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DSHS Approves New Guidelines Recognizing All Married Couples
Posted on August 13, 2015 at 12:59 pm

On Tuesday, Kirk Cole, interim commissioner of the Texas Department of State Health Services (DSHS), accepted recommendations from the department’s top lawyer on changes to birth and death certificates and other vital documents in response to the Supreme Court’s ruling recognizing the freedom to marry as a constitutional right.

DSHS oversees Texas’ Bureau of Vital Statistics, which maintains official state records. The newly adopted guidelines are in response to direction from U.S. District Judge Orlando L. Garcia who earlier this month ordered Cole and Texas Attorney General Ken Paxton to appear in court to explain why the state had not updated vital statistics forms and procedures to reflect the recognition of marriages between persons of the same sex.

The recommendations outline five sets of forms to be updated: birth certificates, death certificates, forms related to adoptions, gestational agreements and a broad “other” category that includes burial and divorce. The guidelines make no changes to the process of correcting birth certificates for Texans with a history of gender transition.

Under the guidelines any child born in Texas will now be entitled to have both their parent’s names listed on their birth certificate, provided their parents are married. Parents who were legally married anywhere in the United States at the time of their child’s birth may petition the Bureau of Vital Statistics for a revised birth certificate to reflect both parent’s names. The recommendations do not address whether a child with two parents of the same sex who are not married may similarly receive a birth certificate that reflects both parents. Given the recommendation’s silence on that matter it is likely that they will not. In contrast, in Texas an unmarried woman may place the name of her child’s father on the child’s birth certificate easily, and without petitioning a court.

Death Certificates will now reflect surviving same-sex spouses. A revised death certificate for a person who died before the change in policy but whose marriage was legally recognized in another part of the United States may be requested by their surviving spouse.

In matters of adoption, the new guidelines are less specific, likely due to the complicated nature of adoption and the numerous forms involved. Previously, same-sex couples could legally adopt in Texas, but were required to adopt as two single people jointly adopting the same child, not as a couple. This process required first one parent, then the other, to individually go through the adoption process, with a minimum six-month delay between the adoptions. Under the new guidelines, all married couples will be treated the same and same-sex couples will be allowed to adopt as a couple, provided they are legally married. Unmarried couples will still likely be required to follow the old two-step process, but – due to a Texas law that allows the state to legally consider a couple married if they present themselves in public as such, it is unclear how this change in policy will affect long-term couples who are unmarried.

The birth certificates of adopted children may now reflect the names of both parents, regardless of the parent’s genders.

Gestational agreements are arrangements between a woman and a couple for the woman to serve as a surrogate mother to the couple’s child. In Texas, the law restricts these agreements to married couples and requires that if a surrogate mother is married, her spouse consent to the agreement. The new DSHS guidelines indicate that gestational agreements will now be available to all married couples, regardless of the genders of the couple, but make no change allowing single persons to enter into gestational agreements with surrogate mothers. Such a change would likely require legislative action.

The guidelines also indicate that DSHS will update other forms relating to divorce and burial, but do not go into great detail about the changes.

The approved policy changes reflect a new day for LGBT Texans and hopefully indicate that the state is taking its responsibility to comply with the Supreme Court’s marriage ruling seriously. However, many gaps in the accessibility of state services and record keeping remain.

Download DSHS Memorandum Obergefell.pdf