Late update: Since this story was published, the Florida Department of Health responded to TPM’s request for comment with a copy of a motion it filed Thursday in a separate court case. In that case, Florida’s same-sex marriage ban was thrown out. Florida is now asking the judge in that case whether the Supreme Court’s same-sex marriage ruling in Obergefell v. Hodges compels the agency to change its rules regarding birth certificates, claiming that there is a conflict between the Supreme Court ruling and the Florida law requiring husbands of mothers to be named on birth certificates.
“The gender specific language of the statute appears to preclude married same-sex couples from being listed as parents on birth certificates,” the motion said. It also noted noted that since 2010, the Department of Health allowed same-sex couples to obtain birth certificates for their adopted children with both their names as parents through a form granted by an adoption court.
“The Department will initiate rulemaking pursuant to chapter 120, Florida Statutes, to use the same form for children of same-sex couples, should the court find that outcome is compelled by Obergefell,” it said.
A group of married same-sex couples with children in Florida — joined by the Equality Florida Institute — are suing state officials over an alleged policy that denies same-sex couples from having both parents’ names on the birth certificate of the child.
According to the complaint filed in a U.S district court in Tallahassee Thursday, Florida’s Bureau of Vital Statistics “will not issue a birth certificate listing both same-sex spouses as a child’s parents when a woman who is married to another woman gives birth to a child in Florida.”
John Armstrong, the Surgeon General and Secretary of Health for the State
of Florida, and Kenneth Jones, the State Registrar, are listed as defendants on the suit, which accuses the state of violating the Fourteenth Amendment of the Constitution.
Florida law requires that if a mother who gives birth to child is married, her husband’s name is automatically listed on her child’s birth certificate. However, the lawyers representing the challengers in Thursday’s complaint told TPM that hospitals have not been given any direction from the state as to listing both parents in a same-sex married couple on a birth certificate, despite multiple attempts by the couples to push Florida to clarify its policies. For instance, adoption certificates in the state list parents as “parent one” and “parent two,” but no such option has been made available for women in same-sex marriages who give birth to their children in Florida, the lawsuit said.
“Complaints were piling up from real-life couples, who, in the glow of giving birth and that excitement, they were faced with being told, ‘Oh sorry your marriage isn’t legal,'” Elizabeth Schwartz, one of the lawyers involved in the lawsuit, told TPM.
“It seems that no one really wants to deal with it, and they’re left with no option with what to do, which is one of the worst ways to resolve disputes,” she said.
For instance, one of mothers participating in the suit was given the option of either listing herself as “unmarried” on her child’s birth certificate or that her husband’s name was withheld, Schwartz said.
The National Center for Lesbian Rights is joining Schwartz, who is based in Miami, and Mary Meeks, an Orlando-based attorney, in representing the couples. The lawyers said that they have been in touch with state agencies since Florida’s same-sex marriage ban was struck down in the courts last year, and had ramped up their efforts in January after the stay of that decision was lifted.
“Everybody has said, ‘We are figuring it out, we are figuring out,” Schwartz said.
“Meanwhile families are being harmed while they’re trying to figure out.”
One of the couples is Catherina Pareto and Karla P. Arguello, the first same-sex couple to legally wed in Florida, according to The Miami Herald. Additionally, the judge assigned to the case is the same judge who knocked down the marriage ban last year, which, Schwartz told The Miami Herald, was a coincidence.
In addition to the “indignity,” as Schwartz describes it, the alleged policy causes, Thursday’s complaint describes the logistical hurdles married same-sex couple face if one parent is not listed on the birth certificate: such as enrolling a child in school, signing a child up for health insurance, or obtaining other legal documents.
To get the second parent’s name on their child’s birth certificate, same-sex couples must go through an adoption court, Schwartz said.
The Florida State Department of Health — which oversees Bureau of Vital Statistics — did not return TPM’s request for comment, but told the AP that it does not comment on pending litigation as general policy.
Since the Supreme Court legalized same-sex marriage nationwide, a vast majority of states have made sure their birth certificate policies were in line with the ruling, National Center for Lesbian Right’s Deputy Director Cathy Sakimura said. But a few others — namely, Utah, Arkansas and Texas — have have been sued in order to comply.
“We have concluded that [Florida] would not act unless we brought a suit,” Sakimura told TPM.