COLORADO LGBTQ FAMILY LAW

A Resource Guide for LGBTQ-Headed Families

living in Colorado

November 2017

COLORADO

LGBTQ FAMILY LAW

INTRODUCTION .............................................................................................................................................................. 2

RELATIONSHIP RECOGNITION ................................................................................................................................... 3

Federal Beneﬁts After United States v. Windsor and Obergefell v. Hodges ...........................................4

CHILDREN AND PARENTAGE ....................................................................................................................................... 6

ADOPTION .................................................................................................................................................................. 8

Second-Parent Adoption ................................................................................................................................... 8

Stepparent Adoption .......................................................................................................................................... 8

Declaration of Paternity or Maternity ............................................................................................................. 9

Parental Presumption ......................................................................................................................................... 9

SURROGACY, ASSISTED REPRODUCTION, & ARTIFICIAL INSEMINATION .............................................10

BIRTH CERTIFICATES FOR CHILDREN OF SAME-SEX COUPLES ..............................................................10

APPLYING FOR A SOCIAL SECURITY NUMBER AND CARD FOR A CHILD ..............................................11

APPLYING FOR A PASSPORT FOR A CHILD .....................................................................................................12

NON-DISCRIMINATION PROTECTIONS ...................................................................................................................13

EMPLOYMENT ...........................................................................................................................................................13

State Law ..............................................................................................................................................................13

Federal Law .........................................................................................................................................................14

Company Policies ...............................................................................................................................................15

HOUSING ....................................................................................................................................................................15

State Law ..............................................................................................................................................................15

Federal Law .........................................................................................................................................................16

PUBLIC ACCOMMODATIONS .............................................................................................................................. 17

State Law .............................................................................................................................................................. 17

Federal Law .........................................................................................................................................................18

SCHOOL POLICIES AND ANTI-BULLYING ...............................................................................................................18

State Law ....................................................................................................................................................................18

Federal Law ................................................................................................................................................................19

HEALTHCARE ...................................................................................................................................................................21

State Law ....................................................................................................................................................................21

Federal Law ................................................................................................................................................................21

FAMILY AND/OR PARENTING LEAVE .......................................................................................................................23

CHANGES OF NAME AND GENDER.........................................................................................................................24

HATE CRIMES PROTECTIONS ....................................................................................................................................26

RECOMMENDED LEGAL DOCUMENTS FOR SAME-SEX COUPLES ...............................................................28

Last Will and Testament ........................................................................................................................................28

Advance Directive for Healthcare .......................................................................................................................28

Financial Power of Attorney ..................................................................................................................................29

Domestic Partnership Agreement .......................................................................................................................29

Co-Parenting Agreement .......................................................................................................................................29

TABLE OF CONTENTS

A Resource Guide for LGBTQ-Headed

Families

COLORADO LGBTQ FAMILY LAW

DISCLAIMER

This handbook is not intended to be legal advice but an overview of

the current state of LGBTQ-family law in Colorado. The law is changing

quickly and dynamically, so it is important to consult an attorney or

contact the authors to discuss the details of your particular situation and

to ensure that information provided herein is still accurate.

This guide was drafted by Family Equality Council, in collaboration with One

Colorado. It addresses many of the legal rights and issues that affect LGBTQ

families currently living in Colorado. As LGBTQ equality advances across the

nation, there are still signicant gaps in the rights of LGBTQ individuals and

their families, especially at the state level. While the climate in Colorado is far

more accepting of the LGBTQ community than in many states, LGBTQ families

still may experience discrimination and be denied equal access to education,

employment, housing, healthcare, and public accommodations. In this type of

environment, it is important to understand what the law is in each area and how

best to protect your family.

INTRODUCTION

COLORADO LGBTQ FAMILY LAW

A Resource Guide for LGBTQ-Headed

Families

Find more information at:

www.one-colorado.org

www.familyequality.org

In 2006, Colorado voters approved an

amendment to the Colorado Constitution

that dened marriage as a union between

a man and a woman only.

In 2013, the

Colorado Legislature passed the Colorado

Civil Union Act (CCUA), which authorizes

any two unmarried adults, regardless of

gender, to enter into a civil union. The

CCUA grants partners who enter into

a civil union in Colorado every right,

benet, protection, and responsibility

derived from every statute, administrative

or court rule, policy, common law, or any

other source that is granted to or imposed

upon spouses.

The CCUA also stated that

marriages of same-sex couples

that were

legally recognized in other states would

be considered civil unions in Colorado and

that a civil union entered into in another

state would be recognized as a civil union

in Colorado.

In 2013, after the United States Supreme

Court struck down Section 3 of the federal

Defense of Marriage Act (DOMA), which

barred same-sex couples from being

recognized as spouses under federal

1 Colorado Amendment 43 (2006): http://www.

leg.state.co.us/lcs/0506initrefr.nsf/0/23380a98467c22

d48725715b00529593/$FILE/Amendment%2043.pdf

2 Colorado Civil Union Act, S.B. 13-011 (2013):

http://www.leg.state.co.us/clics/clics2013a/csl.

nsf/fsbillcont3/35CE5FDC5F040FF487257A8C00

50715D/$FILE/011_enr.pdf

3 In addition to marriages of same-sex couples, a

“domestic partnership, or substantially similar legal

relationship between two persons that is legally

created in another jurisdiction” is also deemed to

be a civil union. C.R.S. 14-15-116(2).

law,

two lawsuits on behalf of multiple

same-sex couples were led in state

court challenging Colorado’s denition

of marriage as between a man and a

woman.

The cases were joined and a

joint ruling was issued in Brinkman v.

Long on July 9, 2014, in which the state

court ruled that Colorado’s exclusion of

same-sex couples from marriage was

unconstitutional. Concurrent with the

judgment, the judge issued a stay of his

ruling pending “resolution of the issue on

appeal.”

Just two weeks prior to this state

court ruling, the U.S. Court of Appeals

for the Tenth Circuit, which is the federal

appeals court with jurisdiction over

Colorado, struck down a similar ban on

marriages between same-sex couples in

the Utah Constitution, and the court had

also issued a stay of that order pending

appeal.

Despite this stay, a Boulder county

clerk began issuing marriage licenses to

same-sex couples and continued to do so

after the state’s July 9 Brinkman decision.

On July 29, the Colorado Supreme Court

ordered the clerk to stop issuing marriage

licenses to same-sex couples.

In the

interim, the Tenth Circuit issued another

4 United States v. Windsor, 133 S.Ct 2675 (2013).

5 Brinkman v. Long, No. 13-CV-32572; McDaniel-

Miccio v. Colorado, No. 14-CV-30731.

6 Brinkman v. Long, No 13-CV-32572 (Den Dist.

Ct. 2014); McDaniel-Miccio v. Colorado, No. 14-CV-

30731 (Den Dist. Ct. 2014).

7 Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014).

8 Colorado v. Hall, Case No. 2014CV30833 (Colo.

Dist. Ct. July 10, 2014).

9 Colorado v. Hall, Case No. 2014SC582 (Colo. S.Ct.

July 29, 2014).

RELATIONSHIP RECOGNITION

A Resource Guide for LGBTQ-Headed

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COLORADO LGBTQ FAMILY LAW

decision which found that the Oklahoma

ban on marriages between same-sex

couples was unconstitutional.

Both of

these Tenth Circuit federal cases were

appealed to the U.S. Supreme Court

and, on October 6, 2014, both appeals

were denied leaving in place the trial

court decisions nding the Utah and

Oklahoma bans to be unconstitutional

– decisions that created controlling law

in Colorado and throughout the Tenth

Circuit.

Accordingly, the next day, the

Colorado Supreme Court dismissed the

appeal in Brinkman and lifted the stay on

the underlying court decisions striking

Colorado’s ban on marriage between

same-sex couples and recognition of

marriages of same-sex couples from other

states.

The state of Colorado began

issuing marriage licenses to same-sex

couples on October 7, 2014.

For couples

who do not wish to marry, civil unions

remain available in Colorado.

10 Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014).

11 Herbert v. Kitchen, 135 S. Ct. 265 (2014); Smith v.

Bishop, 135 S.Ct. 271 (2014)

12 Brinkman v. Long, Case No. 2014SA212 (Colo.

S.Ct. Oct 7, 2014).

13 Colorado Department of Law Press Release

October 7, 2014: https://localtvkdvr.les.wordpress.

com/2014/10/attorney-general-ruling.pdf.

14 Deciding whether to enter into a civil union or

marriage is a deeply personal decision that each

couple must decide for themselves. It is important

to note, however, that there are some signicant

differences in the rights and benets afforded

to civil unions versus marriage. For instance, in

Colorado when a couple obtains a dissolution of

a civil union, they cannot transfer assets tax free

as they could if they had been married. Further,

as stated in the section immediately below, some

federal benets apply only to married couples.

Thus, couples who are considering entering into a

civil union or marriage may want to consult with a

Nationwide recognition of marriages

of same-sex couples came in June 2015

with the United States Supreme Court’s

ruling in Obergefell v. Hodges.

Obergefell

not only requires all U.S. states to issue

marriage licenses to same-sex couples,

but also requires them to recognize

marriages

and marriage licenses issued

in another state.

FEDERAL BENEFITS AFTER

UNITED STATES V. WINDSOR

AND OBERGEFELL V. HODGES

As discussed above, in 2013, the United

States Supreme Court, in United States

v. Windsor, found Section 3 of DOMA

unconstitutional, overturning the law

that denied federal marriage benets to

married same-sex couples. Thereafter,

the marriages of same-sex couples

in Colorado were recognized by the

federal government for federal benets

purposes. Such benets include, but

are not limited to, Social Security and

Veterans Administration benets, all

federal tax purposes, health insurance

Colorado family law attorney to ensure that they

fully understand the difference between the two.

15 Obergefell v. Hodges, 135 S.Ct. 2584 (2015).

16 Not all married people have a marriage license.

Some states recognize common law marriage,

including Colorado.

17 Obergefell v. Hodges, 135 S.Ct. 2584 (2015).

For more information on how to

access federal marriage beneﬁts

please see the post-Obergefell fact

sheets at:

https://marriageequalityfacts.org

A Resource Guide for LGBTQ-Headed

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www.one-colorado.org

www.familyequality.org

Find more information at:

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and retirement benets for same-sex

spouses of all federal employees, and

spousal benets for same-sex spouses

of military service members. In addition,

Windsor laid the foundation for marriage

equality nationwide, which was won two

years later.

In 2015, the Supreme Court found in

Obergefell v. Hodges that same-sex

couples have a fundamental right to

marry under the Constitution, mandating

that same-sex couples be permitted

to marry and have their marriages

recognized throughout the U.S.

Following Obergefell, all federal marriage

benets have been extended to married

same-sex couples nationwide.

18 Obergefell v. Hodges, 135 S.Ct. 2584 (2015).

CHILDREN AND

PARENTAGE

LGBTQ people and same-sex couples

form families in various ways. Some

have children from prior different-sex

or same-sex relationships. Some LGBTQ

people are single parents by choice. Some

same-sex couples adopt or use assisted

reproductive technologies to build their

families together. Regardless of how

LGBTQ people form their families, it is

imperative to ensure that both intended

parents are legally recognized regardless

of their biological or genetic relationship

to the child. The state of Colorado has

various rules and statutes that recognize

and reect the evolving landscape of the

modern family make-up; however, as

discussed more fully below, the best way

to ensure that the parental status of both

parents is legally recognized is to obtain a

court order – either an adoption decree or

a declaration of paternity or maternity.

19 Same-sex couples who are planning to have a

child should consult with an experienced LGBTQ

family law attorney to discuss their options for

ensuring that both parents are legally recognized

and protected and to determine which option best

suits their unique circumstances.

IMPORTANT

It should be noted that some federal

beneﬁts are available to married

couples ONLY. Thus, unmarried

couples – even those who have a civil

union - are unable to access spousal

beneﬁts from these programs nor do

they have the same beneﬁts when the

relationship ends. However, because

marriages of same-sex couples are

now recognized nationwide, married

couples living in Colorado should be

able to access all federal beneﬁts that

are attendant to marriage. Please alert

the authors if you ﬁnd such beneﬁts

have been denied to you as a result of

the agency failing to recognize your

marriage.

COLORADO LGBTQ FAMILY LAW

A Resource Guide for LGBTQ-Headed

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Find more information at:

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All same-sex couples raising children

should keep copies of the following

documents easily accessible:

• Adoption decree

• Decree Afrming Parental Status (or

similar order if you have one)

• Permanent Orders for Allocation of

Parental Responsibilities (if you are

divorced)

• Declaration of Paternity

• Birth certicate

• Guardianship agreement

• Co-parenting agreement

• Marriage License

• Civil Union License

• Medical Powers of Attorney

20 Because birth certicates are “administrative”

and because some states have refused to recognize

birth certicates from other states, it is strongly

advised that same-sex parents get a court order

dening their legal status as a parent. As discussed

more fully herein, in Colorado this can be done by

obtaining an adoption decree or a declaration of

paternity or maternity.

Please consult an attorney

experienced in LGBTQ law, or

the authors, if you experience

discrimination from state or local

agencies in recognizing your family

relationships on the basis of your

marriage.

Likewise, if you are an LGBTQ

person or same-sex couple thinking

about fostering and/or adopting

children either from the public child

welfare system or through private

adoption, it is critical that you

hire a Colorado adoption attorney

who has experience working with

LGBTQ people and couples. It

is not enough to simply hire an

experienced adoption or family law

attorney. There are issues unique

to LGBTQ families that can, and

should, only be managed by an

attorney with particular experience

and expertise in this area of the

law. If you are unsure where to ﬁnd

an experienced LGBTQ adoption

attorney, please contact Family

Equality Council

www.familyequality.org, and we will

do our best to help you ﬁnd one.

A Resource Guide for LGBTQ-Headed

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COLORADO LGBTQ FAMILY LAW

ADOPTION

Under Colorado law, single LGBTQ

individuals and same-sex couples who

are married or in a civil union jointly may

petition to adopt. In general, Colorado law

provides that any person twenty-one years

of age or older, including a foster parent or

a minor (with court approval) may petition

for an adoption.

A person with a living

spouse or partner in a civil union must

petition jointly with the spouse/partner

unless they are legally separated or the

spouse/partner is the natural parent or has

previously adopted the child.

While Colorado adoption laws have not

been updated since nationwide marriage

equality was achieved, they expressly

account for same-sex couples in civil

unions and any reference to “spouse”

should be interpreted to include a same-

sex spouse. Although there is nothing

in state law or policy that prohibits joint

adoption by LGBTQ individuals or spouses/

partners, there is no explicit protection

preventing discrimination. For this and

other reasons, it is advisable to contact

a Colorado adoption attorney who is

experienced in LGBTQ family law. It is

equally important to engage with foster

and adoption agencies who are welcoming

and afrming to LGBTQ people and same-

sex couples.

Second-Parent Adoption

Second-parent adoption allows a second

parent to adopt a child who has a sole legal

21 Colo. Rev. Stat. § 19-5-202.

22 Colo. Rev. Stat. § 19-5-202.

parent. In other words, this process allows

a non-biological or non-birth parent to

establish their legal rights as a legal parent.

In a second-parent adoption, the sole legal

parent does not lose any parental rights,

so the child is entitled to the benets

of having two legal parents. Colorado

law allows second-parent adoption by

a “specied second adult.”

There is no

requirement of marriage, and the statute is

written in gender-neutral terms. Thus, in

Colorado, this second-parent adoptions are

available to married and unmarried same-

sex couples.

Colorado courts require a home study

report and background check to be

completed in a petition for second-parent

adoptions.

Upon a successful petition,

the court will issue an adoption judgment,

which must be recognized every state

throughout the U.S.

Stepparent Adoption

Stepparent adoption is the legal adoption

of a child by the spouse or partner of a

child’s custodial legal parent. In Colorado,

same-sex spouses or partners who are

married or joined in a civil union may

petition to adopt their spouse/partner’s

child as a stepparent.

Under Colorado’s

stepparent adoption law, the child’s

custodial parent must consent to the

23 Colo. Rev. Stat. § 19-5-203; H.B. 07-1330 (2007).

24 Colo. Rev. Stat. § 19-5-203; 12 Colo. Code Regs.

2509-6 (2017). There is also an unwritten “one

year rule” followed by many counties requiring the

parental relationship to have had at least a one year

duration.

25 V.L. v E.L., 136 S.Ct. 1017 (2016).

26 Colo. Rev. Stat. § 19-5-202.

COLORADO LGBTQ FAMILY LAW

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adoption and any other non-custodial

parent must have relinquished the parent-

child relationship voluntarily or through

court order.

The primary difference between a

second-parent and stepparent adoption

in Colorado is that the petitioning parent

does not have to be in a legal relationship

with the child’s legal parent for a second-

parent adoption, but, in a stepparent

adoption, the petitioning parent must be

in a marriage or civil union with the legal

parent. For either method of adoption,

consultation with a Colorado attorney who

specializes in adoptions and has experience

working with LGBTQ couples is essential.

Declaration of Paternity or Maternity

Colorado law provides an alternate method

for same-sex couples to ensure that the

non-biological or non-birthing parent is

recognized as a legal parent. A declaration

of paternity or maternity (sometimes

referred to as a decree afrming parental

status),

is a court order obtained pursuant

to section 19-4-105 of the Colorado statutes

that declares that the non-birthing parent

27 Colo. Rev. Stat. § 19-5-203.

28 Colo. Rev. Stat. § 19-4-105.

is a legally recognized parent. To obtain

a declaration of paternity or maternity,

the other parent need not consent, and

the presumed parent needs to show proof

that they t into one of the categories of

presumed parents set forth in the statute

by a preponderance of the evidence. All

potentially interested parents must be

notied.

Parental Presumption

Parental presumption is the idea that

when a married woman gives birth, her

spouse is the child’s other legal parent. In

Colorado, the parental presumption applies

to create presumptive legal rights to a

child for the spouse of the woman giving

birth, whether the couple is same-sex or

different-sex. Colorado law states that a

man is presumed to be the “natural father”

of a child if he receives the child into his

household and openly holds the child out

as his natural child, if he and the child’s

mother are married when the child is born

or if the child is born within 300 days after

the marriage is terminated, or if the child

is the product of assisted reproduction.

29 Colo. Rev. Stat. § 19-4-105.

30 Colo. Rev. Stat. § 19-4-105; §19-4-106. It should

be noted that there are actually 12 different grounds

upon which a parental presumption may rest.

Obtaining an adoption decree or other court order establishing parentage is

irrefutable and undeniable proof of parentage. We strongly recommend that

same-sex couples with children ALWAYS get an adoption decree or other court

order that recognizes both parents as legal parents, even if you are married or

in a civil union and appear on the birth certiﬁcate. In Colorado, you can do this

through a second-parent or step-parent adoption procedure, or, alternatively, a

Declaration of Paternity/Maternity.

A Resource Guide for LGBTQ-Headed

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COLORADO LGBTQ FAMILY LAW

Colorado’s law has not been updated since

the recognition of marriage equality and

still uses gender-specic language, but the

statutes

explicitly allow for declarations of

Maternity and for “Father” to mean “Mother”

as appropriate and, further, Colorado

courts have held that these “parental

presumptions” apply equally to married

same-sex couples.

SURROGACY, ASSISTED

REPRODUCTION, &

ARTIFICIAL INSEMINATION

Assisted reproductive technology (ART)

is the use of medical technology to assist

with pregnancy or childbirth and includes

methods such as in vitro fertilization or

use of an egg donor, sperm donor, embryo

donor, and/or a surrogate carrier. Colorado

has a law that addresses parentage for

children conceived using ART, but its law is

silent on surrogacy. Nonetheless, surrogacy

is a common practice in Colorado and has

been acknowledged by the courts.

Without

any regulations regarding surrogacy, it is

imperative that any individual or couple who

is considering surrogacy, consult with an

experienced Colorado surrogacy attorney

who has experience working with LGBTQ

individuals and same-sex couples, and

surrogacy agencies if applicable, and who

understands the process for establishing the

parental rights of the intended parent(s).

31 Colo. Rev. Stat. § 19-4-107, § 19-4-122 and § 19-

4-125.

32 Limberis v. Havens (In re A.R.L.), 2013 COA 170

(Colo. App. 2013).

33 C.A.T.C. v. N.M.V. (In re S.N.V.), 284 P.3d 147

(Colo. App. 2011).

Colorado’s assisted reproduction law,

which applies to sperm donors, egg donors,

and embryo donations, was passed prior

to marriage equality.

It states, among

other things, that a donor is not a parent

and, when a married person gives birth

to a child conceived through donor

insemination, the person’s spouse is the

legally recognized parent.

While the

statute uses gender-specic language,

Colorado courts have indicated that they

are willing to interpret such language

broadly and to apply it to same-sex

marriages.

Moreover, in Pavan v. Smith,

the U.S. Supreme Court recently held that

a similar law in Arkansas that provided that

the husband of a woman who conceived

through sperm donation was presumed

to be the father, must be applied equally

to spouses of the same sex.

Nonetheless,

LGBTQ couples should consult with an

attorney who specializes in ART and has

experience working with LGBTQ couples.

BIRTH CERTIFICATES FOR

CHILDREN OF SAME-SEX

COUPLES

Colorado law governing the issuance of

birth certicates has not been updated

since the recognition of marriage equality,

but married same-sex couples should be

entitled to the same presumptions that

different-sex couples receive. Colorado

law uses gendered language and, as stated

34 Colo. Rev. Stat. § 19-4-106.

35 Colo. Rev. Stat. § 19-4-106.

36 Limberis v. Havens (In re A.R.L.), 2013 COA 170

(Colo. App. 2013).

37 Pavan v. Smith, No. 16-922 (June 2017).

COLORADO LGBTQ FAMILY LAW

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above, creates a presumption of paternity

for the husband of a married woman

who gives birth.

However, in Pavan, the

U.S. Supreme Court expressly reiterated

that equal access to birth certicates is

one of the many “rights, benets, and

responsibilities” associated with civil

marriage.

Accordingly, states cannot

discriminate against same-sex spouses

with regard to the naming of each spouse

on a child’s birth certicate, and same-

sex parents in Colorado are entitled to the

same parental presumption enjoyed by

different-sex parents.

As a birth certicate is not a court order

and is only evidence of what the parties

intended, it is still strongly recommended

that same-sex couples petition for an

adoption decree or declaration of paternity

or maternity as soon as possible, regardless

of whether their names appear on the birth

certicate.

New birth certicates must be issued

following adoption, so a same-sex parent

who did not appear on the original birth

certicate should be listed on the birth

certicate after completing an adoption of

a child.

To update a child’s birth certicate, contact

the Vital Records Section of the Colorado

Department of Health and Environment.

They may be contacted at 1-303-692-2200.

38 Colo. Rev. Stat. § 25-2-112.

39 Pavan v. Smith, No. 16-992 (June 2017).

40 Colo. Rev. Stat. § 25-2-113.

APPLYING FOR A SOCIAL

SECURITY NUMBER AND

CARD FOR A CHILD

To apply for a Social Security Number

and Card for a child, the Social Security

Administration (SSA) requires a number of

different documents, personal information

about the parent applying for the Card

or Number, the child, and any other legal

parent to the child, and a completed SS-5

application form.

These documents may be submitted to

the SSA via letter or in person at a local

SSA ofce, which can be found through

this link https://secure.ssa.gov/apps6z/

FOLO/fo001.jsp. Two same-sex parents

may be listed on the application for a

Social Security Card or Number. However,

only parents listed on the child’s birth

certicate, or on a court-ordered adoption

decree, are permitted to be included on the

application.

For more information on the application

process, please see Family Equality

Council’s FAQ http://www.familyequality.

org/get_informed/advocacy/know_your_

rights/ssa_faqs, visit the SSA website at

https://www.ssa.gov/ssnumber, or call the

SSA at 1-800-722-1213 or 1-800-325-0778.

If difculties arise, please contact Family

Equality Council.

APPLYING FOR A PASSPORT

FOR A CHILD

To apply for a passport for a child, the

State Department requires documentary

evidence, a completed DS-11 form, a

photograph of the child, and personal

information about the parent applying

for the passport, the child, and the child’s

other legal parent, if any. These documents

must be submitted to the State Department

in person at the nearest accepted facility

or regional passport agency, listed here

https://iafdb.travel.state.gov

The required materials are listed here:

http://travel.state.gov/content/passports/

english/passports/under-16.html

Two same-sex parents may be listed on

the application for a child’s passport.

Only parents listed on the child’s birth

certicate, or on a court-ordered adoption

decree, are permitted to be included on

the application. However, if the adoptive

(or legal) parent of the child is unavailable,

the Department of State permits a non-

adoptive parent who stands in loco parentis

to the child to complete the DS-11 form and

application. In loco parentis means an adult

with day-to-day responsibilities to care

for and nancially support a child but with

whom the child does not have a biological

or legal relationship.

Questions about the application process

and acceptable materials can be directed to

the National Passport Information Center

at 1-877-487-2778. The State Department

website also provides helpful information

at http://travel.state.gov

Family Equality Council also maintains

an FAQ on applying for a child’s passport,

available at this link: http://www.

familyequality.org/get_informed/

advocacy/know_your_rights/passport_

faq, or contact Family Equality Council for

assistance if problems arise in obtaining

the passport.

COLORADO LGBTQ FAMILY LAW

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COLORADO LGBTQ FAMILY LAW

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Families

Find more information at:

www.one-colorado.org

www.familyequality.org

There are currently no federal laws that

explicitly prohibit discrimination of LGBTQ

people in employment, housing, and public

accommodations. Existing federal civil

rights laws have been interpreted to provide

some limited protections in housing,

employment, education and even in health

care, but without explicit and fully inclusive

federal protections against discrimination

based on sexual orientation and gender

identity, LGBTQ people and their families

remain vulnerable.

Colorado provides statewide

nondiscrimination protections for LGBTQ

people, beyond any protections that may

exist in federal law or policy. In 2007

and 2008, Colorado legislators passed

amendments to the Colorado Anti-

Discrimination Act (CADA) to include

protections against discrimination on the

basis of sexual orientation and gender

identity.

Thus, LGBTQ people in Colorado

are now protected from discrimination in

areas such as employment, housing, credit,

and public accommodations.

EMPLOYMENT

State Law

Even with the arrival of nationwide marriage

equality, LGBTQ people are at risk of being

outed at work by simply ling an amended

W-4, leading to discrimination in the

workplace or even the loss of a job. In 2007,

41 Senate Bill 07-025 (2007); Senate Bill 08-200

(2008).

Colorado legislators passed the Sexual

Orientation Employment Discrimination

Act to expand protections against

discrimination in the workplace to LGBTQ

individuals in Colorado.

The bill dened

sexual orientation as “a person’s orientation

towards heterosexuality, homosexuality,

bisexuality, or transgender status or an

employer’s perception thereof.”

Unlike

federal anti-discrimination laws that

only apply to employers with at least

15 employees, the CADA applies to all

Colorado employers, regardless of size.

With these amendments, CADA prohibits

employers from discriminatory practices

such as making pre-employment inquiries

into an applicant’s sexual orientation or

expressing a preference for a particular

sexual orientation in job advertisements,

refusing to hire or promote based on sexual

orientation, having separate lines of job

progression or seniority based on sexual

orientation, or discipline, and harassing

or ring an employee based on sexual

orientation.

Employers with a reasonable

gender-specic dress code must allow

employees to dress according to the

person’s gender identity.

The law contains

an exception for religious organizations,

unless the organization is supported in

whole or part by money raised by taxation

or public borrowing.

42 S.B. 07-025 (2007); Colo. Rev. Stat. § 24-34-401.

43 S.B. 07-025 (2007); Colo. Rev. Stat. § 24-34-301.

44 Colo. Rev. Stat. § 24-34-401.

45 Colo. Rev. Stat. § 24-34-402.

46 Colo. Rev. Stat. § 24-34-402; 3 CCR 708-1, Rule 81.8.

47 Colo. Rev. Stat. § 24-34-402.

NON-DISCRIMINATION PROTECTIONS

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The Colorado Civil Rights Division

(CCRD) is responsible for handling and

investigating claims of employment

discrimination.

Claims must be led with

the CCRD in person or electronically within

six months of the discriminatory action.

More information on where and how to le

is available at this website: https://www.

colorado.gov/pacic/dora/civil-rights/

employment-discrimination

Federal Law

While there is no explicit federal law that

bars discrimination against LGBTQ people

in the workplace, the denition of “sex” in

Title VII of the Civil Rights Act of 1964 has

been interpreted by some courts to provide

employment protections for LGBTQ people.

The Equal Employment Opportunity

Commission (EEOC) hears and investigates

complaints of employment discrimination

under Title VII and looks into claims

against all private employers, state and

local governments, federal government

agencies, employment agencies, and labor

unions, as long as they have fteen or more

employees or members.

In 2012, the EEOC ruled in Macy v. Holder

that discrimination against a transgender

woman was discrimination under Title

VII’s prohibition of discrimination based on

sex.

In Veretto v. US Postal Service

and

Castello v. US Postal Service,

the EEOC

held that employment discrimination on

the basis of sexual orientation violated

48 Colo. Rev. Stat. §§ 24-34-301 et al.

49 No. 0120120821, 2012 WL 1435995 (E.E.O.C. Apr.

20, 2012).

50 No. 0120110873 (E.E.O.C. Jul. 1, 2011).

51 No. 0120111795 (E.E.O.C. Dec. 20, 2011).

prohibitions of sex-based discrimination

because it constituted discrimination based

on sex-stereotypes. In 2015, the EEOC

strengthened the protections for those

who may face discrimination on the basis of

sexual orientation by ruling in Complainant

v. Foxx

that claims of discrimination

based on sexual orientation inherently

amount to claims of sex discrimination

and are therefore actionable under Title

VII.

These EEOC decisions, while not

binding to courts, reect the EEOC’s view

that LGBTQ individuals are protected

under Title VII and may le a claim of

employment discrimination utilizing the

law’s inclusion of “sex” as a protected

class. In 2017, in Hively v. Ivy Tech Comm.

College, a federal appellate court issued

a binding decision citing with approval

the EEOC’s conclusions in Complainant v.

Foxx, thus providing strong legal precedent

for reading Title VII as including LGBTQ

employees as a protected class.

Victims of discrimination on any protected

basis, including sexual orientation and

gender identity, must le a Charge of

Discrimination with a local EEOC ofce

prior to ling a lawsuit in court alleging

discrimination. The EEOC ofces serving

Colorado can be found at https://www.

eeoc.gov/eld

Generally, the Charge of Discrimination

must be led within 180 days of each

52 Complainant v. Foxx, No. 0120133080, 2015 WL

4397641 (E.E.O.C. July 15, 2015).

53 No. 0120133080, 2015 WL 4397641 (E.E.O.C July

16, 2015).

54 Hively v. Ivy Tech Comm. College, 853 F.3d 339

(7th Cir. 2017).

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instance of discriminatory treatment. To

le a complaint based on sexual orientation

or gender identity, the complainant must

list the basis for the claim as discrimination

on the basis of “sex,” as this is the existing

basis that the EEOC and some courts have

linked to sexual orientation and gender

identity. More about the EEOC process

and a claimant’s rights and responsibilities

after ling a claim with the EEOC is

available at this website: http://www.

eeoc.gov/employees/charge.cfm. Federal

employees and job applicants are subject

to a different timeline for making a claim

(typically 45 days) and procedures for ling,

which are available here: http://www.eeoc.

gov/federal/fed_employees/complaint_

overview.cfm

Coloradans working for companies that

contract with the federal government have

access to additional protections against

discrimination in employment. These

protections stem from a 2014 Executive

Order that prohibits federal contractors

from discriminating against current or

prospective employees on the basis of

sexual orientation or gender identity.

Contractors who do business with the

federal government employ 20% of

American workers, all of whom are now

covered by non-discrimination protections

under this Order. LGBTQ individuals who

have been the victim of discrimination by

an employer that contracts with the federal

government can le a complaint through

55 On January 31, 2017, President Trump issued

a statement that this Executive Order will remain

intact during his presidency. https://www.

whitehouse.gov/the-press-ofce/2017/01/31/

president-donald-j-trump-will-continue-enforce-

executive-order.

the U.S. Department of Labor Ofce of

Federal Contract Compliance Programs.

Information about the complaint process is

available here: http://www.dol.gov/ofccp/

regs/compliance/pdf/pdfstart.htm

Company Policies

Many employers, especially those that

operate in multiple states, have enacted

their own internal non-discrimination

policies that prohibit discrimination

against LGBTQ employees. While these

policies may not be legally binding, they

can often give an employee some recourse

where there would otherwise be none.

A company’s non-discrimination policy

should be available in the company’s

employee handbook or through the

human resources department, and it is

always important to be familiar with it and

understand the rights and protections it

affords.

Any person who has been or may have

been the victim of sexual orientation- or

gender identity-based discrimination in

the workplace should contact an attorney

familiar with LGBTQ employment law.

HOUSING

State Law

The 2008 amendments to the Colorado

Anti-Discrimination Act (CADA) extended

protections against discrimination in

housing and other transactions involving

real property to LGBTQ individuals.

The

56 S.B. 08-200 (2008); Colo. Rev. Stat. § 24-34-

502.

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COLORADO LGBTQ FAMILY LAW

law now prohibits the refusal to show,

sell, transfer, rent, lease, or otherwise

make unavailable or deny housing on

the basis of sexual orientation. Further,

related practices such as discriminatory

nancing and stipulations of unequal

terms or conditions are prohibited.

Sexual orientation is dened as “a person’s

orientation toward heterosexuality,

homosexuality, bisexuality, or transgender

status or another person’s perception

thereof.”

Thus, LGBTQ Coloradans are

entitled to the same access to housing as

other citizens of Colorado.

As with employment discrimination, the

Colorado Civil Rights Division is charged

with investigating allegations of housing

discrimination. Claims of discrimination in

housing or related terms (such as residency

privileges, interest rates, or insurance

rates) on the basis of sexual orientation

or gender identity must be led within

one year of the last discriminatory action.

More information on ling is available

through this link: https://www.colorado.

gov/pacic/dora/civil-rights/housing-

discrimination

Federal Law

The federal Fair Housing Act, which was

enacted as Title VIII of the Civil Rights Act

of 1968 and is enforced by the Department

of Housing and Urban Development (HUD),

does not explicitly prohibit discrimination

against LGBTQ people and their families.

However, an LGBTQ person experiencing

discrimination on the basis of sexual

57 Colo. Rev. Stat. § 24-34-502.

58 S.B. 08-200 (2008); Colo. Rev. Stat. § 24-34-301.

orientation or gender identity may still be

covered by the Fair Housing Act on the

basis of such discrimination constituting

discrimination on the basis of “sex,” similar

to the employment context.

In 2012, HUD issued the “Equal Access

Rule,” which prohibits discrimination on

the basis of sexual orientation or gender

identity by any housing or service provider

that receives funding or insurance from

HUD.

It also prohibits lenders from

determining a borrower’s eligibility for

Fair Housing Authority (FHA) insurance

on the basis of sexual orientation or

gender identity. For example, any landlord

receiving funding through HUD is

prohibited from refusing to rent, offering

unequal and inated rental prices, or

mistreating potential renters based on

their sexual orientation, gender identity,

or HIV/AIDS status. Further, any lender

or operator of HUD-assisted housing

is prohibited from inquiring as to the

sexual orientation or gender identity of

an applicant and barred from using such

criteria in assessing an application. A

violation of this rule may result in HUD

pursuing a number of remedies, including

sanctions against the violator.

HUD allows individuals to submit housing

discrimination complaints by telephone

(1-800- 955-2232), by mail, or online http://

portal.hud.gov/hudportal/HUD?src=/

topics/housing_discrimination. The

HUD Ofce of Fair Housing and Equal

Opportunity Denver Regional Ofce

59 Equal Access to Housing in HUD Programs

Regardless of Sexual Orientation or Gender

Identity, Final Rule (2012); 24 CFR § 5.106.

COLORADO LGBTQ FAMILY LAW

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Find more information at:

www.one-colorado.org

www.familyequality.org

is located at 1670 Broadway, Denver

CO 80202. To learn more about ling a

complaint, as well as the process for ling

a lawsuit, please read this page: http://

portal.hud.gov/hudportal/HUD?src=/

program_ofces/fair_housing_equal_

opp/complaint-process

PUBLIC ACCOMMODATIONS

State Law

Colorado law protects LGBTQ people from

discrimination in public accommodations.

Public Accommodations are dened in

Colorado as “any place of business engaged

in any sales to the public and any place

offering services, facilities, privileges,

advantages, or accommodations to the

public.”

Examples include retail stores,

hotels, restaurants, educational institutions,

hospitals, public parks, libraries, and

recreational facilities. Religious institutions

are specically exempt from this denition

in the statute.

In the 2008 amendments to the Colorado

Anti-Discrimination Act (CADA), Colorado

legislators added sexual orientation to

the state’s Public Accommodations Law,

dening sexual orientation as “a person’s

orientation toward heterosexuality,

homosexuality, bisexuality, or transgender

status or an employer’s perception

thereof.”

Thus, all persons of Colorado are

“entitled to the full and equal enjoyment

of the goods, services, facilities, privileges,

advantages, or accommodations of a

60 Colo. Rev. Stat. § 24-34-601.

61 Colo. Rev. Stat. § 24-34-601.

62 S.B. 08-200 (2008); Colo. Rev. Stat. § 24-34-301.

place of public accommodation.”

The

law prohibits any sort of publication

indicating that full and equal enjoyment

will be refused, withheld, or denied on

the basis of sexual orientation or that a

person is unwelcome at a place of public

accommodation.

Claims of discrimination

in a place of public accommodation based

upon sexual orientation or gender identity

must be led with the Colorado Civil

Rights Division within sixty days of the

discriminatory act. The online complaint

form is available here: https://www.

colorado.gov/pacic/dora/civil-rights/

public-accommodations-discrimination

There currently is a case arising out of

Colorado’s anti-discrimination laws that

is pending before the U.S. Supreme Court.

Masterpiece Cakeshop v. Colorado Civil

Rights Commission will decide whether

private business owners and other places

of public accommodation can discriminate

– refuse service in violation of Colorado’s

law non-discrimination law – in the name

of religion or free speech.

Although

the case originated out of a bakery

owner’s 2012 refusal to make a cake for

a same-sex couple’s wedding reception

in Colorado because of his personally

held religious beliefs, the case could

have signicant implications for LGBTQ

people and other historically marginalized

communities across the U.S. that rely on

nondiscrimination protections to ensure

against discrimination. The Supreme Court

is expected to hear oral arguments and issue

63 Colo. Rev. Stat. § 24-34-601.

64 Colo. Rev. Stat. § 24-34-601.

65 Masterpiece Cakeshop v. Colorado Civil Rights

Commission, No. 16-111 (cert granted June 26, 2017).

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COLORADO LGBTQ FAMILY LAW

an opinion by the end of the 2017-2018 term.

Currently, in addition to arguing that his

religious beliefs allow him to discriminate,

the bakery owner is claiming that his refusal

to make the cake is exercise of his artistic

freedom of speech.

Federal Law

Federal public accommodations protection

provisions can be found in Title II of the

Civil Rights Act of 1964 and Title III of the

Americans with Disabilities Act of 1990.

Unfortunately, neither law provides express

protections based on sexual orientation

or gender identity. However, in 1998, the

Supreme Court ruled that being HIV-

positive is a physical disability covered by

the Americans with Disabilities Act, even if

the infection has not yet progressed to the

symptomatic phase.

Businesses that hold

themselves open to the public (restaurants,

stores, hotels, etc.) are therefore prohibited

from refusing service or business to

individuals because they are HIV-positive.

66 Bragdon v. Abbott, 524 U.S. 624 (1998).

SCHOOL POLICIES

AND ANTI-BULLYING

STATE LAW

Discrimination against LGBTQ students and

employees in the public education system

is also prohibited under Colorado law. With

the 2008 amendments to the Colorado

Anti-Discrimination Act (CADA), the state

of Colorado added nondiscrimination

protections for LGBTQ public school

students and employees.

All school

districts in Colorado are required to have a

written non-discrimination policy stating

that the districts are subject to federal and

state laws prohibiting discrimination on the

basis of sexual orientation.

The denition

of “sexual orientation” is the same as for

the housing and public accommodations

provisions, encompassing “a person’s

orientation toward heterosexuality,

homosexuality, bisexuality, or transgender

status or another person’s perception

thereof.”

Thus, Colorado is among the

progressive states that provide a state-

level, fully inclusive non-discrimination

policy. In combination with the public

accommodations law, transgender

students in Colorado have the right to

use the bathroom, dress, and participate

in school activities in accordance with

their gender identity.

In fact, in 2013,

67 S.B. 08-200 (2008).

68 Colo. Rev. Stat. § 22-32-109.

69 S.B. 08-200 (2008); Colo. Rev. Stat. § 2-4-401.

70 3 CCR 708-1, Rule 81.9; Colo. Rev. Stat. § 24-34-

601.

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the Colorado Civil Rights Division issued

the rst ruling in the United States that

upheld the right of transgender students

to use the bathroom that is consistent

with their gender identity.

Recently, One

Colorado collaborated with the Colorado

Association of School Boards, the Colorado

Association of School Executives, the

Colorado Education Association, the

Colorado High School Activities and

Athletics Association, and the Colorado

League of Charter Schools to create a

guide outlining legal requirements and best

practices for schools, educators, and the

school community to meet the needs of

transgender students. The guide is available

at this link: http://www.one-colorado.

org/wp-content/uploads/2017/02/

TransResourceGuide_2016.pdf.

Colorado also has an anti-bullying law

that protects LGBTQ students. In 2011,

Colorado legislators passed a law to

address school bullying prevention.

The

law denes bullying as “any written or

verbal expression, or physical or electronic

act or gesture, or a pattern thereof, that

is intended to coerce, intimidate, or cause

any physical, mental, or emotional harm

to any student” and prohibits bullying

“against any student for any reason.”

The

law also species that bullying includes

behavior directed at a student against

71 Mathis v. Fountain-Fort Carson School District

8, CCRD Case Number P20130034X (June 18, 2013):

https://archive.org/stream/716966-pdf-of-coy-

mathis-ruling/716966-pdf-of-coy-mathis-ruling_

djvu.txt.

72 H.B. 11-1254 (2011); Colo. Rev. Stat. §§ 22-93-101

et al.

73 Colo. Rev. Stat. § 22-93-101, § 22-32-109.1; H.B.

11-1254 (2011).

whom federal or state law protects from

discrimination and, as discussed previously,

Colorado state law expressly protects

students from discrimination on the basis

of sexual orientation and gender identity.

Legislators included a provision that

created a School Bullying Prevention and

Education Grant Program to fund efforts

to reduce the number of bullying incidents,

directed the Colorado Department of

Education to create a website that provided

best practices for bullying prevention and

education, and instructed school districts

to set forth appropriate disciplinary

consequences for students who bully

others or retaliate a student who reported

a bullying incident in good faith.

FEDERAL LAW

Federal law, specically Title IX of the

United States Education Amendments

of 1972, also provides some protections

and support to students facing bullying

or discrimination based on their sexual

orientation or gender identity. Title IX

specically prohibits discrimination against

students in schools and other programs

that receive federal funding, where that

discrimination is based on a student’s

sex or gender. While Title IX does not

explicitly include sexual orientation or

gender identity as bases for a claim of

discrimination, the law has been applied

to prohibit discrimination where a student

is mistreated for being sex- or gender

non-conforming,

meaning the student

74 Colo. Rev. Stat. § 22-32-109.1.

75 H.B. 11-1254 (2011); Colo. Rev. Stat. § 22-93-102,

§ 22-32-109.1.

76 Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151 (C.D. Cal. 2015).

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faces discrimination for not subscribing to

the stereotypical notions of femininity or

masculinity. In past policy statements, the

Department of Education (DOE) included

transgender students in those classes

protected by Title IX, and lesbian, gay, and

bisexual students have successfully led

claims of discrimination under Title IX.

In a May 2016 statement, the DOE and

Department of Justice (DOJ) explained that

compliance with Title IX requires schools

to treat transgender students consistent

with their gender identity and does not

allow schools to impose a medical diagnosis

or treatment requirement.

However, in February 2017, under the

Trump Administration, the DOE and

DOJ rescinded this guidance.

Despite

the DOE and DOJ’s withdrawal of the

guidance, the underlining law that the

guidance interpreted remains. Since then,

the U.S. Court of Appeals for the Seventh

Circuit unanimously held that transgender

students are protected from discrimination

under Title IX and the Equal Protection

Clause of the U.S. Constitution.

The DOE’s Ofce for Civil Rights (OCR)

77 United States Dept. of Education Ofce for

Civil Rights, Dear Colleague Letter on Transgender

Students (May 2016): http://www2.ed.gov/about/

ofces/list/ocr/letters/colleague-201605-title-ix-

transgender.pdf

78 United States Dept. of Education Ofce for

Civil Rights, Dear Colleague Letter on Transgender

Students (May 2016).

79 United States Dept. of Education Ofce for

Civil Rights, Dear Colleague Letter on Title IX (Feb

2017): https://www2.ed.gov/about/ofces/list/

ocr/letters/colleague-201702-title-ix.docx

80 Whitaker v. Kenosha Unied School District,

No. 16-3522 (7th Cir. 2017).

investigates claims of discrimination on

the basis of race, sex, national origin, sex,

and disability in programs or activities

that receive funding from the DOE

(such as public elementary or secondary

schools, vocational schools, colleges and

universities, museums, libraries, and public

after-school programming,). To open an

OCR investigation, an individual must

le a complaint on behalf of himself or

herself, a group, or another person facing

discrimination within 180 days of the last

instance of discrimination. Since Title IX

does not list sexual orientation or gender

identity as separate bases for a claim, the

complaint must indicate “sex” as a basis for

the claim.

More details on drafting a complaint, as

well as an electronic complaint form, are

available on the OCR website, located here:

https://www2.ed.gov/about/ofces/list/

ocr/docs/howto.html

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Find more information at:

www.one-colorado.org

www.familyequality.org

STATE LAW

Colorado law prohibits private health

insurance companies from discrimination

against LGBTQ people. In March 2013, the

Colorado Division of Insurance released

a bulletin stating that discrimination

in healthcare on the basis of sexual

orientation (dened as heterosexuality,

homosexuality, bisexuality or transgender

status or another person’s perception

thereof) is prohibited in Colorado.

The

bulletin claries that, in accordance with

Colorado law, private insurance carriers

are prohibited from acts including:

imposing differential rates or charges

with regard to sexual orientation;

designating sexual orientation as a

pre-existing condition; and denying,

excluding, or otherwise limiting coverage

for medically necessary services, as

determined by a medical provider, if

the item or service would be provided

based on current standards of care to

another individual without regard to their

sexual orientation.

This only applies to

private insurance plans sold in Colorado,

which are indicated by a “CO-DOI”

designation on the health plan ID card.

Wrongful denials of claims must rst be

appealed internally through the insurance

81 Colorado Department of Insurance

(DOI) Bulletin B-4.49 (March 2013): http://

www.one-colorado.org/wp-content/

uploads/2013/03/B-4.49.pdf

82 Colorado Department of Insurance

(DOI) Bulletin B-4.49 (March 2013): http://

www.one-colorado.org/wp-content/

uploads/2013/03/B-4.49.pdf

provider’s appeal process. If the appeal

is not satisfactorily resolved, complaints

may be led with the Colorado Division of

Insurance through this website: https://

www.colorado.gov/pacic/dora/ask-

question-make-complaint-division-

insurance

FEDERAL LAW

Each year, the federal government opens

enrollment for individual and family

healthcare coverage under the Affordable

Care Act (ACA). Historically, enrollment for

the following year opened in November

and closed mid-February of the following

year; however, in 2017 the open enrollment

period is much shorter – from November

1st to December 15th – although individuals

who experience a major life change, such as

moving, getting married, or having a baby,

may qualify to enroll in one of the ACA’s

Special Enrollment Periods during another

part of the year. For detailed information

about plans, Special Enrollment Periods, or

to nd out where and how to enroll, go to

www.healthcare.gov and select a state of

residence.

Under the ACA, insurers and marketplace

navigators – the people whose job it is to

help individuals select an insurance plan that

best matches their needs – are prohibited

from discriminating against consumers

based on their sexual orientation or gender

identity, or on the sexual orientation or

gender identity of a family member.

HEALTHCARE

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COLORADO LGBTQ FAMILY LAW

In addition, the ACA prohibits denial

of coverage for an individual or family

member because of a pre-existing

condition. This includes a current illness

or a history of chronic illness or disease,

HIV status, receiving or having received

transgender-related care, or a prior

pregnancy. However, it is important to note

that, despite the fact that the ACA prohibits

insurance providers from discriminating

against individuals and families by denying

them the ability to obtain healthcare

coverage, the ACA does not mandate

that insurance plans offer coverage that

is inclusive of the many needs of LGBTQ

individuals and families. For example, the

ACA does not require insurers to cover

transgender-related care, or treatment

for HIV and AIDS. However, insurers are

prohibited from categorically denying

coverage for transition-related care, nor

can they refuse to cover transition related

care if they cover that same treatment

for other people. While insurers are not

required to cover these treatments, they

may offer plans that do so; any person

seeking coverage of transition-related

care should speak with a navigator and

investigate plans thoroughly to nd the

best option. Further, denitions of “family”

may be too narrow to include many

dependents in an LGBTQ family structure,

given the myriad LGBTQ family structures

that exist.

Section 1557 of the ACA prohibits

discrimination based on sex in all health

programs and activities receiving federal

nancial assistance.

The nal agency

rule implementing Section 1557 prohibits

83 42 U.S.C § 18116.

discrimination based upon gender identity,

requiring that any healthcare provider

receiving federal funding (i.e. Medicaid or

Medicare, any health program administered

by the federal government, and any

health insurance marketplace) must treat

individuals consistent with their gender

identity.

The nal rule also prohibits

discrimination based on sex stereotyping,

providing potential protections to lesbian,

gay, and bisexual people.

Anyone who has experienced

discrimination on the basis of their

sexual orientation or gender identity in

a health care setting should immediately

le a complaint with the United States

Department of Health and Human Services

Ofce for Civil Rights. More details

on drafting a complaint, as well as an

electronic complaint form, are available at

the HHS website, located at http://www.

hhs.gov/civil-rights/ling-a-complaint/

index.html

For more information on how the

Affordable Care Act and the insurance

marketplaces benet LGBTQ-headed

families, this is a helpful resource

developed by multiple LGBTQ advocacy

organizations: Where to Start, What to Ask:

A Guide for LGBTQ People Choosing Health

Care Plans.

84 45 CFR 92 (2016); 81 FR 31375 (2016). In

Franciscan Alliance v. Burwell, Case No. 7:16-cv-

00108-O (N.D. Texas 2016), a district court judge

issued an injunction against enforcing this rule, but

an appeal is pending.

85 45 CFR 92 (2016); 81 FR 31375 (2016).

COLORADO LGBTQ FAMILY LAW

A Resource Guide for LGBTQ-Headed

Families

Find more information at:

www.one-colorado.org

www.familyequality.org

Colorado does not have a state family or

medical leave law requiring employers

to provide paid family leave. However,

Colorado has passed legislation expanding

the federal Family and Medical Leave Act

(FMLA) to include domestic partners and

partners in a civil union.

The FMLA entitles

eligible employees of covered employers

to take unpaid, job-protected leave for

specied family and medical reasons. Eligible

employees are entitled to up to 12 unpaid

workweeks of leave in a 12-month period for:

• the birth of a child and to care for the

newborn child within one year of birth;

• the placement with the employee of a

child for adoption or foster care and to

care for the newly placed child within one

year of placement;

• the care of the employee’s spouse, child,

or parent who has a serious health

condition;

• a serious health condition that makes the

employee unable to perform the essential

functions of his or her job;

• any qualifying exigency arising out of

the fact that the employee’s spouse, son,

daughter, or parent is a covered military

member on “covered active duty.”

FMLA applies to all public agencies (state,

local, and federal) and all local education

agencies (schools). The FMLA also applies

to private sector employees who employ

50 or more employees for more than 20

workweeks in the current or preceding

calendar year.

86 Family Care Act, H.B. 13-1222 (2013); Colo. Rev.

Stat. §§ 8-13.3-201 et al.

And, it entitles eligible employees to

26 workweeks of leave during a single

12-month period to care for a covered

service member with a serious injury or

illness if the eligible employee is the service

member’s spouse, son, daughter, parent, or

next of kin (military caregiver leave).

In 2010, the Department of Labor issued

a clarication of the denition of “son or

daughter” to include a child for whom a

person provides a certain amount of day-

to-day care or nancial support, regardless

of whether or not there is a legal or

biological relationship. This clarication

ensures the ability of a same-sex parent

and/or partner has the ability to take

time off from work to care for their child

without fear of losing their job. The text

of the Department of Labor’s clarication

is available at: http://www.dol.gov/whd/

opinion/adminIntrprtn/FMLA/2010/

FMLAAI2010_3.htm

In 2014, following the Windsor decision and

the repeal of DOMA, the FMLA’s benets

were extended to married same-sex

couples. Because of this, married same-sex

couples became entitled to take time off to

care for their spouses. This was solidied

further in 2015 when the denition of

“spouse” in the FMLA was expanded

to include all employees in a same-sex

marriage regardless of whether their state

of residence recognized their marriage.

Finally, the Obergefell decision led to all

federal marriage benets being extended

to all same-sex couples across the country.

FAMILY AND/OR PARENTING LEAVE

Under Colorado law, transgender

individuals may change their legal name

by submitting a notarized petition to the

court in the county of residence. Criminal

history checks are required from the FBI

and Colorado Bureau of Investigation

within 90 days of ling the petition and

must be included with the petition. Upon

approval of the petition, the court will

require publication of the name change

in a newspaper at least three times in 21

days, except with good cause.

Once the

applicant has satised these requirements,

the court will issue a Final Decree for

Change of Name.

87 Colo. Rev. Stat. §§ 13-15-101, 13-15-102.

88 The Center, a Colorado LGBTQ advocacy

organization, offers a helpful presentation detailing

the process of name changes in Colorado. The

presentation is available through this link: https://

Transgender individuals may request

an amended birth certicate to reect

their true sex and name but must

submit a certied copy of a court order

changing their name and indicating that

the individual’s “sex… has been changed

by surgical procedure.”

The Colorado

Department of Public Health and the

Environment explains that “Gender

change via sex reassignment surgery is

a process in which a person’s physical

characteristics and/or social gender role

are changed to reect the sex opposite

of that determined at birth.”

The

glbtcolorado.org/wp-content/uploads/2013/10/

Name-Change-Presentation-2014-04-22-nal.pdf

89 Colo. Rev. Stat. § 25-2-115.

90 https://www.colorado.gov/pacic/cdphe/

gender-changes-due-surgical-procedures (last

visited October 2017).

CHANGES OF NAME AND GENDER

COLORADO LGBTQ FAMILY LAW

A Resource Guide for LGBTQ-Headed

Families

COLORADO LGBTQ FAMILY LAW

A Resource Guide for LGBTQ-Headed

Families

Find more information at:

www.one-colorado.org

www.familyequality.org

necessary forms and further information

is available on the Colorado Department

of Public Health and the Environment

website at https://www.colorado.gov/

pacic/cdphe/correct-or-change-

birth-certicate - Upon approval of

the application, the newly issued birth

certicate will indicate that it has been

amended, although it will not indicate that

the gender was amended.

Colorado will update names and gender

markers on driver’s licenses as well.

change a name on a Colorado driver’s

license, the applicant must rst submit

the name change to the Social Security

Administration and then bring a certied

copy of the court-issued Final Decree

of Change of Name to a local driver’s

license ofce.

To update the gender

marker, the applicant must rst obtain a

Medical Information Authorization form,

which must be completed by a licensed

Colorado physician. The form asks the

physician to certify the applicant’s

gender identity; there is no surgical

requirement to change the gender

marker on a Colorado driver’s license.

Upon completion of the form, it must be

submitted to a driver’s license ofce.

91 National Center for Transgender Equality, ID

Documents Center, Colorado, available at https://

www.transequality.org/documents/state/colorado

(last visited October 2017).

92 National Center for Transgender Equality, ID

Documents Center, Colorado, available at https://

www.transequality.org/documents/state/colorado

(last visited October 2017).

93 Colorado Department of Revenue, Division of

Motor Vehicles, Change Your Name, available at

https://www.colorado.gov/pacic/dmv/change-

your-name (last visited October 2017).

A Resource Guide for LGBTQ-Headed

Families

COLORADO LGBTQ FAMILY LAW

Colorado law includes protections for

LGBTQ people who are targeted by hate

crimes. In Colorado, the law provides for

an increase in penalties for defendants

when there is a nding that the crime was

committed “with the intent to intimidate

or harass another person because of that

person’s actual or perceived race, color,

religion, ancestry, national origin, physical

or mental disability, or sexual orientation.”

As with other anti-discriminatory

provisions in Colorado law, “sexual

orientation” is dened as “a person’s

actual or perceived orientation toward

heterosexuality, homosexuality, bisexuality,

or transgender status” and therefore

includes gender identity.

Consistent

with the state hate crimes law, in May

2017, Colorado expanded its harassment

law to increase the penalty from a class

3 misdemeanor to a class 1 misdemeanor

when there is a nding of intent to intimate

or harass based on actual or perceived

sexual orientation or gender identity.

Additionally, in 2009, Congress enacted

the Matthew Shepard and James Byrd,

Jr. Hate Crimes Prevention Act, which

expands federal hate crimes to LGBTQ

people.

The law allows federal law

enforcement agencies, such as the FBI,

to investigate and prosecute hate crimes

against LGBTQ individuals when local or

state authorities fail to act. Victims of a

94 Colo. Rev. Stat. § 18-9-121.

95 Colo. Rev. Stat. § 18-9-121.

96 H.B. 17-1188 (2017); Colo. Rev. Stat. § 18-9-111.

97 18 U.S.C. § 249.

hate crime should report the crime both

to the local authorities and the FBI. The

FBI maintains its Colorado eld ofce in

Denver at 8000 East 36th Avenue, Denver,

CO 80238, and may be contacted at (303)

629-7171.

HATE CRIMES PROTECTIONS

COLORADO LGBTQ FAMILY LAW

A Resource Guide for LGBTQ-Headed

Families

Find more information at:

www.one-colorado.org

www.familyequality.org

TIPS FOR LEGAL DOCUMENTS

9 Always have copies of these forms with you, we

recommend carrying electronic copies on a thumb drive

attached to your keychain.

9 Keep several signed original copies of the forms.

9 Write with a blue pen when completing or signing forms

so health care providers don’t question whether the

document is an original.

9 Always have original copies with you when you travel out

of state.

9 Keep an extra copy of your forms somewhere easy for a

close friend of family member to ﬁnd.

9 Keep copies online on a secure server.

A Resource Guide for LGBTQ-Headed

Families

COLORADO LGBTQ FAMILY LAW

LAST WILL AND TESTAMENT

A Will is a legal document by which a person directs how real estate and personal

property will be distributed upon death. Unmarried same-sex couples must have Wills

in which their partners are designated beneciaries, so that the partner will be able to

inherit any of the deceased partner’s property. Even if married, it is best to have a Will.

In addition to deciding property distribution, a Will also provides the opportunity to

designate who should become guardian to any minor children. If both parents are not

legally recognized as such, and the legal parent dies, a judge will decide who the guardian

will be. A legally recognized parent naming the other parent in a Will expresses their

wishes and increases the likelihood that a judge will respect those wishes about who

should raise the children after the death of the legally recognized parent.

A Will does not affect beneciaries that have been designated on bank accounts,

insurance policies, or retirement accounts. The company that holds those funds will

disburse them to the designated beneciary. It is important to keep such designations

up-to-date.

More information is available from the Colorado Bar Association at:

http://www.cobar.org/Portals/COBAR/Repository/publicDocs/Wills%20in%20

Colorado_web.pdf?ver=2012-07-27-130616-460

ADVANCE DIRECTIVE FOR HEALTHCARE

An Advance Directive for Healthcare allows Colorado individuals to direct whom they

want to make medical decisions for them, as well as providing for end-of-life choices in

the event they are unable to express that intent at the time that care is required. More

information on Advance Directives in Colorado is available at:

https://www.colorado.gov/pacic/sites/default/les/HF_Colorado-Law-in-Plain-

English.pdf