Gay Father Entitled to Social Security for Kids

This is one of those cases that really shouldn’t be a case at all.   It’s also an instance where being legally recognized as a parent is critical.   Plus it shows something about the current situation of lesbian and gay parents.  All reason to note it here.   The case was litigated by Lambda Legal Defense and Education Fund and you can find both a press release and the actual complaint on Lambda’s website.

Gary Day has two children.   There’s a boy (identified as “CDG”) born in 2000 and a girl (“EDG”) born in 2003.   The most critical fact is actually lurking in the first sentence of this paragraph, though you could certainly miss it.   Day is unquestionably the legal parent of both of these children.

Note that I wrote “Day has two children.”    That’s actually a tad ambiguous, even though it is a common enough usage.   The thing is, common usage doesn’t tell you legal status.   What does it mean to “have” children.  Sometimes we mean a person gave birth to a child.  Sometimes we mean that the person occupies the role of parent in the child’s life.  In this case, Day doesn’t simply occupy the role.  He has legal recognition as a parent of these children.  

Day’s legal status is clearly established in paragraphs 11-16 of the complaint.   While the birth certificate referred to is nic, the court order is a far more persuasive document.   As a legal parent, Day (who is himself disabled) is entitled to receive specified social security benefits for his children.   That’s one of the reasons it matters so much to be a legal, as opposed to simply a social, parent.

There’s one small additional hurdle that Day’s lawyers felt it necessary to overcome here, which bespeaks the difficulty lesbian and gay parents may face.   Note paragraphs 17 and 18 of the complaint.   While the earlier paragraphs (asserting Day’s legal parentage) would probably routine appear in any application for a child’s social security benefits, these two paragraphs are different.  They assert that Day’s claim to be a parent is not dependent on his relationship with any other adult.

That negation is there because, as you know if you’ve been reading along here, many people (men, generally) claim parentage by virtue of being married to the woman who gave birth to the child.   It’s a standard legal presumption.   It’s also a presumption a small but growing number of states extend to lesbians whose spouses/partners give birth.  (You can think about why this presumption is not as widely invoked for the benefit of gay men.)

The problem with claiming parentage via that presumption is that since many states will not recognize lesbian/gay relationships, they will not recognize parenthood claims that arise from those relationships.   Hence the lawyers from Lambda wanted to make it clear that Day’s claim to be a legal parent did not arise from such a relationship.

Despite the fact that Day clearly met the requirements for obtaining social security for his kids, for two years the agency did nothing.   They didn’t deny the claims (although of course effectively they did–they weren’t providing social security) and they didn’t grant them.   This is what ultimately impelled Lambda to sue–surely a case that shouldn’t have needed to be brought.   The press release notes that on April 23 Day finally received a letter granting his claims.


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