Wisconsin lesbian couple win lawsuit over son's birth certificate

When their son was born 1½ years ago, Jessamy and Chelsea Torres shared the joy of being first-time parents. But the state of Wisconsin would recognize only one mother.

The women married in 2012 and had a baby two years later after Chelsea Torres was artificially inseminated. The parents expected that both of their names would appear on their son's birth certificate. They didn't.

But this week, a federal judge ruled that they should, siding with the couple in their lawsuit against the state of Wisconsin. In her order, U.S. District Judge Barbara Crabb advised the state to "provide the equal treatment that same-sex couples are entitled to receive under the law."

"It's been a long road waiting for this," Jessamy Torres said after the couple's victory.

Since the U.S. Supreme Court legalized same-sex marriage last year, couples around the country have filed lawsuits to get their names placed on their children's birth certificates.

"It's frustrating for couples with children who really are looking for a certificate that protects them in situations where they could be at risk … in emergency situations, registering in schools," said Christopher Clark, attorney with Lambda Legal, a national organization dedicated to achieving civil rights for lesbians, gay men, bisexuals, transgender people and those with HIV. Lambda was part of the legal team that filed the lawsuit against Wisconsin.

"What can be frustrating is that there was a victory in the United States Supreme Court that established the freedom to marry for same-sex couples across the country. But the devil is in the details sometimes," Clark said. "We're still seeing problems in making that legal change a reality for couples."

In Minnesota, birth and death certificates use the word "parent." Although the official public document is gender neutral, the application forms still request the mother's and father's names. Those, too, eventually will be changed to use the more gender-neutral "parent," said Molly Mulcahy Crawford, state registrar in the Office of Vital Records at the Minnesota Department of Health.

Minnesota began making legal certificates gender-neutral in 2011, even before the state made same-sex marriage legal in 2013, she said.

"Same-sex parents have existed long before same-sex marriage was legal," she said. "We've had same-sex adoptions for a long time. … The gender isn't really important to us."

But in Wisconsin, when Jessamy and Chelsea Torres filled out the Wisconsin application for their son's birth certificate, biological mother Chelsea put her name on the line asking for the mother's name. A nurse at the hospital suggested that Jessamy Torres put her name on the line next to father's name, because there was no other option on the form.

Same-sex marriage had only become legal in Wisconsin the year before after state officials lost a fight to keep a ban on gay marriage. A hospital nurse surmised that the state likely hadn't updated its forms, Jessamy Torres said.

About six weeks after their son was born, the birth certificate arrived in the mail without Jessamy Torres' name.

"It felt like I got punch right in the stomach," she said. "Through the whole birthing process, we were treated like we were both his parents. … But to have the state kind of erase me from all that, yeah, it was heart wrenching."

It also could cause problems in situations where Jessamy Torres needed to prove she was her son's parent to authorize medical treatment, register him for day care and school, board a plane destined outside the U.S., or entitle him to benefits if she died on the job as a licensed police officer.

Having Jessamy Torres' name omitted from the birth certificate made the couple feel as if they weren't really a family, said their attorney Clearesia Lovell-Lepak, of Madison, Wis. "Everyone else gets a birth certificate right away," she said. "You don't have to go to court or a lawyer. It just makes you feel a little less than when you have to fight so hard to get what everybody else gets for free right away."

The win for the Torres family also will be a win for other female same-sex couples who were artificially inseminated, married before they gave birth and requested a birth certificate before May 2, 2016, Lovell-Lepak said.

On that date, Wisconsin changed the work sheet that parents fill out to obtain a birth certificate. It now includes two boxes that can be checked if parents use artificial insemination under the supervision of a licensed physician. The mother's husband/spouse must consent to the insemination in writing and then the mother's husband/spouse will be the "natural father/parent" of the child.

With her ruling limited to couples in situations identical to the Torres, the judge pointed out that her decision "does not remedy any discrimination suffered by other married same-sex couples who have not received a two-parent birth certificate."

But that doesn't preclude other couples from filing suits, she said. "If the department wishes to avoid more litigation, it should consider taking more proactive steps to prevent discrimination from occurring."

"Same-sex marriage has been legal in Wisconsin since 2014, so there is little excuse for the department to be dragging its feet so long," Crabb wrote in her opinion. Crabb is the same judge who in 2014 ruled that the state's ban on gay marriage was unconstitutional.

Asked to comment on the ruling, a state spokesman said in an e-mail: "The Vital Records Office of the Wisconsin Department of Health Services will follow the law."

Mary Lynn Smith • 612-673-4788