State Officials Refuse to Issue Birth Certificate Listing Same-Sex Couple as Parents [UPDATED]

Last week, Leigh and Robin Jorgeson had a baby, and while that's wonderful news for them, it really shouldn't be a news story. But they're a same-sex couple living in Austin, and state officials refuse to issue a proper birth certificate, so now it is. And it's annoying.

Here's the deal: Leigh provided the egg that Robin carried, and they gave birth to a healthy boy at St. David's North Austin Medical Center. When the couple filled out a routine request for a birth certificate, they had to strike out "father" on the application and substitute "mother."

By any practical measure, they're biological parents, and getting a plain old birth certificate saying so shouldn't be a problem. But for reasons that are still unclear, it is. Even though Texas Attorney General Ken Paxton was already ordered to appear in court for a contempt regarding another same-sex vital records issue when the Jorgesons had their son, Paxton allegedly advised a St. David's registrar that same-sex couples ought to be treated differently. Leigh Jorgeson's law partner tells us that the registrar, citing advice received from Paxton's office, would not submit a birth certificate application naming two moms. Only Robin's name was on the application the registrar provided the couple.

"Leigh and Robin questioned the hospital's registrar about the omission - her first response was that because Leigh didn't provide sperm, that she couldn't be listed," Ian Pittman told The Houston Press in an email. He said the Jorgesons are considering filing a lawsuit against Paxton and the Texas Department of State Health Services for refusing to issue a certificate listing both women as parents.

The Jorgesons had previously requested an amended birth certificate for their older son, born in 2013, but the certificate was never issued. The couple were married in Massachusetts in 2011, prior to the 2015 U.S. Supreme Court decision legalizing same-sex marriage in all 50 states. 

Pittman tells us that, after the SCOTUS decision, Leigh "went in person to the Vital Statistics Unit here in Austin and requested to be added to their oldest son's birth certificate, but was not added. Her application is technically being 'held' without being denied, but it has been over a month at this point with no movement to add Leigh to her oldest son's birth certificate, even though she is legally his parent and Texas now must recognize her marriage."

He adds, "Legally, Leigh is a presumed parent of her son under current Texas law, due to the fact that he was born to a married woman (Robin) and she is that woman's spouse. However, the Vital Statistics Unit of the Department of State Health Services, being advised by the Attorney General's office, is refusing to issue a birth certificate for their youngest son that accurately reflects that he has two legal parents."

At the time St. David's and Paxton denied the Jorgesons an accurate certificate, Paxton was already ordered to appear before a federal judge in San Antonio August 12 to explain why he should not be held in contempt for initially advising State Health Services that the department should not list a decedent's husband as the, um, husband, on a death certificate. Legally, Paxton advised, the man was a "significant other." (Officials ultimately relented and decided to amend the death certificate). 

According to the Associated Press:
Paxton argued there is "no authority" for a constitutional officer to be held in contempt for providing legal advice to the Texas Department of State Health Services. He told the San Antonio court that he did not personally refuse to amend the death certificate, and only gave legal advice to state health officials.

"The request for an order holding the attorney general in contempt is particularly striking," Paxton's office told the court in a filing late Thursday.
Clearly, the Paxton-DSHS vital records issue was already — literally — a federal issue by the time the Jorgesons had their baby. But when we sought comment from Paxton spoke swoman Katie Avinger, we were told to "direct your questions to the Department of State Health Services," as if that department were acting in a vacuum. Avinger simply refused to even hear our questions regarding Paxton's advice to St. David's, regarding the Jorgesons' birth certificate application.

Carrie Williams, spokeswoman for the Department of State Health Services, told us in an email, "Our attorneys are working with the AG’s office on analysis with regard to birth records, in light of the Supreme Court ruling and its impact. Once we complete that analysis, we would make any necessary birth record form changes as soon as possible."

We found it odd that Williams would tell us that her department is "working with the AG's office," when that office's spokeswoman, Katie Avinger, told us that Paxton had nothing to do with issuing same-sex birth certificates. Clearly, Avinger just didn't feel like dealing with this particular issue, and passed the buck. (We also left a message for a St. David's spokeswoman, but haven't heard back).

And here's where things get annoying: Setting aside the issue of two mothers being subjected to such degrading treatment, we've got a spokesperson for an elected official who's decided she doesn't have the inclination or obligation to explain to the public why the man they hired for the job is making certain decisions.

Look, it's 2015, and we really don't relish writing a story about why two parents can't be considered parents. Frankly, it's absurd. It boggles the mind even to have to ask such questions, but we're not the ones calling the shots. Paxton is.  And if Paxton believes the law states that the Jorgesons are not automatically afforded the right to an accurate birth certificate, then his office's flacks need to be told how to articulate that to the public. Their job, in part, is to explain to the public why the Attorney General does stuff — and if that stuff is based on an interpretation of the Texas Family Code, then his office's flacks need to have those portions of the Code at the ready. If that stuff is based on bull-headed bigotry, then his office's flacks should be prepared to say just that. 

Meanwhile, Pittman tells us, "Leigh and Robin brought their newest son home from the hospital today, but as things stand right now, Leigh is only the legal parent of their first son (by virtue of the adoption in 2013) and is not currently a legal parent of their second son, despite the fact that he was conceived using her genetic material and Texas now must recognize Leigh and Robin's marriage. If something were to happen to Robin, Leigh would not be guaranteed to be appointed as their youngest son's guardian or conservator, even though he is her genetic child. And as things stand, Leigh will need to get a court order to be a legal parent of her own genetic offspring."

Pittman's co-counsel at Lambda Legal sent a letter to the federal judge presiding over Wednesday's contempt hearing, asking for the opportunity to address the court regarding the Jorgesons' situation.

All of this because two parents simply requested to be legally recognized as such, and were refused for reasons that are still unclear. Sounds pretty contemptuous to us. 

Update, August 11: U.S. District Court Judge Orlando Garcia issued an order Aug. 10 stating that he "held a telephonic status conference" with the parties involved in the James H. Stone-Hoskins death certificate issue, for which Paxton was to appear in court Aug. 12. The order states that Paxton advised Garcia that the "Department of State Health Services is working diligently to finalize policies that should prevent the recurrence of these issues in the future."

The Aug. 12 hearing was rescheduled for Sept.10, which would "allow the parties to continue their efforts toward a global resolution of the issues that [Stone-Hoskins] and others have reportedly encountered." A more detailed order will be released "within the next two days."

Pittman is cautiously optimistic. He told us via email that, "Due in large part to Leigh and Robin Jorgeson refusing to take 'no' for an answer when they were denied accurate birth certificates for their children, the State has indicated that it will be changing its policies for all similarly situated couples....The Attorney General's office has indicated that they will release draft guidelines to outline the process for the DSHS to issue accurate birth and death records, and the attorneys for the parties will have a chance to review the guidelines."

He added: "If the guidelines accurately reflect an adherence to state and federal law, the issue will be settled and all same-sex couples will have access to accurate records without the need to bring a Federal lawsuit. If the guidelines do not accurately reflect the legal realities, the State can still be held in contempt. While the issue is still unsettled as of this writing, it does appear that the very real prospect of a contempt finding has forced the State to recognize that same-sex couples are entitled to the same rights of any other couple under state and federal law."
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Contributor Craig Malisow covers crooks, quacks, animal abusers, elected officials, and other assorted people for the Houston Press.
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