It has been a year since the US Supreme Court legalized same sex marriage across the country. At the time, many people, gay and straight, thought the gay community had “arrived” in acceptance. Is that necessarily true for gay parents in our Texas family law courts?

lin manuel mirandaThis weekend, during LGBTQ pride month, an awful person reigned hate and terror down on a nightclub in Orlando, Florida, killing and injuring and traumatizing scores of people. Why did this awful thing happen? As best as we can tell at this point, the shooter had a well-known hatred of gay people and was also reported to be an abusive horrible person by his ex-wife.

But, it is not these two events singularly that shape the LGBT community. Remember President Ronald Reagan refused to acknowledge the AIDS crisis until almost a million people died from it. On the night of October 6, 1998, Matthew Wayne “Matt” Shepard, an American student at the University of Wyoming, was beaten, tortured, and left to die near Laramie, Wyoming by two men who posed to be gay men and got enraged when Shepard hit on them. His death brought attention to hate crime legislation which passed Congress in 2009. Or, as portrayed in the movie Boys Don’t Cry, Brandon Teena who was a trans man, raped and murdered in 1993, illustrating the systematic discrimination by the legal and hospital authorities who he encountered prior to his death.

And then we cannot minimize all of the LGBTQ youth who have taken their own lives due to the bullying, harassment, and rejection they have suffered. And, of course, the recent controversy that has captured the nation over what bathroom transgender persons use.

People in the LGBTQ community are still discriminated against and victimized on a daily basis. Same-sex marriage does not change that. Every day in courtrooms across America, judges and juries hold gay parents to a higher, more cumbersome standard to have the same relationship with their children as a straight parent. I’ve heard with my own ears judges and jurors opine that a gay parent’s lifestyle isn’t fit for parenting. I’ve experienced the systemic discrimination against a gay parent even from  people who are convinced of their own tolerance.

As a blogger posted today on Huffington Post, An Open Letter To Straight People On The Pulse Massacre, “This mass shooting was not an isolated event, or remnants of antiquated homophobia, or just religious extremism. It stemmed from the very real homophobic culture that exists in our country….”

To be a true ally to the gay community, it isn’t enough to love Ellen Degeneres or Neil Patrick Harris. It isn’t enough to look the other way when a transgender person enters the bathroom. It isn’t enough to attend a gay wedding, have a play date with the child of a gay parent, or #PrayForOrlando on social media.

To be a true ally to the gay community, as the Huffington Post blogger puts it:

“You must be an active ally and truly combat homophobia and transphobia when you see it. This means calling someone out when they say something hurtful or ugly. It means caring more about what you feel is right than what other people think of you. It means not tokenizing LGBTQ+ people, or dismissing their struggles, or spouting “liberal” thoughts just to score social brownie points.”

This means for the family law community that we must advocate for judges and juries to truly treat gay and straight parents as equals. Should we assume that gay parents are less moral, less responsible, or less loving as parents than straight people? Of course they are not. There are imperfect straight parents, but there may also be perfect gay parents. Straight parents do not corner the market on parenting skills. I know many gay parents who are morally, ethically, and responsibly good parents who raise productive, well adjusted, contributing adults. Some fear that gay parents will “raise gay children” or will fail to instill values associated with “real men of genius” (ala Bud Light). The family law community should evolve to the point of treating gay parents the same as straight. Judge each parent and each case by its own facts and circumstances. Hold gay and straight parents to the same standard of care for their children.

Over 40 years ago, we Texans passed legislation that removed the presumption that mothers were somehow better parents than fathers simply because of their gender. See No Mommy Presumption for Custody in Texas. Our citizens recognized that such presumptions were false and harmful and violated the Equal Protection Clause of the United States Constitution, guarantying to treat all citizens equally. Why shouldn’t the same presumptions apply to sexual orientation as gender? Can we presume that gay parents and straight parents love their children? Can we presume that gay parents and straight parents can both be good, mediocre, or bad parents without regard to the gender of the person they choose as their significant other? Or, maybe we need a new Texas law on the books that spells it out that our family law system cannot discriminate against a parent solely based on their sexual orientation? Or can we all just agree that gay parents and straight parents love their children equally, or at least that is our starting presumption before the facts of a particular situation show something else? As a member of the Texas family law community, I challenge each of you to fight the systemic discrimination against our brothers and sisters in the gay community. Let Orlando stand for a new recognition of equality of gay parents that goes beyond just a right to marry and divorce. But also a right to equal treatment as parents without regard to sexual orientation.

And, whether it is the dialogue surrounding Orlando or the plight of gay parents in a particular Texas court, let love combat the hatred. As the actor Lin-Manuel Miranda recited in his sonnet at the Tony Awards on Sunday, “And love is love is love is love is love is love is love is love cannot be killed or swept aside.”

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW for multiple years. She was named one of the Best Lawyers in America and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.