October 07, 2013 Articles

Gender Identity: Breaking Ground in Employment Law

By Monique R. Sherman

[T]here is an immediate legal injury or—what could be a legal injury, and that's the voice of these children. There are some 40,000 children in California . . . that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?

Justice Anthony Kennedy
Transcript of Oral Argument at 21, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144) (argued Mar. 26, 2013).

We see the argument made that there is no problem with extending marriage to same-sex couples because children raised by same-sex couples are doing just fine and there is no evidence that they are being harmed. And the other argument is Proposition 8 harms children by not allowing same-sex couples to marriage[sic]. Which is it?

Chief Justice John Roberts
Id. at 61.

Although the questions raised during oral arguments in United States v. Windsor and Hollingsworth v. Perry were wide-ranging, one of the most discussed was how to consider the effects of laws that outlaw or prohibit recognition of same-sex marriages on children of same-sex couples. An amicus curiae brief submitted in both cases by the Family Equality Council answered the question simply: by looking to the words of children of same-sex couples and lesbian, gay, bisexual, and transgender (LGBT) youth. By giving the children, whose well-being was otherwise described only by adults, a voice in the Supreme Court, the amici tapped into an argument that proved to be persuasive.

Premium Content For:
  • Litigation Section
Join - Now