The American Bar Association adopted a resolution last week decrying the “state-sanctioned discrimination” faced by some lesbian, gay, bisexual, transgender and queer parents in the United States.
In a resolution document affirming their legal rights, the 141-year-old professional organization of lawyers and law students asserts its opposition to “laws, regulations, and rules or practices that discriminate against LGBT individuals in the exercise of the fundamental right to parent.” The group also urges lawmakers where such measures exist to “promptly repeal them” and calls on attorneys to “defend victims of anti-LGBT discrimination.”
The 16-page ABA document outlines legal decisions that should, it argues, guarantee LGBTQ individuals across the U.S. the right to parent, while also describing the patchwork of state laws that has restricted some LGBTQ individuals’ ability to parent, especially through adoption and foster care.
“There’s the law and then there’s what happens on the ground,” Nancy Polikoff, professor emerita at the American University Washington College of Law, told NBC News last week.
There are between 2 million and 3.7 million children with at least one LGBTQ parent in the U.S., and approximately 200,000 of these children are being raised by same-sex couples, according LGBTQ demographics expert Gary Gates. Several recent studies have found these kids are as happy and healthy as children raised by heterosexual parents.
In 2015, the law caught up to the scholarly consensus when the Supreme Court ruled in the landmark Obergefell v. Hodges case that same-sex couples were entitled to the same treatment as different-sex couples, including the right to marry. In a separate decision in 2017, Pavan v. Smith, the high court clarified that this equal treatment applies to parenting, ruling that states must extend equal treatment to the issuing of two-parent birth certificates for children born to same-sex spouses.
Given these two Supreme Court rulings, the ABA argues that LGBTQ people — whether single or couples — should be treated no differently than non-LGBTQ people when it comes to parenting. That, however, is not the current reality, the ABA asserts.
In a section of its report titled “Increased Threats to LGBT Parenting,” the ABA notes that “state-sanctioned discrimination against LGBT individuals who wish to raise children has dramatically increased in recent years.”
To back up its assertion, the organization notes that 10 states now permit state-licensed welfare agencies to refuse to place children with LGBTQ individuals and same-sex couples if doing so conflicts with the agency’s religious or moral beliefs. While North Dakota’s law goes back to 2003 and Virginia’s dates back to 2012, eight of these states passed such laws after the Obergefell decision. These states include Michigan, Mississippi, South Dakota, Alabama, Texas, Oklahoma, Kansas and South Carolina.
“The legal issue that has arisen is when those agencies receive state money,” Polikoff said, “the same rules should apply.”
LGBTQ advocacy groups have brought suits to challenge these laws, but just last month, the Trump administration granted a waiver to South Carolina allowing its federally funded foster care agencies to deny services to same-sex couples and those who don’t share their religious beliefs.
While the 10 states permit this “state-sanctioned discrimination,” three states (California, New Jersey and Rhode Island) and the District of Columbia prohibit discrimination in state-licensed foster care agencies based on both sexual orientation and gender identity, according to LGBTQ think tank Movement Advancement Project. An additional five states (Oregon, Wisconsin, New York, Massachusetts and Maryland) prohibit this type of discrimination based on sexual orientation alone.
Over the past two years, there have been efforts at the federal level to pass legislation similar to the state laws that have resulted in roadblocks for LGBTQ prospective parents. These efforts — one by Sen. Michael Enzi, R-Wy., in 2017 and the other by Rep. Robert Aderholt, R-Ala., in 2018 — were unsuccessful.
LGBTQ people looking to start or expand their families through foster care and adoption are not the only ones who face obstacles. When it comes to parentage laws, there is a complex legal landscape that varies from state to state.
“The starkest example is that surrogacy is illegal in New York but legal in California, and many states do not have laws one way or the other,” Jenny Pizer, law and policy director at LGBTQ legal group Lambda Legal, said.
Pizer said that in many places, the law has not caught up with advances in assisted reproductive technologies such as surrogacy or in vitro fertilization that many same-sex couples employ to form their families.
Variation in state law also becomes apparent when it comes to establishing and determining the parental rights to children of individuals who are not married. Unmarried couples, LGBTQ or not, are prohibited from adopting in many states, and the parental rights of each partner may not be recognized in all states. For example, the nongenetic parent of a child may have their parentage recognized in California, but without going through an adoption procedure or obtaining a court order, she could lose any parental rights by relocating to Alabama.
While married partners can employ stepparent adoption procedures, only 15 states and D.C. allow second parent adoption, a category of adoption in which new parental rights are created in a second parent without terminating the rights of the first parent.
The ABA and LGBTQ advocates argue that laws and policies making it more difficult for LGBTQ individuals and couples to parent are not in the best interest of children — especially those in the child welfare system.
There are more than 440,000 children in foster care nationwide, according to the Department of Health and Human Services, with more than 120,000 of them awaiting adoption. By allowing child welfare agencies to make decisions based upon their personal beliefs, the ABA argues, “children remain in foster care or government group homes longer because agencies arbitrarily narrow the pool of qualified foster and adoptive homes.”
LGBTQ people make up a disproportionate percentage of this pool, according to recent research. One in five same-sex couples (21.4 percent) are raising adopted children compared to just 3 percent of different-sex couples, and almost 3 percent of same-sex couples have foster children compared to only 0.4 percent of different-sex couples, according to the Williams Institute at the UCLA School of Law.
Proponents of laws that permit child welfare agencies to refuse to work with LGBTQ parents, however, argue that these laws are necessary to protect the agency’s right to practice its faith. Without such laws, they argue, those at religiously affiliated foster agencies would have to choose between their religion and providing much-needed services.
In light of the current legal obstacles confronting LGBTQ parents, the ABA urged lawmakers and attorneys across the U.S. to work toward ending any measures that discriminate against lesbian, gay, bisexual and transgender parents.
“Governments must treat LGBT parents equally to safeguard their fundamental right to parent and the fundamental rights of their children to enjoy a familial relationship,” the resolution states.
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