams said.
“Our sons are our entire world and we want to make sure we’re doing right by them,” Porterfield said. “Our boys have a right to the security of having both parents on their birth certificates, a required document in so many life changes and decisions. That’s why this matters to us. It’s about looking out for our sons.”
In addition to seeking court acknowledgement that both women are equal mothers to their sons, the lawsuit requests a declaration that DHHS must apply state law and regulations related to Voluntary Acknowledgments of Paternity without regard for the gender of the acknowledging parent.
Sara Rips, ACLU of Nebraska Legal & Policy Counsel, said the lawsuit underscores the harm of laws and procedures that only work for one kind of family.
“This civil rights case is about equal treatment for families with same-sex parents,” Rips said. “Erin and Kristin made the choice together to start and raise a family. They have both been loving and involved moms to these boys since birth. I know that if one of them were a man, the department would have accepted their acknowledgment without any thought or inquiry. Instead, these women are facing discriminatory treatment that’s clearly unconstitutional. Once again, LGBTQ Nebraskans must appeal to the courts to affirm that they are entitled to the same treatment as anyone else.”
Recognition as parents would guarantee Porterfield and Williams’ equal rights to make decisions concerning the care of their boys, ranging from education to estate planning.
Angela Dunne, managing partner at Koenig | Dunne, said the case points to the need to equalize the treatment of parents across the state.
“In the area of family law, we are once again seeing same-sex families attempt to protect their most precious rights to parent only to be thwarted by gender-specific language that does not support the ever-changing face of families,” Dunne said. “We have a biological mom and an in loco parentis mom, and we are legally unable to permanently preserve their legal rights to their children and the children’s legal rights to have two parents. We hope this lawsuit will remedy this deficiency and protect our legally vulnerable families.”
This lawsuit is the ACLU of Nebraska’s second LGBTQ rights case this year. In March, the Nebraska Supreme Court unanimously decided in favor of two married women who had been wrongfully denied an opportunity to adopt a child they have raised from birth.
