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LGBT Task Force The LGBT Task Force works exclusively on lesbian and gay rights and is located in the Kansas City metro area. The ACLU of Kansas and Western Missouri is the second most active ACLU affiliate for defending the rights of the LGBT community. In addition to working on LGBT legal cases, they have also created a manual outlining the rights of the LGBT community in Missouri and Kansas. Scroll down to access the manual. |
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The Rights of Lesbian, Gay, Bisexual and Transgendered People in Missouri and Kansas
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This booklet is published by the LGBT Task Force of the American Civil Liberties Union of Kansas and Western Missouri. The task force was formed to help advance the civil rights and civil liberties of the LGBT community. The ACLU is a private nonprofit advocacy organization devoted to the defense and promotion of the Bill of Rights. The Bill of Rights is the first ten amendments to the federal constitution and is intended to limit the power of government. The Bill of Rights provide for rights of freedom of speech end religion, of privacy, of due process of law and equal protection of the law. The ACLU is able to provide free legal assistance in s small number of cases each year and works in the areas of legislative lobbying and educating the public. The ACLU relies on financial support from members and supporters and on the volunteer assistance from all kinds of people including lawyers. In order to not duplicate the efforts of others, members of the task force talked with leaders of the LGBT community to identify projects that were not being pursued by other organizations. One of the first projects identified was the publication of a "Know Your Rights" booklet. The primary purpose of the booklet is simply to provide information. Through this process, it becomes evident that while progress is being made to secure civil rights and liberties for members of the LGBT community, a great deal of work lies ahead. The ACLU and its LGBT task force look forward to participating in this crucial struggle. We want to thank the members of the subcommittee: Lisa Brunner, Lana Knedik, Cathy Legsn and Tiffany Leuty, the law students of the student chapters of the ACLU at the University of Missouri–Kansas City and the University of Kansas, Kay Madden, Cathy Connealy, and other members of the legal community who helped with the project. COMMUNITY, EMPLOYMENT AND HOUSING Does Missouri or Kansas state law protect individuals against sexual orientation discrimination? No. Neither the state of Missouri nor the state of Kansas protects individuals from discrimination based on sexual orientation. Missouri and Kansas, like most states and the federal government, do not include sexual orientation in their nondiscrimination statutes, which only prohibit discrimination in housing, employment, and public accommodation based upon race, color, religion, national origin, ancestry, sex and age.' Does Missouri or Kansas state law protect individuals against gender identity discrimination? No. Neither the state of Missouri nor the state of Kansas protects individuals from discrimination based on gender identity. Missouri and Kansas, like most states and the federal government, do not include gender identity in their nondiscrimination statutes, which only prohibit discrimination in housing, employment, public accommodation based upon race, color, religion, national origin, ancestry, sex and age. Is there any place in Missouri or Kansas where gays and lesbians are protected from sexual orientation discrimination? Yes. The following cities in Missouri and Kansas have laws that protect against sexual orientation discriminatin:
Are there any cities in Missouri or Kansas that protect individuals from genderidentity discrimination? No. The nondiscrimination policies that include sexual orientation discussed above do not address gender identity as a protected category. If the city where a person lives protects against sexual orientation discrimination, does that mean that the state government must prevent sexual orientation discrimination? No. Generally, cities, towns and counties in Missouri and Kansas can implement nondiscrimination laws that are enforceable only within the boundaries of that city, town or county. However, the state court system can be used to enforce those laws. If a city can pass a nondiscrimination law that includes sexual orientation, can a city also pass a law that permits same-sex couples to get married? No. The state – and not individual cities, towns or counties – has the authority to regulate and define marriage. Some people believe that the federal government also has authority to define and regulate marriage, which is a central issue in the current debate over the proposed federal constitutional amendment to define marriage as between a man and a woman. Does the State of Missouri or the State of Kansas protect individuals from public accommodation discrimination' based on sexual orientation or gender identity? No. Although state law in Kansas and Missouri prohibits public-accommodation discrimination based on race, color, religion, national origin, sex, ancestry, and disability, sexual orientation is not a protected class of persons under Missouri or Kansas law.8 Some cities (see above) protect gay and lesbian individuals from public accommodation discrimination. Can a financial institution deny an individual or couple a loan based upon their sexual orientation or gender identity? Maybe. While Missouri and Kansas do not have state laws that prohibit lending to LGBT people or couples, both states do not specifically protect LGBT individuals from credit discrimination. However, a federal law called the Equal Credit Opportunity Act of 1975 (ECOA)9, although not specifically protecting LGBT individuals or couples, may prevent sexual-orientation discrimination in loan processes, and at least one federal court has ruled that the ECOA does indeed protect LGBT people10. Another federal court found that a biological male dressed in feminine attire had properly brought a case based on gender discrimination when a bank employee told him to return in male clothing upon request for a loan application11. Also, local nondiscrimination laws may prevent gays and lesbians from discrimination in the loan process. As discussed above, none of these local laws apply to transgendered individuals. What is sexual harassment and does it apply in the LGBT context? Sexual harassment law applies in the LGBT context, in that the federal courts have ruled that there is such thing as same-sex sexual harassment12. Sexual harassment is generally defined as an unwelcome sexual advance, language or actions that results in an adverse effect (loss of employment, demotion, promotion denial, among other things) on an individual's employment. This type of harassment occurs, for example, when a supervisor requires a subordinate to succumb to sexual advances or tolerate sexual or gender-based behavior in exchange for a promotion, raise or retaining his or her job. Sexual harassment can also result in a "hostile work environment," which occurs when unwanted sexual advances, language or actions are so pervasive in the work place that the environment interferes with a person's ability to perform his or her job. This type of harassment does not require that the unwanted sexually charged behavior come from a supervisor or that the behavior is targeted at a specific individual. Under Missouri and Kansas state law, is there such thing as same-sex sexual harassment? Most likely. The United States Supreme Court and other federal courts have found that individuals may sue their employers for harassment by supervisors (or employees, in the hostile work environment context) directed to individuals of the same gender13. Importantly, this does not mean that Missouri or Kansas state law protects against "sexual-orientation" or "gender-identity" discrimination. In fact, unless there is a local law that protects against such discrimination, private and public employers in most situations do not have to protect their LGBT employees from discrimination based on sexual orientation or gender identity. Can an LGBT person lose his or her job because of the person's sexual orientation or gender identity? Probably. Federal law and Missouri and Kansas state law do not prohibit employers from firing a person because of his or her sexual orientation or gender identity. However, local laws (such as the Kansas City, Mo. nondiscrimination ordinance) may protect individuals from losing a job based solely on sexual orientation. Can a person bring his or her same-sex partner or transgendered partner to employersponsored events, such as an office holiday party? Unless there is a local law prohibiting discrimination in private employment, an employer can prohibit an employee from bringing a same-sex partner or transgendered partner to a company event. However, private employers may have internal policies or practices that regulate employees in this context. Can a private employee's same-sex partner or transgenderecl partner obtain health insurance coverage from the partner's employer? This depends on the internal policy of the employer and the health-insurance provider. Neither state nor federal law prohibits a private employer's extension of health insurance benefits to same-sex or transgendered partners. In fact, many private employers provide benefits to domestic partners with proof of a committed relationship (such as a joint bank account, joint ownership of a car or house, joint responsibility for finances, or estate-planning documents designating each other as beneficiaries). What is the military's "Don't Ask, Don't Tell" policy and can a gay or lesbian service member be discharged for coming out? Although the United States military has a long history of discrimination against gays and lesbians14, the military's practice of discrimination became law in 1994.15 The policy provides that a member of the armed forces shall be discharged if one or more of the following findings are made: 1) that the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts; 2) that the member has stated that he or she is a homosexual or bisexual, or words to that effect; or 3) that the member has married or attempted to marry a person known to be of the same sex.16 Gays and lesbians can and are regularly discharged from the military under this policy.17 Gays and lesbians who are discharged under this policy should receive an Honorable or General Under Honorable Conditions discharge, but some commanders and discharge boards have characterized these discharges as Other than Honorable.18 Although a service member may contact a military attorney for a defense, the ACLU highly recommends that the member contact a civilian attorney immediately upon suspecting an investigation into his or her sexual orientation.19 For more information on this subject, contact the Service members Legal Defense Network (see the LGBT organizations section at the end of this handbook). Are there laws that protect persons with HIV/AIDS from employment discrimination? Yes. A federal law known as the American with Disabilities Act protects people with HIV disease from discrimination by most employers, public or private, where 15 or more persons are employed.21 For more information on HIV/AIDS law, go to the HIV/AIDS issues link at www.aclu.org. Can a public school refuse to allow a student to attend class because he or she (or his or her parents) is gay or lesbian? No. The Missouri state constitution permits all eligible students to receive an education through the 12th grade. In Kansas, the law grants all eligible students this right by statute.21 The state laws do not specifically address sexual orientation an it relates to public education, and the issue has not been presented to Missouri or Kansas courts. Although public schools may suspend or expel students for safety and disciplinary reasons, a student should be able to receive a public education regardless of his or her sexual orientation or the orientation of his or her parents.22 Can a same-sex couple attend their high school prom together? Most likely. Although some school officials may try to prevent same-sex couples from attending prom, students should be able to attend prom (or any other school dance) with their date of choice as long as the students comply with the school's rules (like prohibitions against alcohol). School officials have attempted to prevent same-sex couples from attending prom on the basis that permitting attendance would pose a safety threat to the gay and lesbian students or that permitting attendance would pose a "substantial disruption" for all students. However, at least one court has held that attending a high-school dance with a member of the same sex is protected as expression under the First Amendment of the United States Constitution.23 Can a student organize a Gay-Straight Alliance at a public school? Yes. A federal law called the Equal Access Act provides that if a school permits students to organize clubs, then school officials cannot prevent a club from organizing based upon the subject matter addressed by the club. Although the Equal Access Act does not specifically address gay clubs, the law applies to students who want to form a Gay-Straight Alliance or other gay-rights club. Students must, of course, comply with their school's rules relating to forming clubs, such as application requirements and procurement of faculty sponsors. In other words, students who want to form a gay-rights club must follow the same rules as students who form a chess club.24 Do school officials have to protect students from gay-related harassment from other students? Most likely. School officials have an obligation to provide a safe learning environment for all of their students. There are no Missouri or Kansas laws that specifically address school safety. However, individual school districts may enact anti-harassment and anti-discrimination rules that protect students from gay-related harassment. For example, the Kansas City, Mo. school district has sexual orientation in its nondiscrimination clause. On the Kansas aide, the Lawrence school district (USD 497) prohibits sexual-orientation and gender-identity discrimination. Can an LGBT teacher lose his or her job because he or she is out at school? Probably, unless the teacher's employment contract, school district or local law prohibits sexual-orientation or gender-identity discrimination. Neither Kansas nor Missouri state law prevents a teacher from losing his or her job based on sexual orientation. Can a teacher discuss LGBT issues in the classroom with his or her students? Probably, as long as the discussion is age-appropriate, topical and does not interfere with the educational process. Although there are no Kansas or Missouri cases that address this issue, the United States Supreme Court in 1968 established the rule that the First Amendment protects speech by public employees.25 Therefore, a teacher should be able to discuss LGBT issues in the classroom unless the school administration has a valid, significant reason for prohibiting the teacher's speech.26 Do any universities or colleges in Kansas and Missouri protect individuals from sexual-orientation discrimination? Yes. Several universities and colleges in Kansas and Missouri include sexual orientation in their nondiscrimination policies. These include the University of Missouri, Washington University, St. Louis University, the University of Kansas, Kansas State University, Emporia State University, and Wichita State University. Do any universities or colleges in Kansas and Missouri protect individuals from sexual-identity discrimination? None of the policies discussed above address sexual-identity discrimination against transgendered individuals. Can same-sex couples become legally married in Missouri or Kansas? No. Both Kansas and Missouri have an express statutory prohibition against same-sex marriage. According to Missouri, "it is the public policy of this state to recognize marriage only between a man and a woman." In Kansas , the law provides that "the marriage contract is...a civil contract between two parties who are of the opposite sex."27 The Kansas courts have also found that a marriage between a post-operative transsexual woman and a man is void as a matter of Kansas state law.28 If a same-sex couple enters into a civil union in Vermont or marriage in Massachusetts, will the union be legally recognized in Missouri or Kansas? Probably not. As of the date of publication, Vermont civil unions and Massachusetts marriages have not been a subject of any court cases in Missouri or Kansas, but it is not likely that unions or marriages will be legally recognized by either state in the near future. In 1996, Congress enacted the federal Defense of Marriage Act (DCMA). The statute defines marriage as a legal union between one man and one woman as husband and wife. In addition, the statute states that no state must recognize or give effect to any public act, record, or judicial proceeding of any other state respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State ... or a right or claim arising from such relationship. The federal DOMA also prevents same-sex couples from filing joint tax returns or receiving federal benefits, such as social security benefits.29 Acting upon the authority articulated in the federal DOMA, 32 states have enacted legislation specifically defining marriage as the union of one man and one woman for all purposes within that state. These state laws are often called by a variety of names, including "state DOMAs," "mini-DOMAs," or "marriage recognition laws." Kansas and Missouri both have state DDMAs.30 Is there a difference between a civil union and a marriage? Yes, although these definitions are subject to much debate. In general, a civil union, like a marriage, is a relationship status that confers certain benefits and responsibilities upon a couple. The difference between a civil union and a marriage is that a marriage, in theory, confers the same rights, benefits and responsibilities upon all legally married couples. The Full Faith and Credit Clause of the United States Constitution provides that states should recognize each other's laws and judgments that are valid under another state's laws. There is, however, a "public policy" exception to the clause. If the legal pronouncements of one state conflict with the public policy of another state, the federal courts have in the past been reluctant to force a state to enforce the pronouncements of another state in contravention of its own public policy. DOMAs in Missouri and Kansas prevent legal recognition of gay or lesbian marriages that are valid in Massachusetts or other countries. Is there such thing as "common law" marriage for same-sex couples in Missouri or Kansas? No. A common law marriage is a "marriage" that does not depend for its validity upon any religious or civil ceremony but is created by the consent of the parties, much like an oral contract. Missouri does not recognize common law marriage for couples, whether heterosexual or homosexual. Currently, Kansas is among a shrinking minority of jurisdictions that recognize some form of common law marriage. Kansas recognizes common law for couples that are of the opposite sex who hold themselves out as a married couple.31 What is the significance of the proposed federal and state constitutional amendments that will define marriage as only between a man and a woman? Congress and the Missouri legislature are currently trying to amend their respective constitutions to define marriage as between a man and a woman and to prevent recognition of gay or lesbian marriages that are legal in other places. The Kansas legislature recently rejected a similar proposed state constitutional amendment. These amendments define marriage in the same way that DOMAs define marriage, except that constitutional amendments are much more difficult than statutes to change once they are in place. Also, constitutional amendments traditionally expand rights (such as the 19th Amendment to the U.S. Constitution, which gave women the right to vote), but the proposed marriage amendments limit rights. The only other time in history where an amendment limited rights was the 18th Amendment, which prohibited the sale or use of alcoholic beverages. Does Missouri or Kansas offer civil unions or a domestic partnership registry to same-sex couples? No. Neither the State of Missouri nor Kansas extends legal recognition to same-sex couples in any way. What is a domestic partnership? "Domestic partnership" is used in many contests. Most often, it means a status that recognizes an unmarried couple (whether homosexual or heterosexual) and their children as a family for certain limited purposes. Some cities and counties in Missouri and Kansas (but not the states) offer a domestic partnership registry to unmarried couples, which permits couples to register their relationship for the purpose of gaining legal recognition by the city or county in which the registry is offered. In the work place, domestic partnership plans allow an employee to take advantage of some benefits, such as health insurance for the employee's partner and bereavement leave. Private employers may offer domestic partnership benefits to its employees even if the state, local or federal government bans recognition of marriage between persons of the same sex. However, employees will he taxed for health-insurance benefits received by his or her non-employee partner. Does Missouri or Kansas offer domestic-partner benefits for state employees? No. Employee benefits for employees of the state are not extended to same-sex couples in Kansas or Missouri. If a same-sex couple is registered with a city or county domestic partnership registry in Missouri or Kansas, does the state have to legally recognize the couple for purposes of employee benefits or state taxation? No. Domestic partnership registries are only legally valid within the city or county in which they are offered for the limited purposes defined by the local domestic partnership registry law. Are there any cities, towns or counties in Missouri and Kansas that extend legal recognition to same-sex couples? Yes. As of the date of publication of this handbook, Kansas City , St. Louis and Jackson County extend some form of legal recognition to same-sex couples. Each of these cities and counties has a domestic partnership registry for same-sex couples. What legal benefit does a same-sex couple receive by registering with a domestic-partnership registry? Practically speaking, the domestic-partnership registries in Kansas City, St. Louis and Jackson County are symbolic in effect and do not provide registered couples with any legal benefits. However, in addition to the political and philosophical significance of domestic-partnership registries, the registries are valuable to couples that want to legally formalize their relationships. Proof of registration may also be helpful to couples whose employers offer domestic-partnership benefits or in other contests, such as hospital visitation. There may be legal benefits to individuals who are employed by a city or county that offers a domestic-partnership registry. In Kansas City, Mo. city employees who register receive the same health insurance, sick and funeral-leave benefits as married, straight employees. In St. Louis a city employee who registers does not receive health-insurance benefits for his or her partner. Can an LGBT couple file a lawsuit if they are denied a marriage license in Missouri or Kansas? Yes, but the couple or their attorney should contact an LGBT-rights organization before filing suit. The law regarding same-sex and transgendered marriage is complicated and in such a state of flux that it is important to consult an LGBT-rights organization to discuss strategy and timing of a lawsuit. Bad law can be created if a lawsuit is not carefully considered, which could harm same-sex marriage law for couples all over the country. What types of domestic-partnership benefits may private employers provide? Private employers may provide domestic partners with any benefits they wish, which may include health insurance, family and medical leave, bereavement leave, equal pension benefits, relocation expenses, or access to company facilities. A benefits administrator or employee handbook can be consulted to find out if an employer offers such benefits. Are there any ways that a same-sex couple can legally protect their relationship and their assets, even though same-sex marriage is not recognized in Missouri and domestic-partnership registries offer no practical legal benefits? Yes. Wills, trusts and other estate-planning documents can be created for same-sex couples that offer a variety of protections for the couple, their children and their assets. These documents may also provide protections to couples who wish to assure that they can visit each other in the hospital if one of them is ill and may also give a member of the couple the power to make financial and health-care decisions for their partner if their partner can no longer make these types of decisions. Below are descriptions of the most commonly used legal documents that help protect the rights of same-sex couples. An attorney should be consulted to determine which of these documents are right for each person or couple and to ensure that the document includes the technical details required by law. RELATIONSHIP AGREEMENT OR CONTRACT A couple may enter into a written agreement that sets forth each person's financial and household obligations. Written agreements regarding property and finances should be respected and honored according to ordinary rules of contract law, although the Missouri and Kansas courts have not yet ruled on the subject. Additionally, courts may recognize an oral contract between two individuals. Agreements related to child support, custody or visitation rights are probably not enforceable in Missouri or Kansas courts because these types of agreements generally require court approval before they become enforceable. DURABLE POWER Of ATTORNEY FOR FINANCIAL DECISIONS A power of attorney is a document by which an individual (called the "principal") gives another person (called the "agent") the authority to make decisions on behalf of the person who granted the power. If a person grants such authority with a power of attorney document, the decision and actions of the agent that are within the authority spelled out in the power of attorney are legally binding on the principal. Under Missouri and Kansas law, and the laws of many other states, a power of attorney with proper wording way be "durable." This means that the power granted by a person in his or her durable power of attorney lasts beyond the principal's incapacity. A power of attorney does not survive after the death of the principal. DURABLE POWER OF ATTORNEY FOR HEALTH-CARE DECISIONS A durable power of attorney for health-care decisions is a legal document where a person can designate someone else to make health-care decisions if he or she becomes unable to make such decisions. Many people use a durable power of attorney for health-care decisions to designate another person to serve as their agent for the purpose of making health-care decisions when they are unable to do so. Like a durable power of attorney for financial decisions, a durable power of attorney for health-care decisions lasts beyond the principal's incapacity.32 Again, a power of attorney does not survive after the death of the principal. HEALTH-CARE DIRECTIVE (LIVING WILL) A health-care directive, which is sometimes called a living will, is a document that sets forth a person's wishes regarding medical care in case the person becomes incapacitated. Common issues addressed in a health-care directive include when or if to withdraw life-sustaining nutrition or medical care when a person is in a vegetative state and "do not resuscitate" orders. A WILL A will is a legal document where a person designates how he or she wants his or her assets distributed after death. With a will, a person can have his or her assets distributed to a same-sex partner, friends, family members, organizations and practically anyone he or she wishes. A LIVING TRUST A living trust is a legal document where a person designates how he or she wants trust-held assets distributed upon death or even before death. One of the advantages of a living trust is that the trust does not need to be filed with the probate court to distribute assets. Upon death, the trustee distributes the assets to the designated person(s) or organization(s). Like a will, a person can have his or her assets distributed to practically any person or organization. Another major difference between a trust and a will is that a trust is "funded" (assets are titled in the name of and held in the trust) during a person's lifetime. For example, a car held in a living trust is titled in the name of the trust ("the John Doe Living Trust") rather than in the name of the individual ("John Doe"). "TRANSFER ON DEATH" DESIGNATION A transfer on death (or TOD) designation can be used with an automobile and assets such as stock certificates and permits automatic transfer of the property to a designated person or organization after a person dies. Such a transfer is immediate upon death and does not require a will, trust or filing with the probate court.33 A benefit of a TOD designation is that the beneficiary does not have legal right to the property during the owner's life. "PAY ON DEATH" DESIGNATION A pay on death (or POD) designation is used for assets such as bank accounts and permits the designated person to receive the assets immediately after the death of the owner of the account. Such a transfer is immediate upon death and does not require a will, trust or filing with the probate court.34 Like a TOO designation, the beneficiary of the POD designation doss not have legal rights to the account while the owner of the account is still living. BENEFICIARY DEEDS AND BENEFICIARY DESIGNATIONS The owner of real estate can file a beneficiary deed with the county recorder of deeds office to transfer property to a beneficiary after the owner's death. Also, a person can designate a beneficiary to receive the assets of a retirement plan or life insurance by filling out a beneficiary designation form with the institution that holds the plan or insurance. JOINTLY TITLED PROPERTY Couples can own real estate, automobiles and other titled property as "joint tenants with right of survivorship." The benefit of joint tenancy is that the each person has a 100 percent ownership interest in the property and, upon death of one of the parties, the survivor retains 100 percent ownership of the property without the need for a will, trust or other estate planning document. "Tenancy in common" is another way to title property. With tenancy in common, each member of the couple has a 50 percent ownership interest in the property. When one of the parties dies, the decedent's ownership interest will not automatically transfer to the survivor without some other estate planning document or beneficiary deed. When purchasing titled property as a couple, it is important to tell the real-estate or sales agent and the title company whether the couple prefers to own the property as joint tenants or tenants in common. Joint tenancy is preferred by most same-sex couples. Does a person need an attorney to get these documents? Not necessarily, although the ACLU strongly suggests that every person hire an attorney to prepare most of these documents because there are many technical requirements that must be met in order for these documents to be enforceable by a court. Even one missing requirement could invalidate the entire document. A pre-approved form of a durable power of attorney for health-care decisions may be available through a person's health-care provider without the need for an attorney. Also, TOD and POD designations may be accomplished without an attorney by filling out paperwork that is available at most banks, at the Department of Motor Vehicles (for personal vehicles), or an institution that holds stocks or other investments. Does Missouri or Kansas law prohibit transfer of property to a same-sex partner through the use of wills, trusts and other estate-planning documents? No. Even though each of these documents and designations can be challenged in court (which is also true for heterosexuals), if the documents are prepared properly, a person's assets should be distributed according to his or her wishes. What happens to a person's assets if he or she dies without a will? "Intestate" is the word that describes the status of a deceased person who dies without a will. Missouri and Kansas have statutes setting forth the distribution of a person's assets when he or she dies without a will. Generally, the assets of a person who dies intestate are distributed to the surviving spouse, if any, and then to children and surviving parents, siblings and then down the bloodline to more distant relatives. Without a will or trust or other estate planning documents, a person's assets will not automatically transfer to the surviving same-sex partner or transgendered partner. Does Missouri or Kansas permit distribution of assets to a person's same-sex partner if he or she dies without a will or trust? No. If a gay or lesbian person dies without a will or a trust or other estate-planning documents (discussed above), his or her assets will not be distributed to his or her partner, but rather will be distributed according to Missouri or Kansas intestate laws. Intestate laws in both states dictate that a deceased person's assets go to legal spouses, children and family members in percentages that are set forth in the intestate laws.35 How can a person designate who will be in charge of his or her funeral and burial arrangements? Generally, a person can use a durable power of attorney for health-care decisions, combined with a health-care directive, to designate the person who can make decisions regarding cremation and burial. However, in Missouri , a statute was adopted in 2003 that sets forth who has the right to control burial arrangements. According to the statute, if someone other than next of kin has been designated to make decisions about burial and handling of a decedent's body ("right of sepulcher"), the mortician or funeral director must receive written permission from next of kin (in the following order: legally recognized spouse, adult child, parent, sibling) before following the instructions in the power of attorney document.36 In Kansas, a durable power of attorney for health-care decisions is needed in order for one's partner to authorize disposal of the decedent's remains. In the absence of such a power, these decisions revert to the decedent's legally recognized spouse, adult children, parents, and next of kin, in that order.37 If a same-sex couple separates, what is the legal status of these documents? These documents remain in full force and effect even if a same-sex couple separates. An attorney should be consulted if a person wishes to revoke or change a will, trust or durable power of attorney. For TOD or POD designations, a person can contact the appropriate institution (e.g. bank) to request a change in the designation. Can a gay or lesbian individual adopt a child in Missouri or Kansas? Maybe. There are no specific laws or court cases in Missouri or Kansas that prohibit adoption by gays and lesbians, but it is not clear whether either state would permit an adoption by a gay or lesbian if challenged in court. According to the Human Rights Campaign (HRC), more than 20 states have granted adoptions to gay and lesbian parents, recognizing, along with the American Academy of Pediatrics, the American Psychological Association, the Child Welfare League of America and other professional organizations that sexual orientation is irrelevant to good parenting. The Human Rights Campaign rates Missouri and Kansas law regarding adoption to gay and lesbian individuals as "unclear." Can same-sex partners adopt a child or become foster parents? Maybe. There are no specific laws or court cases in Missouri or Kansas that prohibit foster parenting or adoption by same-sex couples, but it is not clear whether either state would permit an adoption by a gay or lesbian if challenged in court. Anecdotal evidence indicates that same-sex couples have successfully adopted children in Missouri or Kansas. However, some same-sex couples have been denied foster care and/or adoptive custody because of their sexual orientation. According to the Human Rights Campaign, more than 20 states have granted adoptions to gay and lesbian parents, recognizing, along with the American Academy of Pediatrics, the American Psychological Association, the Child Welfare League of America and other professional organizations that sexual orientation a irrelevant to good parenting. Can a partner in a same-sex relationship adopt the other partner's natural child in a "second-parent adoption?" No. A "second-parent adoption" provides the equivalent of stepparent adoptions to gay and lesbian couples and allows both people to become the legal parents of the children they raise together. There are no statutes or reported cases in Kansas or Missouri that address second-parent adoptions. The HRC rates Missouri and Kansas law regarding second-parent adoptions to gay and lesbian couples as "bad."" Short of adoption, how can a family protect the interests of the child with his or her second parent? CO-PARENTING AGREEMENT WILLS POWER OF ATTORNEY Can a person lose custody or visitation rights with his or her child because of his or her sexual orientation? Yes, although the Missouri Supreme Court ruled in 1998 that a parent's sexual orientation should not be a factor in a custody or visitation case unless there is evidence that the parent's sexual orientation has harmed the child in some way.42 In Missouri and Kansas, the primary factor in custody and visitation determinations is the "best interest of the child."43 Under current law, a court should consider sexual orientation in the same way a court considers any ether personal characteristic or behavior. For example, a court should not consider the fact that one parent drinks alcohol unless the court determines that the child's beat interest is harmed by that parent's alcohol use (such as behavior problems, trouble in school or emotional problems that are related to the parent's alcohol use). Thus, a parent's sexual orientation, without a showing of harm to the child, should not prevent that parent from having custody of his or her child. Can a person's ex-spouse use sexual orientation to prevent a person from getting custody of his or her child? Yes. However, as discussed above, the court must consider the best interest of the child and should not consider a parent's sexual orientation in a custody case unless there is proof of harm to the child as a result of the other parent's sexual orientation. Can a court prevent a person's gay or lesbian partner from spending time with the other partner's biological children? Yes, but only if the best interest of the child is harmed as a result of the relationship between the partner and the child. The Missouri Supreme Court has ruled that a parent's gay or lesbian partner cannot be excluded from spending time with his or her partner's biological child without a showing of harm to the child.44 Can a court consider other peoples' prejudice towards LGBT people when a court is determining whether a parent's sexual orientation is harmful to a child? Maybe. Courts should not base a custody or visitation decision on the homophobia of others, although courts sometimes look at factors such as social acceptance in a community when evaluating the best interest of the child. Issues such as whether the child will be made fun of at school because the child's parents are gay are based on speculation and should not be considered by the court. As with all custody and visitation cases, an attorney should be consulted to find the best way to prove to the court that LGBT people can and do raise healthy, well-adjusted children in loving homes and supportive communities. When a gay or lesbian couple separates, can the non-biological parent have visitation rights with the children of the former partner? Possibly. At least one Missouri court has applied the equitable parent doctrine to a case involving a lesbian couple, which resulted in custody and visitation rights for the non-biological parent. The court in that case found that the non-biological parent was an equitable parent after helping raise the child for two years with the consent of the biological mother. The court further found that homosexuals are not unfit per se to parent; rather, their sexual orientation is merely one factor to consider, and sexual orientation cannot, standing alone, be a permissible basis for the denial of custody or visitation.46 There are no reported cases in Kansas that address this issue. What is domestic violence/assault/abuse? In Missouri, domestic assault occurs when a person causes or attempts to cause physical injury to a family or household member or an adult who is or has been in a continuing social relationship of a romantic or intimate nature with the actor. In addition, domestic assault occurs when a person knowingly attempts to cause or causes the isolation of such family or household member by unreasonably and substantially restricting or limiting such family or household member's access to other persons, telecommunication devices or transportation for the purpose of isolation.41 In Kansas, domestic abuse occurs when persons who reside together, who formerly resided together or who have or has had a child in common: (a) intentionally attempt to cause bodily injury, or intentionally or recklessly cause bodily injury; (b) intentionally place, by physical threat, another in fear of imminent bodily injury; or (c) engage in any of the following acts with a minor under 16 years of age who is not the spouse of the offender: (1) the act of sexual intercourse; or (2) any lewd fondling or touching of the person of either the minor or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the minor or the offender, or both.41 Do the domestic-violence laws apply to people in same-sex relationships? Yes. In Missouri, the domestic-assault statutes apply to "family" or "household member" which includes spouses, former spouses, adults related by blood or marriage, adults who are presently residing together or have resided together in the past, an adult who is or has been in a continuing social relationship of a romantic or intimate nature with the victim, and adults who have a child in common regardless of whether they have been married or have resided together at any time.41 In Kansas, the law applies to "intimate partners or household members." This includes persons who are or have been in a dating relationship (of a social or romantic nature), persons who reside together, or who have formerly resided together or persons who have had a child in common.50 Does the state of Missouri or Kansas protect gays and lesbians with hate-crimes laws? Yes. Under Missouri law, certain crimes that are knowingly motivated by sexual orientation are subject to enhanced penalties. In Kansas, enhanced penalties are imposed when certain offenses are motivated entirely or in part by the victim's belief or perception of the sexual orientation of the victim, whether or not the defendant's belief or perception was correct.52 Does Missouri or Kansas have hate-crimes laws that protect transgendered individuals? Yes, in Missouri. The Missouri hate-crimes law explicitly addressee sexual orientation to encompass gender-identity-motivated crimes under its broad definition of sexual orientation. Sexual orientation is defined as a "male or female heterosexuality, homosexuality, bisexuality by inclination, practice, identity or expression, or having a self-image or identity not traditionally associated with ones gender. No, in Kansas. The Kansas hate-crime law does not explicitly address gender-identity-based violence. Does Missouri or Kansas have an enforceable "sodomy" law that criminalizes private consensual sex between adults of the same sex? No. Although both Missouri and Kansas have such criminal laws on the books,54 in Lawrence v. Texas,55 the United States Supreme Court found that the due process clause of the United States Constitution prohibits the criminalization of private consensual sex between adults of the same sex. ACLU of Kansas and Western Missouri ACLU of Eastern Missouri ACLU Lesbian and Gay Rights Project and AIDS Project GLSEN Metro St. Louis (GLSEN):GLSEN Kansas City GLSEN Gay and Lesbian Alliance Against Defamation (GLAAD) The Freedom Coalition Lesbian and Gay Community Center of Greater Kansas City (LGCCKC) Topeka Gay and Lesbian Task Force The Center Wichita (Gay and Lesbian Community Center ) Columbia /Mid-MO LGBT Coalition Human Rights Campaign (HRC) PROMO (St. Louis) PROMO (Kansas City) National Center for Lesbian Rights National Conference for Community and Justice - Greater Kansas City (NCCJ-KC) Parents and Friends of Lesbians and Gays - Kansas City (PFLAG-KC) Service members Legal Defense Network Transgender Law and Policy Center for Lesbian and Gay Civil Rights Lambda Legal Defense and Education Fund
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