LGBTQ Family Law and Policy in the United States
- Erin Mayo-AdamErin Mayo-AdamDepartment of Political Science, Hunter College
There is a growing body of research on law and policy concerning lesbian, gay, bisexual, transgender, and queer (LGBTQ) family law and policy. LGBTQ families have existed for centuries despite laws and policies that criminalize their relational practices. However, the legal landscape has shifted a great deal over the past few decades, in large part due to the increased visibility of LGBTQ kinship networks and new constitutional protections for same-sex marriage. With this said, legal protections for LGBTQ families vary widely by state, especially parental, adoption, and foster care rights. Historically, family law and policy has fallen within the realm of state power, with some important exceptions (e.g., the Supreme Court has recognized a fundamental right to parent for legal parents). For this reason, there are broad protections afforded to LGBTQ kinship networks in some states, especially those with large urban and more liberal populations, and barriers that stand in the way of LGBTQ parental rights in other states that are more conservative or rural. The legalization of marriage equality in Obergefell v. Hodges did standardize some protections for same-sex couples in traditional relationships across the United States. Yet the case also presents new problems both for LGBTQ families that are more heteronormative and those that are not because it fails to recognize a fundamental right to parent for LGBTQ people who create non-biological families and live non-traditional lives.
In addition to these legal and policy changes, social scientists have used both qualitative and quantitative methodologies to shed light on the problems faced by LGBTQ families politically and legally. Researchers have examined how LGBTQ families attempt to protect their ability to parent in family court, how LGBTQ kinship networks identify innovative legal and political strategies aimed at overcoming barriers to legal recognition, and how LGBTQ identity is both constituted and made invisible through family law. Furthermore, scholars have produced a wealth of research refuting the myth that LGBTQ people are inadequate parents since the late 1980s and this research has been used in court cases across the United States to facilitate the legal recognition of LGBTQ families. Despite this research, gaps in both scholarship and legal recognition remain. Scholarship remains startlingly sparse given the legal and political barriers that stand in the way of LGBTQ family recognition, especially for LGBTQ people of color and trans and queer people. In order to address this gap, scholars should devote more resources to research on families that include LGBTQ people of color and trans and queer people, research on non-traditional queer kinship networks, and research on the unique ways that LGBTQ families are responding to political and legal barriers at the local level.
- Comparative Politics
- Politics and Law
Limits and Advances in LGBTQ Family Recognition and Acceptance
The legal landscape for lesbian, gay, bisexual, transgender, and queer (LGBTQ) families varies tremendously across the United States because, with few exceptions, the authority to decide what constitutes a family lies predominantly within the realm of state and local law. Despite this variation, there has been some important action at the federal level that applies nationally. Most notably, federal case law has forced recalcitrant states to recognize some LGBTQ families, such as the 2015 Supreme Court decision Obergefell v. Hodges, which legalized same-sex marriage nationally. However, significant obstacles remain for the full legal recognition and acceptance of LGBTQ families. I analyze LGBTQ family law and policy in the United States in four parts. First, I provide an overview of the evolution of LGBTQ family law and policy in the United States with a focus on parental rights. LGBTQ family law has changed rapidly as a result of growing social and political acceptance for many LGBTQ families, especially those whose lives most closely resemble those of white, upper class, and nuclear heterosexual families. Although some of the most egregious cases of discrimination are in the past, LGBTQ families still face difficulties obtaining legal parentage, serving as foster and adoptive parents, and attaining custody of their children in court. Second, I unpack how the legalization of marriage equality in Obergefell v. Hodges has impacted LGBTQ family law. Obergefell is undoubtedly a major victory for same-sex couples. Yet the case also presents new problems for both LGBTQ families that are more heteronormative and those that are not. What legal obstacles remain for queer kinship networks after Obergefell?
After analyzing LGBTQ family law and policy post-Obergefell, I then examine social science research on LGBTQ families and queer kinship networks. In particular, I highlight studies that are relevant to the politics of LGBTQ parenting, family, and kinship networks in the United States. Although social science research on LGBTQ families is limited, there are many ground-breaking studies that center the lived experiences of these families in U.S. political life. Finally, I conclude with a brief discussion of the future of LGBTQ family law and policy research. Because most social science studies focus on national politics, policies, and law, there many gaps in the research. Furthermore, most research tends to focus on white, middle and upper class lesbian and gay couples alone. Although research on LGBTQ kinship networks has grown in recent years along with increased visibility, more research is needed in order to address the obstacles that LGBTQ families and queer kinship networks continue to experience legally and politically. For instance, it is common to come across research on LGBTQ family law that does not include the experiences of trans and queer people and LGBTQ people of color or interrogate the barriers they face in different local contexts, especially in more conservative and rural areas of the United States. Hence, I conclude with a call to expand social science research on this subject and to create studies that are more inclusive of the broad spectrum of people who are part of the LGBTQ community.
The Evolution of LGBTQ Family Law and Policy
Because family law and policy are predominantly controlled by individual states, it is not possible to relay all of the different permutations of LGBTQ family law in this short article. However, there are some general principles that apply in most state settings. How these principles are interpreted and applied varies depending on local context. Concepts that apply across states include legal parentage (i.e., the person or persons whom the law recognizes as a parent for child welfare and custody purposes) and the “best interests of the child” standard (Brower, 2017; Richman, 2009; Shapiro, 2013). Legal parentage is constitutionally protected (see Troxel v. Granville 530 U.S. 57 (2000)) and generally determined through either adoption or conception and birth. The “best interests of the child” standard is the primary legal doctrine used in child welfare and custody determinations in court. The standard gives judges the discretion to determine custody arrangements based on the individual circumstances of each child welfare and custody case.
LGBTQ families have long faced discrimination when seeking legal parentage. Discrimination can occur through any of the pathways that lead to legal parentage. Same-sex couples have faced legislative bans on lesbian and gay foster and adoptive parenting (George, 2017). For example, until 2010, Florida explicitly prohibited same-sex couples from adopting.1 In the past, when homosexuality and non-normative gender identities were wrongly considered perversions that justified criminalization, bans on LGBTQ adoptive and foster parenting were more common. During the mid-1970s, same-sex parents were often deemed inherently unfit to parent in child welfare proceedings for this reason (George, 2017). In many rural and more conservative areas of the United States, problematic stereotypes and beliefs about LGBTQ people continue to threaten the ability of LGBTQ people to engage in foster and adoptive parenting. Furthermore, the rise of state-based Religious Freedom bills also threatens LGBTQ adoptive parenting. These bills enable adoption agencies to refuse to place children with LGBTQ people if doing so violates the agency owners’ sincerely held religious beliefs. For this reason, these bills continue to enable the stigmatization of LGBTQ families and serve as a significant barrier to the right to parent for LGBTQ people. Laws that ban or enable providers to prohibit same-sex foster and adoptive parenting for religious reasons significantly harm same-sex couples and LGBTQ people, who are far more likely than different-sex couples to raise adopted children. In 2016, 21.4% of same-sex couples were raising adopted children compared with only 3% of different-sex couples (Dowd, 2018; Goldberg & Conron, 2018).
In addition to discrimination in foster and adoptive parenting (one of the pathways to legal parentage), LGBTQ families can also face barriers to legal parentage when children are conceived naturally or through assisted reproductive technologies. Many of the early child custody cases in the United States involved children of divorced different-sex parents where one parent was lesbian, gay, or trans (Acocella, 2016). In these cases, lesbian, gay, and trans parents were often denied custody of their biological children because of prejudiced beliefs that their sexual orientation would harm their children. For example, in 1977 a New Jersey court limited Sandra Panzino’s legal parentage by denying her custody of her two, biological daughters because the court believed her children might suffer social stigmatization as a result of her sexual orientation. The court granted custody to her heterosexual ex-husband (Rivers, 2013, p. 59). Although denying custody of biological children to LGBTQ parents is more rare today, family courts still allow problematic stereotypes to shape child custody decisions, especially in more rural and conservative areas of the country.
Same-sex couples are also far more likely than different-sex couples to raise non-biological children and children produced through surrogacy and assisted reproductive technology (NeJaime, 2015). Non-biological parents face additional complications when trying to attain legal parentage due to onerous second-parent adoption and step-parent adoption procedures, which are expensive and involve invasive home visits from social workers (Boggis, 2001). Non-biological parents continue to face barriers to legal parentage in most jurisdictions, especially those that emphasize biological parentage in legal parent determinations (Dalton, 2001). Furthermore, most jurisdictions still ban or place limits on surrogacy contracts. This restricts the opportunities available for gay couples and LGBTQ families that cannot reproduce through other assisted reproductive technologies to become legal parents. For example, a number of states implemented surrogate parenting bans in the 1980s (including New York and New Jersey) due to the infamous “Baby M” case.2 The case involved a court battle over the custody of a child produced through surrogacy and sparked public outrage that encouraged state legislatures to pass laws restricting surrogate parenting contracts (Hartocollis, 2014).
Furthermore, LGBTQ families have historically faced discrimination in child welfare and custody decisions as a result of the “best interests of the child” standard. According to Richman (2009), the great flexibility and indeterminacy that comes with the “best interests of the child” standard has served as a double-edged sword for LGBTQ families. When a judge is accepting of LGBTQ families, the judge has the discretion to make child custody arrangements that recognize and affirm raising a child in an LGBTQ family environment. However, this same discretion also leaves room for discrimination and bias. For instance, in 1995, Sharon Bottoms was famously denied custody of her five-year-old son when a judge, in a applying the “best interests of the child” standard, determined that she was an unfit parent because she “openly admitted . . . that she is living in an active homosexual relationship” (Ball, 2012, pp. 1–2; Bottoms v. Bottoms 457 S.E.2d. 102 (Virginia, 1995)). Similarly, in the case Daly v. Daly, Suzanne Lindley Daly, a parent who transitioned while her child was a minor, was denied custody and visitation rights under the “best interests of the child” standard in 1986. In the case, the court ruled that Daly’s gender identity posed a “serious risk of maladjustment, mental, and emotional injury” to her child (Daly v. Daly 715 P.2d 56, 59 (Nevada, 1986)). Denying custody and visitation because of a parent’s LGBTQ status under the “best interests of the child” standard has become more uncommon for biological parents over time, with many courts overturning precedents such as those set in the Bottoms and Daly cases (at least in urban and liberal areas of the country). However, the discretion granted to judges under the “best interests of the child” standard continues to enable judges to consider LGBTQ status when making custody and visitation decisions. Non-biological parentage for LGBTQ people is especially precarious because, in addition to prejudices surrounding LGBTQ status, judges can falsely presume that biological parentage better suits the “best interests of the child” than non-biological parentage.
Finally, the likelihood of custody restrictions and legal parentage denials increases for more marginalized people within the LGBTQ community, including trans and gender non-conforming parents, bisexual parents, LGBTQ parents of color, and low-income LGBTQ parents. Trans and gender non-conforming parents face greater risk of losing custody of their children under the “best interests” standard because there are no explicit laws that state that a parent’s gender identity should not be considered as a factor in child custody proceedings that employ this standard (Downing, 2013). In addition, bisexual parents are more likely to face challenges to their fitness as parents under the “best interests” standard because of stereotypes and prejudices connecting bisexuality to instability and promiscuity (Marcus, 2015; Ross & Dobson, 2013). Low-income parents and parents of color, including those who are LGBTQ, are more likely to have their custody and parental rights limited because police and social service interventions in child welfare emergencies are more common in their communities (Clifford & Silver-Greenberg, 2017; Wacquant, 2009). According to Dorothy Roberts (2012), the child welfare system is designed to regulate and punish black mothers, whose children are disproportionately overrepresented in the system. This is driven by a punitive approach to foster care that is based in racial stereotypes that negatively characterize black mothers’ parental fitness (Roberts, 2012, pp. 1485–1486).
LGBTQ Family Rights and Politics AfterObergefell v. Hodges
Despite the evolving legal restrictions on LGBTQ parenting, legal recognition and acceptance of LGBTQ families has increased dramatically. In the past, same-sex couples were denied access to family recognition through marriage in the United States. As a result, same-sex couples fought for the rights and benefits associated with marriage in a piecemeal fashion. Over time, domestic partnerships and civil unions emerged as vehicles for granting various rights and benefits associated with marriage to same-sex couples. Initially, same-sex couples fought to be recognized through domestic partnerships. However, the rights and benefits associated with domestic partnerships varied a great deal by state, with some states merely recognizing some inheritance rights and other states eventually passing expansive domestic partnership laws that enabled domestically partnered same-sex couples to access all of the rights and benefits of married different-sex couples at the local level. Civil unions materialized in 2000 with the case Baker v. Vermont, which found that prohibiting marriage for same-sex couples denied them rights they were entitled to under the Vermont Constitution. The Vermont legislature was, thus, ordered to grant same-sex couples access to marriage or create an alternative legal mechanism through which same-sex couples could access the rights and benefits associated with marriage. Civil unions emerged as this alternative mechanism.
With domestic partnerships and civil unions, same-sex couples could access state rights and benefits associated with marriage in some states. Yet they were denied access to federal rights and benefits associated with marriage under the federal Defense of Marriage Act (DOMA), passed in 1996, which limited marriage to different-sex couples for federal purposes. This changed in 2013, when the Supreme Court decided United States v. Windsor, which held that the DOMA violated the 5th Amendment’s “equal liberty of persons” guarantee (United States v. Windsor 570 U.S 744 (2013)). The majority’s constitutional arguments in Windsor ultimately paved the way for the nationalization of same-sex marriage in the United States.
Perhaps the most consequential legal case in LGBTQ family law, Obergefell v. Hodges recognized the legitimacy of same-sex relationships that most mirrored traditional different-sex relationships by granting them access to marriage. The case also largely eclipsed and replaced the domestic partnerships and civil unions of the past. By the time the case was decided, many states that legalized same-sex marriage had eliminated these alternative legal mechanisms as options. For example, when Washington State legalized same-sex marriage in 2012, all domestic partnerships (aside from those where one member was over age 62) were dissolved within two years and automatically became marriages (Wyman, 2014). The plaintiffs in Obergefell are all same-sex couples who have traditional, nuclear families that, according to the Court, shared no differences from heterosexual families aside from the married couples’ sexual orientations. Indeed, the Court explicitly acknowledged that there “is no difference between same-sex and opposite sex couples” with respect to the principle that marriage is a “keystone of our legal and social order” (Obergefell v. Hodges576 U.S. ____ (2015), slip op. at 16–17). The case sought to rectify the pain and trauma associated with state bans on same-sex marriage that denied any similarities and were based in parochial views about the harms of same-sex marriage. This pain is reflected in the heart-wrenching stories of some of the plaintiffs, such as lead plaintiff James Obergefell. Obergefell married his partner, John Arthur, three months before Arthur died. Prior to Arthur’s death, Obergefell cared for Arthur, who was diagnosed with amyotrophic lateral sclerosis (ALS). Ohio refused to list Obergefell as Arthur’s spouse on his death certificate, citing the state’s ban on same-sex marriage.
In addition to rectifying moral wrongs such as the denial of Obergefell and Arthur’s marriage, the case also had a dramatic impact on parental rights and custody determinations. The Court found that same-sex marriage bans “harm and humiliate the children of same-sex couples” who “suffer significant material costs of being raised by unmarried parents” (Obergefell v. Hodges576 U.S. ____ (2015), slip op. at 14). Thus, the Court concluded that same-sex marriage “affords the permanency and stability important to children’s best interests” (Obergefell v. Hodges 576 U.S. ____ (2015), slip op. at 14). The Court’s focus on the “humiliation” of children of non-married same-sex couples is problematic because it stigmatizes non-marital queer relationships and the children who are a part of them. Nevertheless, the use of “best interests” language is important here for LGBTQ family law because it is a clear reference to the “best interests of the child” standard. This language enables married same-sex couples to challenge court decisions that deny parentage or custody based purely on lesbian or gay status. When a court denies custody solely because of a parent’s sexual orientation, that custody denial can be overturned on appeal using the logic of Obergefell.
Although Obergefell marked a significant shift in LGBTQ family law by legally recognizing same-sex marriage and holding that it benefits children, the case also presents several complications for both more traditional same-sex couples and LGBTQ people in non-traditional kinship networks. Obergefell does not on its own guarantee LGBTQ parents legal protection over their children. This is especially true for non-biological parents. One of the biggest unanswered questions after Obergefell is whether the marriage presumption applies in both same-sex and different-sex marriages. Under the marital presumption, a non-birth parent is a presumed legal parent of children born to their married spouse. The presumption has served to reaffirm the legal parentage of the non-birth spouse of children born into a marriage, preventing inquiries into biological parentage (Carbone & Cahn, 2016). Under this presumption, courts assumed that husbands in heterosexual marriages were also the biological fathers of their spouses’ children.
The presumption evolved over time with advances in DNA testing and is applied in different ways by states across America. Some states, such as Iowa, Texas, and Missouri, allow biological facts to easily rebut the presumption. In these states, if another person can produce a DNA test showing biological parentage, the child is no longer considered a child of the marriage. Courts that apply the presumption in this manner restrict the legal parentage status and custodial rights of non-biological parents for children of the marriage (Carbone & Cahn, 2016, pp. 664–665). The marital presumption, when applied in this manner, is one example of how biological parentage is privileged in family law in the United States (Huntington, 2015; Klezer, 2015).
In other states, courts emphasize the importance of marriage and the non-birth spouse’s prior relationship with the child. Courts that apply the marital presumption in this manner consider what is necessary to preserve the importance of the marriage and the non-birth spouse’s investment in a relationship with a child when making legal parentage and child custody determinations (Carbone & Cahn, 2016, p. 666). A final set of states, including California and Massachusetts, apply the marital presumption in order to protect functional relationships. These states make legal parentage and child custody determinations based on a parent’s functional relationship with a child irrespective of biological facts or whether the parent is married to a biological parent (Carbone & Cahn, 2016, p. 666).
The marital presumption presents problems for spouses who are not biologically related to their children in same-sex couples both in states that apply the standard based on biological facts and in states that emphasize the importance of marriage. In states that make parental rights decisions based on biological facts alone, non-biological parents in same-sex marriages can be denied parental rights unless they have also adopted children of the marriage. In addition to states that emphasize biological facts, states that focus on the importance of marriage can also decide cases in ways that harm same-sex couples even when these states recognize the legal parentage of a non-biological spouse. In 2014, after New York legalized same-sex marriage, a judge in Brooklyn refused to grant a second-parent adoption to a non-biological parent in a same-sex marriage. Because many states and other countries still make parental rights determinations based on biological facts, family law attorneys advise non-biological parents in same-sex couples to adopt children of the marriage, even if a state allows both same-sex parents to be listed on a child’s birth certificate.3 The New York judge held that, because the state’s same-sex marriage law required all married couples to be treated equally, the state’s marital presumption applied and the non-biological parent was a legal parent. Hence, a second-parent adoption was both unnecessary and a discriminatory application of the law since married heterosexual parents were not, likewise, required to obtain one in order to be recognized as legal parents (McKinley, 2014). Although another case has since guaranteed the right to engage in second-parent adoptions for same-sex couples in New York (Riley, 2016), the initial case created an unfortunate possibility: non-biological same-sex married parents could be denied second-parent adoptions under the marriage presumption and then later face challenges to their parentage in other states where the marriage presumption relies on biological facts alone.
Decisions such as this present problems for married same-sex couples who still need second-parent adoptions for their parental rights to be recognized in all 50 states. The case illuminates how questions about parental rights remain after Obergefell and how the patchwork of laws that dictate what constitutes a family in the United States complicate matters further (Harris, 2017). Even when states allow LGBTQ parents to go through second-parent or step-parent adoption, the ease of attaining a second-parent adoption varies a great deal by state. Most states require judicial orders and invasive home visits that couples often have to pay for themselves. This effectively makes second-parent adoptions impossible to obtain for low-income LGBTQ parents who cannot afford them. Anti-LGBTQ organizations and politicians are also striving to prevent LGBTQ adoption at the state and federal level by advancing expansive Religious Freedom bills that allow adoption agencies to refuse to place children with LGBTQ families for religious or moral reasons. In 2018, Republicans in the U.S. Congress advanced legislation that bans the federal government from withholding support for adoption and foster care services that refuse to place children with LGBTQ people because of their religious or moral beliefs (Human Rights Watch, 2018; Lewis, 2018). Limits around adoption rights and other legal protections for non-biological parents demonstrate how Obergefell fails fundamentally to create a broader, more egalitarian notion of what constitutes a family in ways envisioned in LGBTQ legal scholarship and family practice (Eskridge, 2012).
The failure to recognize the marital presumption also creates problems for LGBTQ couples at the federal level, especially when it comes to U.S. immigration law and policy. For example, when a child is born overseas, if the child’s parents are married, the child is presumed to be a child of the marriage and has access to birthright citizenship as long as at least one of the child’s parents is also a U.S. citizen. In 2019, the Trump administration issued a new policy that denied the marital presumption to married, U.S. citizen couples with children born overseas through gestational surrogacy or other assisted reproductive technologies (ART). The policy was part of a broader effort to limit access to birthright citizenship protections provided by the U.S. Constitution’s 14th Amendment. However, the forms the federal government used as a part of the process did not require parents to disclose that their children were born through gestational surrogacy or ART. Married, heterosexual couples continued to reap the benefits of the marital presumption, even if their children were born through gestational surrogacy or ART, because the U.S. State Department presumed a biological relationship. By contrast, the State Department stopped presuming that married, same-sex parents were biologically related to their children. Instead, the State Department began claiming that children of married same-sex couples were born “out of wedlock” (Bixby, 2019). Children born “out of wedlock” must complete an arduous legal process in order to access birthright citizenship that requires parents to submit DNA tests to prove biological parentage, to testify that they can financially support their children, and to prove that they have lived in the United States at least five years prior to a child’s birth (Bixby, 2019; Hansler, 2019; U.S. Citizenship and Immigration Services, 2019). Under the State Department’s policy, children of married, heterosexual, U.S. citizen parents were automatically granted birthright citizenship—even if a child is not biologically related to one or both parents—because biological parentage is assumed for them under the marital presumption. On the other hand, because the marital presumption no longer applied to children of married same-sex couples, they could be denied birthright citizenship if the parent they are biologically related to is a non-citizen or otherwise fails to meet the “out of wedlock” requirements. The State Department’s policy is yet another example of how limiting the marital presumption to biological facts alone has a negative and discriminatory effect on same-sex couples.
In addition to complications stemming from the marital presumption and adoption rights after Obergefell, the case presents other problems for LGBTQ families as well. The case is silent when it comes to bans or restrictions on surrogate parenting contracts. Hence, limits on LGBTQ families’ ability to use surrogates to produce children persist. The case also does not explicitly recognize that the right to procreate extends to LGBTQ people, which provides an opening for health insurance companies to discriminate against same-sex couples and LGBTQ families when covering infertility and assisted reproductive technologies (Murphy, 2001). In line with advances in assisted reproductive technology, many health insurance companies cover infertility treatments. However, many health insurance policies explicitly discriminate against same-sex couples and prospective single parents. For example, Sarah and Jill Soller-Mihlek were forced to pay over $13,500 out of pocket for infertility treatments because of discriminatory provisions in their health insurance policy in 2015. Under the policy, heterosexual couples receive coverage for infertility treatments after 12 months of unprotected heterosexual intercourse (the definition of infertility under the policy). Jill and Sarah were denied coverage because they had not engaged in 12 months of heterosexual intercourse before seeking treatment. The underlying assumption is based in old homophobic logic that lesbians can always get pregnant by engaging in heterosexual intercourse, they merely choose not to—an overt denial of the Soller-Mihleks’ immutable identity (Fairyington, 2015).
The complications Obergefell v. Hodges creates for more traditional same-sex couples are numerous. However, the case presents the greatest problems LGBTQ families and kinship networks that are the most non-traditional or marginalized. The case recognizes the importance of traditional, heteronormative families and is silent on non-traditional queer kinship networks. This is clear in the Court’s emphasis on marriages as deeply connected to history and tradition, stability, and social order in Obergefell. The case holds, as a constitutional principle, that the “right to marry is a fundamental because it supports a two-person union unlike any other in its importance to the committed individuals” (Obergefell v. Hodges 576 U.S. ____ (2015), slip op. at 14, emphasis added). According to Daum (2016), language such as this in Obergefell “privileges the institution of marriage over alternative familial and personal relationships and forecloses opportunities for a radical reconstruction of the legal institution of marriage” (Daum, 2016, p. 370). For example, the “two-person” language from Obergefell seems to foreclose recognition of polyamorous LGBTQ families or other LGBTQ families where children are raised by more than two parents.
This presents legal problems for non-traditional kinship networks that include relationships of affinity in addition to relationships formed by blood or marriage. LGBTQ people have long created families and communities of their own that are not characterized by blood or marriage because of social rejection and stigma, often at the hands of their own biological families (D’Emilio, 1983; Weston, 1991). Obergefell presents complications for non-heteronormative families such as these not only because it does not recognize their legitimacy, but also because it solidifies the sanctity of two-person couples who unite in traditional marriage. This presents legal problems for non-traditional families that include heterosexual people as well—families such as the Scarborough family in Hartford, Connecticut. The Scarborough family is a family of eight adults and three children who live in a large home on Scarborough Street in a wealthy residential neighborhood. The family became embroiled in a legal battle in 2014 when their neighbors pressured the city to enforce their neighborhood’s zoning laws, which prevent more than two people from living together in a single-family home who are not related by blood, marriage, civil union, or adoption. The conflict was rife with tensions around class and family norms, with neighbors insisting that the family had “cheated” by pooling their resources to purchase a home in a wealthy neighborhood (Yarbrough, 2018, pp. 162–164). The Scarborough family was ultimately able to get the city to drop a lawsuit attempting to remove the family from their home in 2016. However, there are no laws that prevent the state from taking legal action to remove the family from their home in the future (Yarbrough, 2018). Because Obergefell limits marriage recognitions to traditional, nuclear families that are headed by two parents, the case does nothing to assist with the legal recognition of queer kinship networks and families such as the Scarborough family. Hence, Obergefell, although an important victory for many same-sex couples, is a limited decision that presents problems and complications for both LGBTQ people who have more traditional marriages and LGBTQ and heterosexual families who form non-normative kinship networks.
LGBTQ Family Law and Policy in Social Science
Social science research has played a large role in revealing and challenging the discrimination that LGBTQ families have faced in the past and continue to face under contemporary law and policy. In general, social science studies that examine the relationship between LGBTQ families and the law fall into three categories: (a) studies that analyze the health and well-being of LGBTQ families, (b) studies that examine the formation of LGBTQ families and LGBTQ parenting and family identity, and (c) studies on the relationship between LGBTQ families and the law in social movement politics. Each category of social science scholarship addresses the complications that LGBTQ families face because they still do not have full legal recognition and continue to face discrimination in the wake of major LGBTQ legal rights wins such as Obergefell v. Hodges.
Research on Health and Well-Being of LGBTQ Families
Social science research on the health and well-being of LGBTQ families has played a prominent role in framing the debate around LGBTQ family law and policy. This research has been used in court cases that consider the constitutionality of same-sex marriage, other family law court cases that consider how LGBTQ parents influence the health and well-being of children (i.e., in cases that consider wither LGBTQ families are in the best interests of the child), and in legislation concerning the full legal recognition of LGBTQ families. The social science debate on the health and well-being of LGBTQ families has played a particularly large role in the legalization of marriage equality. The dynamics of this debate are perhaps best portrayed in the same-sex marriage cases, such as Hollingsworth v. Perry, which challenged California’s ban on same-sex marriage (i.e., Proposition 8) in 2009, and DeBoer v. Snyder, which challenged Michigan’s ban on same-sex marriage in 2012 (DeBoer v. Snyder 772 F.3d 388 (2014); Gates, 2015; Hollingsworth v. Perry 570 U.S.___ (2013)). Court cases that challenged bans on same-sex marriage such as DeBoer and Hollingsworth often included expert testimony at the trial phase that considered how same-sex marriage impacts children and whether same-sex parent families harm the health and well-being of children. Court cases, which tend to involve argumentation and theatrics in the consideration of expert testimony, are not always the best forums for determining the legitimacy of social science research on LGBTQ families. However, the same dynamics that surround judgments about expert testimony in court are also present in policy debates at the legislature and the ballot box. For this reason, the perception of expert testimony at court provides a useful window into what legal and political institutions consider when determining the legitimacy of contemporary social science research (Gates, 2015). Importantly, the cases challenging bans on same-sex marriage support the contention that social science research overwhelmingly shows that children of same-sex couples experience the same disadvantages, well-being, and health as children of different-sex couples. When differences do exist they are largely attributable to instability, as when, for example, a family’s full legal recognition is in question (Gates, 2015).
Indeed, the amount of social science research that supports the health and well-being of children in lesbian and gay families is astounding. According to a summary of research on the health and well-being of children in same-sex families from Cornell University, out of the 79 studies on this issue as of 2017, only four asserted that children of same-sex parents fare more negatively than children of heterosexual parents (Cornell, 2017). However, all four negative studies had data samples that included a large number of children who had experienced family break-ups—familial instability that has been shown to negatively impact children regardless of a parent’s sexual orientation. As a result, the Cornell meta-analysis of contemporary research concluded that as of 2017, over three decades of peer-reviewed “research forms an overwhelming scholarly consensus . . . that having a gay or lesbian parent does not harm children” (Cornell, 2017).
Studies in the Cornell meta-analysis reach this conclusion across multiple methods. For example, Farr (2016) used a longitudinal study that “compared outcomes for children, parents, couples, and the overall family system among adoptive families with LG [lesbian or gay] and heterosexual parents at two time points: Wave 1 (W1), when children were preschool-age, and Wave 2 (W2), approximately five years later, when children were in middle childhood” (Farr, 2016, p. 255). The study finds that children adopted by same-sex and heterosexual parents are equally well adjusted, on average, across development from preschool to middle school (Farr, 2016). By contrast, Bos, Knox, van Rijn-van Gelderen, and Gartrell (2016) compared partner relationships and parent–child relationships in both female same-sex and heterosexual households using the 2011–2012 National Survey of Children’s Health data set. Their research involved multivariate analysis and linear regressions and found that there were no differences in outcomes between children of female same-sex and different-sex families (Bos et al., 2016; see also Bos, Kuyper, & Gatrell, 2018).
While there are dozens of studies on the health and well-being of same-sex families that span multiple decades, there is much less research on other LGBTQ families, especially families with LGBTQ people of color, transgender and bisexual parents, or non-traditional queer kinship networks such as polyamorous LGBTQ households. For example, researchers have written about the invisibility of bisexual people in LGBTQ parenting research and how many studies on bisexual parents tend to collapse bisexual parents with lesbian and gay parents (Biblarz & Savci, 2010; Ross & Dobson, 2013). Ross and Dobson (2013) identified only two studies that report data related to the outcomes in children raised by bisexual parents. Both studies had bisexual parents in their data sets and did not report different outcomes in children raised by bisexual parents versus children raised by lesbian and gay parents (Costello, 1997; Murray & McClintock, 2005). Similarly, studies that focus on LGBTQ people of color and their families are largely absent in the academic literature (Moore & Brainer, 2013). Those studies that do exist usually do not differentiate by race. This is problematic because racial disparities that exist across families, such as in income, access to benefits, and education, remain mostly unaddressed in health and wellness literature on LGBTQ families. This supports an artificial divide between race, gender, sexuality, and class identity that has the unfortunate consequence of relegating legal and policy discussions into separate spheres, to the detriment of LGBTQ people of color and their families.
As with research on bisexual families, research on the health and well-being of transgender people and their families is limited (Biblarz & Savci, 2010; Stotzer, Herman, &Hasenbush, 2014). However, Stotzer et al. (2014) note that research on transgender parenting overall has “increased exponentially” over the past few decades. Stotzer et al. (2014) completed a literature review of 51 academic pieces on transgender parenting. All but six of the pieces were published after the year 2000. As with studies on same-sex parents, research on the health outcomes of children of transgender parents concludes that a parent’s gender identity has “no effect on a child’s gender identity or sexual orientation development, nor has an impact on other developmental milestones” and that the vast majority of transgender parents report “good or positive” relationships with their children (Stotzer et al., 2014, p. 2; see also Church, O’Shea, &Lucey, 2014; Erich, Tittsworth, Meyer, &Cabuses, 2008; Freedman, Tasker, & Ceglie, 2002; Green, 1998; Lenning & Buist, 2013; Pyne, 2013; Reisbig, 2007). Other research on trans parenting focuses on the rates of transgender parenting among the general population, how trans parent families challenge gender norms, how discrimination impacts trans families, how the transitioning process impacts identity and family formation, and how social location and race, class, and geography impact trans family experiences (Downing, 2013; Stotzer et al., 2014). Aside from studies on discrimination and the transitioning process, which often indirectly touch upon health and well-being, these studies focus on the unique features of being a trans parent rather than the health and well-being of families that include trans people.
Finally, as with research on bisexual and trans families and families with LGBTQ people of color, research on queer kinship networks that include more than two cohabitating adults is very limited. For example, polyamorous families can encompass LGBTQ people and are often included in academic discussions of queer kinship networks. Contemporary studies do not address the “perspectives, experiences, and insights of children and adults who have grown up in polyfamilies” (Pallotta-Chiarolli, Haydon, &Hunter, 2013, p. 119). The research that does exist focuses on issues relating to disclosure of polyamorous relationships, polyamorous family environments, polyamorous families in media and culture, and the need for more health, legal, and welfare services for polyamorous families (Pallotta-Chiarolli et al., 2013). Research on polyamorous family environments has touched upon the health and well-being of children by highlighting how children may benefit from polyamorous family structures. Benefits include more emotional intimacy due to sex-positive child-rearing environments, more child–parent time, and a greater amount of shared resources (Sheff, 2010).
The lack of research on LGBTQ families that include people of color, bisexual and trans families, and polyamorous families makes it more difficult to advocate for the rights and full recognition of many LGBTQ families in political and legal institutions. This is especially true in court cases, where assertions that LGBTQ status and non-normative family environments are not in the best interests of the child are most compellingly refuted with data and research. The lack of research on these families also presents a barrier to the creation of fully inclusive public policy. Research on same-sex couples suggests that family stability matters more than having a traditional family household. However, more research is necessary in order to advance the interests of all LGBTQ families in legal and political institutions and refute threats to LGBTQ families, such as Religious Freedom bills that perpetuate falsehoods about the harms LGBTQ people present to children.
Research on LGBTQ Parenting and Family Identity and Family Formation
In addition to social science research on health and well-being, there is growing research that examines LGBTQ parenting and family identity and formation. These studies focus on the lived experiences of LGBTQ families as they engage in daily life and interact with legal and political institutions and examine how these experiences contribute to identity and family formation (see, e.g., Anderson, 2016; Berkowitz & Ryan, 2011; Connolly, 2002; Gash & Raiskin, 2018; Richman, 2002, 2009; Say & Kowalewski, 1998). Although these studies delineate that LGBTQ people still live as “fragmented citizens” who lack full legal recognition and regularly experience family-based discrimination, they also illuminate how positive experiences with legal and political institutions impact LGBTQ family formation and identity (Engel, 2016). According to these studies, LGBTQ family formation and identity is impacted by conflicting and paradoxical experiences with institutions and state officials.
For instance, Gash and Raiskin (2018) analyze interviews conducted with 31 lesbian and gay adults and six children in Oregon in order to understand how legal status ambiguity impacts lesbian and gay parenthood. Legal status ambiguity refers to the ambivalence and hostility many lesbian and gay parents face when claiming family status in society as well as in legal and political institutions. One manifestation of legal status ambiguity occurs because laws governing second-parent adoption vary by state. Many of Gash and Raiskin’s (2018) interviewees reported experiencing stress and anxiety around interstate and international travel for this reason. Often, LGBTQ families live their daily lives with the full recognition and acceptance of their friends, neighbors, and local institutions. However, this recognition can be interrupted at any moment by officials and institutions who question the legitimacy of their family status. While crossing an international border, one couple in Gash and Raiskin’s (2018) study “was repeatedly questioned by a customs official about their relationship with their son since she did not understand or believe that both women were his parents” (Gash & Raiskin, 2018, p. 93). According to the couple, the official proceeded to question their son’s gender even though the information was clear on his passport, in order to harass the family. Experiences such as this shape lesbian and gay family identity as one of both inclusion/acceptance and exclusion/denial. The surprise and shame of having one’s family status challenged is exacerbated by cases such as Obergefell v. Hodges, which has led many lesbian and gay parents to assume that their parental rights are resolved and protected, when, in fact, they are not. Gash and Raiskin (2018) argue that this has “rendered parents in some states vulnerable to challenges that will strip them of their parental rights” (Gash & Raiskin, 2018, p. 113; see also Padavic & Butterfield, 2011, which examines how non-biological co-parents in lesbian relationships construct parental identity amid social, political, and legal uncertainty).
Other studies illuminate how LGBTQ family identity and formation are shaped by different political and legal contexts. Pinello (2016) delineates how cohabitating couples were impacted in conservative and rural states that passed Super DOMAs before the legalization of same-sex marriage. Super DOMAs were amendments to state constitutions that banned the recognition of all forms of relationship rights, including civil unions and domestic partnerships. Through 203 in-depth interviews across six states, Pinello (2016) shows how same-sex couples often choose to live more open lives as proud LGBTQ people in an everyday challenge to legal and political regimes that refused to recognize the legitimacy of their relationships (Pinello, 2016, p. 63). In addition, Anderson (2016) examines how same-sex couples’ motivations for marrying were impacted by the varying degrees of oppression they experienced based on socio-legal context prior to the nationalization of marriage. Anderson (2016) draws on surveys of same-sex couples who married under different circumstances in San Francisco, Portland, Massachusetts, and Utah. The study finds that these different sociolegal contexts “played a powerful external role in shaping motivations to marry” (Anderson, 2016, p. 377). Couples who married in Utah, which had the most restrictions on same-sex couple recognition of the cases in Anderson’s (2016) study, were more likely to say that they were motivated to marry to secure legal protections. By contrast, couples who married in San Francisco during the brief period in 2004 when then-mayor Gavin Newsom started issuing marriage licenses, were the least likely to say that they married for legal protections and the most likely to say they married to make a political statement. Gavin Newsom began issuing marriage licenses for a short period of time in 2004 to call public and political attention to the inequities caused by bans on same-sex marriage. The marriages were later voided by the California Supreme Court. Anderson (2016) argues that how same-sex couples understood and identified with marriage differed depending on whether couples lived in a locality where legal recognition afforded more protection against discrimination or lived in a locality where marriages were granted for purely political reasons (Anderson, 2016; see also Goldberg, Downing, & Moyer, 2012, who examine gay men’s different motivations for pursuing parenthood).
Other studies examine how attempts to gain legal recognition for LGBTQ parents are embedded in problematic state marriage and family regimes. For instance, Smith (2005) examines the court decision Elisa B. v. Superior Court, which was hailed as a legal victory by LGBTQ social movement organizations. The case extended equal recognition of parental rights and obligations to same-sex couples in California in 2005. Smith (2005) argues that Elisa B. was not only a legal victory, it was also “shaped by an extremely influential political ideology, namely, the neoliberal philosophy of the postwelfare order” (Smith, 2005, p. 829). The case was a victory because it recognized a non-biological parent in a same-sex couple as a social parent, extending legal parentage. However, the case was also deeply problematic because it extended legal parentage within the context of state-enforced, mandatory child support obligations on welfare recipients. According to Smith (2005), this context shows that the case was not only about challenging traditional understandings of family embedded in family law, it was also about state intervention into and regulation of family life for households “that turn to governmental agencies for poverty assistance” (Smith, 2005, p. 848).
Smith (2005) echoes concerns of critical race theorists and feminists about the over-regulation and surveillance of minority families when they seek welfare and housing benefits and extends these concerns to same-sex families. Yet Smith’s (2005) use of critical race theory to analyze the implications of extending legal parentage for same-sex couples also highlights another glaring shortcoming in contemporary LGBTQ family law research on identity and formation: virtually all of the studies on this matter are about the experiences of white same-sex couples. LGBTQ people of color, trans families, bisexual families, and non-heteronormative queer families are largely absent in scholarship on LGBTQ family formation and identity. There are some important exceptions. For instance, Cahill, Battle, and Meyer(2003) examine black LGBT parenting practices and experiences using data from the 2000 Black Pride survey. Cahill et al. (2003) find that black LGBTQ parents may be disproportionately harmed by homophobic laws and policies because parenting is more common among black LGBTQ people than white LGBTQ people. This is especially true when states allow adoption and foster care agencies to refuse to place children with LGBTQ people under expansive Religious Freedom laws. According to Cahill et al. (2003), “coupled with other factors, such as the overrepresentation of Black children in the foster care system, the greater prevalence of Black LGBT parents indicates that anti-gay parenting policies may threaten the Black community as a whole by significantly reducing the potential pool of foster and adoptive parents” (Cahill et al., 2003, p. 94).
Furthermore, Greene (2018) conducted ethnographic research on queer and trans youth of color in Chicago’s LGBTQ neighborhood (i.e., Boystown) that examines the formation of “queer street families.” These families hang out and care for one another in an increasingly commercialized setting where they lack access to many of the neighborhood’s businesses and institutions (Greene, 2018, pp. 168–169). Greene (2018) argues that “queer street families” are a “variation on the ‘chosen families’ that have become less prominent in the wake of the legalization of same-sex marriage,” but nevertheless are an integral part of the history and community that characterizes queer and trans relationships. With few exceptions (such as the Cahill et al. (2003) and Greene (2018) studies) research on LGBTQ family identity and formation that includes LGBTQ experiences beyond those of white same-sex couples is severely limited.
Studies on LGBTQ Families and Social Movement Politics
As the previous sections have shown, the research that does exist on LGBTQ families and parenting tends to highlight the experiences of white, married couples and their children at the expense of other LGBTQ families. This is especially true of social science research on LGBTQ families and social movement politics. There are a number of mass market books on social movement politics and same-sex marriage that are written by activists and attorneys who have served as national leaders in the struggle for same-sex marriage (see, e.g., Becker, 2015; Cathcart & Gabel-Brett, 2016; Kaplan, 2015; Solomon, 2014). These books focus largely on national campaigns, national organizations, or court cases that made it before the U.S. Supreme Court. In addition to these mass market books, there are also a variety of academic books and articles that examine same-sex marriage and social movement politics (see, e.g., Anderson, 2006; Cummings & NeJaime, 2010; Dorf & Tarrow, 2014; Fisher, 2009; Goldberg-Hiller, 2004; Hull, 2004; Klarman, 2014; Mello, 2016; Pinello, 2006; Richman, 2014). Indeed, most scholarship on social movement politics and LGBTQ families focuses on same-sex marriage. However, there is a growing body of scholarship that examines LGBTQ families and their political and social movement struggles for parental rights and family recognition beyond marriage (see, e.g., Ball, 2012; Richman, 2009; Stone, 2012).
Studies on the social movement politics of same-sex marriage include those that seek to understand the political and legal dynamics of the struggle for marriage equality and those that critique marriage equality as a social movement strategy. Research that examines the legal and political dynamics of same-sex marriage includes Dorf and Tarrow’s (2014) study, which finds a triangular relationship among the social movement organizations involved in the marriage equality struggle. Under this triangular relationship, same-sex marriage became a major political, social, and legal policy because of the efforts of grassroots LGBTQ people and counter-movement organizations rather than due to the strategic decision-making of LGBTQ social movement organizations. Specifically, anti-same-sex marriage laws initiated by counter-movement organizations, such as the federal Defense of Marriage Act and state bans on same-sex marriage, “triggered a ‘cycle of contention’ that mobilized LGBT everyday activists to urge movement organizations to take up the cause of same-sex marriage” (Dorf & Tarrow, 2014, p. 450). Another important study on the politics of same-sex marriage is Keck’s (2009) article on how judicial decisions have impacted the legalization of same-sex marriage. Keck (2009) argues that judicial decisions have served as a double-edged sword, both providing an avenue for the legalization of marriage equality but also bolstering counter-movement mobilization. The article is particularly useful for its summary of a long-standing scholarly debate on the utility of the law in struggles for social change, a debate that has, at times, centered on the struggle for marriage equality (Keck, 2009, p. 152).
Critiques of the social movement politics of same-sex marriage examine how the overwhelming focus on same-sex marriage has marginalized other important LGBTQ political struggles, including struggles to gain full acceptance and recognition of LGBTQ families, and how marriage does little to alter the lived realities of low-income and multiply marginalized LGBTQ people (see, e.g., Franke, 2015; Kandaswamy, 2008; Montegary, 2015; Spade, 2015). Much of this scholarship draws from and extends critical race and critical feminist scholarship that emphasizes limits to the pursuit of social change through individual rights in liberation movements. For instance, Kandaswamy (2008) examines how the social movement politics of same-sex marriage mirrors debates around welfare reform in U.S. politics. According to Kandaswamy (2008), same-sex marriage is deeply intertwined with the politics of welfare reform because same-sex marriage extends the hierarchical stratification of rights in the United States, which places social rights and benefits afforded to those who have property and employment (such as retirement and health insurance benefits) above lower-tiered rights associated with welfare and poverty assistance. Same-sex marriage benefits are primarily social rights associated with property and employment rather than lower-tiered rights associated with poverty assistance.
In addition to academic scholarship on the social movement politics of same-sex marriage, there are a limited number of works that examine the social movement politics of LGBTQ parental rights more broadly. Two of the most prominent works on this subject are Richman’s (2009) Courting Change: Queer Parents, Judges, and the Transformation of American Family Law and Ball’s (2012) The Right to Be Parents: LGBT Families and the Transformation of Parenthood. Richman (2009) uses archival analysis and interviews to study the functions and dysfunctions of what she terms measured judicial indeterminacy. Measured judicial determination refers to the variation in the treatment of LGBTQ parents in court that stems from the judicial discretion granted to family law judges through subjective standards such as the “best interests of the child” standard. Richman (2009) argues that rights discourse, a discourse long used in LGBTQ social movement politics, has a problematic and paradoxical position in family law context. According to Richman (2009), family law sits at the intersection of the individual/privacy rights and the collective/family. As a result, “in many instances, parents are chastised for advancing . . . rights arguments during a custody case, because it is seen as selfish and inappropriate” (Richman, 2009, p. 17). That is, parents claiming individual parental rights in LGBTQ family law cases have been criticized for being “selfish and inappropriate” because in focusing on individual rights they are not considering the collective well-being of the child in the family environment. Ball (2012) also delineates how the “best interests of the child standard . . . grants judges significant discretion to determine what promotes and undermines the well-being of children,” in ways that have both affirmed and denied LGBTQ families (Ball, 2012, p. 15). Yet Ball (2012) also documents how LGBTQ families, through their legal struggles, have fundamentally altered legal and political understandings of what constitutes a family. Thus, Ball (2012) traces the history of legal reforms and demonstrates the role that individual LGBTQ families have played in social movement politics around LGBTQ family recognition.
The Future of Research on LGBTQ Family Law
As this article has shown, there is burgeoning research on LGBTQ family law and policy, particularly when it comes to white, same-sex married couples who are middle or upper class and live in more urban or liberal states. However, a glaring pattern also emerges: there is very limited research on LGBTQ families of color, trans and queer families, bisexual families, non-heteronormative families, and families who live in rural and more conservative areas. Research that does exist on these families tends to focus on nuclear families with two-parent households. Furthermore, many of the contemporary studies tend to emphasize national organizations and laws. This is especially true of studies on the politics of same-sex marriage, which almost exclusively focus on national court cases and social movement organizations. This presents a dilemma for social science on LGBTQ family law and policy, which is predominantly determined at the state level and not at the federal level in the United States.
Rather than focusing on impact litigation or federal legislation, scholars should examine how local groups and people are operating in the hyper-localized terrain of family law. Research is especially needed in rural and more conservative states where legal threats to LGBTQ families gain the most traction. Some of the scholars discussed in this article emphasize the importance of local politics in LGBTQ family law by developing concepts such as “judicial indeterminacy” and “legal status ambiguity,” which explain how LGBTQ family experiences vary a great deal by context in a society where judges, institutions, and everyday people challenge the legitimacy of LGBTQ families (Gash & Raiskin, 2018; Richman, 2009). Scholarship on law, politics, and social movements should recognize the local nature of LGBTQ family law and policy by emphasizing local campaigns and politics over national agendas because this better reflects the lived experiences of LGBTQ families.
Furthermore, scholars should turn their attention to how post-marriage equality LGBTQ policy issues impact LGBTQ families and queer kinship networks. More research is needed, for example, on how expansive Religious Freedom bills harm LGBTQ families. In addition to limiting legal avenues for achieving parentage by allowing adoption agencies to refuse to place children with LGBTQ people, these bills threaten LGBTQ families in other ways. For instance, it is possible that these bills will impede the mobility of LGBTQ families by threatening their right to travel and their right to equal protection of the laws in the U.S. Constitution. Under expansive Religious Freedom laws, LGBTQ families will face service refusals at businesses such as restaurants and hotels, especially in rural and more conservative states. This will likely hinder their ability to travel freely and their quality of life in these areas of the country. Researchers should also examine how pro-LGBTQ policies such as laws that ban conversion therapy or expand anti-discrimination protections impact LGBTQ families. These laws undoubtedly contribute to the social legitimacy of LGBTQ people and their families by recognizing them as deserving of equal dignity under the law. Future social science research could help legislatures and courts in ways that best benefit LGBTQ families as they consider these laws.
Finally, scholars should expand their studies on LGBTQ family law and policy to include the full spectrum of LGBTQ families and queer kinship networks. There continues to be a need for scholarship on LGBTQ people of color, queer and trans people, and bisexual people in LGBTQ family law and policy. More marginalized people within the LGBTQ community face unique challenges when it comes to family recognition and acceptance that remain invisible in scholarship that predominantly emphasizes the experiences of white, married same-sex couples. Furthermore, there is a significant gap in research on more marginalized, non-heteronormative queer kinship networks, such as families of affinity or the “queer street families” at the center of Greene (2018)’s study. These families continue to directly challenge traditional family norms and are largely ignored in LGBTQ family law and policy, which tends to privilege nuclear, two-parent families and biological parentage. There is an important, growing body of work on LGBTQ family law and policy, but more research is needed in order to understand how all LGBTQ families are impacted by laws and policies that can simultaneously recognize and deny their legitimacy.
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1. Florida’s ban was a product of the Anita Bryant campaign against LGBTQ people in the state in the 1970s (Shapiro, 2013, p. 296). Anita Bryant was an early leader in the conservative movement against LGBTQ rights who ran a campaign under the name “Save Our Children” to repeal a law prohibiting discrimination based on sexual orientation in one Florida county in the 1970s. Bryant later became a leader in the anti-LGBTQ movement nationally.
2. New York and other states on the East Coast passed laws restricting surrogate parenting contracts in response to the infamous “Baby M” case from 1986—the first contested surrogate parenting case in U.S. history. The case took place in New Jersey and was initiated when a surrogate named Mary Beth Whitehead agreed to give birth to a child for a married couple, William and Elizabeth Stern. Whitehead agreed to a $10,000 payment and, in exchange, was inseminated with William Stern’s sperm. After the child was born, Whitehead sued for custody of the child despite the prior surrogate parenting agreement. New Jersey’s Supreme Court ultimately ruled, in a unanimous decision, that surrogate parenting contracts were illegal. Legal parentage was awarded to both Whitehead and Stern, with primary custody granted to Stern. The case was widely reported across the United States (it even became the subject of a made-for-TV movie) and ignited public furor over surrogate parenting (Fuchs, 2014; Haberman, 2014).
3. In general, court-ordered adoptions hold more power in other jurisdictions than a birth certificate that lists a non-biological spouse as a parent.