As a lawyer that serves the LGBTQ+ community through my private practice and advocacy efforts, I receive phone calls and emails all the time from concerned clients asking me how to best protect themselves and their families. And their concerns are not unfounded. News reports of states stripping rights to bodily autonomy are a daily occurrence (specifically when it comes to pregnant women and trans folks) and the Supreme Court seems more concerned with religious liberties than protecting Americans as a whole. So what are my LGBTQ+ clients supposed to do to best situate themselves in an America led by a regime that seems hell bent on ensuring they are treated as lesser?
Here’s my top 5 tips as a family formation lawyer and reproductive rights advocate:
1. Marriage Equality Is Stable—But Not Bulletproof
While the right to same-sex marriage granted by Obergefell v. Hodges still stands, there are some nuanced vulnerabilities in the wake of Dobbs v. Jackson Women’s Health Organization. Though I am encouraged by SCOTUS’ recent decision not to revisit marriage equality, federal proposals and advocacy efforts targeting the scope of protections for the LGBTQ+ community persist. Additionally, multiple states have introduced measures that are intended to challenge or signal opposition to same-sex marriage, citing principles of federalism, religious liberty arguments, and spurring state-level litigation designed to make it to the Supreme Court (or at least national news). Though a direct reversal of Obergefell is unlikely, incremental erosion of marriage equality and family equality through administrative channels at the state level are contributing to an atmosphere of intolerance.
The takeaway: As of today, your marriage is valid and must be recognized throughout the United States, but long-term constitutional protection of the right to marry is not guaranteed. Expect challenges to recognition of same-sex marriages through indirect means including religious organizations, benefits, and private groups that fall into excepted categories.
2. Religious Exemptions Are Expanding
In 2026 we have seen a major trend in SCOTUS and federal courts favoring religious liberty claims over LGBTQ+ protections. Most recently, SCOTUS struck down a conversion therapy bay on grounds that it violated the Constitutional right to free speech. At the same time, states are advancing laws allowing religious-based exceptions to healthcare organizations, counseling providers, and adoption services.
The takeaway:. As an LGBTQ+ individual or same-sex couple you should know you may be denied services even if you are legally married. I have seen this happen in my practice with faith-based embryo donation agencies, religious based adoption agencies, and wedding service providers. Remember that legal equality does not equate to equal access. (Yes, I used 3 versions of the word “equal” on purpose.)
3. Parentage Remains the Biggest Legal Vulnerability
I’m not just saying this because it’s the most prevalent issue in my practice. It’s a legal fact that the number one issue for LGBTQ+ parents, and specifically gay couples, is legal parentage.
Many states that were previously surrogacy friendly are moving towards a more restrictive approach when it comes to gay couples becoming parents through gestational surrogacy. Florida and Texas are two such examples. In states lacking inclusive parentage legislation, the outcome of such cases is determined by judicial discretion. A number of states are presently proposing legislation that would drastically change the ability of gay couples to pursue gestational surrogacy in their state, some more overt than others.
The takeaway: Plan the entirety of your surrogacy journey at the outset and do not leave the plan for securing legal parentage as an item to be determined at a future date. Please consult with a lawyer in your jurisdiction to understand the nuance of the laws in your state, and the state and jurisdiction where your child will be born. Pre-birth orders of parentage are ideal, but post-birth orders of parentage or other judgments of parentage can also provide legal security. Confirmatory adoption or second parent adoption should also be considered. Marriage alone does not guarantee that both spouses are the legal parents of their child born through assisted reproduction.
Securing your legal parentage is especially critical if you are having a child through gestational surrogacy, if you travel internationally, and if you intend to move to a new, less friendly state.
4. The State-by-State Patchwork Is Getting Worse
While it’s always been true that parentage is governed at the state level, the patchwork of state laws is becoming polarized between states moving towards providing additional protections for LGBTQ+ individuals (New York, Massachusetts, Connecticut, and California) and states that are becoming more restrictive and hostile (Texas, Florida, South Carolina). There are dozens of anti-LGBTQ+ bills throughout state legislatures with a record number of bills identified as anti-LGBTQ+ recently passed (over 75). See: ACLU: Mapping Attacks on LGBTQ+ Rights
The Takeaway:. Your rights may change when you cross state lines. If you are considering moving your residence, traveling to a hostile jurisdiction, or having a child born in another state, you need to be protective with your planning. Question whether the documents you are relying on are court orders entitled to full faith and credit, or if they are administrative documents vulnerable to changes.
5. Schools, Kids, and Family Recognition
Though restriction of LGBTQ+ content in school is often not considered a family building issue, it directly impacts LGBTQ+ families in ways we need to be aware of. We are seeing more proposed legislation and policies restricting LGBTQ+ content and recognition in schools throughout the United States than in prior years. Some recently enacted policies impact whether both parents can be listed in school directories or even acknowledged by some educational institutions, and whether educational materials including gay or trans programs are taught or permitted to be part of the curriculum.
The Takeaway:. This shift in policy in certain areas can impact the community’s recognition of your family, access to your child while attending school, and medical decision making for your child. How we teach our children about whether their family structure is acknowledged or valued can have long term implications – legal and emotional.
What LGBTQ+ Couples Should Do Now
1. Secure parentage (non-negotiable)
Get. A. Court. Order. A birth certificate is not enough.
2. Plan for mobility
Assume you may move, travel, or require recognition of your marriage or parentage elsewhere.
3. Choose jurisdiction strategically
Where you marry, have children, finalize your parental rights, matters more now than ever.
