Tennessee Passes Law That Could Deny Gay Parents Custody of Their Kids

Last June, the local Knoxville News Sentinel reported that Erica Witt was seeking custody of her daughter during the divorce from her wife Sabrina Witt in Knox County, Tennessee. The couple had decided to buy a house and have a baby in 2014. Sabrina used a sperm donor. According to the Sentinel, she gave birth in January 2015—before the Supreme Court made gay marriage legal—so she was unable to put Erica's name on the birth certificate. The Court's ruling made their nuptials legal in June of that year, but when they split up in February 2016, the birth certificate still ignited a major custody dispute.

Legal experts held vastly different interpretations of the situation. A 1977 law, Sabrina's attorney John Harber argued, made it clear that only a man would have rights to a child his wife gave birth to during their marriage. Erica's lawyer, Virginia Schwamm, rebuffed him, pointing out that much had changed since 1977 when the idea of two women marrying seemed radical if not impossible. Schwamm wanted the court to see her client Erica as Sabrina's former "husband" and the "father" of the child.

Fourth circuit Judge Greg McMillan dismissed the idea. "I believe this is a situation where (Erica Witt) has no biological relationship with this child, has no contractual relationship with this child," he ruled, according to the Sentinel.

In a legal challenge, Schwamm opposed the constitutionality of the 1977 law, pointing out that it was written before the Supreme Court legalized same-sex marriage: "The argument that marriage may only consist of a 'husband' and a 'wife' has been held to be unconstitutional."

Her battle, of course, outraged Republicans, and the state legislature quickly drafted HB1111. It took up less than one sheet of paper. "As used in this code, undefined words shall be given their natural and ordinary meaning, without forced or subtle construction that would limit or extend the meaning of the language, except when a contrary intention is clearly manifest," the law stated. "This act shall take effect upon becoming a law, the public welfare requiring it."

At the start of May, LGBTQ rights advocates descended on Tennessee. Jim Obergefell, a plaintiff in the 2015 Supreme Court Case, appeared to denounce HB111. Chris Sanders, executive director of the Tennessee Equality Project, told the Tennessean, "Jim Obergefell's presence highlights the ways that love and equal protection of the law will always prevail over discriminatory state legislation."

This month, McMillan finally sided with Erica. He called it unconstitutional for the legislature to use a new law to affect a current case. "The parties and the child deserve to have their issues tried and a ruling made," he wrote in April according to the Sentinel.

McMillan changed his own decision for good after Sara Sedgwick, the Tennessee Attorney General's senior counsel for healthcare, encouraged him to view "husband" in a gender neutral manner. McMillan ruled in favor of Erica. "The court finds that that is the correct frame of reference that the court should use in looking at this issue based on the duty of this court to preserve the statute's constitutionality if it can be read in a neutral fashion," he said according to the Sentinel. He deemed Erica the father of the child. (Like any other father, she also now must pay child support.)

Republicans, though, do not want any other woman to use "husband" in a gender neutral way. This month, Republican Governor Bill Haslam signed HB111 into law. But it's likely not going to the be the last time LGBTQ advocates battle Haslam over the bill. At a press conference, Jim Obergefell said, "[HB111] seeks to circumvent the ruling of the highest court in the land and rollback the rights and protections the LGBTQ community gained in that decision."