ALL CHILDREN MATTER

How Legal and Social Inequalities Hurt LGBT Families

Full Report

October 2011

With a foreword by

Authors

Partners

This report was authored by:This report was developed in partnership with:

Movement Advancement Project
The Movement Advancement Project (MAP) is an independent
think tank that provides rigorous research, insight andanalysis that help speed equality for LGBT people. MAP works
collaboratively with LGBT organizations, advocates andfunders, providing information, analysis and resources that
help coordinate and strengthen their efforts for maximum
impact. MAP also conducts policy research to inform thepublic and policymakers about the legal and policy needs ofLGBT people and their families. For more information, visit
www.lgbtmap.org.

COLAGE
COLAGE is a national movement of children, youth and adults
with lesbian, gay, bisexual, transgender or queer (LGBTQ)
parents. COLAGE builds community and works toward social
justice through youth empowerment, coalition building,leadership development, education and advocacy. COLAGE
views youth and families as powerful agents of social,political and cultural change, and supports youth leadershipdevelopment through mentorship between people with
LGBTQ parents across economic status, religion and culture.
The COLAGE network helps children in LGBTQ families tobecome strong advocates for themselves and their families
and to gain the recognition, rights and respect that every
family deserves. For more information, visit www.colage.org.

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

2Family Equality Council
Family Equality Council works to ensure equality for LGBT
families by building community, changing public opinion,advocating for sound policy and advancing social justice for
all families. Family Equality Council provides support andresources to LGBT-headed families, and leverages the powerof families by sharing their stories and driving change incommunities and states across the nation. Family Equality
Council educates members of government, schools, faithbased communities, healthcare institutions and other social
systems about how they can promote family equality. Family
Equality Council also partners with other LGBT and broadersocial justice organizations to provide the greatest positive
impact and to maximize resources. For more information, visit
www.familyequality.org.
Center for American Progress
The Center for American Progress (CAP) is a think tankdedicated to improving the lives of Americans through ideas
and action. CAP combines bold policy ideas with a modern
communications platform to help shape the national debate.
CAP is designed to provide long-term leadership and support
to the progressive movement. CAP’s policy experts cover awide range of issue areas, and often work across disciplines totackle complex, interrelated issues such as national security,
energy, and climate change. For more information, visit
www.americanprogress.org.

Evan B. Donaldson Adoption Institute
The Evan B. Donaldson Adoption Institute, a national notfor-profit, is the leading research, policy and education
organization in its field. The Institute’s mission is to provide
leadership that improves laws, policies and practices—
through sound research, education and advocacy—in order tobetter the lives of everyone touched by adoption. To achieve
its goals, the Institute conducts and synthesizes research,offers education to inform public opinion, promotes ethicalpractices and legal reforms, and works to translate policy into
action. For more information, visit www.adoptioninstitute.org.
National Association of Social Workers
National Association of Social Workers (NASW) is the largest
membership organization of professional social workers in
the world, with 145,000 members. NASW works to enhance
the professional growth and development of its members, tocreate and maintain professional standards, and to advancesound social policies. The primary mission of the social work
profession is to enhance human well-being and help meet thebasic human needs of all people, with particular attention to
the needs and empowerment of people who are vulnerable,
oppressed, and living in poverty. For more information, visit
www.socialworkers.org.

Contact Information
Movement Advancement Project2215 Market Street
Denver, CO 80205
720-274-3263
www.lgbtmap.org

Family Equality Council
P.O. Box 206
Boston, MA 02133
617-502-8700
www.familyequality.org

Center for American Progress
1333 H Street NW, 10th Floor
Washington, DC 20005
202-682-1611
www.americanprogress.org

Cover photo by Taylor Castle and reprinted with permission from Chicago Magazine and the family.

ACKNOWLEDGEMENTS
Funders
MAP thanks the following funders, without whom this report would not have been possible.

•• Arcus Foundation•• Amy Mandel and Katina Rodis•• David Bohnett Foundation•• Weston Milliken•• David Dechman•• Kevin J. Mossier Foundation•• David Geffen Foundation•• The Palette Fund•• Gill Foundation•• Mona Pittenger•• Jim Hormel•• Two Sisters and a Wife Foundation•• Johnson Family Foundation•• H. van Ameringen Foundation

Key Contributors and Subject Matter Experts
The authors would also like to thank the following individuals for their time and expertise. Their thoughtfulcomments and analysis helped ensure this report is as comprehensive, accurate and inclusive as possible.

•• Juan Battle, Principal Investigator, Antonio (Jay) Pastrana, Jr. and Jessie Daniels, Co-Investigators, Vernisa
Donaldson, Alexis Espinoza and the data team, Social Justice Sexuality Survey•• Melissa Boteach, Manager, Half in Ten, Center for American Progress•• Patricia A. Cain, Professor of Law, Santa Clara Law•• Bo Cooper, Partner, Berry Appleman & Leiden•• Leslie Cooper, Senior Staff Attorney, ACLU LGBT & AIDS Project•• Nathaniel Frank, Research Consultant and Adjunct Faculty, New York University•• Gary J. Gates, Williams Distinguished Scholar, The Williams Institute, UCLA School of Law•• Kim L. Hunt, Executive Director, Affinity Community Services•• Shannon Price Minter, Legal Director, National Center for Lesbian Rights•• Aisha C. Moodie-Mills, Advisor for LGBT Policy & Racial Justice, Center for American Progress•• Nancy Polikoff, Professor of Law, American University Washington College of Law•• Cathy Sakimura, Staff Attorney & Family Protection Project Coordinator, National Center for Lesbian Rights•• Rachel B. Tiven, Executive Director, and Julie A. Kruse, Policy Director, Immigration Equality•• Sarah Warbelow, State Legislative Director, Human Rights Campaign•• Thalia Zepatos, Director of Public Engagement, Freedom to MarryNote About This Full Report
A condensed version of this full report, entitled “All Children Matter: How
Legal and Social Inequalities Hurt LGBT Families (Condensed),” is available
online through www.lgbtmap.org/lgbt-families or through any of the coauthor or partner websites.
We suggest the following citation for this full report: Movement
Advancement Project, Family Equality Council and Center for American
Progress, “All Children Matter: How Legal and Social Inequalities Hurt
LGBT Families (Full Report),” October 2011.
This report incorporates information that was current as of October 1, 2011.
For legal updates, please see the Movement Advancement Project’s
Equality Maps at www.lgbtmap.org/equality-maps.

TABLE OF CONTENTSFOREWORD........................................................................................................................................i
EXECUTIVE SUMMARY......................................................................................................................1
INTRODUCTION.................................................................................................................................5
Who Are LGBT Families?................................................................................................................................................ 7
Research Shows Positive Outcomes for Children of LGBT Parents.................................................................. 11
The Effects of Unequal Laws and Stigma................................................................................................................. 13
GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN......................................................18
Challenge: Children Denied Permanent Homes, Legal Ties to Parents ......................................................... 19
Five Pathways to Parenthood................................................................................................................................................19
Mechanisms for Securing Legal Ties to Children...........................................................................................................21
Adoption and Foster Care.......................................................................................................................................................21
Adoption by Individuals.................................................................................................................................................25
Joint Adoption by Couples...........................................................................................................................................26
Foster Care..........................................................................................................................................................................28
Who Decides? The Reality of Adoption and Foster Care Practices.................................................................28
Blended Families and Stepfamilies......................................................................................................................................33
Stepparent Adoption......................................................................................................................................................33
Assisted Reproduction.............................................................................................................................................................34
Donor Insemination........................................................................................................................................................34
Surrogacy............................................................................................................................................................................38
Stopgap to Remedies to Inadequate Parenting Law....................................................................................................39
Second-Parent Adoption ..............................................................................................................................................40“De Facto” Parenting ......................................................................................................................................................41
Parentage Judgments.....................................................................................................................................................42

Challenge: Children Wrongly Separated from Parents........................................................................................ 43
Custody and Visitation Disputes..........................................................................................................................................43
Custody When a Parent Dies..................................................................................................................................................47
Uncertainty for Binational Families.....................................................................................................................................48

Recommendations Overview: Providing Stable, Loving Homes...................................................................... 50
GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN...........................................................51
Challenge: Children Falling Through the Safety Net ........................................................................................... 54
Temporary Assistance for Needy Families ......................................................................................................57
Food and Nutrition Assistance..............................................................................................................................................58
Public Housing and Housing Assistance...........................................................................................................................60
Medicaid and Children’s Health Insurance Program (CHIP).......................................................................................62
Supplemental Security Income (SSI)..................................................................................................................................63Child Care and Early Child Education Assistance...........................................................................................................63
Educational Loans, Grants and Scholarships...................................................................................................................64
Government Forms and Defining Family..........................................................................................................................65

Challenge: A Higher Tax Burden for LGBT Families............................................................................................... 66
Tax Credits and Deductions for Families ..........................................................................................................................67

Challenge: Children Denied Protections When a Parent Dies or is Disabled............................................... 73
Social Security Survivors and Disability Insurance Benefits ......................................................................................73
Inheritance...................................................................................................................................................................................76
Wrongful Death..........................................................................................................................................................................78

Recommendations Overview: Ensuring Economic Security for Children..................................................... 78
GOAL 3: ENSURING HEALTH AND WELL-BEING FOR CHILDREN...................................................79
Challenge: Unequal Access to Health Insurance................................................................................................... 79
Health Insurance Disparities..................................................................................................................................................79
LGBT Families Pay Extra Taxes on Health Insurance.............................................................................................81
Disparities in Coverage Through Private Employment ......................................................................................82

5

Disparities in Coverage Through Government Employment...........................................................................82
Health Disparities for LGBT Individuals and Families....................................................................................................83

Challenge: Unwelcoming Health Care Environments......................................................................................... 84
Challenge: Family Members Restricted in Taking Care of Each Other............................................................ 85
Hospital Visitation and Medical Decision-Making.........................................................................................................85
Family Leave................................................................................................................................................................................88

Challenge: Social Stigma and Discrimination........................................................................................................ 89
Unique Pressures for LGBT Families and Their Children..............................................................................................89
LGBT Families in the Broader Community........................................................................................................................92
The School Experiences of Children with LGBT Parents..............................................................................................93

Recommendations Overview: Ensuring Health and Well-Being...................................................................... 96
CONCLUSION AND DETAILED RECOMMENDATIONS.....................................................................97
Detailed Recommendations Table............................................................................................................................. 98
Legally Recognize LGBT Families................................................................................................................98
Recognize LGBT Parents as Legal Parents.........................................................................................................98
Legalize and Federally Recognize Marriage for Gay and Lesbian Couples............................................101
Provide Pathways to Immigration and Citizenship for Binational Families............................................101
Provide Equal Access to Government-Based Economic Protections....................................................102
Recognize LGBT Families and Children Across Government Safety Net Programs.............................102
Revise the IRS Tax Code to Provide Equitable Treatment for LGBT Families..........................................105
Provide Equitable Economic Protections when a Parent Dies or is Disabled........................................106
Provide Equal Access to Health Care..........................................................................................................107
Advance Equal Access to Health Insurance......................................................................................................107
Enable LGBT Family Members to Care for One Another...............................................................................108
Protect LGBT Families from Discrimination..............................................................................................109
Pass Employment Non-Discrimination Protections.......................................................................................109
Pass and Strengthen Adoption and Foster Care Non-Discrimination Laws...........................................110
Pass Custody and Visitation Non-Discrimination Laws................................................................................110
Pass Non-Discrimination Protections in Health Services.............................................................................110
Pass Stronger Anti-Bullying Laws........................................................................................................................111
Pass Housing and Credit Non-Discrimination Protections..........................................................................111
Strengthen Agency and Service Provider Non-Discrimination Policies..................................................111
Expand Education and Cultural Competency Training on LGBT Families............................................112
Provide Cultural Competency Training for Frontline Agency Workers....................................................112
Focus Expanded Education and Training on Judges and Law Students.................................................113
Provide Cultural Competency Training for Physical and Mental Health Services Providers.............113
Provide Training and Information to School Personnel About LGBT Students and Families...........114
Expand Support for LGBT Inclusion in Faith Communities.........................................................................114
Provide Education and Services Support to Help LGBT Families..........................................................114
Educate LGBT Families About Current Laws and How to Protect Themselves......................................114
Create Stronger Support Services and Outreach for LGBT Families.........................................................115
Create Inclusive Environments for all LGBT Families, Particularly Transgender Parents and Familiesof Color........................................................................................................................................................................115
Expand Research on LGBT Families............................................................................................................116
Support Expanded Research on LGBT Families and Parenting...........................................................................116

APPENDICES......................................................................................................................................118
Glossary of Acronyms Used in this Report.............................................................................................................. 118
Estimating the Number of Children with LGBT Parents...................................................................................... 118
Creating and Protecting a Family is Costly for LGBT Parents............................................................................. 120
Interviewees...................................................................................................................................................................... 122

FOREWORD
As the nation’s leading membership-based organization for children and families, the Child
Welfare League of America (CWLA) has long affirmed that children grow up best in strong families
and supportive communities. A diversity of families is needed to help ensure that vulnerable children
attain safety, find permanent families, and achieve well-being. As such, lesbian, gay and bisexual
parents are essential child welfare partners because they are as well-suited to raise children as theirheterosexual counterparts.

i

CWLA has long held that public policy should serve to further the best interests of children.
The lingering bias against gay parents is problematic given that overwhelming social science
research confirms that that gay and lesbian people are just as capable of being good parents
as heterosexual people, and that their children are just as likely to be healthy and well-adjusted.
Not a single reputable study has found that children raised by gay or lesbian parents are harmed
because of their parents’ sexual orientation.

Misconceptions and stereotypes about gay people are always harmful—and especially so when
they hurt children. In recent years, we have witnessed a disturbing trend as lawmakers in various
regions of the country have ignored sound child welfare policy by introducing legislation to ban gay
and lesbian people from adopting and foster parenting. One does not have to look too closely torealize that this legislation does not serve the best interests of children.
In 2009, 114,556 foster children awaited adoption by permanent families. Many of thesechildren have been shuffled between temporary placements without the emotional stability thata permanent family can offer. Laws and policies that ban lesbians and gay men from adopting andfostering fly in the face of well-developed child health and welfare standards by depriving childrenof willing and able parents. We need more permanent families for our foster children, not fewer.
We simply cannot afford to systematically exclude any group of caring and loving people from analready-limited pool of prospective parents.
However, restrictions on adoption and fostering are not the only ways in which children are
hurt by anti-gay laws and policies. Over two million children are being raised by an LGBT parent.
Yet current laws often deny such children legal ties to one parent, undermining family stability andpermanency—and parents’ ability to act as effective guardians of their children. Even when somelegal protections exist, discrimination can still wrongly wrest children from their parents when, forexample, custody decisions are driven by anti-gay bias against a parent, rather than by the child’sbest interests. Furthermore, because so many government programs do not recognize LGBT families,

FOREWORDCWLA is joined by every other major child health and welfare organization in affirming thesuitability of gay and lesbian parents, including the American Academy of Pediatrics, the American
Psychiatric Association, the American Psychological Association, the National Association of Social
Workers, and the North American Council on Adoptable Children. Our member agencies share avalue that we would not take such a strong and unequivocal stand on gay and lesbian parenting
were it not supported by sound social science research, established practice, and extensive expertisein identifying and serving the needs of children and families.

ii

children in these families are more likely to fall through the safety net. In times of crisis and greatest
need, this can devastate families, as in the case of a child denied Social Security Survivor’s benefits
upon the death of a parent—or a sick child who cannot be covered under a parent’s health insurance
because that parent is not able to secure a legal relationship to the child.
All Children Matter documents how our laws fail to protect children living in LGBT families—andvividly illustrates these policy failures with chilling stories. It also outlines solutions for helping ensurethat both public policy and child welfare professionals work to serve all children. These solutions are
not always easy, but they are common sense. And the call to prevent and eliminate laws that hurtchildren is one that we all must answer. All Children Matter both shows how far we are from achieving
this goal, and offers an indispensible path forward.
LGBT families are part of the American fabric. They live in 96% of US counties and are more
ethnically diverse than the general population. Policies which place these families at economic andsocial disadvantage must be put aside so we can truly begin to act in the best interests of all children.

FOREWORD

Linda S. Spears		Vice President, Policy and Public Affairs

EXECUTIVE SUMMARY
Public discussion about American families often
assumes the nation is largely made up of marriedheterosexual couples raising their biological children.
Yet less than a quarter of all U.S. households fall
into this category. Today’s children may be raised by
grandparents, single parents, stepparents, aunts, uncles
or foster parents. Their parents may be married or
unmarried; they may be heterosexual or lesbian, gay,bisexual or transgender (LGBT).
Unfortunately, public policy has not kept up with thechanging reality of the American family. Indeed, our lawsand discourse largely ignore the roughly two million
children being raised by a parent or parents who are LGBT.
They also ignore children in other family configurations,such as those with unmarried heterosexual parents.
As a result, most Americans are probably unaware of
the many ways in which unequal treatment and social
stigma harm the millions of children whose families do
not fit into a certain mold.

This report offers one of the most comprehensive
portraits to date of the wide range of obstacles facing
LGBT families in America. It highlights three major
needs that every child deserves: stable, loving homes;
economic security; and health and well-being. In eachof these areas, the report outlines how current laws
and social stigma create obstacles for LGBT families.
The introduction’s “A Story of Two American Families,”
sums up the effects of unequal laws and social stigma
by providing a case study of different outcomes for two
families, one with lesbian parents and the other withheterosexual parents.
Finally, the report offers detailed recommendations
for eliminating or reducing inequities and improving the
lives of children with LGBT parents. Where possible, thereport also highlights how current laws and stigma harmchildren in other modern family configurations, such as
those with unmarried heterosexual parents.

Key Findings
LGBT Families are Numerous and Diverse•• The number of children with LGBT parents issignificant. Roughly two million children are being
raised by LGBT parents.

to stereotypes, children being raised by samesex couples are twice as likely to live in poverty
as children being raised by married heterosexual
households. Same-sex couples of color raisingchildren are more likely to be poor than whitesame-sex couples raising children.

1•• Same-sex couples raising children are moreracially and ethnically diverse than married
different-sex couples raising children. In all, 59%of same-sex couples with children identify as white
compared to 73% of married different-sex couples
with children. Same-sex couples of color are more
likely to raise children than white same-sex couples.

•• LGBT families are geographically diverse. LGBT
families live in 96% of U.S. counties, and same-sex
couples in the South are more likely to be raisingchildren than those in other regions of the country.

•• LGBT families are more likely to be binational

than heterosexual-headed households. Amongsame-sex couples, 6% are binational compared to
4.6% of married heterosexual couples. Nearly half(46%) of binational, same-sex couples are rearing
children compared to 31% of same-sex couples inwhich both partners are U.S. citizens.

Children in LGBT Families Fare as Well as OtherChildren•• Research uniformly shows positive outcomesfor children in LGBT families. More than 30
years of rigorous social science research showsthat children raised by LGBT parents are just as
happy, healthy and well-adjusted as children
raised by heterosexual parents. This is why every
major authority on child health and welfare has
determined that sexual orientation has nothing to
do with the ability to be a good, effective parent.

Laws and Stigma Hurt Children with LGBT
Parents
As shown in Figure 1 on the next page, archaic anddiscriminatory laws, combined with social stigma, create
obstacles to stable, loving homes; economic security;and health and well-being. This report examines theways in which inequities interfere with these needs andconsequently harm children with LGBT parents.

EXECUTIVE SUMMARY

In This Report•• LGBT families are more likely to be poor. ContraryFigure 1: Bad Laws and Stigma Deny Children Their Basic Needs
2

HOW OBSTACLES DENY CHILDREN BASIC NEEDSOBSTACLES
Archaic &Discriminatory
Laws•• Waiting children denied forever homes•• Children denied legal ties to parents
Stable, Loving•• Children lack protection when parents splitHomes
up or a parent dies•• Children live in fear of a parent’s deportation•• Inequitable treatment under government
Economic
Security

Stigmasafety net programs•• LGBT families face higher tax burden•• Children denied financial protections whena parent dies or becomes disabled•• Children denied health insurance and
Health &Well-Being

competent care•• Family members restricted in taking care ofeach other

EXECUTIVE SUMMARY•• Hostility in schools, community, etc.
Laws and Stigma Create Obstacles to Stable,
Loving Homes for Children
State and federal laws and practices often denychildren legal ties to loving, responsible parents. In
many states, LGBT adults face restrictions in adoption or
fostering—even though roughly 115,000 children are
awaiting forever homes. Also, when a child is born to amarried heterosexual couple, that child generally enjoys
the essential security of being the legal child of bothparents. By contrast, a child born to (or raised by) two LGBT
parents may have one parent deemed a legal stranger bylaw, threatening to undercut family permanency. Today’s
legal and social climate creates barriers to achieving
loving, stable homes for children in the following ways:•• Children denied permanent homes. Some states
and agencies still refuse to place children withsame-sex couples despite research consistently
showing that children of LGBT parents fare just as
well as other children.

•• Children denied legal ties to their parents. A child living with two parents of the same sex can be assured
that her relationship to her parents will be recognizedby law in fewer than half of the U.S. states. For example, if a child is born using donor insemination, thepartner of the birth mother may be a legal stranger tothe child, despite acting as a parent from birth.

•• Children lack protection when their parents’relationship dissolves or a parent dies. An
LGBT parent who is not recognized as a parent
by the law can lose custody or visitation rights
even in instances when that parent is the mostsuitable caregiver and has acted as a parent forthe child’s entire life.

•• Children live in fear that their families could betorn apart by a parent’s deportation. Children
being raised in same-sex binational families are
denied the protections of family unity under federal
immigration law. LGBT Americans cannot sponsor
a same-sex spouse or partner for permanent
residency or citizenship, a right that heterosexual
Americans can exercise.

Laws and Stigma Create Obstacles to Economic
Security for Children
Government-based economic protections, ranging
from safety net programs to tax deductions to inheritancelaws, help families meet children’s basic needs, including
obtaining food, shelter and clothing. Yet different
treatment under the law creates barriers to economic
security for LGBT families in the following ways:•• Children fall through the safety net. Because manysafety net programs apply antiquated definitions offamily, a child with LGBT parents might be denied
benefits provided to a peer with heterosexual
parents—simply because the child’s parents are
LGBT. Most government safety net programs use
a narrow definition of family tied to marital status,
which often excludes same-sex partners and nonlegally recognized parents and children. The result
is that financially struggling families with LGBT or
unmarried parents cannot accurately reflect theirhousehold size or economic resources and may bedenied adequate assistance.

•• LGBT families face a higher tax burden. A seriesof tax credits and deductions are designed to help
all families, regardless of economic circumstance,ease the financial costs of raising children.
However, tax law also uses a narrow definitionof family which excludes LGBT families. This
exclusion usually results in a significantly higher
tax burden for LGBT families.
when a parent dies or is disabled. Social Security
benefits and inheritance laws aim to protect
families when a parent dies or becomes disabled.
However, because the federal government fails
to recognize LGBT families, such families may bedenied critical Social Security death and disability
benefits typically provided to heterosexual families.
Also, if a married heterosexual parent dies without
a will, all the couple’s assets transfer tax-free to thesurviving spouse (and/or children); and if a parent
dies a wrongful death, minor children and legal
spouses may be able to sue. Yet in states where theirfamily ties are not legally recognized, LGBT families
have no such protections.

Laws and Stigma Create Obstacles to Physicaland Mental Health and Well-Being
Government policies aim to help ensure that children
are physically and mentally healthy, and that they canaccess the basic resources they need to thrive, including
quality and welcoming child care, education and healthcare. Yet children with LGBT parents face additional
obstacles to achieving optimal health and well-being:•• LGBT families face health coverage disparities andunequal access to health insurance. The Defenseof Marriage Act (DOMA) prevents the federal

3•• LGBT families face unwelcoming health careenvironments. Many professional caregivers—
from physicians to counselors to the receptionists
at medical facilities—are not accepting of ortrained to work with LGBT families. Some medical
providers have even refused to treat LGBT people,
citing religious or personal reasons.

•• LGBT family members are restricted in taking

care of each other. When an LGBT parent lacks
legal recognition, he or she may be denied
visitation rights as well as the ability to makemedical decisions for his or her child. In addition,
the federal Family and Medical Leave Act (FMLA)
does not require employers to grant leave to aworker taking care of a same-sex partner or spouse,even while heterosexual workers have this right.

•• LGBTfamilies face social stigma anddiscrimination. Many of the challenges LGBT
families face stem from a society that assumes
that everyone is heterosexual and comes froma family with two married heterosexual parents.
The stresses resulting from these expectations areheightened for LGBT families of color, who also
have to contend with additional disparities as racialand ethnic minorities. Transgender parents andtheir children also face added strains.

Recommendations
This report presents a detailed and comprehensive
set of legal, policy and cultural solutions to address
the disparities outlined above. Below we summarize
key recommendations which, taken together, could
virtually eliminate the legal inequities that harm thetwo million children with LGBT parents. Many of therecommendations would also help an array of otherchildren, including those with unmarried parents
and those awaiting adoption.

EXECUTIVE SUMMARY•• LGBT families are denied financial protections

government from recognizing the marriagesof same-sex couples. This lack of recognitionmeans that employers do not need to extend
health insurance benefits to the partners of LGBT
employees, or to the children of these partners(assuming the employee is a legal stranger to thechildren). Even when employers choose to offer
extended health insurance benefits, an LGBT family
will be taxed on the value of the benefit while amarried heterosexual family will not.

Legally Recognize LGBT Families

EXECUTIVE SUMMARY

4

1. Pass comprehensive parental recognition laws
at the state level to fully protect children in LGBT
families. State parentage and adoption statutes
should allow joint adoption by LGBT parents,
recognize LGBT parents using assisted reproductionin the same manner as heterosexual parents, andprovide avenues such as second-parent adoption
and de facto parenting to allow children to gain fulllegal ties to their parents.
2. Legalize and federally recognize marriage for samesex couples. Marriage for same-sex couples would
help strengthen legal ties of the entire family, including
those between a child’s parents and between the childand his or her parents. Married LGBT parents would
be recognized as legal parents upon a child’s birth,and would also have access to joint and stepparent
adoption. If recognized by the federal government,
marriage would also allow accurate representation ofLGBT families for the purposes of safety net programs,
tax credits and deductions, inheritance and Social
Security protections, immigration sponsorship andother benefits; and make it easier to obtain family
health protections, including health insurance,
medical decision-making, visitation and family leave.
3. Provide pathways to immigration and citizenshipfor binational LGBT families. This should include
legislation such as the Uniting American Families Act,
which would add the category “permanent partner”
to the list of family members already entitled tosponsor a foreign national for U.S. immigration.

Provide Equal Access to Government-Based
Economic Protections
4. Recognize LGBT families and children acrossgovernment safety net programs. Broadening thedefinition of “family” would allow LGBT families toaccurately reflect their household across numerous
government programs and protections. Forms andapplication procedures should also accommodate
the reality of LGBT and other 21st century families.
5. Revise the Internal Revenue Service (IRS) tax code
to provide equitable treatment for LGBT families.
The IRS should create a “permanent partner”
designation to identify a person who would betreated as a spouse for tax code purposes. The IRS
should allow not just legal parents but also de facto
parents to claim a “qualifying child” on their tax filing.

6. Provide equitable economic protections whena parent dies or is disabled. First, broaden Social
Security’s definition of family to allow an LGBT
worker’s permanent partner and children to accesssurvivor and disability benefits in the same manneras a heterosexual worker’s spouse and children.
Next, states should change inheritance laws to treat
LGBT permanent partners as spouses, and ensurechildren can inherit from a de facto parent when
the parent dies without a will. Last, states should
permit the filing of a wrongful death suit by any
individual who can show economic dependence
on a deceased person.

Provide Equal Access to Health Care
7. Advance equal access to health insurance andcare. Pass laws ensuring that LGBT families haveaccess to health insurance on equal terms withheterosexual families, including eliminating unfair
taxation of these benefits. Encourage private
employers to offer domestic partner benefits.
Work to ensure the Affordable Care Act defines“family” broadly.
8. Enable LGBT family members to care for one
another. Pass or revise state hospital visitationand medical decision-making laws to be inclusiveof LGBT families and de facto parents. Work withhospitals and other medical facilities and providers
to enact LGBT-friendly policies related to visitation,
advanced healthcare directives and related issues.
Revise the federal FMLA to allow same-sex partners
to care for one another.

Protect LGBT Families with Anti-Discrimination
Laws, Anti-Bullying Laws and Outreach
9. Pass state anti-bullying laws and laws barring
discrimination in employment, adoption, custodyand visitation, health services, housing and credit.
Legislation prohibiting bullying and harassment inschools and universities should explicitly protect
students based on their sexual orientation, gender
identity and expression, and association with LGBT
people. Non-discrimination laws should include
similar protections.
10. Expand education and cultural competency
training on LGBT families. Education and culturalcompetency training for a wide array of professionals
should include outreach to adoption agencies andchild welfare departments, judges and law students,

government agency workers, healthproviders, schools, and faith communities.

service

Provide Education and Services Support toHelp LGBT Families
11. Create stronger support services for LGBT families,
particularly families of color, low-income families
and transgender parents. Advocates should
target LGBT families with focused outreach andservices, including opportunities to participate insocial and support groups. Advocates should also
educate LGBT families about the need to establish
parentage ties and other legal protections, andprovide assistance in doing so.

Expand Research on LGBT Families

INTRODUCTION
What do children need to thrive? They need close
positive relationships with responsible adults who love
them. They need homes that foster curiosity, empathy,
self-reliance and kindness. They need food, clothing,shelter and medical care. They need a feeling of safety,
security and stability. And they need to feel connected
to and embraced by those around them.
Unfortunately, how we as a society talk and think
about families does not adequately serve our children.
Many Americans assume that the U.S. population islargely made up of married heterosexual couples raising
their biological children together. This assumption
guides government policies and laws at all levels, as well
as day-to-day policies, practices and customs in schools
and other community institutions.
However, according to the U.S. Census Bureau, only
22% of all households fall into this category. Today’schildren may be raised by grandparents, single parents,
stepparents, aunts or uncles, or foster parents. Parents
may be heterosexual. They may be lesbian, gay, bisexualor transgender. They may be citizens or immigrants, well-

Most Americans and their elected leaders may be
unaware of the many ways in which unequal treatment
and ongoing social stigma can harm and impoverish themillions of children whose families do not conform tocommonly held assumptions of what it means to be afamily. Consider the following:

5•• More than 115,000 foster children are currently
awaiting adoption into a forever home; yet somestates and agencies still refuse to consider samesex couples for foster placements or adoption,
despite research consistently showing that childrenof LGBT parents fare just as well as other children.

•• In fewer than 20 states can a child living with twoloving parents of the same sex be assured that her
relationship to her parents will be recognized by
the law; as a result, she is vulnerable to being taken
away from a parent who has raised her since birth.

•• Currently, laws designed to protect children when
they are at their most vulnerable (such as when aparent dies or becomes disabled) do not protect
some children just because of who their parents
are. As a result, a child’s access to health insurance,
Social Security survivor benefits, inheritance anda host of other legal protections can be denied
because the law values some children’s parental
relationships over others’.

•• Current law tells some families that a parent cannot
take family leave when another parent is sick, while
telling other families to go right ahead.

•• It is still all too common for children to be bullied
or harassed in school or elsewhere when theirfamilies do not look like other people’s families.
Consider the elementary school student with twofathers or a transgender parent who regularly
hears hurtful comments about his family fromadults and children alike.
Unequal laws and social stigma harm not just thetwo million American children with LGBT parents, butalso children in other family configurations, such as
those with unmarried heterosexual parents. This reportshines a spotlight on how far the U.S. still has to go toachieve fair treatment for all children—not just those

INTRODUCTION

12. Expand research on LGBT families andparenting, with an emphasis on filling gaps indata on families of color, low-income families
and transgender parents. This should include
lobbying for expanded private and government
research and data on LGBT families and parenting
in areas such as demographics, income, healthand mental health.

off or struggling, white or families of color. Yet despite
the growing visibility of diverse American households,
public policy has not kept up with the changing realityof the American family in the 21st century.

Key Terms

6

Lesbian, Gay, Bisexual and Transgender (LGBT). The terms lesbian, gay and bisexual describe a person’s
sexual orientation and collectively include women and men who are predominantly or sometimes attracted
to individuals of the same sex. The term transgender is independent of sexual orientation and describes those
whose gender identity (their inner sense of being male or female) and/or gender expression (their behavior,clothing, haircut, voice and body characteristics) do not match the stereotypes associated with the genderassigned to them at birth, and who often live as members of the “opposite sex.”
LGBT Families. This report uses the term “LGBT families” to refer either to families in which an LGBT adult israising children or to families in which a same-sex couple is raising children. We use this term for simplicity while
noting that the term is most likely not reflective of the sexual orientation of the children in such households.
Our more restricted use of the term “LGBT families” is not meant in any way to diminish those who live in families
without children. We also recognize that many LGBT adults who do not have children form families with life
partners, close friends and other loved ones who provide support.
Child(ren). Because this report focuses on children currently being raised by LGBT adults, we use the terms“child” and “children” to refer to individuals under the age of 18.

INTRODUCTION

Legal Parent. We use the terms “legal parent” or “legally recognized parent” to refer to a person who isrecognized as a parent under state (and sometimes federal) law, and who is generally related in somemanner by blood, adoption or other legal tie to a child.
Non-Legally Recognized Parent/Non-Recognized Parent/Legal Stranger. There are many instances in which
someone acts as a parent to a child but is not recognized as a legal parent under state (and sometimes federallaw). Throughout the report, we distinguish between the terms “legally recognized parents” and “non-legally
recognized parents.” Also used in this report is the term “legal stranger” to refer to a parent who is not legally
recognized.
Stepparent. A “stepparent” is traditionally defined as someone who marries an existing parent, forminga stepfamily. Because same-sex partners are not allowed to marry in most states, we also use the term
“stepparents” to refer to LGBT individuals who function as stepparents, whether or not they are formallyrecognized as such under their state’s law. Since same-sex couples in comprehensive domestic partnerships orcivil unions enjoy the same rights as legal spouses, they are also referred to as “stepparents,” although federal
law does not regard them as such.
De Facto Parent. A “de facto” parent is someone other than a legal parent who, for reasons other than financial
compensation, formed a child-parent relationship in which he or she shared (usually at least equally) in primarychild care responsibilities. In certain cases, a court can declare a de facto parent to be a legal parent, conferringon him or her partial or full parenting rights based on the person having functioned as a parent in the child’s life
for a significant period of time.
Same-Sex Partner(s). Since most same-sex couples cannot legally marry, we often use the term “same-sex
partner(s)” to refer to same-sex couples in committed relationships, including marriages, domestic partnerships,
civil unions or similar relationships that are not recognized under the law. In some cases, we distinguish between
those couples who are legally recognized and those who are not.
Spouse. Because the federal government does not recognize the marriages of same-sex couples, this report
uses the term “spouse” to refer to the husband or wife in a legally married heterosexual couple. When applicable,
however, we may use “same-sex spouses” to identify those individuals in same-sex couples who are legallymarried at the state level.

whose families fit into a certain mold. This means taking
a hard look at the current political, economic and social
systems that espouse family values but that produce andsupport laws that only value one type of family.

Figure 2: With Whom do American Children Live?
With another relative
or foster parent,
4%

While the proper role of government in Americans’
lives has long been subject to lively debate, basic fairness
requires that where government assumes responsibility
for helping to support or protect families, it tries to do
so in an equitable and non-discriminatory manner. This
report examines how current laws, practices and social
stigma hurt children with LGBT parents and work against
achieving the following three goals:

7

With single
or unmarriedparents,
27%
With marriedparents or
stepparents,
69%

1. Securing stable, loving homes for all children.
2. Ensuring economic security for all children.
3. Ensuring health and well-being for all children.
In each of these areas, we assess key challenges thatstand in the way of achieving these goals, while offering
detailed recommendations for eliminating (or at least
reducing) inequities and improving the lives of children
with LGBT parents.

Who Are LGBT Families?
America’s households are changing. Today, justunder half (47%) of U.S. households are raising a totalof 74.5 million children. These children represent nearly
one-quarter of the U.S. population;1 in 1970, children
were 34% of the population.2 Today, only 59% of allchildren live with their two married biological parents.3
What’s more, the overall percentage of children livingwith married heterosexual parents (whether biological,
adoptive or stepparents) is dropping: it’s just 69%
today, down from 83% in 1970.4 Breaking down thenumbers further, 27% of children live with one parent
or an unmarried cohabiting couple, and 4% live withsomeone other than a parent, such as a foster parent,
relative or grandparent (see Figure 2). In other words,
31% of children do not live in so-called “traditional”

How many children are being raised by LGBT
parents? A recent analysis by The Williams Instituteestimates that approximately 9 million American adults
are LGBT.6 Exact estimates of how many children arebeing raised by LGBT parents are difficult to obtain, but
a MAP analysis of three different data sources suggests
a range of 2.0 to 2.8 million children. For this report, we
use a conservative estimate of 2 million children livingwith LGBT parents. For a full explanation of how wederived this figure, see Appendix: Estimating the Numberof Children With One or More LGBT Parents, page 118.7
The number of children with LGBT parents islikely to grow in the years to come. Research showsthat many LGB people wish to become parents. Morethan one-third of lesbians without a child want tohave children, and three-quarters of bisexual women
U.S. Census Bureau, “Selected Social Characteristics in the United States” and “ACS Demographicand Housing Estimates,” 2006-2008 American Community Survey 3-Year Estimates.
2
Federal Interagency Forum on Child and Family Statistics, “America’s Children in Brief: Key National Indicators of Well-Being,” 2010, www.childstats.gov/americaschildren/famsoc.asp.
3
U.S. Census Bureau, Current Population Survey, 2010 Annual Social and Economic Supplement.
4
Rose M. Kreider and Diana B. Elliott, “The Complex Living Arrangements of Children and Their
Unmarried Parents,” Population Association of America, Poster Presentation, May 2, 2009.
5
Included in this figure are children born to women who are cohabiting with a partner and children born to same-sex couples who cannot legally marry. Brady E. Hamilton, Joyce A. Martin
and Stephanie J. Ventura, “Births: Preliminary Data for 2009,” National Vital Statistics Reports,
59:3, National Center for Health Statistics, 2010.
6
Gary J. Gates, “How Many People are Lesbian, Gay, Bisexual and Transgender?” The Williams
Institute, 2011.
7
As described in the Appendix, we rely on data from the U.S. Census Bureau, the National Surveyof Family Growth, the California Health Interview Survey, and the National Transgender Discrimination Survey to estimate the number of children with LGBT parents.
1

INTRODUCTION

The report does not address issues that uniformly
impact all American children (such as improving
education), nor does it attempt to analyze broader issues
affecting children (such as how to best finance Medicaid).
However, the report frequently notes how issues
affecting children with LGBT parents parallel or overlap
with issues affecting children in other types of families.
While this analysis is admittedly incomplete, policy
recommendations are intentionally broad and aimed at
helping the widest possible spectrum of children.

households. Looking at children born in 2009, 41%
were born to unmarried women.5 This number is higher
for children born to black and Latina women (72% and53%, respectively).

without children want to have children. Of gay men
who have not had children, 57% want to have children,
as do 70% of bisexual men.8

INTRODUCTION

8

Table 1: States Where More Than One in Four Same-Sex
Couples Are Raising Children
1. Mississippi
2. Wyoming
3. Alaska
4. Arkansas
5. Texas
6. Louisiana
7. Oklahoma
8. Kansas
9. Alabama
10. Montana
11. South Dakota
12. South Carolina

Childrearing rates vary greatly among transgender
Americans. New data from the largest survey oftransgender Americans finds that 38% of respondents
identify as parents. Transgender Americans whotransitioned later in life were more likely to identify as
parents (82% of those who transitioned after age 55
identified as parents compared to 38% of those whotransitioned between 25-44).9
Where do LGBT families live? Same-sex couples
live in virtually all counties (99.3%) across the U.S.,
and 96% of counties in the U.S. have same-sex couples
raising children.10 Not surprisingly, places like New
York City, Los Angeles and the San Francisco Bay Area
have the highest concentration of same-sex couples
raising children, primarily because those areas havethe highest concentration of same-sex couples (that is,both with and without children). However, this doesn’tmean that same-sex couples in these areas are more
likely to be raising children than those in other areas.
In fact, California and New York don’t even make thelist of the top 10 states where same-sex couples aremost likely to be raising children. Surprisingly, the stateat the top of the list is Mississippi.11 Table 1 shows thestates where same-sex couples are most likely to beraising children, listed from most to least likely.
What is the economic status of LGBT families? In
2010, 22% of American children lived in poverty andapproximately 22% of children lived in households thatwere considered “food insecure,” which generally meansthat such households were worried about whether theywould have enough money to purchase adequate food.
Nearly 6 million children (8% of all children) lived in
extreme poverty, which is defined as living in a familywith an income level that is less than one-half of thegovernment’s poverty threshold (extreme poverty was
equal to $11,175 for a family of four in 2011).12
Contrary to common stereotypes, children being
raised by same-sex couples are twice as likely tolive in poverty when compared to children living inhouseholds with heterosexual married parents.13 One
in five children in same-sex-couple families are living
in poverty, compared to one in 10 children living withmarried different-sex parents (see Figure 3). This patternis consistent across race and ethnicity.

Source: Gary J. Gates and Abigail M. Cooke, Census 2010 Snapshot Series, The Williams Institute, 2011.

Figure 3: Percent of Families Raising Children
Who Live in Poverty
21%

20%

Male Same-Sex
Couples

Female Same-Sex
Couples9%
Married Different-Sex
Couples

Source: Randy Albelda, M.V. Lee Badgett, Alyssa Schneebaum and Gary J. Gates, “Poverty in the
Lesbian, Gay and Bisexual Community,” The Williams Institute, 2009.

Same-sex couples raising children also havesignificantly lower median and average householdincomes compared to married different-sex couples
raising children. The average household income for samesex couples raising children lags that of heterosexual
couples raising children by more than $15,500, or 20%(see Figure 4 on the next page).14 Furthermore, same-sex
couples with children are almost one-third less likely to
own their homes (51% vs. 71% of married heterosexual
couples with children).
Gary J. Gates, M.V. Lee Badgett, Jennifer Ehrle Macomber and Kate Chambers, “Adoption andFoster Care by Gay and Lesbian Parents in the United States,” The Williams Institute and Urban
Institute, 2007, www.urban.org/UploadedPDF/411437_Adoption_Foster_Care.pdf.
9Jaime M. Grant, Lisa A. Mottet, Justin Tanis, Jack Harrison, Jody L. Herman and Mara Keisling,“Injustice At Every Turn: A Report of the National Transgender Discrimination Survey,” National
Center for Transgender Equality and National Gay and Lesbian Task Force, 2011.
10
R. Bradley Sears, Gary J. Gates and William B. Rubenstein, “Same-Sex Couples and Same-Sex Couples Raising Children in the United States: Data from Census 2000,”The Williams Institute, 2005.
11
Gary J. Gates and Abigail M. Cooke, Census 2010 Snapshot Series, The Williams Institute, 2011.
12
Federal Interagency Forum on Child and Family Statistics, America’s Children in Brief.
13
Randy Albelda, M.V. Lee Badgett, Alyssa Schneebaum and Gary J. Gates, “Poverty in the Lesbian, Gay and Bisexual Community,” The Williams Institute, 2009.
14
Adam P. Romero, Amanda K. Baumle, M.V. Lee Badgett and Gary J. Gates, “Census Snapshot:United States,” The Williams Institute, 2007.
8

Reflecting trends in the broader population, same-sex
couples of color raising children are more likely to be poor
than white same-sex couples raising children (see Figure5).15 For example, the median household income of Latino/asame-sex couples is 20% less than white same-sex couples.16
While research about families headed by transgender parents is limited, the economic challenges facedby transgender people in general are becoming better
known as a result of several recent studies. For
example, in the largest survey of transgender Americans
published in 2011, 15% of respondents reported making$10,000 or less per year—a rate of poverty that is nearlyfour times that of the general population.17 In the same
survey, transgender respondents with higher household incomes were more likely to be raising a child. For
example, more than one-third (37%) of transgender
respondents with household incomes over $100,000
were raising children compared to only 15% of respondents with incomes between $20,000 and $50,000.

Similarly, children of same-sex couples are more raciallyand ethnically diverse than children of married different-sex
couples (see Figure 7 on the next page). Of children raised bysame-sex couples, 55% are white. This compares to 70% ofchildren raised by married different-sex couples.20 Transgender Americans raising children are also racially and ethnicallydiverse. In the largest survey of transgender Americans todate, nearly half of Native American respondents identified
as parents (45%) compared to 40% of Latino/a and White respondents (see Figure 8 on the next page).
Albelda et al., “Poverty in the Lesbian, Gay and Bisexual Community.”Sears et al., “Same-Sex Couples Raising Children.”
Grant et al., “Injustice at Every Turn.”
18
Jason Cianciotto, “Hispanic and Latino Same-Sex Couple Households in the United States: A
Report from the 2000 Census,” National Gay and Lesbian Task Force Policy Institute and National
Latino/a Coalition for Justice, 2005.
19
Alain Dang and Somjen Frazer, “Black Same-Sex Households in the United States: A Reportfrom the 2000 Census,” 2nd Edition, National Gay and Lesbian Task Force Policy Institute, 2005.
20
Sears et al., “Same-Sex Couples Raising Children.”15
16$74,7779$59,270$59,600$46,200

MedianAverage

Married Different-Sex Couples

Same-Sex Couples

Source: Adam P. Romero, Amanda K. Baumle, M.V. Lee Badgett and Gary J. Gates, “Census
Snapshot: United States,” The Williams Institute, 2007.

Figure 5: Percent of Children Living in Poverty,
By Family Type
41%

21%
20%
9%

32%

32%

23%

27%

28%

16%

16%

24%

14%

14%

29%
22%

13%

7%

All Children

White

Asian/PacificIslanderMarried Different-Sex
Couples

Latino/aBlack

Male Same-Sex
Couples

Native American

Female Same-Sex
Couples

Source: Randy Albelda, M.V. Lee Badgett, Alyssa Schneebaum and Gary J. Gates, “Poverty in the
Lesbian, Gay and Bisexual Community,” The Williams Institute, 2009.

Figure 6: Percent of Same-Sex Couples Raising Children,
By Race/Ethnicity
66%
58%

52%

32%

36%
19%

Male Same-Sex Couples
Black

Female Same-Sex Couples
Latino/a

White

17

Source: Jason Cianciotto, “Hispanic and Latino Same-Sex Couple Households in the United States:
A Report from the 2000 Census,” National Gay and Lesbian Task Force Policy Institute and National
Latino/a Coalition for Justice, 2005; Alain Dang and Somjen Frazer, “Black Same-Sex Households
in the United States: A Report from the 2000 Census,” 2nd Edition, National Gay and Lesbian Task
Force Policy Institute, 2005.

INTRODUCTION

What are the racial and ethnic characteristics ofLGBT families? Same-sex couples raising children are moreracially and ethnically diverse than married different-sex
couples raising children (see Figure 6).18 In all, 59% of samesex couples with children identify as white compared to73% of married different-sex couples with children. Black
same-sex couples are nearly twice as likely as white samesex couples to be raising children (52% vs. 32% for lesbian
couples and 36% vs. 19% for gay male couples).19 Latino/asame-sex couples are also more likely to be raising children
than white same-sex couples (66% vs. 32% for lesbian
couples and 58% vs. 19% for gay male couples).

Figure 4: Household Income of Families Raising Children

Figure 7: Race/Ethnicity of Children, By Family TypeChildren Raised by Married Different-Sex Couples

Children Raised by Same-Sex Couples
Native American,
1%

10

Multiracial/Other,3%

Native American,
1%

API,
3%

Multiracial/Other,
3%

API,
Black, 4%
7%Black,
15%

Latino/a,15%

White,
55%

Latino/a,23%

White,
70%

Source: R. Bradley Sears, Gary J. Gates and William B. Rubenstein, “Same-Sex Couples and Same-Sex Couples Raising Children in the United States: Data from Census 2000,” The Williams Institute, 2005.

Figure 8: Percent of Transgender Americans RaisingChildren, By Race/Ethnicity
45%

40%

Figure 9: Percent of Couples Who are Binational

40%

INTRODUCTION

4.6%

29%

6.0%

5.2%

36%

18%

Native American

Latino/a

White

Black

Multi-Racial

Asian/PacificIslanderSource: Jaime M. Grant, Lisa A. Mottet, Justin Tanis, Jack Harrison, Jody L. Herman and Mara
Keisling, “Injustice At Every Turn: A Report of the National Transgender Discrimination Survey,”
National Center for Transgender Equality and National Gay and Lesbian Task Force, 2011.

What is the national origin of same-sex couples?
There are 36,000 same-sex binational couples (couples
where one member is not an American citizen) in the
U.S.21 Among all same-sex couples, 6% are binational,
compared to 4.6% of married heterosexual couples(see Figure 9).22 Nearly half (46%) of binational, samesex couples are rearing children, compared to 31%
of same-sex couples in which both partners are U.S.
citizens (see Figure 10).
Gary J. Gates, “Binational Same-Sex Unmarried Partners in Census 2000: A Demographic Portrait,” The Williams Institute, 2005. This figure likely undercounts the number of binational
same-sex couples as it does not include: those who conceal their partnership or sexual orientation; avoid the census; live apart; or live together outside the U.S.—often due to experience
with, or fear of, discriminatory policies and an unwelcoming climate.
22
Ibid.

Married Different-Sex Unmarried Different-Sex

Same-Sex

Source: Gary J. Gates, “Binational Same-Sex Unmarried Partners in Census 2000: A Demographic
Portrait,” The Williams Institute, 2005.

Figure 10: Percent of Same-Sex Couples Raising Children,
By Immigration Status
67%
46%
31%

All Same-Sex Couples

21

Both Partners
are Citizens

Binational Couples

Both Partners are
Non-Citizens

Source: Gary J. Gates, “Binational Same-Sex Unmarried Partners in Census 2000: A Demographic
Portrait,” The Williams Institute, 2005.

Research Shows Positive Outcomes forChildren of LGBT Parents
Despite misleading claims from those who oppose
LGBT parenting, more than 30 years of rigorous social
science research shows that children raised by LGBT
parents are just as happy, healthy and well-adjusted as
children raised by heterosexual parents. Additionally,
nearly every major authority on child health and social
services, including the American Academy of Pediatrics
and the Child Welfare League of America, has determinedthat a parent’s sexual orientation has nothing to do withthe ability to be a good, effective parent.

Transgender Parents

Transgender parents may be the biological parentsof a child (e.g., if the transgender parent has not had
sex reassignment surgery or has had a child prior
to doing so). They may also be adoptive parents or
stepparents or their equivalent. A transgender parent
may be in a same-sex or heterosexual relationship,
or be a single parent. While there are volumes ofresearch studying LGB parents, there is a dearthof data on transgender parents. However, someresearch, along with anecdotal evidence, suggeststhat transgender parents experience discriminationand hostility from social welfare agencies and judges
at much higher levels than LGB parents.

23

Unfortunately, studies of single and transgender parents are limited. While single LGB
parents have been included in much of the broader research on LGB parenting, outcomes inthese families have been systematically studied less often. Two studies of children raised bytransgender parents in the United Kingdom both found that the children were no more likely
than other children to experience gender dysphoria or to report concerns about their gender
identities. Richard Green, “Sexual Identity of 37 Children Raised by Homosexual or Transsexual
Parents,” American Journal of Psychiatry, 135 692-697, 1978, and “Transsexuals’ Children,”International Journal of Transgenderism, 2:4, 1998. See also Grant et al., “Injustice at Every Turn,”
for survey data on transgender parents.

All leading child health and social service
organizations
support
LGB
parenting.
The
organizations supporting parenting and adoption by
LGB adults include: American Academy of Child andAdolescent Psychiatry, American Academy of Family
Physicians, American Academy of Pediatrics, American
Psychiatric Association, American Psychoanalytic
Association, American Psychological Association, Child
Welfare League of America, Evan B. Donaldson Adoption
Institute, National Association of Social Workers, North
American Council on Adoptable Children, and Voice for
Adoption. Some sample organizational statements on
this issue include:
Fiona L. Tasker and Susan Golombok, Growing Up in a Lesbian Family, Guilford Press, 1997; Susan Golombok, Beth Perry, Amanda Burston, Clare Murray, Julia Mooney-Somers, Madeleine
Stevens and Jean Golding, “Children with Lesbian Parents: A Community Study,” Developmental
Psychology, 39:20-33, 2003; Fiona MacCallum and Susan Golombok, “Children Raised in Fatherless Families From Infancy: A Follow-Up of Children of Lesbian and Single Heterosexual Mothers
at Early Adolescence,” Journal of Child Psychology and Psychiatry, 8:1407-1419, 2004; Jennifer
L. Wainright, Stephen T. Russell and Charlotte J. Patterson, “Psychosocial Adjustment, School
Outcomes, and Romantic Relationships of Adolescents with Same-Sex Parents,” Child Development, 75:1886-1898, 2004; Stephen Erich, Patrick Leung and Peter Kindle, “A Comparative
Analysis of Adoptive Family Functioning with Gay, Lesbian, and Heterosexual Parents and Their
Children,” Journal of GLBT Family Studies, 1:43-60, 2005; Nanette Gartrell, Amalia Deck, Carla
Rodas, Heidi Peyser and Amy Banks, “The National Lesbian Family Study: 4. Interviews withthe 10-Year-Old Children,” American Journal of Orthopsychiatry, 75:518-524, 2005; Jennifer L.
Wainright and Charlotte J. Patterson, “Delinquency, Victimization, and Substance Use Among
Adolescents with Female Same-Sex Parents,” Journal of Family Psychology, 3:526-530, 2006;
Ian Rivers, V. Paul Poteat and Nathalie Noret, “Victimization, Social Support, and Psychological
Functioning Among Children of Same-Sex and Opposite-Sex Couples in the United Kingdom,”
Developmental Psychology, 1:127-134, 2008.
25
Richard W. Chan, Risa C. Brooks, Barbara Raboy and Charlotte J. Patterson, “Division of Labor
Among Lesbian and Heterosexual Parents: Associations with Children’s Adjustment,” Journal of
Family Psychology, 12:402-419, 1998; Henny M.W. Bos, Frank van Balen and Dymph van den
Boom, “Child Adjustment and Parenting in Planned Lesbian-Parent Families,” American Journalof Orthopsychiatry, 77:38-48, 2007.
26
Nanette Gartrell and Henny Bos, “U.S. National Longitudinal Lesbian Family Study: Psychological Adjustment of 17-Year-Old Adolescents,” Pediatrics, 126:1-9, 2010.
27
Golombok et al., “Children with Lesbian Parents;” Gartrell et al., “National Lesbian Family
Study;” Wainright and Patterson, “Delinquency, Victimization and Substance Use.”
24

11

INTRODUCTION

The wide range of experiences and identities oftransgender people can add a layer of complexity
to discussions of LGBT parenting, particularly
when it comes to couples. The term “transgender”
is independent of sexual orientation and refers tosomeone whose inner sense of being male or female
does not match the sex they were assigned at birth.
Transgender people may or may not be living theirlife in accordance with their inner sense of gender.

Academic studies support the fitness of LGB
parents.23 Researchers have found that children
raised by LGB parents are psychologically and sociallyhealthy. Children of LGB parents have similar levels of
psychological adjustment and are no more likely thantheir peers raised by heterosexual parents to reportbehavioral issues.24 In fact, several studies have evensuggested that children raised by LGB families are better
adjusted psychologically than their peers.25 For example,
a 2010 study published in Pediatrics found that the
17-year-old children of lesbian mothers rated higher thantheir peers on academic performance tests. They also
showed greater social competency, with fewer instancesof social problems, rule breaking and other problem
behaviors.26 Researchers have also found that children of
LGB parents experience normal social development anddo not differ in their relationships to their peers whencompared to children raised in heterosexual families.27

INTRODUCTION

American Academy of Child and Adolescent Psychiatry“There is no evidence to suggest or support thatparents who are lesbian, gay, bisexual, or transgender are
per se superior or inferior from or deficient in parenting
skills, child-centered concerns, and parent-childattachments when compared with heterosexual parents.
...The American Academy of Child & Adolescent Psychiatry
opposes any discrimination based on sexual orientationor gender identity against individuals in regard to theirrights as custodial, foster, or adoptive parents.”

Top NBA Draft Pick Talks About His Family
Dustin Bradford/Icon SMI

12The American Academy of Pediatrics“A considerable body of professional literatureprovides evidence that children with parents who arehomosexual can have the same advantages and the same
expectations for health, adjustment, and development,
as can children whose parents are heterosexual.”

The Child Welfare League of America“Gay, lesbian, and bisexual parents are as well suited
to raise children as their heterosexual counterparts…
Beliefs that gay and lesbian adults are unfit parents haveno empirical foundation. A growing body of scientificevidence demonstrates that children who grow up with
one or two parents who are gay or lesbian fare as wellin emotional, cognitive, social, and sexual functioning
as do children whose parents are heterosexual.”
Court decisions support the fitness of LGB parents.28
A growing number of legal decisions also affirm thatchildren raised by LGB parents are as likely as their peers
to be happy, healthy and psychologically adjusted. For
example, in a 2009 Iowa Supreme Court case allowing
same-sex couples the freedom to marry, the Court
concluded that the plaintiffs, including same-sex
couples and their children, “presented an abundance ofevidence and research, confirmed by our independent
research, supporting the proposition that the interestsof children are served equally by same-sex parents andopposite-sex parents. Opposing opinions, while sincere,
were largely unsupported by reliable scientific studies.”29
In the federal legal challenge to California’s
Proposition 8, which limited marriage to a man anda woman, the judge concluded, “The evidence does
not support a finding that California has an interest in
preferring opposite-sex parents over same-sex parents.
Indeed, the evidence shows beyond any doubt thatparents’ genders are irrelevant to children’s development
outcomes.”30 And in September 2010, Florida’s Third
District Court of Appeal unanimously struck down
the state’s law prohibiting gay men and lesbians from

Kenneth Faried is oneof America’s bestcollegebasketball
players. As a power
forwardfrom
Morehead State in
Kentucky,
Kennethwas one of the top
players drafted to playin the NBA. Life hasn’t
always been easy for
Kenneth, who wasraised in a roughOne of American’s best college basketball playiners, Kenneth Faried, says that his mom and her neighborhood
wife inspire him.
Newark,N.J.
His
mother has battled lupus, a debilitating disease,since Kenneth was in elementary school. But
Kenneth’s family is a central part of what makes thisyoung man a leader on the court and off. In particular,
Kenneth’s mother, Waudda Faried, and her wife,
Manasin Copeland—whom Kenneth calls Oomie,
the Arabic word for mother—are an inspiration tohim. When Kenneth talks about his mom and herwife, he says, “I think people have an aura about
them and the first time I met her, I thought, ‘I like thislady.’ And when they got married, that showed mewhat commitment is all about, that there are people
out there that can commit, even though for them itreally has been the worst of times. I look at them,
what they’ve been through and I think, ‘Wow. That’s
amazing.’ They’re amazing to me.” As a child, Kenneth
never faced teasing because of his parents: “I thinkmaybe I was just lucky because I lived in New Jersey...
I’m sure it would be a lot different if I grew up
somewhere else,” Kenneth told ESPN.com. As his
mother explained, “People are going to have theiropinions. Really, their opinions don’t matter. Whocares what they think?”
Adapted from: Dana O’Neil, “Kenneth Faried adapts and thrives,” ESPN.com, February 9, 2011.

While there are fewer court cases challenging transgender parenting than there are around LGB
parents, many transgender parents report challenges in obtaining or keeping custody of theirchildren.
29
Varnum v. Brian, Iowa Supreme Court (April 3, 2009), 54.
30
Perry v. Schwarzenegger, N.D. Cal. (August 10, 2010), 127.
28

adopting, citing the extensive body of research sayingthat gay and lesbian parents are equally fit.31

and emotional needs. Stability and love are crucial
to the health and well-being of young people. Those
who are deprived of these building blocks to successcan struggle throughout their lives to thrive.

Arguments that children do best with a motherand a father use studies that don’t consider LGBT
families. Opponents of LGBT parenting sometimes root
their arguments in claims that children need both amother and a father. Research does indicate that, all else
being equal, children fare better with two parents thanwith only one,32 yet nowhere does this research indicatethat the parents must be of different sexes. Indeed, theresearch cited by anti-LGBT advocates does not examine
LGBT parents at all; it only compares children raised by
two heterosexual parents with children raised by single
parents. Where studies do compare two heterosexual
parents to two parents of the same sex, research uniformly
suggests all children are similarly well-adjusted.

•• Economic security. Children have basic needs
that can be fulfilled only to the extent that theirfamilies are economically secure. These needs
include good nutrition, safe and sanitary housing,and clothing. When a child’s family faces economic
challenges or otherwise falls into crisis, American
public policy provides a range of safeguards tohelp protect children.

•• Physical and mental health and well-being.
Children need affordable and competent healthcare, supportive schools and a welcoming andaccepting community that promotes and supports
their psychological and emotional well-being.

The Effects of Unequal Laws and Stigma
Everyone agrees that children need certain things to
thrive. While children have numerous needs, this reportloosely groups them into three categories (see Figure 11):•• Stable,

Florida Dept. of Children and Families v. Matter of Adoption, FL 3d App. Ct. (September 22, 2010).
The Third District Court cited the trial court’s summary of the research as definitive, stating:“The quality and breadth of research available, as well as the results of the studies performed
about gay parenting and children of gay parents, is robust and has provided the basis for aconsensus in the field…. Based on the robust nature of the evidence available in the field, thisCourt is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption.”
32
It is important to recognize that while children of single parents may be at higher risk of facing
certain obstacles, single parents can and do provide stable, loving homes for their children.
31

Figure 11: Bad Laws and Stigma Deny Children Their Basic Needs
HOW OBSTACLES DENY CHILDREN BASIC NEEDSOBSTACLES
Archaic &Discriminatory
Laws•• Waiting children denied forever homes•• Children denied legal ties to parents
Stable, Loving•• Children lack protection when parents splitHomes
up or a parent dies•• Children live in fear of a parent’s deportation•• Inequitable treatment under government
Economic
Security

Stigmasafety net programs•• LGBT families face higher tax burden•• Children denied financial protections whena parent dies or becomes disabled•• Children denied health insurance and
Health &Well-Being

competent care•• Family members restricted in taking care ofeach other•• Hostility in schools, community, etc.

INTRODUCTION

loving homes. Children depend on
responsible, loving parents or guardians to protect
and nurture them, and to take care of their physical

13

14

The Effects of Archaic
Discriminatory Laws

relationship dissolves or a parent dies•• They deny children’s families equal access togovernment-based economic protections•• They force LGBT families to pay higher taxes thanother families in similar economic circumstances•• They make it harder for some children to accesshealth insurance•• They make it harder for members of some families

andState and federal governments
have created a wide assortment of laws
and policies designed to ensure thatchildren receive adequate care. These laws define who is,or can be, a parent. They outline parents’ responsibilities
and obligations to their children. They protect children
should a parent die or become disabled—or should
their parents’ relationship dissolve. And they help easethe burden for struggling families and attempt to ensurethat children in these families receive proper nutrition,
shelter, education and medical care.
INTRODUCTION•• They fail to protect children when their parents’

The bulk of this report focuses on how LGBT
families often face legal and cultural barriers tomeeting their children’s needs in each of these threeareas. These barriers arise because LGBT parents are
members of a legally and socially disfavored minority.
Broadly speaking, children with LGBT parents face
two major obstacles compared to their peers withheterosexual parents: archaic and discriminatory laws
and social and cultural stigma.

Unfortunately, public policy has not kept up withthe changing reality of the American family in the 21st
century. Government safety net programs and laws
intended to support and protect children fail to provide
equal protections for those who do not live with amarried mother and father—including many children
with LGBT parents.
To be sure, family law has evolved considerably
over the past three decades. Not long ago, children
who were born to unmarried parents were dismissed
as “illegitimate” and were penalized by the law in theirability to inherit, access government protections andeven secure legal recognition as the children of theirparents.33 In the 1970s, these laws began to change.34
But while the changes in the law ushered some families
briskly into the modern world, they only applied tochildren with heterosexual parents. Today, archaic anddiscriminatory laws continue to hurt children whosefamilies do not conform to expected norms.
As detailed later in this report, inequitable laws canresult in the following harms:•• They deny permanent homes to children in foster care•• They deny children legal ties to their parents

to take care of each other

The Effects of Social Stigma
Children are social beings. Their
physical and mental health is strongly
influenced by the quality and quantityof their social interactions.35 In
addition, their social skills critically shape their ability
to succeed as adults.36 Research has shown that healthysocial interaction enhances child development andbuilds self-esteem.37
Sadly, children of LGBT parents are more likely thantheir peers to face uncomfortable or outright hostilesocial interactions. Although studies have uniformly
shown that these children fare just as well as children
with heterosexual parents (perhaps because theirfamilies teach them to develop impressive resiliency
skills)38 children in LGBT families have to deal withstigma directed at them and at their parents. A 2008
study found that 42% of children with LGBT parents wereverbally harassed at school over the past year because
their parents were LGBT.39 Such bullying has been
Originally, U.S. family law said that a child born to an unwed mother had no father at all. Nancy
Polikoff, “A Mother Should Not Have to Adopt Her Own Child: Parentage Laws for Children of
Lesbian Couples in the Twenty-First Century,” Stanford Journal of Civil Rights & Civil Liberties,
2009, 5:201.
34
A 1972 Supreme Court decision made it impermissible to deny a father parenting rights because he was not married to the mother and forced states to revise their parenting statutes
to ensure that fathering rights were recognized even outside of marriage. Some scholars havecalled this moment a “legal revolution” in family law.
35
Mary I. Armstrong, Shelly Birnie-Lefcovitch and Michael T. Ungar, “Pathways Between Social
Support, Family Well-Being, Quality of Parenting and Child Resilience: What We Know,” Journalof Child and Family Studies, 14:2, 2005.
36
C. Cybele Raver, “Emotions Matter: Making the Case for the Role of Young Children’s Emotional
Development for Early School Readiness,” Social Policy Report 16:3, 2002.
37
Marga Jennifer Azmitia, “Self, Self-Esteem, Conflicts and Best Friendships in Early Adolescence,”
cited in T. M. Brinthaupt (Ed.), Understanding Early Adolescent Self and Identity: Applications andInterventions, State University of New York Press, 2002, 167-192.
38
For example, see Henny M.W. Bos, Nanette K. Gartrell, Heid Peyser and Frank van Balen, “TheUSA National Longitudinal Lesbian Family Study (NLLFS): Homophobia, Psychological Adjustment, and Protective Factors,” Journal of Lesbian Studies, 12:4 455-471, 2008.
39
Survey of LGBT families conducted by Gay, Lesbian and Straight Education Network (GLSEN),
COLAGE and the Family Equality Council. Joseph G. Kosciw and Elizabeth M. Diaz, Involved,
Invisible, Ignored: The Experiences of Lesbian, Gay, Bisexual and Transgender Parents and Their
Children in Our Nation’s K–12 Schools, GLSEN, 2008.
33

linked to higher absenteeism, increased risky behavior
and an erosion of self-confidence. Other researchfinds that a surprising number of people assume thatchildren of LGBT parents must themselves be LGBT, andthat strangers often ask these children invasive andinappropriate questions about their sexual orientation
starting at a very early age.
Depending on the community in which they live, LGBT
children and their parents may not be welcome inenvironments ranging from the local grocery store to
the doctor’s office to the neighborhood sports team.
Other parents may not allow friends to visit the homesof children with LGBT parents. And children with LGBT
parents may be anxious when meeting new people,
where simple questions such as “Where’s your dad?” mayquickly devolve into a need to explain one’s family to apotentially hostile audience. Due to this tension, somechildren may avoid talking about their family, but feelguilty about this avoidance. Other children report a
hyper-protectiveness towards their parents.

As detailed later in this report, social stigma canresult in the following harms. It can:•• Cause qualified applicants to be rejected as fosteror adoptive parents•• Result in child custody decisions that are not in achild’s best interest•• Mean that families face greater difficulty accessing
government-based
protections

economic

programsand•• Force families to navigate unwelcoming or hostile
health care providers

Summing the Inequities: A Story of Two
American Families
To understand the specific challenges facing LGBT
families, it helps to consider the real-world impact ofunequal laws and social stigma. Here we explore thevery different experiences of two families with the samestarting point and experiencing the same sequence of
events, as shown in Table 2 on the next page. Both are
working to raise two happy, healthy, productive children.

In Darren and Angela’s household, Darren is
the primary breadwinner, earning $40,000 per year,
while Angela works part-time. In Jennifer and Katie’s
household, Jennifer is the primary breadwinner, earning$40,000 per year, while Katie works part-time.

15

Darren and Angela have been trying unsuccessfully
to have children and ultimately turn to donor
insemination. When their children are born, both Darren
and Angela are considered the legal parents of thechildren and are listed on the birth certificate (though
only Angela is a biological parent). Jennifer and Katie
also have two children using donor insemination. While
Katie is the biological and legal parent of both theirchildren, Jennifer is a non-legally recognized parent toher children and has no parental rights under state law.40
Only Katie is listed on the birth certificate.
Shortly after their children are born, Darren andAngela complete the Social Security card application for
their children, listing themselves in the mother/father
spots. The cards are processed and returned quickly.
When Katie and Jennifer complete the application for
their children, they cross out “Father” and list Jennifer
as the second mother. The form is returned with a notethat only the legal parent can be listed. Katie resubmits
the application listing just herself as the mother andthe form is accepted.
Both families feel strongly about protecting their children through health insurance. Darren’s entire family receives
health insurance through Darren’s employer. By contrast,
Jennifer’s job offers health insurance, but not domestic
partner benefits or benefits for non-legally related children.
This means Jennifer cannot enroll Katie or their children
in health insurance. As a result, the family must purchaseprivate health insurance for Katie and both children, costing$3,105 more per year compared to what Darren’s family ispaying through his employer-sponsored plan.41
40
41

Parenting laws are examined in detail in the next section of this report, “Securing Stable, Loving Homes for Children.”
The average cost to purchase health insurance for a family of four on the private market is$7,102 compared to $3,997 for an employee’s portion of the premiums through an employersponsored plan. Katie and Jennifer pay $3,105 more each year because they cannot enroll in an
employer-sponsored plan. The Kaiser Family Foundation (KFF), “Survey of People Who Purchase
Their Own Insurance,” 2010; KFF and Health Research and Education Trust, “Employer Health
Benefits: 2010 Annual Survey,” 2010.

INTRODUCTION

While many children with LGBT parents live incommunities that welcome and embrace them, forothers the discrimination and social stigma associatedwith being part of an LGBT family can stand in the wayof full participation in schools, community and society.

The only difference is that one family is headed by amarried heterosexual couple (Darren and Angela) and theother is headed by a lesbian couple (Jennifer and Katie).

Table 2: Two American Families, Two Different Outcomes

Darren & Angela + Two Children

16

Jennifer & Katie + Two Children

Added Financial Burden for
Jennifer & Katie Over 18 Years ofRaising Children

Giving birth using donor insemination…

•• Darren and Angela are the legal parents of their
two children.

•• Only Katie (the biological parent) is legally
recognized as a parent. Jennifer is a legal
stranger.

Securing health insurance coverage…

•• Entire family receives health insurance through
Darren’s employer-sponsored plan.

•• Jennifer’s employer-sponsored health insurance
does not extend to domestic partners or nonlegally recognized children.

$55,890($3,105 per year across 18 years)•• The family purchases private health insurance

for Katie and both children, costing $3,105 more
per year.42

Applying for their children’s Social Security cards…

•• Darren and Angela listed as father and mother;cards arrive without problems.

•• Application with both parents is rejected. Only
Katie can be listed on the form.

Entering children into a neighborhood child care program…

•• Program is welcoming and friendly.
•• Family is eligible for $6,000 child care tax credit,

INTRODUCTION

saving (when combined with other credits anddeductions for children) $2,215 in taxes eachyear.

•• Family encounters hostile child care providers;
only Katie drops off and picks up children.

$33,34043•• Family is ineligible for $6,000 child care tax credit

and other child-related deductions and credits,and pays $2,215 more in taxes each year.

Visiting the ER after child breaks arm…

•• Darren takes daughter to the emergency room,

consents to medical care and is permitted to staywith her.

•• Jennifer takes daughter to the emergency room,

but cannot consent to medical care and must
wait for Katie to arrive because she is not thelegal parent.

Entering children in elementary school…

•• Teachers and staff are welcoming and supportive;•• Administration is hostile; teachers are not•• The children easily make friends.

•• The children report being teased; some

Jennifer serves on the PTA.

adequately addressing bullying.

classmates kept by parents from playing at thechildren’s home.

Dealing with the death of the primary breadwinner (Darren and Jennifer)…

•• Angela inherits house and savings despite•• Katie loses home and savings, which go to•• Family receives $27,936 in annual financial•• Katie and the children are legal strangers toDarren’s lack of a will.

support from Social Security which pays forliving expenses.

•• Receives support from community.

Jennifer’s parents.

$130,032
in lost Social Security survivor
benefits44

Jennifer and therefore receive no Social Security
survivor benefits; family struggles to make ends
meet on Katie’s part-time salary.

•• Family gets little support from school andcommunity.

TOTAL DIFFERENCE IN FINANCIAL BURDEN•• Adequate income•• Sufficient savings•• Keep home•• Have support
42
43
44

$219,262•• No income•• No savings•• No home•• No support

Extra financial burden in healthinsurance, lost tax credits and lost
Social Security benefits. Excludes
loss of house and savings due toinequitable estate tax law.

Above n 41.
The child care tax credit is only available for the care of children ages 12 and under. After that, Darren and Angela still save $909 in taxes each year when compared to Jennifer and Katie. Below n 45.
Below n 46.

When the babies are three months old, each family
looks for three-day-per-week child care to allow the nonworking parent to return to work part-time. Darren andAngela find warm and welcoming child care providers,and Darren drops the children off while Angela picks themup. The family also takes advantage of the child care tax
credit, reducing their federal taxes by $2,215 each year.45
By contrast, local child care providers appear hostile when
Katie and Jennifer tour the facilities together, so Katie
enrolls the children alone and ensures that she drops off
and picks up the children to avoid awkward questions.
Jennifer pays for the child care expenses, but because she
is not the legal parent, she cannot claim the tax credit.

Eventually, the children enter elementary school.
Teachers and staff welcome Darren, Angela and theirchildren, and Angela serves on the PTA. However, Katie
and Jennifer struggle with a hostile administrationand teachers who are reluctant to address issues ofclassroom bullying related to their children being part ofan LGBT family. Their children report being teased about
their moms and taunted that they must also “be gay.”
The parents of some of their classmates will not allow
the classmates to come to their house to play.
A few years later, Darren dies in a car crash on his way
home from work. Following his death, all of Darren’s assets
are transferred to Angela even though Darren did nothave a will. Jennifer and the children stay in their homeand receive annual financial support from Social Security
survivor benefits in the amount of $27,936 each year.46
Similarly, Jennifer unexpectedly dies of a brain
aneurism. Because her will does not have the proper
signatories, it is contested by Jennifer’s estranged parents,

17

The net result? Two similar families with similarlife events but because one family is heterosexual,
Angela and her two children are left with substantial
income support, college savings, the family home and a
supportive community. The other family is left homeless,penniless and struggling to make ends meet on a parttime income while living in a community that does notsupport or recognize them as a family.
This is just one illustration of how life is needlessly
more difficult for LGBT families and their children—
and why Americans can no longer ignore the added
challenges and inequities LGBT families face. In reality,
thousands of families face aspects of this differential
treatment each and every year. The next three sectionsof this report provide greater detail outlining how andwhy various obstacles make it harder for children with
LGBT parents to have their basic needs met, along withrecommendations for action to ensure that our society
treats all children equally.
The overall tax savings for Darren and Angela are a result of the child care tax credit and othertax credits and deductions associated with having children and filing a joint tax return, which
Jennifer and Katie cannot access. For a detailed analysis of these families’ tax bills, see thesecond section of this report, “Ensuring Economic Security for Children.”46
This assumes that Darren had an income of $40,000 when he died and that the children were
13 years old at the time of his death. Both of Darren’s children are eligible to receive the children’s survivor benefits until age 18, and Angela receives a mother’s benefit to help care for thechildren until they reach 16. For a detailed discussion of these benefits see the second sectionof this report, “Ensuring Economic Security for Children.”
45

INTRODUCTION

As the children get older, they begin to run and climb
and slide down slides. One weekend while at the park with
Darren, his daughter breaks her arm. Darren takes her
to the emergency room, consents to medical care and ispermitted to stay with her as the cast is set. However, when
Jennifer’s daughter breaks her arm, Jennifer must call Katie
to meet them at the emergency room because Jennifer
is not a legal parent and cannot consent to medical
treatment. Normally, Jennifer carries legal paperworkthat grants such authority with her at all times, but thismorning they had left for a spontaneous hour at the park
and Jennifer did not want to leave her daughter alone in
the hospital while she went back to the house to pick up
the documents. It takes an hour for Katie, who had driven
across town to visit old friends, to make it to the hospital.

who disapproved of Jennifer’s relationship with Katie.
Because Katie and her children are legal strangers toJennifer, Jennifer’s parents win the legal dispute. As a result,the children not only lose a mother, they also lose their family
home and do not receive any of Jennifer’s savings, whichwere meant to help pay their college tuition. Additionally,
although Jennifer was the primary breadwinner, Katie
and the children are all seen as legal strangers and do notreceive Social Security survivor benefits.

GOAL 1: SECURING
STABLE, LOVING HOMESFOR CHILDRENGOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

18

health insurance coverage, parental decisionmaking rights, survivor benefits, inheritance rights,
and the ability to claim wrongful death and otherkinds of damages.

Children need the security andemotional support of loving parents
or guardians who care for and nurture them—and thestability that comes from knowing that these caregivers
will be part of their lives for a long time to come. Thissection of the report examines laws and practices that
attempt to help secure stable, loving homes for children.
The laws address such questions as who can be the legal
parent or guardian of a child, who can gain custody orvisitation rights, and who is responsible for providing
financial and other support. We also cover laws that
attempt to protect families from being torn apart by theremoval of an immigrant parent.

•• Children may be wrested apart from the only

parents they have ever known. Adults do notalways agree about who should care for a child.
This problem can arise if the parents’ relationshipdissolves and a custody dispute ensues, or if
one parent dies. In these instances, family law
strives to protect the best interests of children
by awarding custody and visitation—as well as
ensuring appropriate continued financial support
for the child. When children cannot rely on the law
to honor their ties to those who are or act as theirparents, the consequences can be devastating. For
example, if a child is being raised by a same-sex
couple and the biological parent dies, a non-legally
recognized parent can lose custody, severingthat child’s relationship with the only remaining
parent. Likewise, lack of legal recognition for an
existing parent could result in harmful outcomes
related to visitation and child support. Additional
problems arise for children living in binationalfamilies. These children should not have to live inconstant fear that one parent may be deported
because the relationship between their parents is
not recognized by the federal government.

While all of these laws are intended to serve thebest interests of children, they too often miss the mark,especially for children whose families fall outside ofcommonly held notions of what it means to be a “family.”
The following are some of the negative consequencesof current laws that penalize LGBT and some otherkinds of families:•• Children

are denied permanent homes.
Restrictions on foster parenting and adoption
by LGBT and unmarried cohabiting adults mean
longer waits or the denial of forever homes for theroughly 115,000 children available for adoption
in the child welfare system. The harms associatedwith denying forever homes to children awaiting
adoption are numerous and will be detailed laterin this section.

•• Children are denied the security of legal ties toparents. Substantial problems can arise whenchildren lack legal ties to the adults who are raisingthem—whether they are grandparents, aunts or
uncles, LGBT parents, or others. For the roughly
one-quarter million children who already live inhouseholds headed by same-sex couples, themajority of states fail to ensure that parents arerecognized as legal parents, even when both havefunctioned as parents since a child’s birth. This
leaves children without the security of legal ties toa parent who loves and cares for them. Among theprotections that may be denied if a parent is notlegally recognized are access to various safety net
programs, fair and accurate household tax filings,

These problems do not apply only to LGBT couples.
Unmarried heterosexual couples suffer some, but not all,of the same disparities as same-sex couples. Since parental
rights for fathers have historically been tied to marriage,for example, unmarried men whose female partners
conceive using donor insemination can lack the parental
rights granted to husbands.47 Obviously, having the rightto marry gives these men options that most same-sex
couples do not enjoy. Yet not all heterosexual couples
wish to, or do, get married, and their children should notlack the essential protections that legal parentage confers.
Since black children experience the highest rates ofliving with single or unmarried parents, laws that penalize
children with unmarried parents also disproportionately
impact black children.48 Unmarried heterosexual
The 1973 Uniform Parentage Act from the National Conference of Commissioners on Uniform
State Laws was written to eliminate these disparities (it was last amended in 2002) but not allstates have adopted it.
48
Pew Research Center, “The Decline of Marriage and Rise of New Families,” November 18, 2010,
http://pewsocialtrends.org/2010/11/18/the-decline-of-marriage-and-rise-of-newfamilies/2/#ii-overview.
47

couples in Utah are ensnared in a law that was designed
to punish same-sex couples: it bars any individual who isliving with an unmarried partner from adopting.
The remainder of this section discusses statelaws governing adoption and parenting rights andobligations, as well as federal law meant to keep
binational families together. Additionally, it explains how
these laws apply to, and too often harm, LGBT and otherfamilies. It also describes other barriers (such as cultural,institutional and judicial discrimination) that can preventchildren from securing stable, loving homes. The section
concludes with recommendations for addressing the
disparities that undercut family permanency and makeso many children needlessly vulnerable and insecure.

Challenge: Children Denied Permanent
Homes, Legal Ties to Parents

Five Pathways to Parenthood
A legal parent is someone who has the right tophysical custody over children, who has the right tomake decisions on their behalf, and who has financial
responsibility for their support.50 Unfortunately, current
parenting law too often reflects a policy preference formarried heterosexual couples even though fully a thirdof U.S. children live in households that do not reflect thisfamily structure.51 Same-sex couples wishing to start afamily may face added burdens because both intended
parents cannot be the genetic parents of the child.52
While not exhaustive, Figure 12 on the next page shows
five major paths to parenthood, and how these paths—
and their legal consequences—look different for samesex couples.53 Strikingly, for each path to parenthood
except surrogacy, married heterosexual parents can beassured of securing legal ties to their children, whilesame-sex parents in many states have no such assurances.

Path 1: Traditional Conception. The most common
path to parenthood for heterosexual couples is
traditional conception and birth with two biologicalparents who are automatically granted legal parenting
rights. While many LGBT adults have children froma prior heterosexual relationship, same-sex couples
cannot conceive a child together through traditional
conception.
Path 2: Adoption and Fostering. Depending on thestate, a same-sex couple (or unmarried heterosexual
couple) hoping to offer a waiting child a loving home
may not be allowed to adopt or foster that child. Thisis because some states have discriminatory laws orpractices in place that block specific categories ofprospective parents from adopting or fostering. In somecases, a child may be adopted by one parent but notallowed to become the legal child of the second memberof a couple. The result? A child may be denied a forever
home—or denied legal ties to one parent.
Path 3: Blended Families and Stepfamilies. A
heterosexual adult who becomes a stepparent bymarrying an existing parent may adopt his or her
spouse’s child or children in all 50 states (assuming
the child does not already have a second legal parent).
Many states, however, do not allow a parent’s same-sex
partner to secure a stepparent or equivalent adoption.
This is because stepparent adoption is generally tied
to marriage and most states do not recognize therelationships of same-sex couples. The result? A child
may be denied legal ties to a second parent who wishes
to adopt him or her.
Single parents, especially LGBT ones, face a number of legal and social obstacles. This discussion, however, focuses primarily on children with two parents for the simple reason that thelegal disparities we are addressing generally only emerge when two parents are involved andone parent is not a biological or legal parent. These disparities flow from the law’s failure to adequately establish legal parent-child ties when parents are of the same sex and/or unmarried.
50
Nolo, “Gay and Lesbian Adoption and Parenting,” www.nolo.com/legal-encyclopedia/article-29790.html.
51
The proportion of children living with a parent who has never married has risen steadily inrecent years. In some communities of color, the majority of children live in households with
only one legally recognized parent. U.S. Census Bureau, “Children and the Households They
Live In: 2000,” 8, http://usa.usembassy.de/etexts/soc/censusbriefchildren2000.pdf; Kreider
and Elliott, “The Complex Living Arrangements of Children and Their Unmarried Parents”;
Federal Interagency Forum on Child and Family Statistics, America’s Children in Brief. For 2008
statistics on children living with one parent or unmarried parents broken down by race, see Pew
Research Center, “The Decline of Marriage and Rise of New Families.”
52
The exception is a couple with at least one transgender member (see sidebar on transgender parents).
53
For example, the figure does not outline every possible type of assisted reproductive
technology, other types of family formation (such as when an adult becomes a custodian of achild whose parents have died).
49

19

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

When a child is born to, or adopted by, a marriedheterosexual couple, that child is generally recognized inall 50 states as the legal child of both parents. By contrast, a
child with LGBT parents faces a climate of uncertainty . First,
a child awaiting adoption might be denied a forever home
simply because the caring adults who want to provide it
are an LGBT or an unmarried heterosexual couple.49 For
a child being raised by a same-sex couple, both parents
might be considered legal parents in one state, but not in
another. The federal government also might not consider
both parents to be legal parents even when the state inwhich the family lives does so.

In short, state laws are sorely inadequate when it comesto establishing legal ties between children and the adults
who wish to parent them, or who are already functioning
as their parents.

Figure 12: Five Paths to Parenthood
LGBT Parents Face Landscape of Uncertainty
Path to Parenthood

20

Resulting Legal Ties between Parents and Child

Child born fromtraditional conception

Both legally presumed to be the parents
Not applicableChild joining an
adoptive home

Both become child’s legal parents from outset
Both become child’s legal parents from outset
Depending on
the jurisdiction

Child living withblended family

Only one parent can adopt the child
Neither is allowed to adopt

Stepparent can adopt child

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

2nd parent /stepparent can adopt child
Depending on
the jurisdiction

Child born fromdonor insemination

2nd parent must remain legal stranger to child

Both seen as child’s legal parents from birth
Both seen as child’s legal parents from birth
Depending on
the jurisdiction

Child born fromsurrogacy

Only birth mother seen as legal parent at birth but 2nd mother can securelegal ties later
2nd mother must remain legal stranger to child

Both intended parents seen as child’s legal parents from birth
For all couples,
depending on
the jurisdiction

Only one parent seen as legal parent at birth but 2nd intended parent cansecure legal ties later*
2nd intended parent must remain legal stranger to child**

Note: This table presumes the heterosexual couple is married. For the same-sex couple, the strongest legal ties to children are usually available when the couple is married or in a legally recognized
relationship; the least positive outcomes generally result where couples live in states or jurisdictions with no such recognition.
* The legal parent would generally be the parent with biological ties to the child, for example, a man contributing sperm who also intends to be the father.
** For example, if the surrogate mother refused to relinquish parenting rights, the intended mother or second father might be unable to gain legal ties to the child.

Path 4: Assisted Reproduction. When a child isconceived by a married heterosexual couple using
assisted reproduction such as donor insemination, heor she is automatically considered the legal child not
only of the mother, but of her consenting husband as
well (despite the husband’s lack of biological ties to thechild).54 Yet, if a lesbian couple conceives through donor
insemination, in many states the birth mother’s partner
may have no way to establish a legal relationship to thechild she has raised since birth. The result? A child may
be denied legal ties to one parent.

Path 5: Surrogacy. Surrogacy law is complicatedregardless of whether the intended parents are aheterosexual or same-sex couple. Contracting with asurrogate parent to carry a fetus to term can also be
extraordinarily expensive. However, same-sex couples
face extra hurdles in establishing legal ties to children
born through surrogacy. The result? A child may bedenied legal ties to one or both intended parents.
54

Analysis of legal recognition for unmarried male partners of women giving birth using donor
insemination is beyond the scope of this report.

In sum, state laws may deny children with LGBTor unmarried parents legal ties to adoptive parents,
acting stepparents who cannot marry the legal parent,
the partner of a birth parent, or to a parent having achild through surrogacy. This can mean that those who
act as full parents from a child’s birth—supporting
their children physically, emotionally and financiallyand meeting all of the same commitments as marriedheterosexual parents—may be legal strangers totheir own children, with serious consequences for thechildren’s well-being.

Mechanisms for Securing Legal Ties to Children
Most families do not think twice about how to show
the world who the legal parents are in their household.
But adoptive families, blended families, dissolving families
and families that lack clear legal parent-child ties are likely
to encounter this concern throughout their lives.
overview of the various mechanisms through which LGBT
parents can attempt to secure legal ties to their children.
The table includes a brief explanation of each mechanism,
whether it is broadly available, whether it establishes
parenting ties from the outset (that is, from the moment
the child is born or joins the family, or only after a delay),
and whether LGBT parents can feel secure that themechanism protects their parentage across state lines.
One of the more insidious challenges facing LGBT
parents is that they often have no guarantee that theirrights as parents will be respected by other states even
if they secure these rights in their state of residence.
For most Americans, crossing a state border is a minor
event. But imagine if moving to or visiting a different
state meant wondering whether your child would still
be considered your child. For example, a non-biologicalmother vacationing across state lines might suddenly
have to deal with hospital or insurance companies that
refuse to recognize her as a legal parent, preventing
her from making emergency medical decisions for thechild or claiming insurance benefits. Should the family
relocate, her children could lose their ability to collectcertain benefits, inherit money, or claim financial support
from their mother. Such parents can even lose custodyrights over their children. For these reasons, legal experts
uniformly counsel same-sex couples to obtain a secondparent adoption or parentage judgment (discussed
later), even when they are already presumed to be achild’s legal parents under their state’s law.55

21Adoption and Foster Care
While in an ideal world every child would be born intoa loving and stable family, the reality is that many parents
are unable or unwilling to care for their children.56 Parents
may abandon their children, or children may be removed
from home and placed in foster care due to neglect, abuseor other factors. The long-term goal for these children is toestablish safety and permanency with an existing parent
or relative if possible, but if not, through adoption into aloving forever home.
Only about half of children who go into foster care
return to their birth families. In more serious cases ofneglect or abuse, or if a child remains in foster care for 15
out of 22 contiguous months because his or her parents
cannot provide a safe environment, the state terminates
the parents’ rights and the child becomes available for
adoption.57 As of 2009, there were more than 423,000
children in foster care; about 115,000 of these were
awaiting adoption into forever homes.58
Lack of permanent homes hurts children. Research
clearly shows that children who lack permanent homes
are at added risk of major difficulties in transitioning to ahealthy adulthood. However, despite the importance of
permanency, there is a significant shortage of quality forever
homes for children. Of the children currently in the foster
care system, 19% are in not in a family home setting. Adding
to the problem, children may face years of instability before
an adoption becomes final. Of the 115,000 children waiting
to be adopted in 2009, the average child had been waitingfor over three years (see Figure 13 on page 23).59
Because of the uncertainties surrounding parental recognition for LGBT families, lawyers recommend that non-biological parents in same-sex relationships take the added step of obtaining acourt judgment (either of parentage or adoption) deeming them parents of their own children.
MAP telephone interview with Julie Shapiro, Professor of Law, Seattle University School of Law,
August 10, 2010. Polikoff, “A Mother Should Not Have to Adopt Her Own Child, 258-264; Deborah
Wald, “Do I Still Have To Adopt My Own Children?” www.waldlaw.net/pdf/adoptions_essential.pdf.
56
Children are removed from their families for any number of reasons, including challenges facedby parents stemming from poverty, imprisonment and mental or physical health struggles. Bias
also plays a role. Research shows children of color are disproportionately likely to be removed
from their homes, even when their family circumstance is similar to that of a white family.
57
Adopt Us Kids, www.adoptuskids.org/resourceCenter/about-children-in-foster-care.aspx.
58
U.S. Dept. of Health and Human Services, Administration for Children and Families, “Adoption
and Foster Care Analysis and Reporting System (AFCARS) Report,” 2010, www.acf.hhs.gov/programs/cb/stats_research/afcars/tar/report17.htm.
59
U.S. Dept. of Health and Human Services, “AFCARS Report.” Mean is 38 months while the median is 29 months.
55

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

Table 3 on the next page provides a comprehensive

The following discussion describes how the law
treats LGBT families based on the various paths toparenthood described above. We also cover the ways
in which some states are trying to address the lack ofparental recognition with improved laws and stopgap
remedies such as allowing second-parent adoptions.

Table 3: Securing Legal Ties to Children
LGBT Parents May Remain Legal Strangers to Their Children

22

Path toparenthood

Explanation of option
Options forsecuring legal
ties to childrenChild joining
an adoptive
home

Individual
or single
adoption60

Joint adoption
by couples

Will parents’ legal
ties hold acrossstate lines?

An individual becomes a legal parent ofa child who is not biologically related.

Do both parents
have legal ties
from birth/outset?

N/A

This only makes one adult the legal
parent so it is generally not a good
option for couples.

Only establishes
legal ties to one
parentBoth members of a couple
simultaneously become the legal
parents of a child who is not biologicallyrelated to either.

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

Stepparent
adoption

An individual adopts the child of his/her spouse or domestic partner without
terminating the rights of the existing
parent.

N/AThis requires the consent of the existing
parent. Unlike other forms of adoption, ahome study is generally not required.
Child bornfrom donor
insemination

Parentalpresumption
for recognizedcouples

Both the biological mother and her
spouse or legally recognized partnerare presumed to be the legal parents
upon the birth of the child.
The presumption is based on the legal
relationship of the parents, and is
automatic (the couple does not need tofill out forms, pay court fees, etc.)

Consent-toinseminate
statutes

The spouse or partner of a birthmother obtains legal parentage bydemonstrating that she consents to thebirth mother’s insemination and intends
to function as a parent to the child.
This option does not require the couple
to be in a legally recognized relationship.
The cost and effort required are lower
as well—it only requires signing legal
papers or in some cases demonstratingconsent through behavior.

Childborn fromsurrogacy

Surrogacy
statute or
adoption orparentage
judgment
for intended
parents

A woman who is not the intended
mother of a child carries and gives birth
to the child on behalf of the intended
parents. The woman may use her own
egg, a donor egg or the intended
mother’s egg.

Available tosingle LGBT andheterosexual
adults throughout
the U.S., but somestates prioritize
married couples

Banned in somestates and unclear
availability inmany more

This can be expensive; not all couples
can afford joint adoption.
Child livingwith ablendedfamilyIs option broadly
available to samesex couples?

Not necessarily,especially if thecouple travels to astate which does
not recognize theirrelationship

Only available
in states withcomprehensive
relationshiprecognition

Not necessarily,
since thismechanism does
not normally
involve an official
parentage
judgment in court

Surrogacy law iscomplex and varies
by state

Only available
in states withcomprehensive
relationshiprecognition61

Not available inmost states

Surrogacy law iscomplex and varies
by state

Not available orsecure in manystatesThis report uses “individual” to refer to someone who is living alone or with a partner or spouse but who petitions to adopt individually rather than as a couple, whereas a “single” applicant is someone
who petitions individually and is both unmarried and living without a partner. Some states bar unmarried people living with partners from fostering or adopting children, and both Arizona and Utah
give preference to married couples over individual or single applicants.
61
Some judges in states lacking relationship recognition for same-sex couples allow same-sex couples to use the stepparent adoption procedure.
60

Table 3: Securing Legal Ties to Children
LGBT Parents May Remain Legal Strangers to Their Children
Path toparenthood

Explanation of option
Options forsecuring legal
ties to children

Other paths
and options(Thesestopgap legal
remedies canbe appliedin multiple
scenarios)

Second-parent
adoption

This process
can take several
months and cannot
take place before
the child is born

Not available inmany states

An individual who has functioned asa parent of a child gains full or limitedparenting rights to that child.

A court issues a judgment that anindividual is a legal parent of a child. The
judgment must be based on statutory
or common law, most commonly aparenting presumption, a consent-toinseminate law, or a de facto doctrine.

States in need of adoptive homes for waiting children
consistently report that one of the biggest obstacles isfinding interested, qualified families who want to adopt.62
One source of potential adoptive homes is LGBT parents.
Research suggests that over one-third of lesbians would
like to have children, as would more than half of gay men.63
There is widespread agreement among child welfare
professionals, supported by decades of parenting
research,64 that children should not be denied a qualified,loving home simply because of the sexual orientationof the parents who want to provide it.65 Yet unmarried
couples and LGBT adoption and foster applicants face alandscape of uncertainty and discrimination that often
prevent children from being placed in their homes.
Jennifer Ehrle Macomber, C. Scarcella, E. Zielewski and R. Geen. “Foster Care Adoption in the UnitedStates: A State-by-State Analysis of Barriers and Promising Approaches,” Urban Institute, 2004.
63
Gates et al., “Adoption and Foster Care.”64
See discussion of parenting research in this report’s introduction.

Likely, however
this has rarely beentested in practice

Usually, however
judgments basedon the relationshipstatus of same-sex
parents could facechallenge in otherstatesNot available inmany states

A few statesoffer pre-birthparentage
judgments, but
this is an exception
rather than a rule

Generally only
available in stateswith laws thatrecognize samesex couples orparents

Figure 13: How Long Have Children Awaiting
Adoption Been in Foster Care?

5+ years,
16%

0-1 year,13%

3-5 years,
22%

1-2 years,27%

2-3 years,
22%
Source: U.S. Dept. of Health and Human Services, Administration for Children and Families,“Adoption and Foster Care Analysis and Reporting System (AFCARS) Report,” 2010.
65

As described earlier in this report, research shows that gay and lesbian parents provide goodhomes and that their children are as healthy and as well-adjusted as other children. All mainstream child welfare authorities (including the American Academy of Pediatrics, National Association of Social Workers, Child Welfare League of American, Evan B. Donaldson Adoption Institute,Annie E. Casey Foundation and others) support adoption and fostering by LGBT parents.

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

Occasionally, this may occur with theconsent of the legal parent (allowing thesecond parent to gain legal parentage
without terminating the rights of theexisting parent). Alternatively, in casesof relationship dissolution, a court may
award de facto parenting rights against
the wishes of the existing parent. Results
in a court judgment.
Parentage
judgments

Is option broadly
available to samesex couples?
23

An individual adopts the child of his/her
spouse or partner without terminating
the rights of the existing parent.
Unlike a stepparent adoption, a homestudy is often required. A second-parent
adoption can also be expensive andrequires the consent of the existing
parent.

De facto
parenting law

62

Do both parents
have legal ties
from birth/outset?

Will parents’ legal
ties hold acrossstate lines?

Figure 14: Who Adopts Children from the Foster Care System?
Single Men,
3%

24

Unmarried Couples,2%

Other,
14%
Single Women,
28%
Relative,
32%

Foster Parent,
54%

Het. Married
Couples,67%

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

Source: U.S. Dept. of Health and Human Services, Administration for Children and Families, “Adoption and Foster Care Analysis and Reporting System (AFCARS) Report,” 2010.

In some cases, prospective parents face state lawsthat are ambiguous or that formally restrict adopting
or fostering by same-sex or unmarried couples. In
other cases, hostile, unwelcoming or unknowledgeableagencies and frontline workers may reject LGBT applicantseven if state law or policy is silent about, or supportiveof, LGBT adoption and fostering. Discrimination against
transgender prospective parents can be a particular
problem. The result is needless harm to children who may
face years of state care, frequent relocation to different
foster homes and the absence of stability in their lives.
Who provides permanent homes to children in
foster care? In addition to providing stable, safe places
for children to live on a temporary basis, foster parents
also comprise the largest group of individuals who
adopt from foster care. In 2009, 54% of children adopted
from foster care were adopted by foster parents. Of the54,407 children successfully adopted from foster care in
2009, one-third were adopted by non-traditional families
including single women, single men and unmarried
couples (see Figure 14).66 An estimated 14,000 foster
children, or 3% of all foster children, currently live with
LGB foster parents.67 Single parents, same-sex couples
and unmarried heterosexual couples who become foster
parents are more likely to be families of color than marriedheterosexual couples who foster (see Figure 15).68
Who adopts children generally? Across all
adoptions (not just from foster care), almost one-quarter(22%) were by non-traditional families, including 3%

Figure 15: Demographics of Foster Parents,
by Family Type
30%

70%

Single Parents

49%

59%

61%

51%

41%

39%

Different-Sex
Cohabitors

Married DifferentSex Couples

Same-Sex
Couples

People of Color

White

Source: Gary J. Gates, M.V. Lee Badgett, Jennifer Ehrle Macomber and Kate Chambers, “Adoption
and Foster Care by Gay and Lesbian Parents in the United States,” The Williams Institute and Urban
Institute, 2007; calculations revised April 2011.

U.S. Dept. of Health and Human Services, “AFCARS Report.” Data not available for adoptions by
gay and lesbian single adults and couples.
Gates et al., “Adoption and Foster Care”; Evan B. Donaldson Adoption Institute, Expanding Resources for Waiting Children II: Eliminating Legal and Practice Barriers to Gay and Lesbian Adoption from Foster Care, 2008, 12, www.adoptioninstitute.org/publications/2008_09_Expanding_Resources_Legal.pdf.
68Gates et al., “Adoption and Foster Care,” Table 10 with calculations revised April 2011.
66
67

Children of Color Are More Likely to Be Placed in Foster Care and Remain There Longer

56%

25

40% 38%44%
30% 30%White Children

Black Children

Latino/a ChildrenChildren as a percent of:Population

Children in
Foster Care

Awaiting
Adoption

AdoptedSource: U.S. Dept. of Health and Human Services, Administration for Children and Families, “Adoption and Foster Care
Analysis and Reporting System (AFCARS) Report,” 2010; U.S. Census Bureau, “ACS Demographic and Housing Estimates,”
2005-2009 American Community Survey 5-Year Estimates.”Figure 16: Who Adopts Children?
Gay/Lesbian
Couples,
Cohabiting Het. 1%
Couples,3%

Adoption law varies by state.72 All states currently
allow single individuals who are living alone to adopt, and nostate has an outright ban on adoption by LGBT individuals.73
Yet some states bar individuals from adopting if they are
unmarried and living with a partner (sometimes called “cohabitating”), and some states give priority to married couples, penalizing single and LGBT applicants. Additionally,
LGBT individuals in many states face discrimination fromchild welfare authorities and judges who can and do block
their ability to adopt based on personal views.
Ibid., Table 6-7. Note: figures may not add up to 100% because of rounding.
Ibid. Note the caution provided by The Williams Institute about their estimate of the numberof adopted children being raised by LGBT parents: “Actual counts (…) do not exist. We derive
our estimate using characteristics of same-sex couples identified in the U.S. Census Report andNational Survey of Family Growth estimates of the size of the lesbian and gay population in the
United States. It is important to remember that these estimates include all adopted children,
including those adopted from both public and private adoption agencies, as well as international adoptions and possibly second-parent adoptions of a partner’s child. Unfortunately, we
are unable to separate out these different kinds of adoptions. Also, these figures do not directly
include bisexual adoptive or foster parents.”

Single Gay/
Lesbian Person,
3%Single Het.,
15%

Adoption by Individuals

70

21% 22% 22% 21%

14%

by single lesbians or gay men, and 1 % by gay andlesbian couples (see Figure 16).69 This means that gay
and lesbian Americans are already raising an estimated
65,000 adopted children, or 4% of the 1.6 million
adopted U.S. children.70 Research also suggests that
LGBT parents may be more willing than heterosexual
parents to adopt children with special needs, who areamong the most difficult to place.71

69

25%

Married Het. Couples,78%

Source: Gary J. Gates, M.V. Lee Badgett, Jennifer Ehrle Macomber and Kate Chambers, “Adoption
and Foster Care by Gay and Lesbian Parents in the United States,”The Williams Institute and Urban
Institute, 2007.

Gary P. Mallon, “Assessing Lesbian and Gay Prospective Foster and Adoptive Families: A Focus on
the Home Study Process,” Child Welfare 86, 2007.
72
The Adoption and Safe Families Act provides federal funding and incentives to encourage family permanency and sets guidelines to ensure safe, speedy and appropriate adoption placements. Each state has its own detailed laws which must comply with federal requirements
if the state seeks access to federal funds. Apart from federal funding eligibility, adoption isregulated by state statute, which can vary widely from state to state.
73
In 2010, a Florida Appeals Court struck down a ban on adoption by anyone who is gay, lesbian
or bisexual. The decision is binding on all lower courts, and Florida’s Dept. of Children and Families ceased enforcing the ban.
71

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

Research shows that childrenof color are disproportionately
likely to be removed from theirhomes, as shown at right. Not
only are they more likely to beplaced in foster care, but, oncein foster care, they remain there
longer. While the primary goal
should be equal and unbiased
treatment of all families, denying,for example, a qualified black
lesbian couple the opportunity
to adopt a niece whose parents
cannot care for her, is not in thebest interest of the child.

Demographic Breakdown of Children in,and Adopted From, Foster Care

STRENGTHS•• Adoptions are secure and hold across state lines.

26

An adoption results in a court-issued “adoption
judgment.” Adoptions are widely recognized andunderstood not only by courts but also by people
working in schools, hospitals and other institutions
where recognizing parent-child relationships
can be crucial. As such, adoption is the strongest
mechanism for establishing a legal parent-childtie when no blood relationship exists. As a court
judgment, adoptions are protected by the U.S.
Constitution’s “full faith and credit clause,” meaningthat other states must respect the judgment,
making the parental tie secure nationwide.74

non-biologically related parents from the outset and injust one step. All 50 states allow married heterosexual
couples to jointly adopt children. Yet the ability of samesex couples (and also unmarried heterosexual couples)to obtain a joint adoption is uncertain in many statesand jurisdictions—and most foreign countries also ban
such couples from joint adoption. Other states have no
explicit laws addressing adoption by same-sex couples,leaving decisions on these matters up to child welfare
agencies and judges, who may give preference tomarried couples and/or reject LGBT applicants based on
personal views.
STRENGTHS•• Joint adoptions are secure and hold across statelines. See “Adoption by Individuals,” above.

LIMITATIONS•• Joint adoptions create ties to both parents from the

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN•• Adoption can be expensive and hard to obtain.
Adoptions can cost up to $2,500 when adoptingfrom a child welfare agency, and up to $40,000
for a private or independent adoption.75 This may
make adoptions inaccessible to lower-income
families, who are disproportionately families ofcolor. Adoptions also often require many steps
including a home study, extensive application
forms and long wait times.
AVAILABILITY•• States that support adoption by LGBT parents.
About a fifth of U.S. states have laws or policies
forbidding discrimination against foster and/or adoption applicants on the basis of sexual
orientation, and a few of these states also include
gender identity in these laws. The specificprotections vary by state.76•• States that hinder adoption by LGBT parents. Whileno state bans adoption by LGBT individuals living
alone,77 some states have statutory or regulatory
restrictions or practices that hinder the actual
availability of adoption for LGBT applicants. For
instance, Arizona and Utah both give preference tomarried adoption applicants, penalizing those who
apply as individuals. In Utah, state law also bars anunmarried person from adopting (as an individual
or jointly) if he or she is living with a partner.78

Joint Adoption by Couples
A joint adoption allows both members of a couple tosimultaneously adopt a child, creating legal ties to two

outset. A joint adoption allows both intended parents
to adopt a child simultaneously, meaning a child has
legal ties to both parents who intend to raise him or
her from the moment she joins the home.
LIMITATIONS•• Joint adoptions can be expensive and hard to
obtain. See “Adoption by Individuals,” above.
AVAILABILITY
Figure 17 on the next page provides a snapshot ofstate law on joint adoption, which is described in moredetail below.

States that allow joint adoption by same-sex
couples statewide. Seventeen states plus the Districtof Columbia (D.C.) have laws ensuring availability ofWhile adoptions should establish an uncontestable legal parent-child tie, this firm legal principle has recently come under increasing attack. A federal court recently upheld the right ofLouisiana to name only one parent on the birth certificate of a Louisiana child adopted jointly
by a gay couple in New York.
75
U.S. Dept. of Health and Human Services, Child Welfare Information “Funding Adoption: Adoption Packet 2,” February, 2011, http://www.childwelfare.gov/pubs/adoption_gip_two.pdf.
76
The states are California (includes gender identity), Connecticut, Maryland (adoption only),
Massachusetts, Nevada (adoption only), New Jersey, New York, Oregon, Rhode Island (includes
gender identity) and Wisconsin. Note that Connecticut law explicitly allows consideration of
the sexual orientation of prospective adoptive parents. While this means that, theoretically,
LGBT people may face discrimination in placement decisions, the legal provision cuts bothways, in that it also appears to allow agencies to take into consideration the unique needsof an LGBT youth in need of an appropriate, loving home. MAP’s list is compiled from threesources as well as examinations of state laws and regulations: ACLU, “Too High A Price: The
Case Against Restricting Gay Parenting,” 2nd Edition, 2006,6-11, www.aclu.org/files/images/
asset_upload_file480_27496.pdf; Family Equality website, www.familyequality.org/pdf/
foster_withcitations.pdf; Courtney G. Joslin and Shannon P. Minter, Lesbian, Gay, Bisexual andTransgender Family Law, 2010, 108-110.
77
Again, a Florida court struck down a ban on adoption by anyone who is gay, lesbian or bisexual.
78
The law in Utah states that a “child may not be adopted by a person who is cohabiting in a
relationship that is not a legally valid and binding marriage under the laws of this state.” Ut.
Code §78-30-1, http://law.justia.com/utah/codes/title78/78_29002.html.
74

Figure 17: Joint Adoption Law79
Washington
New Hampshire
MontanaNorth
DakotaVermont

17 states + D.C. with joint
adoption

Maine

Minnesota

OregonIdaho
Wyoming

South
DakotaPennsylvania
Illinois

Colorado

Arizona

New Mexico

KansasOklahoma

Indiana

Ohio
Virgina

KentuckyNorth Carolina

Tennessee
Arkansas
Georgia

Connecticut
New Jersey

West
Virginia

MissouriMassachusetts
Rhode Island

Iowa

Utah
California

New York

MichiganNebraska

NevadaWisconsin

28 states where same-sex
couples face uncertainty

27

5 states where same-sex
couples effectively prohibited

DelawareMarylandDistrict ofColumbia

South
Carolina

Alabama
AlaskaTexas

Mississippi

Louisiana
FloridaHawaiiStates that ban adoption by same-sex couples. Fivestates have laws that prevent joint adoption by samesex couples.

•• Utah bans adoption by anyone cohabiting in an
unmarried relationship, whether heterosexual orLGBT. This effectively bans adoption by same-sex
couples, who cannot marry in Utah. A similar law,
approved by voters in Arkansas, was recently struck
down by the state’s Supreme Court.

•• Mississippi is the only state to explicitly bar only
gay and lesbian couples from jointly adopting,with a statutory ban on “adoption by couples of thesame gender.”•• Louisiana

and North Carolina prohibit bothheterosexual and same-sex unmarried couples fromadopting, but unlike Utah, these states do not ban
an individual living with an unmarried partner frompursuing a single-parent adoption.81•• Michigan has an appellate court case ruling that
only married couples can petition to jointly adopt.
A 2004 attorney general opinion stated that samesex couples married in other jurisdictions could
not adopt jointly.

In addition to these state bans, most foreign countries
will not permit adoption by same-sex couples. Somecouples might choose to work around the above bansby having one person temporarily move out while theother applies as an individual (this could be done in Utah,
but it is a time-consuming and expensive ordeal) or by
only having one parent apply as an individual (this could
be done in Louisiana, Michigan, Mississippi and North
Carolina, and with foreign adoptions). In all of these cases,
this means that should a same-sex couple want to adopt,
only one parent will be the legal parent of the child.
States with uncertain availability of joint adoption.
In most states, there are no statutes or court cases
addressing adoption by same-sex couples, creating
uncertainty about whether these couples may adopt.
Almost half of the “uncertain” states use outdated
wording in their statutes that authorizes joint adoption
by a “husband and wife,”82 but there is no definitive
In some cases, access to a joint adoption may require being in a marriage, civil union or domestic
partnership.
80
Connecticut, Delaware (effective January 1, 2012), Iowa, Massachusetts, New Hampshire, New
York, Vermont and D.C. (marriage); and California, Hawaii (effective January 1, 2012), Illinois,
Nevada, New Jersey, Oregon, Rhode Island and Washington (comprehensive domestic partnerships or civil unions). Some of these states also allow joint adoption by couples who don’t havelegally recognized relationships.
81“If the individual who files the petition is unmarried, no other individual may join in the petition, except that a man and a woman who jointly adopted a minor child in a foreign country
while married to one another must readopt jointly.” North Carolina General Statutes § 48-2301, http://law.onecle.com/north-carolina/48-adoptions/48-2-301.html. Louisiana restricts
adoption to “single person or married couple jointly,” and case law prohibits joint adoption byunmarried couples.
82
Alabama, Alaska, Arizona, Florida, Kansas, Kentucky, Louisiana, Maryland, Montana, Nebraska,
Ohio, Oklahoma and West Virginia.
79

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

adoption by same-sex couples statewide. This includes
all 15 states and D.C. that offer the freedom to marryor comprehensive relationship recognition80 and two
additional states (Indiana and Maine) that offer joint
adoption statewide by statute or court rulings.

28view on whether this necessarily excludes same-sex
couples.83 There is little or mixed case law in suchstates.84 Adding to the sense of uncertainty, some statesgive agencies the right to consider sexual orientationand moral or religious concerns in placement decisions,while others give preference to married couples, which
penalizes LGBT applicants.

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

While the actual experience of same-sex couples
seeking to adopt can vary even in states where law
and policy are clear, the situation can be even moreunpredictable in uncertain states. Sometimes, couples
have been rebuffed in court when trying to secure a joint
adoption, while other times they may need to choose
a supportive agency or jurisdiction because different
judges interpret statutes or prior court rulings differently.
The upshot is, that across the country, same-sex couples
hoping to expand a family through adoption must do sowith a roll of the dice, never sure if both partners will beable to become the legal parents of their child.

Foster Care
A child enters foster care when his or her existing
parents are unable to provide adequate care and thechild is placed in the home of a certified caregiverreferred to as a “foster parent.” The federal government
sets broad foster care guidelines, with each state creatinga detailed set of policies and regulations that often
grant substantial policymaking authority to state social
services departments.85 These departments govern
why, how and when a minor is to be removed from aparent or guardian and placed in a foster home. Social
services departments also detail foster care licensing
requirements and who may serve as foster parents.
While only a handful of states restrict or ban fosteringby LGBT individuals or couples, the silence of most statelaws and regulations toward LGBT fostering creates
uncertainties about whether they will be able to foster.
Furthermore, even where no bans exist, many individuals
or couples may be disqualified from fostering in practice.
AVAILABILITY
States that protect fostering by LGBT people. Eightstates have policies barring or restricting discriminationon the basis of sexual orientation for foster careplacement: California (includes gender identity),
Connecticut, Massachusetts, New Jersey, New York,
Oregon, Rhode Island (includes gender identity) andWisconsin (see Figure 18 on the next page).86

States that restrict fostering by same-sex couples.
Laws and policies in two states restrict or ban fosteringby LGBT adults.

•• Nebraska’s Department of Social Services issued
a directive that those “who identify themselves ashomosexuals” will not be granted foster licenses,87
although the level of enforcement of this policy isunclear.88 This directive appears to apply both to
LGB individuals and same-sex couples.

•• Utah bans fostering by unmarried cohabiters and gives
preference to married couples over single adults.89
States with uncertain availability of fostering bysame-sex couples. Since most state regulations do not
explicitly address fostering by same-sex couples andmost states do not have definitive legal rulings, theremaining states and D.C. generally leave it up to eachindividual agency to approve or deny foster parents
based on the agency’s evaluation.90 In these “uncertain”
states, it is unclear whether or not a same-sex couple willbe allowed to foster. Experiences of couples vary fromstate to state and even within a state. A couple approvedby one agency might be denied by another in the samestate or even the same jurisdiction.

Who Decides? The Reality of Adoption and Foster Care
Practices
Silent, ambiguous or conflicting laws, policies andcase law mean that decisions about who may adopt or
foster children are often left to individual agencies andjudges thereby allowing personal and moral beliefs toblock placing children with LGBT parents.
Perhaps because of these statutes, state officials and media reports sometimes assert that joint
adoption for unmarried and/or same-sex couples is prohibited, when in fact no court has definitively ruled on how to interpret the statute’s language.
84
Some intermediate-level courts have ruled against certain kinds of same-sex couple adoptions,which casts doubt on whether those states would allow same-sex couples to obtain joint adoptions. These include Kentucky, Nebraska, Ohio and Wisconsin.
85
The U.S. Dept. of Health and Human Services monitors each state’s foster care services via field
reviews such as Child and Family Services Reviews, Title IV-E Foster Care Eligibility Reviews,
AFCARS and Statewide Automated Child Welfare Information System Assessment Reviews.
86
Above n 76.
87
Child Welfare League of America and Lambda Legal, “Combating Misguided Efforts to Ban
Lesbian and Gay Adults as Foster and Adoptive Parents,” 2009; Donaldson Institute, Expanding
Resources II, 2008, 17.
88
CWLA/ Lambda Legal, “Combating Misguided Efforts,” 2009. See also Gates et al., “Adoption
and Foster Care,” 2007.
89
The voter-approved Arkansas law banning cohabiting adults from adopting also banned themfrom fostering but, as mentioned earlier, was recently struck down by the state’s Supreme Court.
90
North Dakota explicitly permits agencies not to place children with foster families if it violates theagency’s moral or religious beliefs, though it does not ban such foster families statewide, Senate Bill
2188 Section 50-12-03, www.legis.nd.gov/assembly/58-2003/bill-text/DRBR0100.pdf. The law
applies to child placement and licensure, and according to Family Equity Council, also to fostering.
83

Figure 18: Foster Care Law & Regulations
Washington
New Hampshire
MontanaNorth
DakotaVermont

8 states support fostering by
LGBT parents by restricting
discrimination

Maine

Minnesota

OregonIdaho
Wyoming

South
DakotaPennsylvania
Illinois

Colorado

Arizona

New Mexico

KansasOklahoma

Indiana

Ohio
Virgina

KentuckyNorth Carolina

Tennessee
Arkansas
Georgia

Connecticut
New Jersey

West
Virginia

MissouriMassachusetts
Rhode Island

Iowa

Utah
California

New York

MichiganNebraska

NevadaWisconsin

Delaware40 states + D.C. are silent on
fostering by LGBT parents

29

2 states restrict fostering by
LGBT parents

MarylandDistrict ofColumbia

South
Carolina

Alabama
AlaskaTexas

Mississippi

Louisiana
FloridaHawaiiAlthough few states formally restrict LGB adoption and fostering, efforts to create such restrictions have increased.
Voters and legislatures have sought—and failed—to create bans on adoption and fostering by LGB people(sometimes by targeting all unmarried cohabiters) in Alabama, Indiana, Tennessee, Texas, and Virginia.91 Blanketbans on adoption and fostering by LGBT adults would mean that relatives could not care for children even if thatwere the wish of their parents. For example, if something happened to a child’s legal parents, that child could not
be legally parented by a beloved LGB uncle, aunt, grandparent or other relative.
The following states had discriminatory policies which were struck down in court:•• A Florida statute stating that no one, whether single or partnered, may adopt “if that person is a homosexual,”
was struck down by a state appeals court in 2010.92•• A 2008 Arkansas statute that banned unmarried individuals who are cohabiting from adopting or fosteringchildren was struck down by the Arkansas Supreme Court. An earlier Arkansas policy prohibiting LGB people
and heterosexuals with LGB household members from fostering was also struck down.
•• A Missouri law banning LGB people from fostering was struck down under a legal challenge in 2006.93•• An Oklahoma law barring recognition of adoptions granted to same-sex couples in other states was struck downin federal court in 2006. The decision noted that “the very fact that the adoptions have occurred is evidence thata court of law has found the adoptions to be in the best interests of the child” and that “to now attempt to stripa child of one of his or her parents” has no rational relationship to an important government interest.94
According to a report by The Williams Institute and Urban Institute, a national ban on fostering for LGB adults would
result in removal of between 9,300 and 14,000 children from their foster homes, adding between $87 million and$130 million in fostering expenditures.95
ACLU, “Too High A Price,” 6, 10-13; CWLA/ Lambda Legal, “Combating Misguided Efforts”; Donaldson Adoption Institute, Expanding Resources II, 19-22.
Florida Dept. of Children and Families v. Matter of Adoption FL 3d App. Ct. (2010), www.3dca.flcourts.org/opinions/3D08-3044.pdf; Dana Rudolph, “Florida Gov. and Agency Won’t Appeal Court Adoption
Ruling,” Keen News Service, October 13, 2010; John Couwels, “Florida won’t appeal ruling stopping adoption ban by gay men, lesbians,” CNN, October 13, 2010, www.cnn.com/2010/US/10/12/florida.
gay.adoptions/; “Fla. Gay Adoption Ban No More,” www.advocate.com/News/Daily_News/2010/10/22/Floridas_Gay_Adoption_Ban_No_More/.
93
CWLA/Lambda Legal, “Combating Misguided Efforts.”
94
ACLU, “Too High A Price,” 14.
95
Gates et al., “Adoption and Foster Care.”
91
92

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

Adoption and Foster Care Bans Are Struck Down by Courts

How the Adoption and Fostering Process Works
In the U.S., adoptions are usually facilitated through a public or private agency that is licensed by the state. Most
states also allow “independent adoptions,” where no agency is involved but where the parties rely on lawyers toensure that all rights and obligations are met, and that the adoption is consistent with state law.96

30

One may adopt from birth (in which case the preparations have been made during a pregnancy to adopt a
particular infant) or one may adopt an older child from the child welfare system or foster care. Whether one
fosters, adopts or “fost-adopts” (which means fostering when the likely outcome is a permanent adoption by
the same parents) depends in part on whether the parental rights of the birth parents have been permanently
terminated or only temporarily relinquished.97
No one has an absolute right to adopt; rather, each state’s laws outline who may petition to adopt. In addition, theadoption process requires a judge to interpret state law and apply it to each petition. Anyone who wishes to adopt
is required by law to undergo a “home study” in which licensed agencies educate prospective parents about the
adoption process and assess the home and fitness of the adoptive family. After the home study, applicants are certified
and then placed on a list of eligible adopters. As children become available (upon termination of the birth parents’rights), agencies select eligible adopters for a given placement, which then need to be approved by a court judgment.
GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

Adoption can be expensive. Estimates for private and international adoptions can top $30,000. The costs associatedwith adoption include home study expenses (which may range from $1,000 to $3,000), legal fees, court documentationand legal representation (which may cost between $3,000 and $14,000). Additional fees may be associated withadopting a newborn child ($5,000 to $40,000), adopting a child from foster care (up to $2,500) or adopting a childfrom another country ($7,000 to $30,000). In states where LGBT people and same-sex couples can adopt through childwelfare agencies, these adoptions are generally less costly, with most costing less than $2,500.98

Barriers in Practice: What Agencies and Individuals do to Restrict Placement ofChildren with LGBT Adoptive or Foster Parents
1. Ignore non-discrimination law or policy by citing other reasons for rejecting applicants.
2. Delay the processing of LGBT applicants.
3. Subject LGBT applicants to heightened scrutiny or different screening practices.
4. Produce weak home study reports that fail to communicate an applicant’s strengths.
5. Treat LGBT applicants as families of last resort by only recommending difficult-to-place youth.
6. Rule against placements that serve the best interests of children because of bias.
7. Fail to provide an LGBT-affirmative climate by using questions or forms designed for heterosexual couples orheterosexual singles.
8. Fail to create an agency infrastructure that ensures adequate communication of a non-discrimination policy.
9. Fail to hire or train staff who are LGBT or LGBT-affirmative.
10. Fail to reach out to LGBT communities to seek permanent homes for waiting children.
National Adoption Information Clearinghouse, “Legal Issues of Independent Adoption,” http://library.adoption.com/articles/legal-issues-of-independent-adoption.html.
For instance, China requires agencies to represent that adoptive parents are heterosexual. David M. Brodzinsky and Evan B. Donaldson Adoption Institute, “Adoption by Lesbians and Gays: A National
Survey of Adoption Agency Policies, Practices, and Attitudes,” 2003, www.adoptioninstitute.org/whowe/Gay%20and%20Lesbian%20Adoption1.html.
98
U.S. Dept. of Health and Human Services, “Funding Adoption.”
96
97

Figure 19:
Percent of Agencies That Accept Applications forLGBT People

Percent of Agencies That Have Placed aChild with a Lesbian or Gay Family

31

Have notplaced,61%

Have placedwith a lesbianor gay family,39%

Do not accept
applications,40%
Acceptapplications,60%

Agency and Frontline Worker Obstacles
Both public and private agencies screen andthen certify or license prospective adoptive andfoster parents. The certification or licensing process
varies by state, but may involve a written application,
classes, orientation, a home study, background checks,
reference checks and health exams. The entire process
generally takes between two months and a year (seesidebar). Final placement requires a court approval.
During this process, agencies, individual frontline
workers and family court judges have ample
opportunity to discriminate against LGBT applicants
if they so desire. These individuals and agencies cango so far as to circumvent equal treatment policies
by, for example, failing an LGBT applicant on a homestudy where a heterosexual applicant with similar
circumstances would pass.
A 2003 survey by the Evan B. Donaldson Adoption
Institute found that while just over 60% of agencies
were willing to accept LGB applicants, only 39% had
knowingly made such placements (see Figure 19).99
Only 19% of agencies in the Donaldson study said they
actively recruit LGB households for adoption, thougha significantly higher percentage of agencies that
focused on children with special needs conducted LGB
outreach efforts (32%). Highlighting the challenges ofoutsourcing government social services to religiousorganizations, virtually none of the Baptist, Catholic,Mormon, Methodist or Evangelical organizations in thesurvey would place children with same-sex couples.100
Buttressing the findings of the Donaldson survey,
research shows that LGB prospective foster parents
report agency discrimination as a key obstacle tosuccessful placement.101
Child advocates also report that some states haveissued discriminatory instructions to agencies, essentiallycreating a “de facto” LGBT fostering ban even when no
statutory or regulatory policy exists. For instance, somelegal experts report that the Virginia Attorney General’s
office and the state of Missouri have instructed agencies
not to consider applicants who are LGBT.102
Even where discrimination against LGBT applicants isbanned by state law or agency policy, workers may not
know, or may deliberately ignore, what the law or policy
says. In one survey of adoption agencies, respondents
erroneously cited state bans on LGBT adoption evenwhen they did not exist, or said they were uncertain
about their state’s law on the matter.103 Frontline workers
may make bad decisions because they do not know
Brodzinsky and Donaldson Adoption Institute, “Adoption by Lesbians and Gays,” 24.
Ibid., 33-36.
101
A.C. Downs and Steven E. James, “Gay, Lesbian, and Bisexual Foster Parents: Strengths andChallenges for the Child Welfare System,” Child Welfare, March/April 2006.
102
MAP telephone interview with Flor Bermudez, Lambda Legal, November 29, 2010.
103
Brodzinsky and Donaldson Adoption Institute, “Adoption by Lesbians and Gays,” 25, 37.
99

100

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

Source: David M. Brodzinsky and Evan B. Donaldson Adoption Institute, “Adoption by Lesbians and Gays: A National Survey of Adoption Agency Policies, Practices, and Attitudes,” 2003.

32

Jeff Riedel/Contour by Getty Images

A Child’s Best Interests? Judicial Prejudice Uproots a Baby Girl from Loving Parents

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

Kathryn Kutil and Cheryl Hess struggled to keep their family together after a court denied
them custody because they were lesbians.

When “Baby Girl C” was born to a drug-addicted mother in
2007, the infant tested positive for cocaine and oxycodone
and was removed from her mother’s custody. At two weeks
old, the West Virginia Department of Health and Human
Resources placed her in the home of a lesbian couple,
Kathryn Kutil and Cheryl Hess, who were approved by thestate for both foster care and adoption. But a month later, atemporary legal guardian appointed by the court filed amotion to remove the girl from the only home she’d known
because the guardian believed she should not be raised ina “homosexual home” because it would be “detrimental tothe child’s overall welfare and wellbeing.”

Although joint adoption by unmarried couples is not explicitly permitted in West Virginia, one of the women intended
to adopt Baby Girl C, and both would have if allowed. The court guardian acknowledged that her current homeappeared “to be comfortable and physically safe.” Also, according to court records, “all the evidence indicates that they
have done very well and have provided very well for” the girl.
Despite this, in late 2008 a Circuit Court ordered that one-year-old Baby Girl C be uprooted from her home andplaced in a new, temporary home of a married heterosexual couple who expressed interest in adopting her. The
court found that “it is in the best interest of children to be raised by a traditionally defined family, that is, a family
consisting of both a mother and a father.” The court based its decision, in part, on the fact that a same-sex couple
could not jointly adopt, and a child should not be “locked into a single-parent adoption.”
Shortly after the child was removed from her home, the married couple decided not to adopt her and returned herto the care of Kathryn and Cheryl, supported by an emergency court suspension of the removal order. Ultimately,
the West Virginia Supreme Court of Appeals permanently overturned the removal order from the Kutil-Hess home,
but not before the family was put through the harrowing ordeal of a forced separation and over a year of anxious
waiting to learn whether they could continue living together as a family.
Adapted from Kutil-Hess v. Judge Blake WV Ct. Appeals (June 5, 2009).

that research and experience supports LGBT parenting.
Research has found that the personal biases of workers
can affect placement when, for instance, a worker rejects
or declines to seek out LGBT families for adoption becauseof skepticism of their parenting abilities.104 It is difficult totrack anti-gay bias because workers and agencies may
cite other reasons for rejecting LGBT applicants. Parents
can be placed into an unofficial pecking order in which
LGBT prospective parents are used as a community of lastresort. Some caseworkers also create an unofficial pecking
order within the LGBT community itself, with greater
openness to placing children with a lesbian couple orsingle lesbian than a gay man couple, a single gay male,or a transgender person.

Transgender parents can face particular difficulties.
In most states, law and policy are silent on the issue of
adoption and fostering by transgender individuals, yetthose who are visibly gender non-conforming (or who
are “discovered” to be transgender during home study
and other checks) may face extreme hostility, evenwhen adopting as individuals. Questions surrounding
their gender and health can be particularly intrusive.
Documents that flag someone as having changed theirgender, for instance, can become weapons used to reduce
the applicant’s chances of successful placement.105
104
105

Scott D. Ryan, Sue Pearlmutter and Victor Groza. “Coming Out of the Closet: Opening Agencies
to Gay and Lesbian Adoptive Parents,” 2004, Social Work 49 (1):85-95.
U.S. Dept. of Health and Human Services, Administration for Children and Families, “The Adoption Home Study Process,” www.childwelfare.gov/pubs/f_homstu.pdf.

Figure 20: Stepparent Adoption Law
Washington
New Hampshire
MontanaNorth
DakotaVermont

15 states + D.C. recognize
same-sex stepparents

Maine

Minnesota

OregonIdaho
Wyoming

South
DakotaPennsylvania
Illinois

Colorado

Arizona

New Mexico

KansasOklahoma

Indiana

Ohio
Virgina

KentuckyNorth Carolina

Tennessee
Arkansas
Georgia

35 states do not recognize
same-sex stepparents

33

Connecticut
New Jersey

West
Virginia

MissouriMassachusetts
Rhode Island

Iowa

Utah
California

New York

MichiganNebraska

NevadaWisconsin

DelawareMarylandDistrict ofColumbia

South
Carolina

Alabama
AlaskaTexas

Mississippi

Louisiana
FloridaHawaiiCourt judgments are the final word on the placementof a minor in an adoptive or foster family. Even wherelegal protections exist for LGBT prospective parents,a judge who disapproves of LGBT parents may cite an
unrelated rationale to deny a placement. The story of“Baby Girl C,” who was temporarily wrenched from herhome in West Virginia because of a judge’s decision thatshe should be raised by a “traditionally defined family,”provides an example of how judicial bias can hurtchildren (see sidebar on the previous page).

Blended Families and Stepfamilies
Stepparent Adoption
One of the most common kinds of adoption in the U.S.
is a “stepparent” adoption.106 For heterosexual couples,
stepfamilies are formed when a new partner marries anexisting parent. A stepparent adoption allows the new
spouse to become a full legal parent without terminating
the rights of the first parent.107 It aims to give permanent
legal and financial protections to children who rely
emotionally and economically on an adult caregiver
who has joined the family. Usually, the procedures for a
stepparent adoption are more streamlined and simple
than for other types of adoptions and do not require ahome study, though laws vary by state.

As with heterosexual adults, many LGBT parents
have children from prior relationships.108 However, LGBT
adults who act as stepparents will be denied access toa stepparent adoption in most states—leaving theirchildren with legal ties to only one of their two parents.
This is because stepparent adoption is generally
tied to the legal relationship of the parents; it is only
granted to parents who are married (or, for same-sex
couples, also those who are in a civil union or domestic
partnership). Because same-sex couples cannot marryor formalize their union in most states, an LGBT adult
who partners with an existing parent may fully function
as a “stepparent,” but will not be recognized as suchby law. Additionally, such LGBT stepparents109 may bedenied rights that some states grant to non-adoptive
stepparents in certain circumstances, such as the ability
to petition for custody or visitation after a breakup, or
to sign authorization forms for their stepchildren.110
The Evan B. Donaldson Adoption Institute estimates that 42% of adoptions are stepparent
adoptions, “Overview of Adoption in the United States,” www.adoptioninstitute.org/FactOverview.html#5; U.S. Dept. of Health and Human Services, “Stepparent Adoption,” www.childwelfare.gov/pubs/f_step.cfm.
107
Normally a stepparent adoption will be granted only if no other parent (such as the biologicalfather) has or wishes to maintain parenting rights (for instance, if the biological father has diedor relinquished or agreed to relinquish his parental claims and obligations). However, in somecases a judge may involuntarily terminate the rights of the non-custodial parent, for example,
if that parent is not meeting his or her parental obligations and the judge deems the stepparent
adoption to be in the best interests of the child.
108
Gary J. Gates and Adam Romero, “Parenting by Gay Men and Lesbians: Beyond the Current Research,” in H. Elizabeth Peters and Claire Kamp Dush, Eds., Marriage and Family: Perspectives andComplexities, New York, 1992, 235-6.
109
We use this term to refer to LGBT adults who function as a stepparent, whether or not they areformally recognized as such under their state’s law.
110
Po Bronson, “Are Stepparents Real Parents?” Time Magazine, May 17, 2006.
106

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

Judicial Obstacles

STRENGTHS•• Stepparent adoption is secure and holds acrossstate lines. Stepparent adoptions result in an
adoption judgment, creating parenting ties thatshould be recognized nationwide under theConstitution’s “full faith and credit” clause.111 See“Adoption by Individuals.”34•• Stepparent adoptions are more accessible thanother types of adoptions. The streamlined process
and generally lower cost of stepparent adoption
make it more accessible to a wide range offamilies, including low-income families who aredisproportionately families of color.
LIMITATIONSGOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN•• Stepparent adoptions require the parents to be
in a marriage or equivalent relationship. Thisrequirement not only hurts same-sex couples whose
relationships are not recognized in most states, butalso hurts unmarried heterosexual couples (alsodisproportionately couples of color). Althoughsimilar data is not yet available for same-sex couples,
black Americans in the population at large are only
half as likely as white Americans to marry.112
AVAILABILITY
States that recognize same-sex stepparents for the
purpose of a stepparent adoption. In the 15 states andD.C. that offer the freedom to marry or comprehensive
relationship recognition, a same-sex partner can seeka stepparent (or equivalent)113 adoption (see Figure 20
on the previous page). Note that the term “stepparent”
traditionally has applied only to married people;
however, same-sex couples in comprehensive domestic
partnerships or civil unions can also use stepparent
adoption law to adopt their children.
States that do not recognize same-sex stepparents
for the purpose of a stepparent adoption. In the 35
remaining states, same-sex partners cannot become
legal stepparents because they cannot marry or become
a domestic partner (though some states and jurisdictions
may allow LGBT stepparents to complete a secondparent adoption to similar effect).114
Note that even these adoptions are not necessarily fully secure, as courts in states that do notrecognize the marriages through which stepparent adoptions are granted could still attempt tochallenge the adoption itself. Legal experts, however, say the U.S. Constitution’s “full faith andcredit” clause ought to protect such adoptions nationwide.
112
Pew Research Center, “The Decline of Marriage and Rise of New Families.”
111

Assisted Reproduction
Donor Insemination
Each year in the U.S., an estimated 30,000 babies
are born using donor insemination, where a woman
conceives using sperm donated by someone she may
or may not know.115
Although all states have parentage statutes thatspecify how to determine the legal parents of a child,116
many of these laws are outdated and insufficient to cover
the range of modern reproductive technologies and thefamilies who use them117; this, in turn, creates needlessconfusion, uncertainty and custody battles.118 This sectionof the report examines when and how two lesbian
mothers might be legally recognized as parents upon thebirth of their child through donor insemination.
PRESUMPTION OF PARENTAGE
In most states, if a married heterosexual woman bears
a child using donor insemination, the law automatically“presumes” that the woman’s husband, not the donor, isthe legal father. The law’s automatic presumption thatthe husband is a legal parent upon the baby’s birth is
known as a “presumption of parentage.” The question ofwhether, how and for how long a donor may “rebut,” orchallenge, that legal presumption varies by state.
Unfortunately, the female partner of a woman
giving birth by donor insemination generally enjoys apresumption of parentage only if she lives in one of theminority of states that offer marriage or comprehensive
relationship recognition for same-sex couples—andif she and her partner are in a legally recognized
National Center for Lesbian Rights, “Legal Recognition of LBGT Families,” 2011. The states thatoffer comprehensive relationship recognition in the form of domestic partnerships or civil
unions generally allow same-sex partners all the same rights as legal spouses. Thus, partners
in such relationships have access to the stepparent adoption process, although some may notrefer to this as a “stepparent” adoption because that term historically has referred to someone
who is married to a parent. In addition, some states that do not offer marriage or comprehensive relationship recognition nevertheless allow a same-sex partner to use the stepparent
adoption process to adopt a partner’s child, or to allow a second-parent adoption which, while
it is often more cumbersome and expensive, has the same effect as a stepparent adoption.
114
To circumvent this limitation in the law, some same-sex couples may be able to undergo aprocess called a second-parent adoption, discussed next. However, second-parent adoptions
are not an option for many same-sex couples.
115
Jennifer Egan, “Wanted: A Few Good Sperm,” New York Times Magazine, March 19, 2006; Liza Mundy, Everything Conceivable: How Assisted Reproduction is Changing Our World, Anchor Books, 2007.
116
Above n 48. The Uniform Parentage Act was amended most recently in 2002, at which point 19
states had adopted it in some form; others have adopted various provisions of the law.
117
Center for American Progress, “Parentage Determinations,” December 17, 2007, www.americanprogress.org/issues/2007/12/parentage.html.
118
Over the last decade, two of the largest and most prestigious American legal organizations,
the American Bar Association and the National Conference of Commissioners on Uniform State
Laws, have both approved model laws that provide for recognition of non-biological parents inLGBT families, suggesting the legal mainstream has embraced the need to modernize such law.
Polikoff, “A Mother Should Not Have to Adopt Her Own Child,” 236.
113

relationship. Furthermore, even when a lesbian spouseor partner is granted a presumption of parentage, thechild lacks the security of a similar presumption granted
to a heterosexual family. Why is this so?
Photo by Leslie Von Pless. Reprinted with permission from Lambda Legal.

STRENGTHS•• Presumption is automatic based on the relationshipTevonda Hayes Bradshaw (center, partly obscured) and Erica Bradshaw (left) with theirson, Teverico. Erica was forced to undergo fingerprinting so that she could become alegal parent to her son.

Tevonda Hayes Bradshaw and Erica Bradshaw livein New Jersey with their infant son, Teverico Barack
Hayes Bradshaw. Tevonda and Erica are in a civil
union in New Jersey, but they know that civil unions
aren’t well understood and aren’t always recognizedout-of-state. So, even though both Tevonda andErica are legally presumed to be Teverico’s parents,
they have spent time, energy and money to ensurethat they have multiple legal documents to protect
both their relationship and their legal ties to theirson. For example, just months after Teverico’s birth,
Erica had to undergo a court-related examination ofher background, including being fingerprinted, sothat she could officially adopt Teverico.
Adapted from Garden State Equality, et al. v. Dow, et al., Complaint for Declaratory and
Injunctive Relief, New Jersey Superior Court, filed by Lambda Legal (June 29, 2011).

of the couple having a child (that is, the couple
does not need to do anything for both parents tobe presumed legal parents).

•• Parentage presumptions are usually open to•• It is free (so there is no barrier to parentage rights

challenge. A parentage presumption is just that—apresumption. Therefore, it is often rebuttable,
which means it grants parentage only so long as
someone else does not successfully challenge (or“rebut”) the presumption in court, including, forexample, the biological mother who may attempt
to deny the parentage of her partner in case of a
relationship dissolution.

based on income which disproportionately affects
parents of color).

•• It applies from the outset (there is no delay
following the baby’s birth).
LIMITATIONS•• Parentage presumptions may not hold across statelines. A parentage presumption does not resultin a court judgment but derives from the legal
relationship of the couple. Since most states do notrecognize lesbian couples, lawyers advise lesbianparents to secure their parentage rights through aparentage judgment or second-parent adoption(discussed in “Stopgap Remedies”) even if they live
in a state where the parentage presumption applies.

35•• It requires that the parents be in a marriage or
equivalent relationship.
119

Article IV, Section I of the U.S. Constitution states that “Full Faith and Credit shall be given ineach State to the public Acts, Records, and judicial Proceedings of every other State. And theCongress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

The difference between a heterosexual couple’s
presumption of parentage and that granted to alesbian couple stems from the fact that a parenting
presumption requires no court judgment but is insteada legal assumption derived through a state’s parenting
statute. This is significant because the Constitution’s “fullfaith and credit” clause only requires states to honor
one another’s court judgments—such as an adoption
judgment or parentage judgment. It does not requirethat they honor other states’ statutes, such as a parental
presumption law.119 This means that even if two samesex parents are recognized as birth parents in Vermont,
if the family moves to (or even travels to) another state,
one parent might lose legal standing. This is a problem
for same-sex versus heterosexual couples because
the presumption of parentage is based on the legal
relationship of the parents, and the majority of states do
not recognize the relationship of the same-sex couple.
Thus, a same-sex couple may be considered marriedin Vermont but legal strangers in another state. While
Vermont may honor the parenting presumption thatflows from that relationship, another state may not.

Mother Adopts Her Child to Secure
Parenting Rights

AVAILABILITY

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

36

States with parenting presumption laws thatrecognize the parentage of same-sex spouses orpartners. In the 15 states and D.C. with marriage orcomprehensive relationship recognition (except Iowa),120
the law grants lesbian couples in such relationships thepresumption of parentage when they have a child using
donor insemination (see Figure 21 on the next page).
This means that both partners are presumed to be fulllegal parents so long as no one else (such as the donor)
successfully challenges that status.

parent. Unfortunately, even when states have consentto-inseminate statutes, most do not explicitly include
same-sex couples. There is uncertain legal precedent todetermine if courts will apply existing statutes—manyof which are written in gendered terms to only include“men” or “husbands.”
STRENGTHS•• It is easy to obtain. Generally, the couple simply
signs a form, and there are no complicated home
visits or court appearances.

•• It is free or low-cost, so there is no barrier toStates that do not grant parenting presumption
to same-sex couples. In Iowa and the 35 states that
do not recognize the relationships of same-sex
couples, the lesbian partner of a mother giving birthusing donor insemination is not presumed to be aparent.121 The partner would therefore need to pursue
other mechanisms to establish parentage if available,
otherwise she will remain a legal stranger to her child.

parentage rights based on income.

•• It creates two legal parents at the time of the baby’sbirth. There is no delay in which one parent is nota legal parent.

•• It may not require the couple to be in a formal
relationship. These statutes can provide parentage forlesbian mothers in states with or without relationshiprecognition. Additionally, such statutes could cover
all couples including unmarried partners.

CONSENT-TO-INSEMINATE LAWS
Some states have what’s known as “consent-toinseminate” laws that define when and how to grantparentage to the partner (or spouse)122 of a birth motherusing donor insemination. Generally, these provisions
grant legal parentage when two criteria are met. First, thepartner or spouse of the birth mother must demonstrateintent to parent the child. Second, the birth mothermust demonstrate that she consented to her partner or
spouse becoming the child’s parent.
Consent-to-inseminate laws can protect children bycreating full, legal parenting ties to the non-biologicalparent. This creates safeguards for the entire family. For
example, consider a heterosexual couple that has a baby
using donor insemination but is now in the throes ofdivorce. If the state has no law clarifying the husband’sparental status, the mother may attempt to deny him
custody or visitation by challenging his parentage(since he is not biologically related to the child) or thehusband may attempt to deny responsibility for the child(claiming he never intended to parent a child who was“not his”.) Consent-to-inseminate laws help prevent suchcomplicated scenarios by documenting the parentage
intent of the couple and granting parenting rights andresponsibilities accordingly.
Children in LGBT families need these protections
too, and for lesbian couples such laws can provide away for the non-biological mother to become a legal

LIMITATIONS
While a consent-to-inseminate statute provides amore secure legal tie than a parenting presumption,123 asame-sex couple that is granted parentage rights throughsuch a statute may face the following challenges.

•• Parentage rights may not hold across state lines.
Using a consent-to-inseminate statute does not
usually result in a court judgment of parentage(the couple does not appear before a judge) but
Iowa’s attorney general has refused to put the names of both mothers on the birth certificate ofa child born to a married lesbian couple, arguing that the parenting presumption only applies
if there is the possibility that the birth mother’s spouse is a biological parent, which cannot be
the case if the spouse is another woman. Lambda Legal is currently challenging Iowa’s refusal
to place the names of both women on birth certificates, and it remains unclear what a court
would rule if the question of parentage came up in other contexts (i.e., if the biological motherdied and a custody or inheritance dispute arose regarding the parentage of the surviving, nonbiological mother). An appeals court in Oregon likewise stated that the presumption of parentage only exists in that state when there is the possibility that the husband is the biologicalparent and that it therefore does not apply to a lesbian couple. This interpretation was offeredby the court in dicta, meaning that the actual status of the law as applied to a same-sex couple
is untested. In addition, the state’s donor insemination statute allows a non-biological motherto obtain parentage by consenting to the process. See Polikoff, “A Mother Should Not Have to
Adopt Her Own Child,” 215-216, 251.
121
Maryland and New Mexico have pledged to honor marriages of same-sex couples performed
elsewhere, and while this means that the presumption of parentage should also be recognized,that interpretation remains untested. As a result, MAP does not include those states as “presumption of parentage” states.
122
In some states, the law applies only to a spouse while in others it can also apply to an unmarried partner. For more information about laws on donor rights and responsibilities, see Human
Rights Campaign (HRC), “Donor Insemination Laws,” http://noexcuses.hrc.org/issues/parenting/donor_insemination/2490.htm and Deborah Wald, “Donor Insemination: A Legal Perspective,” http://lesbianlife.about.com/od/families/a/DonorInseminate.htm.
123
Unlike a parenting presumption, recognition of the non-biological mother does not hinge on
legal recognition of the couple’s relationship, strengthening her parenting rights in other states.
120

Figure 21: Parental Recognition for Same-Sex Couples Using Donor Insemination*
Washington
New Hampshire
MontanaNorth
DakotaVermont

Maine

15 states + DC**

Minnesota

OregonIdaho
Wyoming

South
DakotaPennsylvania
Illinois

Colorado

Arizona

New Mexico

KansasOklahoma

Indiana

Ohio
Virgina

KentuckyNorth Carolina

Tennessee
Arkansas
Georgia

Connecticut
New Jersey

West
Virginia

MissouriMassachusetts
Rhode Island

Iowa

Utah
California

New York

MichiganNebraska

NevadaWisconsin

DelawareMarylandParental Presumption,
14 states + DC

37

Consent-to-Inseminate,
3 states + DC
35 states lack same-sex
parental recognition at birth

District ofColumbia

South
Carolina

Alabama
AlaskaTexas

Mississippi

Louisiana
FloridaHawaiiMay require being in legally recognized relationship, such as a marriage, civil union or domestic partnership.
The 15 states include all states with marriage or comprehensive relationship recognition, except Iowa , plus New Mexico. Two states and DC have both parental presumption and consent to inseminate.

**

is instead a legal designation of parentage rights
derived through the state’s donor insemination
law. The lack of a court judgment leaves thecouple’s parentage rights vulnerable to challenge
in other states. Therefore, lawyers recommendthat same-sex couples who obtain parentage
rights using a consent-to-inseminate provision
secure such rights with a parentage judgment or
second-parent adoption.

consent, without the need for a court judgment.
However, the law makes no provision for issuing abirth certificate with the name of the non-biologicalmother as a legal parent.125•• Oregon has an appellate court ruling that applied
its consent-to-inseminate statute to same-sex
couples (even though the statute itself only refers to
a consenting “husband”). The court ruling ensuresthat the same-sex partner of a birth mother can bedeemed a parent through a consent form rather
than a court judgment.126

AVAILABILITY
States with consent-to-inseminate laws protecting
lesbian couples. In only three states and D.C. is theuse of consent-to-inseminate provisions guaranteed
by statute or court ruling (see Figure 21), but trial
courts elsewhere may, on a case-by-case basis, apply
a consent-to-inseminate provision to lesbians, as well
as issue a parentage judgment based on a finding ofconsent to parent.

•• D.C. passed a law in 2009 that allows the partner ofa birth mother to become a legal parent by signinga consent form, whether or not the couple is in amarriage or domestic partnership. The law places
the names of both parents on the birth certificate.124•• New Mexico passed a law giving parental status
to the female partner of a woman who gives birthusing donor insemination if both parties indicate•• Washington revised its parentage act in 2011 to
apply to lesbian couples. The law now says: “Theparent-child relationship is established by… theperson’s having consented to assisted reproduction
by his or her spouse or domestic partner” undercircumstances prescribed by specific regulations.127
States that do not have consent-to-inseminate laws
specifically protecting lesbian couples. Many of the remaining 47 states have donor insemination statutes pertaining
Domestic Partnership Judicial Determination of Parentage Amendment Act of 2009, D.C. Official Code, www.dccouncil.us/images/00001/20090511122621.pdf.
125
New Mexico Uniform Parentage Act, 2009 N.M. Laws 215, §§ 7-703, 7-704; Polikoff, “A MotherShould Not Have to Adopt Her Own Child,” 240.
126
Shineovich v. Kemp OR Ct. App. (July 15, 2009). Although the state has domestic partnerships,
the Oregon Court of Appeals has stated that the presumption of parentage for the partner of abirth mother does not apply to same-sex couples.
127
Clarifying and Expanding the Rights and Obligations of State Registered Domestic Partners andOther Couples Related to Parentage, H.R. 1267, www.washingtonvotes.org/2011-HB-1267.
124

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN*

Figure 22: Surrogacy Laws
Washington
New Hampshire
MontanaNorth
DakotaVermont

1 state routinely grants
parentage to intended
parents

Maine

Minnesota

OregonIdaho

38

Wyoming

South
DakotaPennsylvania
Illinois

Colorado

Arizona

New Mexico

KansasOklahoma

Indiana

Ohio
Virgina

KentuckyNorth Carolina

Tennessee
Arkansas
Georgia

Connecticut
New Jersey

West
Virginia

MissouriMassachusetts

10 states permit but regulate

Rhode Island

Iowa

Utah
California

New York

MichiganNebraska

NevadaWisconsin

South
Carolina

32 states with no definitive law

DelawareMarylandDistrict ofColumbia

6 states punish or refuse torecognize contracts
1 state + D.C. ban surrogacy

Alabama
AlaskaTexas

Mississippi

Louisiana
FloridaGOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

Hawaiito heterosexual couples. However, these statutes do not
explicitly provide recognition for same-sex couples andthere is no definitive case law to indicate whether such statutes would be extended to include these couples.

with the certainty that the couple will be able to securelegal parentage of the children.
STRENGTHS•• Surrogacy allows those who would otherwise not

Surrogacy
Surrogacy is an arrangement in which a woman carries
and delivers a child for another couple or person. The mostcommon type of surrogacy, gestational surrogacy, occurs
when a woman is impregnated with another woman’s
fertilized egg and gives birth to a biologically unrelatedchild who will be raised by others.128
For children who come into the world with thehelp of a surrogate, the current patchwork of statelaws creates needless confusion and uncertainty.129
Determining parentage for couples using a surrogate
can be complicated for both married heterosexualand same-sex couples. Some states have laws or court
rulings designed to make parental determination clear
and to avoid protracted custody battles, but wheresuch laws are not in place, problems can ensue. To
avoid contested claims to parentage and harrowing
lawsuits, parties involved in surrogacy normally
execute contracts spelling out parenting rights for all
involved (i.e., who relinquishes those rights and who
obtains them). However, many states do not honor suchcontracts. Other states prohibit the use of contracts
or have policies or practices of ignoring what private
contracts say. This can make it nearly impossible for asame-sex couple considering surrogacy to plan a family

be able to have biological children to have a child
who is genetically related to one or both parents.
LIMITATIONS•• Surrogacy is very expensive. A couple having ababy using a surrogate can easily expect to pay
over $100,000 in legal, medical, surrogate andother fees. The enormous expense involved inusing a surrogate not only makes it an inaccessible
option for the vast majority of Americans, but also
disproportionately affects families of color.

•• Intended parents often cannot secure parentage
rights until after the child is born. In most states
where surrogacy is allowed, intended parents using
surrogacy must wait until the child is born to obtaina court judgment (either of parentage or adoption)
deeming them the legal parents of their new child.
California is one of the few states that routinely allows
a couple to obtain a pre-birth parentage judgment
Center for American Progress, “Assisted Reproductive Technologies: A Glossary,”
http://www.americanprogress.org/issues/2007/12/art_resources.html.
129
Comprehensive statistics about use of egg donation and surrogacy are unavailable. However,given the extraordinary costs associated with these options, it is unlikely that large percentages of LGBT families undertake these options. One surrogacy agency targeting LGBT couples
estimates that its services cost between $115,000 and $150,000. Abbie E. Goldberg, Lesbianand Gay Parents and Their Children: Research on the Family Life Cycle, American Psychological
Association, 2010.
128

from a court declaring the intended parents to be thebaby’s legal parents and terminating the surrogate’s
rights, but not all judges will grant such an order.
make them inapplicable to same-sex couples. These
can include prohibiting a surrogate from using her
own egg, requiring that intended parents be amarried heterosexual couple, proving “infertility,”and requiring a “judicial preauthorization” where acourt approves a contract in advance.130©pattyswanson.com•• Some surrogacy laws include restrictions that canParent Left Off Birth Certificate for Twins
Born via Gestational Surrogate

39•• There is debate about whether surrogacy exploits
women. While many surrogates are middle-income
American women who report satisfaction and joy
from bringing a child to a childless couple, it is also
true that ethical dilemmas result if a woman decides
to become a surrogate because her other options
for a livelihood are constrained. This report does not
attempt to detail the thorny ethical implications ofsurrogacy or provide recommendations for how theymight be resolved. Rather, the goal here is simply
to outline the inadequacies of existing surrogacy
law when it comes to determining parentage andensuring that children end up in stable homes.

Shawn (left) and Anthony Raftopol with their three children, Sebastiaan, Zoe and Lukas,
who were born using a gestational surrogate. The state refused to issue birth certificates
for the twins with both parents’ names.

AVAILABILITY
The options for an LGBT couple’s use of surrogacy
are highly constrained because of two factors: the highcosts of surrogacy and the fact that only a handful ofstates with surrogacy-friendly laws also have laws thatare LGBT-friendly. For an overview of state surrogacy
laws, see Figure 22 on the previous page.131

Stopgap to Remedies to Inadequate Parenting Law
Parenting law is wholly inadequate when it comes toproviding protections for LGBT families. These families,
however, can sometimes avail themselves of threestopgap measures to remedy the inadequacy of existing
parenting law. These are:•• Second-parent adoption law in which an intended

Adapted from Susan Donaldson James, “Surrogacy Law: Conn. Gives Non-Genetic
Parents Legal Rights,” ABCNews.com, January 20, 2011, http://abcnews.go.com/Health/connecticut-surrogacy-law-genetic-parents-legal-rights/story?id=12662224.

parent adopts his or her partner’s legal childwithout terminating the partner’s parental rights.

•• De facto parenting law, which grants full parenting
rights to a person who acts as a parent to a childwithout terminating the rights of the existing parent.

•• Parentage judgments in which a judge issues acourt order making someone a legal parent basedon existing parentage law.

Jessica Arons, Future Choices: Reproductive Technologies and the Law, 2007, http://www.americanprogress.org/issues/2007/12/future_choices.html.
131
MAP analysis and Center for American Progress, “Guide to State Surrogacy Laws, 2007, www.
americanprogress.org/issues/2007/12/surrogacy_laws.html and HRC, “California Surrogacy
Law,” http://www.hrc.org/laws-and-legislation/entry/california-surrogacy-law.
130

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

Anthony and Shawn Raftopol have been together
for more than 16 years and were married in
Massachusetts in 2008. The couple’s daughter, Zoe,
was born in Connecticut in 2006 using a gestationalsurrogate and Anthony’s sperm. When Zoe wasborn, both Anthony and Shawn were listed on her
birth certificate. The couple then had twin boys,
Sebastiaan and Lukas, also born in Connecticut
using the same egg donor and gestationalsurrogate. Anthony again was the twins’ biologicalfather. But the couple was surprised when the staterefused, citing a policy change, to put Shawn’s nameon the twins’ birth certificates and said he would
need to adopt the twins. The case was brought
to the Connecticut Supreme Court, which heldthat when a couple, regardless of gender, enters
into a valid gestational agreement with a surrogate,
both individuals are the legal parents. As a result,both Anthony and Shawn were able to be listed
as parents on the twins’ birth certificates, andConnecticut has updated its laws regarding children
born to gestational surrogates so couples can obtainpre-birth parentage orders.

40•• It can be expensive and complicated. Second-parent

These three remedies are discussed in turn below. Often, these remedies are only available in the states that are
already likely to protect LGBT families, leaving non-biological LGBT parents in most of the country with no options
for securing permanent legal ties to their children. What’smore, it’s important to remember that if existing parenting
law adequately addressed LGBT families, these remedies
would not be necessary. Therefore, the long-term public
policy goal should be to adequately acknowledge LGBT
parents—both within each state and across state lines—
from the time of the child’s birth or adoption into the family.

adoptions can be costly ($1,200 to $4,000)132 andcan often require a home study, copious paper work,
attorney’s fees and travel expenses. This can makeadoptions inaccessible to lower-income families,
who are disproportionately families of color.

•• Many couples are not aware of the need for secondparent adoption. Families may not understandthe legal ramifications of not formally adopting
their child. Some may not even know that secondparent adoption is an option for them. One study inColorado found that, of LGBT respondents who had
or intended to have children in their households,
38% were unaware of the state’s second-parent
adoption law.133 In addition, a 2011 report by theCenter for American Progress found that secondparent adoption was unknown by most people.134
The report also found that race may affect how likely
it is that different population groups know about, oruse, second-parent adoptions. Among the findings:
African Americans were less inclined than others
to view it as a high priority, preferring informal
community recognition to legal adoption.135

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

Second-Parent Adoption
Modeled on the stepparent adoption process, asecond-parent adoption allows the partner of a legal
parent to adopt that parent’s child without terminating
the parental rights of the first parent. The result is that bothof the child’s parents are recognized as legal parents withidentical rights and obligations. A second-parent adoption
is perhaps the most common way for same-sex couples tosecure legal ties to their children. Unlike joint adoption ofa new child, where both parents adopt simultaneously, asecond-parent adoption formalizes a relationship with asecond parent who is already in a child’s life.

•• It requires a parent to adopt a child who may

STRENGTHS

already be viewed as his or her own. The veryneed for second-parent adoptions underscores
the inequality in existing law. Imagine if a woman’s
husband had to undergo a costly, months-longadoption process including a home study just to
be considered the legal father of their child born bydonor insemination. In order to secure legal parental
status, LGBT parents have to endure a process thatsome people view as an adoption of their own child.

•• Second-parent adoptions are secure and hold
across state lines. A second-parent adoption results
in an adoption judgment, the strongest legal
mechanism for establishing a legal parent-child tie
when no blood relationship exists. See “Adoption
by Individuals.”•• It may not require the couple to be in a formal
relationship. This requirement varies by state,
though in most instances, same-sex couples wholive in states without legal relationship recognition,or who do not marry or formalize their union, maylack access to second-parent adoptions.
LIMITATIONS
Where available, second-parent adoption adds
much-needed security to a child’s relationship with his or
her parents. However, the process remains an imperfect
stopgap measure that is inadequate for securing theparental needs of all children for several reasons.

•• It can be a long process. Second-parent adoptions
take time, ranging from several months to over a
year. During this time, a child is left without legal
ties to one parent.

AVAILABILITY
Second-parent adoptions are not available in every
state, and in some states they are granted only in certain
jurisdictions or even by just a few judges. Some states
Stephanie Haynes, “Philadelphia attorney Tiffany Palmer answers questions about same-sex,
second-parent adoptions,” Philidelphia Gay Parenting Examiner, April 9, 2009, http://www.examiner.com/gay-parenting-in-philadelphia/philadelphia-attorney-tiffany-palmer-answersquestions-about-same-sex-second-parent-adoption; Beth Allen, “Second Parent Adoption: An
Outline,”http://www.avvo.com/legal-guides/ugc/second-parent-adoption--an-outline.—an-outline.
133
One Colorado Education Fund, “A Conversation with Coloradans,” 2010.
134
Sally Steenland and Susan Thistlethwaite, “Working for Equality in the Great Lakes State,” Center for American Progress, January 2011, www.americanprogress.org/issues/2011/01/pdf/
michigan_lgbt.pdf.
135“We don’t necessarily go to the system. We might not want to go through an adoption course
for six weeks, and we don’t want them to know about our income or how we raise our kids.
We informally adopt kids all the time. Almost everyone I know, gay and straight, has parented
some kid that wasn’t theirs. We have figured out how to make our family system work.” Steenland and Thistlewaite, “Working for Equality.”132

Figure 23: Second-Parent Adoption Laws
Washington
New Hampshire
MontanaNorth
DakotaVermont

19 states + D.C. with laws orcourt decisions permitting
second-parent adoption bysame-sex couples

Maine

Minnesota

OregonIdaho
Wyoming

South
DakotaPennsylvania
Illinois

Colorado

Arizona

New Mexico

KansasOklahoma

Indiana

Ohio

Connecticut
New Jersey

West
Virginia

MissouriMassachusetts
Rhode Island

Iowa

Utah
California

New York

MichiganNebraska

NevadaWisconsin

Virgina

KentuckyNorth Carolina

Tennessee
Arkansas
Georgia

Delaware25 states where same-sex
couples face uncertainty

41

6 states effectively ban
second-parent adoption

MarylandDistrict ofColumbia

South
Carolina

Alabama
AlaskaTexas

Mississippi

Louisiana
FloridaHawaiiparent adoptions. Many of these states have granted
second-parent adoptions in some jurisdictions but do
not ensure statewide availability. In other states, there
is no clear statute or court precedent for second-parent
adoptions, making the prospect of getting one unknown.
Michigan appears to have a judge-ordered ban on secondparent adoptions but its authority is being challenged,
making the current prospects unclear.138

States where same-sex couples can petition for secondparent adoptions statewide. In 19 states and D.C., children
can be adopted by the same-sex partner of their existing
legal parent statewide (see Figure 23). These include the 15
states and D.C. with comprehensive relationship recognition,plus Colorado, Indiana, Maine and Pennsylvania.136 In
these states, a clear statute or binding court judgment
has established that these adoptions are available in all
jurisdictions for same-sex couples. In some cases, theadoptions are granted based on explicit second-parent
adoption law, while in others, they involve the applicationof stepparent adoption law to same-sex couples.

“De Facto” Parenting

States where same-sex couples face restrictions
on second-parent adoption. In six states, law, policy
or a court decision makes second-parent adoption
unavailable: Kentucky, Nebraska, North Carolina, Ohio,
Utah and Wisconsin.137
States where same-sex couples face uncertainty
around second-parent adoption. In the remaining states,same-sex couples face uncertainty when seeking second-

In some cases, a child who has received care and support from someone other than a legal parent can become alegally recognized dependent based on what is known as the“de facto” parenting law.139 This type of law may grant full or
partial parenting rights (such as custody or visitation). While
exact definitions vary by state, a “de facto” parent is generally defined as someone other than a legal parent who, forreasons other than financial compensation, formed a childparent relationship in which he or she shared (usually at least
equally) in primary child care responsibilities. For a court todeclare a de facto parent a legal parent, a judge may require
the individual to show that he or she has lived with the child
In some of these states, couples may be required to be married or have a domestic partnershipor civil union in order to be assured of a second-parent adoption.
Based on National Center for Lesbian Rights, “Adoption by LGBT Parents,” 2011, www.nclrights.
org/site/DocServer/2PA_state_list.pdf?docID=3201 plus a 2010 court ruling in North Carolina
that appears to ban second-parent adoptions. While Mississippi has a statute prohibiting adoption by same-sex couples, it is unclear whether this would preclude second-parent adoption by
an individual with a same-sex partner.
138
HRC, “Michigan Adoption Law,” 2009, http://www.hrc.org/laws-and-legislation/entry/michigan-adoption-law.
139
Sometimes known as “psychological parenthood,” “in loco parentis,” “equitable parenthood” or“parenthood by estoppel.”
136
137

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

have passed laws that explicitly allow such adoptions;others grant same-sex couples such adoptions either
because an appellate court ruling has allowed themstatewide, or because judges in some jurisdictions have
granted them even in the absence of a definitive law.
Given the patchwork of state laws and court decisions,most LGBT parents and hopeful parents must plan theirfamilies in conditions of enormous uncertainty.

and played a parenting role for a significant period of time(such as two years), either with the agreement of the legal
parent or because of the parent’s inability to care for the child.

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

42

A de facto parent can be any person who acts as
a parent in a child’s life and meets the criteria above,
including same-sex parents, but also grandparents,
stepparents, aunts, uncles or other loved ones. Mostoften, de facto parenting law is based on common
law resulting from a judge’s interpretation of a state’s
general parentage statute, which is applied in cases ofrelationship dissolution or a custody dispute. However,in 2009, Delaware revised its parentage statue to protect
de facto parents embroiled in custody disputes and toallow same-sex and other couples to proactively extend
parentage to a second parent without terminating therights of the existing parent, in a manner similar to asecond-parent adoption.140 In this latter case, the statuteallows a judge to deem someone a full legal parent if that
person has “acted in a parental role” for long enough toestablish a parent-like bond, so long as the child’s otherparent gives consent.141 In 2011, Washington adopted asimilar law, updating its parentage statute to allow for defacto parents—including LGBT and unmarried adults—
to be recognized as full legal parents.
STRENGTHS•• De facto parenting judgments are secure andshould hold across state lines. When de facto
parenting laws result in a court judgment, theresulting parentage rights should be protectedacross state lines.142•• De facto parenting judgments do not requirea parent to adopt his or her own child. Unlike asecond-parent adoption, a de facto parentage
judgment does not require a parent to go throughan adoption, which sometimes requires a homestudy and added expenses. The de facto judgment
simply deems an acting parent to be a legal parent.

cannot be declared a legal parent upon a baby’sbirth. This creates some period of time (months toyears) during which a child is a legal stranger to
one parent.

•• It can be costly and time-consuming. Obtaining
a parentage determination based on being a defacto parent requires the family to appear in court
and pay any legal fees.

•• Many families do not know is is an option. As
with second-parent adoptions, families may notunderstand that the de facto parenting option isavailable to them. In addition, families may notunderstand the ramifications of failing to establish
legal ties to their children.
AVAILABILITY
While other states have de facto parentage law thatcan grant some parenting rights and responsibilities
to functioning parents, only Delaware and Washington
have statutes that explicitly allow same-sex couples toextend full parentage rights to a second parent based on
the parent’s “de facto” status.

Parentage Judgments
A parentage judgment is a court order in which
a judge makes a determination of full legal parentage
based on existing law (such as a parentage statute orcase law). Parentage judgments are most often used
when someone already has statutory recognition asa parent but wishes to solidify such recognition with acourt judgment in order to protect his or her parental
status from legal challenge, especially across state lines.
Same-sex couples in the following circumstances aremost likely to be able to secure a parentage judgment:•• A lesbian mother of a child born using donor insemination (and who enjoys a presumption of parentage
or has signed a “consent to inseminate” form).

•• Same-sex couples bringing parentage proceedings•• De facto parenting judgments do not require
the parents to be in a formal relationship. De
facto parenting laws cover a variety of family
compositions, including unmarried partners andother family configurations in which a child israised by a non-legally recognized parent.
LIMITATIONS•• It is not available from birth. As with a secondparent adoption, a de facto parent probably

to declare a legal parent-child relationship in casesof surrogacy.
The Delaware and Washington de facto parentage statutes create legal parentage in essentiallythe same way as do second-parent adoptions because they extend parentage rights to a second
parent without terminating the rights of the first parent, and they both require the first parent’s
consent. Unlike second-parent adoption, these laws result in a parentage judgment, not an
adoption judgment.
141
Polikoff, “A Mother Should Not Have to Adopt Her Own Child,” 224.
142
Depending on the law and the situation, a presumption or an actual adjudication of parentage may ensue. The Washington law, for instance, creates a presumption of parentage basedon holding a child out as one’s own, and that presumption can be adjudicated in a court andthereby become a full parentage judgment.
140•• An LGBT de facto parent.
•• A transgender parent who is presumed to be a•• It is based on existing state parentage law. Since aparentage judgment requires that a court find thatsomeone is a legal parent under existing state law, it
is not likely to be a remedy for couples living in stateswith parentage law that is hostile to LGBT parents.

parent under state law but fears that transitioning
may put current parenting claims at risk.143

STRENGTHS•• It strengthens a parent’s legal ties to children,
including across state lines. Parentage judgments
create a court judgment of parentage, which helps
protect a parent’s parentage rights both within his
or her state of residence and across state lines.
LIMITATIONS•• It may be less secure than an adoption judgment.
Although parentage judgments are court ordersthat should be universally honored, some legal
experts caution that emerging case laws may makeparentage judgments less secure than adoption
judgments. In particular, they warn that parentage
judgments that are in some way tied to legal
recognition of the relationship of a same-sex couple(such as a parentage judgment based on a parental
presumption for a married lesbian couple using
donor insemination) are at potential risk in statesthat do not recognize the relationships of same-sex
couples. Moreover, parentage judgments are not as
well-recognized or as well-understood as adoptions.

•• Its requirements may pose barriers for somefamilies. While more accessible than a secondparent adoption, parentage judgments require acourt appearance and some knowledge of existing
parenting law, making obtaining such a judgment
intimidating or out of reach for many families.

•• It is often not available from birth. While some states

43

offer pre-birth parentage judgments, in most statesa couple must wait to obtain a judgment until after
the baby is born, leaving the child with legal ties toonly one parent for some period of time.
AVAILABILITY
It can be difficult to know in what jurisdictions andsituations a parentage judgment will be granted. At aminimum, all states that offer parentage presumption
or consent-to-inseminate statutes covering samesex couples should, in theory, also be willing to granta parentage judgment to such couples. Additionally,
California courts have frequently granted pre-birthparentage judgments to members of same-sex couples
raising, or intending to raise, children, making it apopular state for couples using surrogacy.

Challenge: Children Wrongly Separated
from Parents
The previous section describes the ways in which
outdated family law makes it difficult for many parents
to establish legal ties to their children, focusing on
those who are establishing intentional families. Thissection discusses how laws meant to protect children
when adult relationships end, or when a parent dies,often fail those children with LGBT or other nonlegally recognized parents. The section also discusses
how some children must live in daily fear of a parent’s
removal from the country if the child’s parents are abinational same-sex couple.

Custody and Visitation Disputes
While good laws can help make family relationships
more permanent and enduring, nothing can ensurethat they last forever. Inevitably, some relationships
dissolve. When families break up, custody battles canensue. One of the primary functions of family law is toensure that parents continue to meet their obligations
to children in these situations.
143

In 2005, the Illinois Court of Appeals invalidated the marriage between a woman and a transgender man and ruled that the man was not a parent to the couple’s son, who had been born
through donor insemination. In re Marriage of Simmons, 355 Ill. App. 3d 942, 292 Ill. Dec. 47,
825 N.E.2d 303 (1st Dist. 2005).

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

In all cases, a parentage judgment helps strengthen
a legal parent-child relationship by giving it the added
weight of a court judgment. This, in turn, helps secure theparent’s rights across state lines, as well as the rights ofchildren to receive child support. Depending on the law
and the situation, judges may offer parentage judgments
before the child is born (a “pre-birth judgment”) or after
he or she has been living in an LGBT family. Parentage
judgments may be issued either at the request of a couple
who is raising, or planning to raise, a child together, or by acourt in a dissolution case to assign the parental rights andobligations of custody and child support (see “Custodyand Visitation Disputes”). Parentage judgments are not
likely to be issued in cases of joint or stepparent adoption,
as adoption judgments are separate legal devices.

In custody disputes, courts must make decisions
about several key aspects of a child’s care, including:•• Physical custody—how and whether physicalcustody of a minor will be shared among parents
or other caregivers.
44•• Legal custody—how and whether to divide theright to make major decisions about a child’s health,finances, education and religious upbringing.

•• Financial obligations—the expected economic
support from each parent, including child support,
education and other economic assistance.

•• Visitation rights—whether

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

or not to grant
visitation rights to a parent or other caregiver who
is not awarded full or partial custody of a child.

LGBT parents are vulnerable to two major
disadvantages when it comes to these decisions. The
first is discrimination against an LGBT parent who is in a
dispute with a former different-sex partner. The second
is a possible refusal of the law to acknowledge anexisting parent who lacks legal ties to his or her child.
We discuss each of these in turn.

Custody Decisions that Discriminate Against LGBT Parents
In some cases when different-sex parents break up, one
parent may be LGBT (and this parent’s sexual orientationor gender identity may be identified as a factor in the split).
In these situations, LGBT parents can be subject to rulings
where bias about sexual orientation and gender identity
adversely impacts decisions about custody or visitation.
For example, a judge may rule against custody rights for
an LGBT parent even when giving custody to that parent
would be in the child’s best interests.
For years, gay and lesbian parents routinely lost
custody or visitation rights when judges simply assumed
that being an LGBT parent was, in and of itself, detrimental
to child welfare. This assumption of detriment was
known as the “per se” rule because it was based on theidea that being LGBT, per se, makes someone unfit to bea good parent, irrespective of whether they have beenshown to be capable parents. Today, the vast majorityof states no longer use the “per se” rule in making
custody and visitation decisions, basing them insteadon the “best interest of the child” standard. Statutes andlegal standards require that claims to deny custody orvisitation show that a parent is causing the child “adverse
harm,” rather than simply assuming that being an LGBT
parent is, in its own right, detrimental to children.144

Despite the fading use of the “per se” test, many state
courts still routinely penalize parents based on theirsexual orientation or gender identity and expression.
These rulings often cite factors other than sexual
orientation, such as the parent’s “lifestyle” or marital
status; concerns that children of LGBT parents could be
subjected to teasing and ostracism; fears that children
may be victimized by sexual abuse or could contract HIV;the anxieties of children about the sexual orientationof their parents; and a parent’s openness about his or
her sexual orientation.145 A transgender parent can beat serious disadvantage in divorce, particularly if theparent’s transition was a factor in the divorce. The court
may fault the transgender spouse and question his or
her fitness as a parent. In any of these cases, bias might
be used to deny custody or visitation.

Custody Decisions that Ignore a Functioning Parent
There are many scenarios in which adults may enter
into a custody dispute over a child. The most common iswhen a child’s parents split up, but in some circumstances,
grandparents may desire custody of a grandchild, aunts
and uncles may desire custody of a niece or nephew, ora de facto parent may desire custody of a child that he or
she has raised for years.
In such custody disputes, those who are notlegal parents (including non-legally recognized LGBT
parents) may not have standing to claim custody orvisitation rights. For example, some states have laws
explicitly restricting custody filings to legal parents andstepparents. This means that a child may not be able
to live with the most suitable parent or caregiver, andmay even be entirely cut off from someone who has
functioned as a parent and has loved and supported
the child for his or her entire life. The flip side of thisproblem is that non-legally recognized parents may not
be required to provide child support or other financial
support, putting the child at economic risk. Children
Most states specifically describe what factors a court should (and occasionally should not) weighin determining what is in the best interest of the child. Wisconsin state law makes clear that neither a parent’s sexual orientation nor factors presumed to be associated with sexual orientation,such as societal discrimination or bullying based on a parent’s orientation, is to be considered a
relevant factor in determining custody or visitation; only parental action that causes direct harmto the child can be considered a relevant factor. The same holds true in Florida, where appellate
courts have held that “moral fitness” of a parent is only relevant if it has a direct bearing on thechild’s welfare and sexual orientation, per se, is not. D.C. bars consideration of sexual orientationin making custody decisions. See Joslin and Minter, Lesbian, Gay, Bisexual and Transgender Family
Law, 12-13; National Center for Lesbian Rights, Child Custody and Visitation Issues for LGBT Parents in Wisconsin (2009) and Florida (2009); DivorceLawInfo.com, “District of Columbia Divorce,”
www.divorcelawinfo.com/dc/flc.htm.
145
Joslin and Minter, Lesbian, Gay, Bisexual and Transgender Family Law, 3-78. The Supreme Court
has ruled it impermissible to restrict parental custody based on concerns about teasing and ostracism—whether or not they are well-founded—in a 1984 case invalidating custody restrictions
based on fears that a mother’s interracial relationship could subject her child to harassment.
144

who may have relied for their entire lives on the financial
and emotional support of a parent can suddenly bewrenched away from this essential love and assistance.146
Dave Dieter/The Huntsville Times

One way to protect children with LGBT parents is toensure that state laws recognize both of their parents,
where applicable. However, many families may not
be aware of the need to—or cannot afford to—takeadvantage of legal mechanisms such as second-parent
adoptions. Furthermore, all children, not just those with
LGBT parents, require protection in the event that an
adult who acts as a parent cannot or does not legally
establish parenting ties. This is where de facto parenting
law again comes into play.

Judicial Bias Places Children with Abusive
Father Over Lesbian MotherDe facto parenting law generally covers adultcaregivers who meet certain criteria, including nonlegally recognized LGBT parents. Judges may confer
varying levels of custody and visitation on those witha viable claim to continuing legal ties to a child. Somecustody awards may have virtually the same effect as
granting full parentage, while others will confer partial
aspects of parental ties when a judge determines thatdoing so is in the child’s best interest. When a court deems
someone a legal de facto parent, a court judgment isissued, and the legal ties that result between parent andchild cannot be challenged across state lines.
Availability. The growing recognition of de facto
parenting is a promising start to updating parenting lawthat was designed for an earlier era. But parenting law
overall remains a complicated patchwork, leaving children
vulnerable to falling through the cracks because adults
who have functioned for years as their parents are notlegally recognized as their parents.
As shown in Figure 24 on the next page, legislaturesin 14 states plus D.C. have passed de facto parenting
statutes explicitly giving adults who have acted as a defacto parent the right to seek custody or visitation.147
These laws not only protect children with LGBT parents,
they also protect children living in other types of family
structures (such as children reared by grandparents, other

Adapted from H.H., Ex parte, 2002 WL 227956 (Ala. February 15, 2002).

relatives, or close family friends). This type of protection
can be especially important among black communities,
where children are more likely to be raised by someone
other than a biological parent.149
Lambda Legal, “Gay v. Gay Custody Battles,” 2009, www.lambdalegal.org/news/of-counsel/
oc_200909_camilla-feature.html.
Most of these laws were not specifically passed to apply to LGBT parents, but have generally
been applied to them. Most of the laws grant the limited rights and obligations that comefrom custody or visitation rather than full parentage; however, the statutes of Delaware andWashington apply more broadly, allowing conferral of full parental rights.
148
See GLAD, “Bibliography of Cases Involving Divorce from a Different-Sex Spouse,” www.glad.org/
uploads/docs/publications/custody-bibliography.pdf. For example, in 1994 a Georgia court ordereda mother to move with her children away from her partner in order to retain custody of children shebore with a man in a prior relationship. The judge accepted the father’s argument that his ex-wifeshould not expose their children to a “meretricious relationship” by sharing a home with her samesex partner. The court found the relationship to be “unwholesome,” and the Georgia Supreme Court
declined to hear an appeal, letting the ruling stand; ACLU, “Too High a Price,” 5. In 2007, two Virginia
courts upheld restrictions on lesbian and gay parents that allowed visitation only if the parents
agreed not to have overnight guests, including a long-term partner, while the children were in thehouse; Joslin and Minter, Lesbian, Gay, Bisexual and Transgender Family Law, 12-13, 54-55.
149
U.S. Census Bureau, “America’s Families and Living Arrangements,” 2010, www.census.gov/
population/www/socdemo/hh-fam/cps2010.html.
146
147

45

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN“De facto” parenting doctrine in cases of custody
dispute. As explained earlier, a minority of states provide
for the recognition of de facto parents as legal parents.
Because continuity of a relationship with a loving
caregiver is generally considered to be in the best interestof a child, states are increasingly recognizing that de facto
parents should be able to seek custody, visitation, or evenfull parenting rights in the event of a custody dispute.

In 2002, the Supreme
Court of Alabama
deprived a lesbian
mother of custody ofher children eventhough she presented
evidence that her exhusband was physicallyabusing their children.
The court dismissed theallegedabuseas“occasional excessive
Former Alabama Supreme Court Chief Justice Roy disciplinary measures”
Moore, who denied custody to a lesbian parent.
even though an appeals
court had found that “the father’s verbal, emotional,
and physical abuse can be considered family violence.”
One of the judges wrote that “homosexual conduct is,and has been, considered abhorrent, immoral,
detestable, a crime against nature, and a violation of
the laws of nature and of nature’s God upon which thisNation and our laws are predicated.” In other custodycases, factors presumed to be associated with sexual
orientation were used to deny or restrict custody orvisitation to LGB parents.148

My Journey as a Transgender Parent
Photo reprinted with permission from Denise E. Brogan-Kator

46

I came out as transgender when my daughters were 7, 9, and
11. Two years later, my wife and I began what would be a fiveyear process of separation and divorce.
My ex-wife initially asked the court to terminate my parental
rights. My children and I were instructed to not see or speakwith each other until that motion was ruled upon. My lawyer
warned me that my being transgender made losing thismotion a very real possibility. Thankfully, my ex-wife eventually
withdrew her motion, and my daughters and I were reunited.
Two years later, on the day my eldest turned 17, her mothergranted her longstanding wish to come live with me. My
Denise E. Brogan-Kator and her daughters, Melody and Amanda.
middle daughter later came to live with me for her final year ofhigh school. Then, unexpectedly, when my eldest turned 21, she told me that she no longer wanted me in her life. That
was 7 years ago, and I’ve seen her only twice in that time—most recently at my mother’s funeral.

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDRENAt the same time, my relationship with my two younger daughters has grown even stronger. By the time I had surgery,my middle daughter was 21. She flew out to Colorado to help take care of me. My youngest—now 25—is just finishingher Ph.D. and writing her dissertation on the relationships between children and their trans parents.
I think of my eldest daughter every single day. I hope for the day when we will be reunited, but her sisters are not
optimistic. I take comfort from my close relationships with my two youngest daughters, and the fact that my daughters
are close to each other.
- Denise Brogan-Kator

Figure 24: De Facto Parenting Statutes150
Washington
New Hampshire
MontanaNorth
DakotaVermont
Minnesota

OregonIdaho
Wyoming

South
DakotaWisconsin

Pennsylvania
Illinois

Colorado

Arizona

New Mexico

KansasOklahoma

Indiana

Ohio
Virgina

KentuckyNorth Carolina

Tennessee
Arkansas
GeorgiaSouth
Carolina

Alabama
AlaskaTexas

Mississippi

Louisiana
FloridaHawaiiNational Center for Lesbian Rights, “Legal Recognition of LGBT Families.”

Connecticut
New Jersey

West
Virginia

MissouriMassachusetts
Rhode Island

Iowa

Utah
California

New York

MichiganNebraska

Nevada150

14 states + D.C. have de facto
parenting statutes

Maine

DelawareMarylandDistrict ofColumbia

36 states lack de facto
parenting statutes

Reprinted with permission from Michele Hobbs.

Ohio Mother Unfairly Denied Custody of Her Daughter

Adapted from Lambda Legal, In the Matter of L.K.M., http://www.lambdalegal.org/in-court/cases/in-the-matter-of-lkm.html; KYPost.com, “Same-Sex Custody Dispute Could Rewrite Ohio
Laws,” February 18, 2010. http://www2.kypost.com/dpp/news/local_news/Same-Sex-Custody-Dispute-Could-Rewrite-Ohio-Laws; Jacob Baynham, “Losing Lucy,” CityBeat.com, March 3,
2010. http://www.citybeat.com/cincinnati/article-20089-losing-lucy.html.

Explicit de facto parenting statutes are most helpfulin protecting children. However, even when no explicit
statute authorizes de facto parenting status, a court
may still confer limited or even full parenting status in acustody dispute by drawing on broader parenting law incertain states. Indeed, courts in many states have usedde facto parenting doctrine to issue parentage, custodyand visitation judgments to LGBT parents who were
not recognized as legal parents.151 Maine, New Jersey,
Pennsylvania and Washington have court rulings in which
someone with no biological or adoptive relationship toa child can still be a full legal parent if a judge finds thatthe adult has functioned as a parent and has contributed
substantially to the child’s life.152 While the language inthe court rulings suggest the granting of full parenting
rights and obligations, it is not clear if the rulings givesuch individuals full parity with the biological parent.153

Custody When a Parent Dies
The death of a parent is devastating for a child.
However, children with a non-legally recognized parent
may face even greater trauma. These children may be
deprived of badly needed inheritance funds, Social
Security benefits and a host of other protections thatshould have flowed from their dependency on the
deceased parent (see “Economic Stability When a ParentDies”). Worse yet, if the legal parent dies, the surviving
parent (a legal stranger) may be denied custody even if
he or she has acted as a parent for the child’s entire life.154
National Center for Lesbian Rights, “Legal Recognition of LGBT Families.”
Maine: Once an individual is found to be a de facto parent, a court may award “parental rights
and responsibilities to that individual as a parent.” 9 C.E.W. v. D.E.W., 845 A.2d 1146, 1151 (Me.
2004); New Jersey: “Once a third party has been determined to be a psychological parent to achild, under the previously described standards, he or she stands in parity with the legal parent.” V.C. v. J.M.B., 748 A.2d 539 (N.J. 2000); Pennsylvania: The “rights and liabilities arising outof [in loco parentis status] are the same as between parent and child.” L.S.K. v. H.A.N., 813 A.2d872, 876 (Pa. Super. Ct. 2002); Washington: A “de facto parent stands in legal parity with anotherwise legal parent.” In re Parentage of L.B., 122 P.3d 161, 708 (Wash. 2005).
153
In most of these cases, the question of whether a child would receive intestate benefits after thedeath of a non-biological parent who was granted legal parentage in court has not been tested.
154
Frederick Hertz, Legal Affairs: Essential Advice for Same-Sex Couples, 1998, 136-7.
151
152

47

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDRENIn 2005, after more than five years together, Michele Hobbs
and Kelly Mullen planned a family. They took out a second
mortgage on their house to pay for a $12,000 in vitro
fertilization procedure. Kelly gave birth to their daughter,
Lucy, but both Michele and Kelly were equal parents. Michele
and Kelly were both listed on Lucy’s birth certificate, andMichele was listed as a parent in Kelly’s will, power of attorney,and durable power of attorney for medical care. Michele
provided much of the daily care, driving Lucy to and fromschool, cooking and caring for Lucy when she was sick. “We
Michele Hobbs (right) with her daughter, Lucy, and her partner, Amanda Broughton. The Ohio were known as a family to our church, to our friends and to
Supreme Court ruled that Michele had no parental connection to Lucy despite the existence of our neighbors,” Michele said. After the couple split, Kellya co-parenting agreement and other legal documents naming Michele as a parent.
denied Michele any contact with their daughter. Michele
filed paperwork requesting permanent shared custody. As she told a local news station, “I have no legal rights to see
my daughter because I’m not the biological parent. Nonetheless, I am Lucy’s mom and she knows me as mama. The
fact is I’m Lucy’s mom and someone has taken that away from her.” The first court granted shared custody, but anappeals court ruled that because the couple had never entered into a written, shared custody order, Michele had nolegal ties to the child. In July 2011, the Ohio Supreme Court also ruled that Michele did not have permanent parental
rights. As Lambda Legal attorney, Christopher Clark, explained, “The court disregarded the overwhelming evidence
that Ms. Mullen agreed to parent Lucy with Ms. Hobbs ‘in every way.” Regrettably, the decision severs a parent-childrelationship between Lucy and the person she knows to be her mother. All Ohio families should be alarmed by this, asa child with a non-biological parent could be taken from their mom or dad in the event of separation.”

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

48

Lawrence Pierce/The Charleston Gazette

After Fatal Accident Kills Mother of FiveYear-Old Boy, Court Tries to Deny Him Ties
to Surviving Mother
When Christina Smarr
and her life partner,
Tina Burch, decided tohave a child together,
they agreed that
Christine would carrythe child. On Christmas
Day 1999, Christine
gave birth to a son,
Tina Burch was initially denied custody of the and she and Tina
child she parented with her partner, Christina,
after Christina was killed in a car accident.
raised him along withTina’s biological daughter. But in 2005, tragedy
struck the family when Christine was killed in an
automobile accident. Following Christine’s death,her parents sought custody of Tina and Christine’sboy. The family court, however, stated that Tina wasthe child’s “psychological parent” and awarded
custody to her, with the grandparents getting
visitation rights.
On appeal, a circuit court reversed the lower court’s
ruling, denying Tina custody and removing thechild from the home of his surviving parent. The
West Virginia Supreme Court affirmed the original
award of custody to Tina. “Simply stated,” the court
said, “the child’s best interests would best be served
by awarding permanent custody of [the child] to”
the surviving mother.
Adapted from ACLU, “ACLU Applauds Child Custody Award For Surviving Lesbian Mom inWest Virginia,” June 17, 2005.

State laws on custody in case of death vary, and how
a court ultimately rules in a custody decision will dependon state parentage law and the judge’s interpretation ofboth constitutional parenting rights and what is in thebest interest of the child. In states with de facto parenting
laws, courts may recognize the same-sex partner of a
deceased legal parent if that person shows that he or she
has functioned as a parent. Not all states have de facto
parenting laws, however, and some laws limit rights
to visitation only. Further, some states prioritize childplacement with a legal parent, stepparent, grandparent
or other relative,155 which allows little leeway for a judge
to grant custody to an unrelated primary caregiver.

The result is to put at risk not only children in LGBT
families but all children who are being raised by adults
who are not legally or biologically related to them. Other
children at the disproportionate risk of being wrested
away from lifelong caregivers include low-income children
and children of color (where the state is also more likely toremove children from the home and families are less likely
to have the resources to fight such decisions).
For same-sex couples and other families, one partial
safeguard is to put documents in place that express
the legal parent’s preferred guardian in case of death.
These documents, called “nominations of guardianship”
or “appointments of guardianship”, are far from perfect.
The documents can be expensive and complicated to
produce. In addition, many couples do not realize theimportance of taking these steps, or are disinclined tothink about and plan for their own death. Also, while
judges may consider the custody wishes of a deceased
parent as expressed in such documents, they are usually
not required to honor them, which is a particular
problem if another party claims custody (such as an aunt
or grandparent).

Uncertainty for Binational Families
Immigration policy has a special role in keeping
families together and protecting children’s interests. U.S.
policy has long reflected this goal of family unity, which
is why the federal government prioritizes the foreign
spouses or fiancé(e)s of U.S. citizens and permanent
residents for entry into this country.156 This policy focus
also helps ensure that children whose parents are in a
binational relationship will enjoy the permanency every
child needs and deserves.
Unfortunately, children being raised in same-sex
binational families are denied the protections of family
unity under federal immigration law. To understand why
this is the case, it’s important to remember that anyone
who is not a U.S. citizen but wants to remain for an
extended period of time generally has three options:157•• Temporary visa. They can obtain a temporary visa
to work in, study in, or visit the U.S.
Ibid.; See also Mike Broemmel, “Child Custody & Death,” www.livestrong.com/article/218359child-custody-death.
156“Reunification of families serves the national interest not only through the humaneness of thepolicy itself, but also through the promotion of the public order and well-being of the nation.”
U.S. Select Committee on Immigration and Refugee Policy, “U.S. Immigration Policy and the
National Interest,” 1981, 112.
157
Some immigrants enter or remain in the U.S. without a visa or residency status and become“undocumented immigrants.” The large number of people who have entered the country without documentation or have overstayed their visas are also impacted by these issues.
155•• Permanent

residency. They can become a“permanent resident” (holder of a “green card”),
which allows a person to live and work in the U.S.
indefinitely, subject to certain requirements.

•• Citizenship. They can become a U.S. citizen throughthe “naturalization” process.

How Immigration Law Denies Permanency to Children
There are five primary ways in which immigration
law negatively impacts the stability and security ofchildren in same-sex, binational families.
Deportation (or fear of deportation) of a parent.
Because LGBT Americans cannot sponsor their spouses andpartners for the purposes of immigration, children of samesex, binational couples face the constant threat of losing
a parent through deportation or denial of a visa. Somefamilies are actually ripped apart; others must live in fear ofsuch an eventuality. This flies in the face of children’s needfor permanency and of the policy preference of family unity.
Deportation (or fear of deportation) of a child. If
the child of a same-sex, binational couple is foreignborn and if his or her American parent cannot becomea legal parent, that parent also cannot sponsor the childfor immigration purposes. Therefore, the child may bedeported (and forced to leave the only country he or she
has ever known) regardless of how long the child has lived
in the U.S. This may happen if the child’s foreign-bornparent is deported (and the child is also deported), if thechild is discovered to be undocumented and is deported,or, in a worst-case scenario, if the foreign-born parent

Prevention of a child’s parents from securing theprotections of marriage or relationship recognition.
In an added complication of U.S. law, binational parents
seeking to keep their families together may be unable
to get the legal protections of marriage or formal
partnerships because doing so would undermine theireffort to renew a temporary visa. Since LGBT immigrants
cannot secure permanent, family-based visas through asame-sex partner, many remain in the U.S. by repeatedly
renewing temporary visas. Securing a temporary visa
normally requires proof that an applicant does notintend to stay in the U.S. indefinitely. However, obtaining
the legal protections on which LGBT families—like
all families—depend demonstrates the opposite: anintention to build a permanent life together. Thus, anLGBT family seeking permanency is caught between
two sets of contradictory laws: in order to stay together,
it must forgo the family protections that stem frommarriage or partnership recognition.
Prevention of a child’s parent from securing legal
parenting ties. Likewise, if the American partner of aforeign-born parent wants to secure ties to their children
through a second-parent adoption, going through thatprocess could put the foreign-born parent’s status at risk
if he or she is on a temporary visa or is undocumented.
Once again, the law pulls these families in two different
directions: they cannot secure legal parenting ties
without risking their immigration status.
Denial of government safety net and otherprotections. Families where one parent cannot become apermanent immigrant or citizen face added restrictions intheir access to government safety net protections, such as
Temporary Assistance for Needy Families, the Supplemental
Nutrition Assistance Program and Social Security benefits(see “Children Falling Through The Safety Net”).
Other options for immigration include getting asylum, winning the diversity visa lottery andobtaining a visa through employer sponsorship.
159
According to Immigration Equality, a group that advocates for LGBT immigrants, “foreign consulates have a great deal of discretion in deciding applications for visas, and there is no appeal
for a denial.”
160“Family, Unvalued: Discrimination, Denial, and the Fate of Binational Same-Sex Couples under
U.S. Law,” Human Rights Watch and Immigration Equality, 2006, 7, 150-172. Updated in email
from Julie Kruse, Immigration Equality, May 24, 2011.
158

49

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

The immigration options described above areachievable through various paths,158 but the majority offoreign nationals who seek permanent residency in the
U.S. do so by having a family member—spouse, fiancé(e),son or daughter, or parent—who is a U.S. citizen or
permanent resident sponsor their application. U.S.
citizens and permanent residents are allowed to sponsor
a foreign-born spouse or fiancé(e) for entry into the
U.S., but only if their partner is of a different sex. DOMA
prevents the federal government from recognizing
the marriages of same-sex couples. As a result, LGBT
Americans cannot sponsor a same-sex partner, even if
the couple is legally married in their state. What’s more,even if the law were to recognize same-sex couples,such couples could continue to face discrimination in
obtaining visas, green cards or citizenship, or in obtaining
permission to enter or remain in the U.S.159

dies but the American parent has no legal standing tocare for the child. In some cases, rather than split aparta family, binational families who can do so (and mostcannot) may choose to move to one of the 25 nations160
that allow such families to live together, finding safe
haven but tearing their children away from their schools,
friends, communities and extended families.

Inequitable Immigration Law Threatens toTear Family Apart

The recommendations table at the end of this reportprovides a detailed and comprehensive overview of how
to address the inequitable laws and stigma that make itharder for children with LGBT parents to have the securityof stable, loving homes. However, broadly speaking,recommendations fall into the following major categories:

Reprinted with permission from Mark Himes

50

BROAD LEGAL RECOGNITION OF LGBT FAMILIES•• Pass comprehensive state legislation to ensure
Mark, Fred and their four children at the 2010 White House Easter Egg Roll. The family
has struggled because Fred is not a citizen and Mark cannot sponsor him.

GOAL 1: SECURING STABLE, LOVING HOMES FOR CHILDREN

Recommendations Overview: Providing
Stable, Loving Homes

When Mark met Fred at a birthday party in 1990, he
was not even sure that Fred, a Frenchman teaching
temporarily in the U.S., was gay. Seven years later
the two were a long-time couple. Fred secured ateaching job in Pennsylvania, and Fred and Markbegan thinking about starting a family.
Mindful of the importance of family permanency,
Mark and Fred researched their options for staying
together if they adopted children, and learned—theythought—that France would recognize their adopted
children as their own. Between 2000 and 2009, thecouple adopted four children. When Fred’s 6-year visa
was due to expire, the family planned to move back toFrance. Unfortunately, while France offers immigration
protections to same-sex couples, the French Consulate
informed the couple that if they moved to France, thegovernment would only recognize their children’s legal
ties to one of the parents.
If the couple were heterosexual, Mark could sponsor
Fred to become a permanent U.S. resident. However,even though the couple legally married (in California,
during the brief window when the state allowed marriage by same-sex couples), the federal government refuses to recognize their marriage. The result is that Markcannot sponsor Fred as his spouse. Now, after nearly 20
years together, permanency eludes Mark, Fred and theirchildren. To extend his visa, Fred has returned to school.
However, the costs of forgoing work and paying tuition
are a grave financial hardship. As of the time of publication, the family’s fate remains unclear.
Based on MAP telephone interview with family members, May 21, 2011.

recognition of LGBT parents as legal parents.
Comprehensive parentage laws would cover thefollowing (each is discussed separately in therecommendations table):a. Adoption and fostering laws
b. Parental presumption lawsc. Donor insemination lawsd. Surrogacy lawse. Second-parent adoption laws
f. De facto parenting laws
g. Clarification of judges’ authority to issue
parentage judgments•• Legalize and federally recognize marriage forsame-sex couples•• Provide paths to immigration and citizenship forbinational LGBT families
NON-DISCRIMINATION/CULTURAL COMPETENCY•• Pass and strengthen adoption and foster care nondiscrimination laws•• Pass custody and visitation non-discrimination laws•• Provide cultural competency training for agencies,
social workers and judges
RESEARCH, EDUCATION AND FAMILY SUPPORT•• Expand research on LGBT families and parenting•• Help LGBT families establish parentage ties andother legal protections where possible•• Create stronger support services and outreachfor LGBT families•• Create inclusive environments for all LGBT
families (particularly transgender parents andfamilies of color)

GOAL 2: ENSURING
ECONOMIC SECURITY
FOR CHILDREN
All children have the same basic
physical needs: clothing, adequate food,a safe and sanitary place to live and the ability to receive
medical care when they get sick. Federal, state and local
governments provide programs, benefits and protections
to help families with the costs of meeting these needs andraising healthy, well-adjusted children. But advocates forchildren often point out that federal spending in this area
is inadequate at a time when one out of five American
children lives in poverty.161

of providing true security for all American children for anumber of reasons.
First, qualification for assistance from safety net
programs generally is tied to federal poverty guidelinesthat underestimate the actual income required for afamily to survive and meet basic needs. Second, a large
percentage of families who qualify for assistance do notreceive it (for example, only 57% of families who qualify
for food assistance receive it).166 Next, even when families
do receive benefits, the benefits are generally not enoughto lift them out of poverty. And last, rather than tying
qualification for benefits to such factors as a family’s size or
demonstrated need for assistance, the government treats
families differently based on whether or not parents are
married and/or parents have legal ties to their children.
Carmen DeNavas-Walt, Bernadette D. Proctor, and Jessica C. Smith, “Income, Poverty, andHealth Insurance Coverage in the United States: 2010,” U.S. Census Bureau, 2011, 60-239.
162
Julia Isaacs, Heather Hahn, Stephanie Rennane, C. Eugene Steuerle and Tracy Vericker, “Kids’
Share 2011: Report on Federal Expenditures on Children Through 2010,” Brookings Institute andUr­ban Institute, 2011.
163
Scott Hodge, “Putting Corporate Tax ‘Loopholes’ In Perspective,” Special Report #184, Tax Foundation, 2010.
164
In 1960, the share of domestic federal spending on children was 20% compared to just 16% in
2009; this marked a 20% decrease over that time. Isaacs et al., “Kids’ Share 2011.”
165
This report does not address benefits for military families because of the complicated andchanging nature of the laws and policies governing these important protections.
166
James Mabli, Rhoda Cohen, Frank Potter and Zhanyun Zhao, “Hunger in America 2010,” Feeding
America, 2010.
161

Figure 25: Federal Expenditures on Children in 2010
100% = $445.2 billion
Economic Stability When a Parent Diesor Becomes Disabled (5%)

Other,
20%

Health Care &Insurance,
20%

Social Security Benefits,
5%
Food
Assistance,
13%

Other Tax Credits,2%
Dependent
Exemption,
8%
Child Tax
Credit,10%
Family Tax Credits and Deductions (33%)

51

EITC,
12%

Safety Net for Struggling
Families (43%)

TANF, 3%
Housing, 2%Child Care, 3%
SSI, 2%

Note: Not all families in need receive these benefits due to eligibility restrictions, state funding constraints, time limits on benefits, and other obstacles.
Source: Julia Isaacs, Heather Hahn, Stephanie Rennane, C. Eugene Steuerle and Tracy Vericker, “Kids’ Share 2011: Report on Federal Expenditures on Children Through 2010,” Brookings Institute and Urban
Institute, 2011.

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDRENIn 2010, the federal government spent $445.2 billion (or11% of total federal spending) on more than 100 programs
benefiting children.162 By comparison, in just two years
the government spent approximately $440 billion on tax
expenditures benefiting corporations.163 Federal spending
on children, as a percent of the federal budget, has been
reduced by 20% over the past 40 years.164 This report divides
the government-based economic protections intended
to help ensure financial security for children into threemajor categories: safety net programs, tax credits anddeductions, and programs designed to provide economic
stability when a parent dies or becomes disabled (seeFigure 25).165 These programs and laws often fall shortto reduce the cost of raising a family. Government
tax credits and deductions for all families, regardlessof economic circumstance, are substantial. A 2007
study by the Tax Foundation found that an averageincome American family receives approximately$16,781 in benefits each year from the federal
government.168 Much of this support comes in theform of tax credits and deductions designed toreduce the financial costs of raising a family. LGBT
families usually cannot avail themselves of thesetax credits and other programs, meaning they facea higher tax burden than other families.

This report does not address the first three problems.
Rather, the focus here is on how the government treatssimilar families differently when it comes to awarding anddistributing needed assistance. This uneven applicationof government benefits, tax policy and other protections
based on family structure affects not only LGBT families,
but also many other types of families.

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN

52

Some government-based economic protections are
based on a broad definition of what constitutes a family
or household. The focus in these cases is on the actualinterconnectedness of people (such as the extent to which
individuals share economic resources like food or housing).
These programs and laws accurately count and reflect
LGBT and other families because their definition of family
is not constrained by whether a parent is legally marriedor has established a legal parent-child relationship.

•• Laws designed to support families when a parent

dies or becomes disabled harm children by
excluding LGBT and other families. The death or
disablement of a parent is traumatic for families
and children. Government programs provide cash
assistance to help families who are facing such crises
so they can continue to provide adequately for theirchildren. A variety of laws and programs also seek
to ensure that children are protected and cared forboth emotionally and financially when a parent
dies or become disabled. LGBT families often are
excluded from these programs. When a parent diesor becomes disabled, for example, LGBT families canbe denied their inheritance, as well as Social Security
survivor and disability benefits. They also can bebarred from suing for wrongful death.

But these programs and laws are in the minority.
Most family-related government programs and laws use
narrow definitions of family that do not accurately reflect
LGBT and many other families. For example, a program
may refuse to recognize the same-sex partner of an LGBT
parent when counting household size or determining
death benefits, even if the couple is married.167
Additionally, many safety net programs require parents
to have a legal parent-child relationship in order toreceive benefits intended to help their children, even if
state law makes this impossible for LGBT parents.
This unequal treatment can affect LGBT and otherfamilies in a number of important ways:•• Children fall through the safety net when

government programs refuse to recognize theirfamilies. Government safety net programs provide
cash assistance, food and nutrition support,
housing subsidies, health insurance, child careassistance, educational loans and other forms ofassistance. They are designed to help families getback on their feet and meet children’s basic needs
during times of economic struggle. A narrow
definition of family within these programs meansthat LGBT and other families are unfairly denied
benefits. In other cases, families face economic
penalties if the parents formalize their relationshipwith each other or with their children. (For more on
how means-tested programs treat diverse families,
see the sidebar on page 56.)•• LGBT and other unrecognized families cannot
access many tax credits and deductions intended

Table 4 on the next page provides a summary of major government-based economic protections for families. The table includes information about whether or
not these programs and laws define family broadly or
narrowly, and how this definition impacts LGBT families. While the analysis is LGBT-specific, the principles are
similar or the same for many other households (such as
households headed by unmarried heterosexual couples
and households in which a child is raised by an extended
family member).

Except where noted, the majority of this section
examines how children raised by two LGBT parents
are treated differently than those raised by twoheterosexual parents for the simple reason that
disparities most often emerge as the result of the law’s
failure to recognize LGBT families. (Children raised bySince the federal government does not recognize same-sex relationships because of DOMA,
same-sex partners are generally treated as legal strangers under the law.
168
Andrew Chamberlain and Gerald Prante, “Who Pays and Who Receives Government Spending?
An Analysis of Federal, State and Local Tax and Spending Distributions, 1991-2004,” Tax
Foundation, 2007.
167

Table 4: How Government-Based Economic Protections Treat LGBT Families Differently
Program or law

How the program or law helps
families169

Average amount of assistanceDefinitionof family

How program or law’s definitionof family impacts LGBT families

Narrow170

May make it easier or moredifficult to qualify

Broad

LGBT families are treated thesame as heterosexual families

Broad

LGBT families are treated thesame as heterosexual families

Narrow

May make it easier or moredifficult to qualify

Narrow

May make it easier or moredifficult to qualify

Narrow

May make it easier or moredifficult to qualify

Narrow

May make it easier or moredifficult to qualify

Narrow

LGBT families are generally
denied these credits anddeductions171

Safety Net Programs for Struggling Families$$$$509-$763 per month in cash
assistance for a single parent
with two children

Provides cash assistance to lowincome families

Food & Nutrition
Assistance (SNAP,
School Lunch & WIC)

Provides financial assistanceto help families and pregnant
women obtain food$$$$524 per month in foodassistance for a family of three

Public Housing &Housing Assistance(Public Housing &Section 8 Vouchers)

Provides vouchers to help withthe cost of renting a home orplacement in public housing
units

$$$
$641 per month in housing
vouchers per family

Medicaid &Children’s Health
Insurance Program(CHIP)

Provides free or low-cost healthinsurance$$133 per month in healthbenefits for each child

Supplemental
Security Income(SSI)

Provides a minimum level ofcash assistance to individuals
who are aged, blind or disabled$$$499 per month in cash
assistance for each disabled or
blind person

Child Care & Early
Child Education
Assistance (Child
Care & Head Start)

Provides free or low-cost childcare or early child education
programs$$$$583 per month in child careassistance per child

Educational Loans &GrantsProvides financial assistanceto students pursuing higher
education through grants, loans
and work-study programs$$$$
Private loans and scholarships
vary, but Pell Grant is $5,550 per
year for each student

Easing the Financial Costs of Raising a Family: Tax Credits and Deductions
Tax Credits &Deductions

Reduces tax liability or reduces
taxable income for child-related
expenses$$$$$2,215 per year in tax savings
for an average family with twochildren

Economic Stability When a Parent Dies or Becomes DisabledSocial Security
Benefits (OASDI)

Inheritance &Intestacy Law

Wrongful Death
Suits

Provides cash benefits tothe children and spouses of
deceased workers$$$$751 per month in cash
assistance for a child whoseparent died

Narrow

LGBT families are generally
denied these benefits

Facilitates passing of assets tofamily members upon death$-$$$$
Benefits vary, but can include
staying in the family home andinheriting assets

Narrow

LGBT families are generally notrecognized under these laws$$$$
The average successful wrongfuldeath suit awards $2.8 million tosurviving family members172

Narrow

LGBT family members often
cannot sue in event of a wrongful
death

Allows surviving family members
to sue for monetary damages inthe event of the wrongful deathof a loved one

Not all families in need receive these benefits due to eligibility restrictions, state funding constraints, time limits on benefits, and other obstacles.
Note that most government safety net programs treat same-sex couples as unmarried even if they are legally married in their state.
171
The two exceptions are the Earned Income Tax Credit and the Adoption Credit, for which LGBT families may be more likely to qualify or receive additional benefits.
172
Teresa Anderson, “Laying Down the Law: A Review of Trends in Liability Lawsuits,” http://diogenesllc.com/liabilitytrends.pdf.
169
170

53

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN

Temporary
Assistance for
Needy Families(TANF)

single LGBT parents are often, but not always, treatedlike children raised by single heterosexual parents.) The
section also outlines recommendations for ensuringthat LGBT families are treated equally.

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN

54

Even in cases when a narrow family definition does
not directly hurt an LGBT family, social stigma combinedwith inequitable laws and policies create a culture thattells LGBT families that they are not “real families.” Inmany cases, LGBT families are not even aware of theimportant programs and protections that they can access.
Additionally, when families do seek assistance, highnumbers experience discrimination or are denied services
even when they qualify. A survey of low-income LGBT
people in New York City found that 36% had “problems
getting services” from public agencies, including welfare
agencies.173 And a recent survey of transgender Americans
found that 22% reported being harassed or disrespectedby a government agency or official.174
Of course, the unique economic challenges facing
LGBT families aren’t limited to the ways in which
they are treated by government policies intended
to ensure economic security for families. The mostimportant pillar of economic security is the availabilityof family-supporting jobs, and large numbers of lowwage jobs make it difficult for LGBT and other families
to make ends meet. A family of three supported by
one minimum-wage earner, for example, would still
live below the federal poverty level.175 Adding to thechallenges for LGBT families is the fact that they often
face employment discrimination, which may result in
lower wages or more instances of unemployment. These
challenges may be particularly acute for transgender
Americans and LGBT people of color.
While the remainder of this section focuses on thesafety net programs, taxes, and other laws designed tohelp families, access to good jobs that provide adequate
compensation should be an important focus for all
advocates who wish to assist LGBT and other families as
they face the economic challenges of raising children.

Challenge: Children Falling Through the
Safety Net
Millions of American children are living in poverty
today176 and despite stereotypes to the contrary, children
being raised by same-sex couples are twice as likely tolive in poverty as children living in married heterosexual
households.177

Because safety net programs are designed to help
struggling families, they are “means-tested,” meaning
eligibility is based on a family’s financial resources andhousehold size. Generally speaking, means-tested
programs set income caps for eligible recipients. Some
programs offer assistance to families whose incomesfall under established federal poverty guidelines basedon household size, while other programs may provide
assistance to families whose incomes are at or below
150% of the guidelines. Income caps (and the federal
poverty guidelines) rise with the number of people ina household because larger families have a higher costof living. In addition to increased income caps for larger
families, the value of safety net program assistancegenerally increases as family size increases (larger
families receive a higher level of benefits).
Ideally, government safety net programs would
provide assistance to families based on need rather
than factors such as the marital status of the headsof the household. Unfortunately, this is not usually
the case. The majority of safety net programs use anarrow definition of family that is tied to marital status
and to the legal relationship between parents andtheir children. This often excludes same-sex partners(even those who are legally married) and non-legally
recognized parents and children. The result is that theassistance available for LGBT and other families often
does not accurately reflect their household size or
economic resources.
The lack of recognition for LGBT families ingovernment means-tested programs affects families
in a couple of different ways, depending on theircircumstances:
Government programs may deny LGBT andunmarried households needed assistance that would
be provided to a married household in otherwise
identical circumstances.178 Consider a family consistingof a same-sex couple and the couple’s child. An
accurate count would see this family as a three-person
Welfare Warriors Research Collaborative, “A Fabulous Attitude: Low-Income LGBTGNC People
Surviving & Thriving on Love, Shelter & Knowledge,” Queers for Economic Justice, 2010.
Grant et al., “Injustice at Every Turn.”
175
The current minimum wage is $7.25. Assuming a worker works 2,000 hours per year, thisworker would earn $14,500, which is still $3,810 below the federal poverty guideline for afamily of three.
176
DeNavas-Walt et al., “Income, Poverty, and Health Insurance Coverage.”
177
Albelda et al., “Poverty in the LGB Community.”
178
Here we mean either through the legal recognition of the relationship of two adults througha federally-recognized marriage or other union, or as a result of the ability to establish a legal
parent-child relationship through adoption, parental presumption or another mechanism as
described in the previous section, “Securing Stable, Loving Homes for Children.”
173
174

What Does It Mean to Live in Poverty?
Individuals and families living in poverty are unable to achieve a minimum standard of living and may
struggle to afford food, clothing and a safe place to live. When the government measures poverty rates orsets eligibility requirements for means-tested programs, it uses the federal poverty guidelines. Families
with household incomes at or below the guidelines are considered to be “poor” or “living in poverty.” This isoften what we mean when we use the term “low-income.”179

55

The federal poverty guidelines are set by the U.S. Department of Health and Human Services and are issued eachyear. With the exception of Alaska and Hawaii, the guidelines do not vary based on regional cost-of-living differences.
Examinations of the cost of living in various parts of the country find that the poverty guidelines underestimate theincome required for a family to survive and meet basic needs.

The government is working on a new measure ofpoverty that will take into consideration the costsof food, shelter, clothing and other necessities, aswell as geographic adjustments based on what
it takes to meet basic needs in various parts ofthe country. This supplemental poverty measure,which will be released by the U.S. Census Bureau
alongside the traditional measure of poverty, willshed new light on the ability of families to meettheir basic needs in areas from housing and childcare to medical expenses.

household consisting of two parents and one child andwould consider the combined income of both parents
when calculating the level of available assistance. But
currently, the federal government will not recognize
the marriage or committed relationship of LGBT parents(even if the couple is married in their state), and a nonbiological parent may not be able to establish a legal
parent-child relationship. As a result, most safety net
programs would only see the family as a two-personhousehold consisting of one parent and one child. This,in turn, means the government would ignore the nonlegally recognized spouse or parent when calculating
the family’s financial needs. Families in this situation may$42,504$46,368$30,012$10,830$14,570$14,750$18,310$22,050

One worker

Two workers

One worker,
one infant

One worker,
two youngchildren

Two workers,
two youngchildrenFederal Poverty Guideline

BEST Estimate

Source: Wider Opportunities for Women, “The Basic Economic Security Tables for the UnitedStates,” 2010.

not receive assistance needed, particularly if the spouseor parent excluded from the household calculation has
a very low income. And because benefits increase withfamily size, such families will receive a reduced benefit.
Government programs may penalize couples
wanting to marry (or wanting to have their relationships
recognized by the government) or parents wanting
to establish legal ties to their children. Advocatesacross the political spectrum argue that government
179
180
181

Federal Register, Volume 76, Number 13, January 20, 2011.
Wider Opportunities for Women, “The Basic Economic Security Tables for the United States,” 2010.
Pamela J. Loprest and Sheila R. Zedlewski, “The Changing Role of Welfare in the Lives of LowIncome Families with Children,” Urban Institute, 2006.

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN

For example, the 2010 Basic Economic Security Tables (BEST) Index estimated the true annual costs to an
average family for housing, utilities, food, transportation, child care, health care, taxes and minimal savings.180
As shown, the federal poverty guideline is $22,050 for a family of two adults and two children, but the BESTestimate for the true cost of living for that family is $67,920. Therefore, if this family had an income at thefederal poverty guideline, it would only allow this family to meet a third to a quarter of its actual needs.
Similarly, a 2006 study showed that more thanhalf of the families who received support from theCost of Making Ends Meet:
Poverty
Guidelines
vs. BEST Estimates, 2010
federal government’s TANF program still struggled$67,920
to purchase food and two-fifths were unable to181$57,756
pay for utilities.

How Definitions of Family Affect Eligibility for Safety Net Programs: Two Family Stories
Jane, Maria and Stuart Only Qualify Under A
Narrow Family Definition

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN

56

Maria (who earns $13,000) and Jane (who earns$20,000) are raising their son, Stuart. Maria is Stuart’s
only legal parent. A government program using anarrow definition of family would exclude Jane andher income in calculating eligibility. Thus, the family
would be considered a two-person household(Maria and Stuart) with an income of $13,000(Maria’s income). This allows the family to qualify forassistance. However, a government program using
a broad definition of family would include Jane andaccurately consider this a three-person household.
The total household income of $33,000 (Jane andMaria’s combined income) would be too high forthe family to qualify for assistance. This particularhousehold would therefore lose benefits should thegovernment recognize the whole family.
Anthony, Mark and Lukas Only Qualify Under A
Broad Family Definition
Mark (who earns $15,000) and Anthony (who earns$3,000) live with their son, Lukas. Mark is Lukas’s only
legally recognized parent. A government programusing a narrow definition of family would exclude
Anthony and his income in the family’s application
for assistance. As a two-person household earning$15,000, Mark and Lukas have an income that is toohigh to qualify for the program. However, if the program uses a broad definition of family and recognizes
Anthony’s presence in the family, then this family’shousehold size (three-person household) and total
household income of $18,000 would qualify themfor assistance since larger households have higher
allowable incomes. In other words, this particularhousehold is denied assistance they would otherwise
receive because of the narrow definition of family.
programs and policies should aim to support, stabilize
and strengthen families. However, eligibility guidelines
for many means-tested programs can create economic
disincentives that discourage couples from entering into
legally recognized relationships.

Narrow Definition of Family

Broad Definition of Family

Maria and her son (income of $13,000)$13,000
Jane (income of $20,000)
Not counted$20,000
Total Household Income$13,000$33,000

Eligible (Meets Poverty Guidelines)?
Yes

No

Narrow Definition of Family

Broad Definition of FamilyMark and his son (income of $15,000)$15,000
Anthony (income of $3,000)
Not counted$3,000Total Household Income$15,000$18,000

Eligible (Meets Poverty Guidelines)?
No

Yes

Consider, for example, an unmarried or LGBT
couple raising a child, where both parents have very
low incomes. Each parent qualifies for assistance whencounted as an individual, or as a single parent raisinga child. However, if the government recognizes thiscouple’s relationship, their combined income is justenough that they no longer qualify for assistance. Thiscan happen because the eligibility level for two people
in most means-tested programs is less than twice
the level for a single person. In this case, government
policy creates an economic disincentive for a couple toformalize their relationship—a disincentive sometimes
referred to as a “marriage penalty.”
Like other families, LGBT families may face a choice
between accessing the important protections thatcome with legal relationship recognition and formalparental recognition and losing vital benefits that
help families meet basic needs. In fact, research by theCongressional Budget Office and The Williams Institutefinds that extending legal recognition to same-sex
couples would mean that the number of families
receiving assistance would decrease.182

Temporary Assistance for Needy Families

In an average month, 1.9 million families and their 3.4
million children receive assistance and services through
TANF.185 To qualify for the program, families must haveincomes and economic resources below a threshold,which varies based on the number of adults and children
applying for assistance. Nationally, only 20% of families
living in poverty were enrolled in TANF in 2010.186 While
TANF is vital to low-income families, it is not sufficient tolift families out of poverty. For example, TANF provided
benefits equal to less than half of the federal poverty
guidelines in all states in 2010; in 29 states, TANF’s
benefits amounted to less than 30% of the guidelines.187
The majority of recipients of TANF are single motherswith children. Of families receiving TANF in 2009, 68%
self-identified as people of color.188 A 2009 survey of
Californians found that nearly one in five low-income
lesbian and bisexual women with children were enrolled
in TANF, compared to one in ten heterosexual lowincome women with children (see Figure 26).189 Rates of
TANF enrollment for men—gay, bisexual or heterosexual—are low and do not reveal disparities.190 Very little data
is available about transgender families and TANF.191

Lesbian or Bisexual
Women

19%
57

Heterosexual Women

12%

Note: Sample sizes for gay and bisexual men is too small to accurately estimate TANF receipt.
Previous studies find similar rates of TANF receipt for gay, bisexual and heterosexual men. Lowincome is defined as 300% of the federal poverty guideline. Source: MAP analysis of the 2009
California Health Interview Survey.

LGBT Families and TANF
TANF uses a narrow definition of family. In general,
only the legal parents of a child are considered part of the“assistance unit,” the group of individuals whose needs
and resources are counted when determining eligibility. If
both adults are legally recognized parents of a child, theyboth are considered part of the assistance unit, regardlessof marital status. However, if only one parent is legally
recognized, the non-legally recognized parent is notincluded in the assistance unit. As with all means-tested
programs, the exclusion of a non-legally recognized parent
can result in unfair denial of TANF benefits. Alternatively,
exclusion of one parent can result in the family receiving
benefits it would be denied were the entire family
recognized, creating an economic disincentive for a parent
to establish legal ties to his or her child.
To ensure that children are financially supported byboth parents, TANF requires that applicants (most often
women) identify the other legal or biological parent of a
Congressional Budget Office, “The Potential Budgetary Impact of Recognizing Same-Sex
Marriages,” 2004; Jody Herman, Craig Konnoth and M.V. Lee Badgett, “The Fiscal Impact ofCreating Civil Unions on Colorado’s Budget,” The Williams Institute, 2011.
183
In 1996, TANF replaced the welfare program previously known as Aid to Families with
Dependent Children (AFDC).
184
TANF’s goals are “assisting needy families so that children can be cared for in their own homes;
reducing the dependency of needy parents by promoting job preparation; preventing out-ofwedlock pregnancies; and encouraging the formation and maintenance of two-parent families.”
185
U.S. Dept. of Health and Human Services, “Caseload Data 2010,” http://www.acf.hhs.gov/
programs/ofa/data-reports/caseload/2010/2010_family_tan.htm.
186
In 2010, the average monthly TANF caseload was 1.9 million families, while 9.2 million families
lived in poverty in 2010. Ibid. DeNavas-Walt et al., “Income, Poverty, and Health Insurance
Coverage.”187
Liz Schott and Ife Finch, “TANF Benefits Are Low and Have Not Kept Pace With Inflation,” Center
on Budget and Policy Priorities, 2010.
188
U.S. Dept. of Health and Human Services, “Characteristics and Financial Circumstances of TANF
Recipients, Fiscal Year 2009,” http://www.acf.hhs.gov/programs/ofa/character/fy2009/tab08.htm.
189
MAP analysis of 2009 California Health Interview Survey, where “low-income” is defined as300% of the federal poverty guideline.
190
Albelda et al., “Poverty in the LGB Community.”
191
Grant et al., “Injustice at Every Turn.”
182

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN

Temporary Assistance for Needy Families (TANF)
provides cash assistance, child care, job training
programs and other services to low-income families
with children.183 TANF funds are directed to states,
which operate their own programs while meeting
broad federal goals.184

Figure 26: Percent of Low-Income California Women withChildren Receiving Temporary Aid for Needy Families(TANF) (2009 California Health Interview Survey)

child (most often the noncustodial father). The state thenlocates the second parent, conducts a DNA test to confirm
paternity, legally establishes paternity (if necessary) andseeks child support payments from this parent. Applicants
who do not cooperate with child support investigations,
including the establishment of paternity, may receive
reduced assistance or lose their assistance entirely.192

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN58

TANF’s focus on paternity and collection and theimplicit assumption that there is an identifiable, usually
biological second parent creates challenges for several
categories of parents, including: mothers who do notknow the father of their children; single mothers who
have had children using reproductive assistance or
through adoption; and LGBT parents who have createdfamilies using reproductive assistance. A caseworker may
institute penalties for noncooperation against a parent
who is not able to produce evidence of a different-sex
second parent. While caseworkers are given leeway inidentifying the parent obligated to pay child support,
some caseworkers may not be sensitive to LGBT parents
who identify a same-sex partner as the second parent.193
Similar concerns arise for transgender parents who mayneed to disclose their birth sex in order to identify anoncustodial or absent parent.
TANF also includes often stringent and inflexible
work requirements that can pose additional challenges
for prospective recipients, particularly LGBT parents. For
example, as part of their job training, TANF recipients
may be sent to an “interview skills” course and instructedon how to dress. Caseworkers may not be sensitive to theissues this raises for transgender parents, whose genderpresentation may not match what is listed on legal
paperwork such as a driver’s license or Social Security
card.194 Given the lack of employment protections inmost states, LGBT parents can have a harder time finding
and keeping employment. And, if they can find work,
they may be forced to take or keep jobs in workplaces
where they are verbally harassed or physically unsafe.
Finally, TANF’s marriage promotion programs ignore
the experiences and realities of many LGBT families.
Originally, TANF focused on ensuring that noncustodial
parents, generally fathers, paid child support. However,in 2005, Congress allocated $750 million over five years
for programs that provide marriage and relationshipskills, as well as programs to teach parenting skills tofathers. Funding for marriage promotion programs
continues despite a 2010 evaluation that found they had
no effect on the likelihood of couples staying together or

California Adjusts to the Evolving Realityof Today’s Families
In 2005, the State of California pursued the nonbiological lesbian mother of a child whose biologicalmother had applied for assistance through CalWorks(California’s TANF program) after the couple split up.
In this case, the applying biological mother could
not name a legal father nor could she name a sperm
donor, as the donor had signed a contract with theclinic relinquishing all parental rights and obligations.
The mother therefore named her ex-partner who
had been the primary economic provider while thecouple had been together. Appropriately, the county
then pursued the non-biological mother to obtainchild support payments.
Adapted from Anna Marie Smith, “Reproductive Technology, Family Law and the PostWelfare State: The California Same-Sex Parents’ Rights’Victories’ of 2005,” Signs 34:4, 2009.

getting married or on the quality of their relationships.195
Given these programs’ questionable effectiveness, many
advocates for low-income families argue that funds
would be better spent on direct assistance to lowincome families. While TANF regulations do not explicitly
prohibit LGBT parents from marriage promotion
programs, the applicability of these programs to LGBT
families is doubtful.

Food and Nutrition Assistance
Nearly one-quarter of children in the U.S. live inhouseholds that are “food insecure.”196 Despite the sizeand breadth of government food assistance programs,
it is estimated that 43% of food-insecure households do
not receive such assistance.197 Three federal programs
provide food and nutrition assistance to low-income
American families:
U.S. Dept. of Health and Human Services, “Major Provisions of the Personal Responsibility
and Work Opportunity Reconciliation Act of 1996 ,” www.acf.hhs.gov/programs/ofa/law-reg/
finalrule/aspesum.htm.
193
For example, caseworkers are given discretion in situations when identifying paternity could bephysically dangerous for a parent or a child.
194
Sean Cahill and Kenneth T. Jones, “Leaving Our Children Behind: Welfare Reform and the Gay,
Lesbian, Bisexual and Transgender Community,” The Policy Institute of the National Gay andLesbian Task Force, 2001.
195
U.S. Dept. of Health and Human Services, Administration for Children and Families, The Building
Strong Families Project, 2010.
196
While the definition of “food insecurity” is fluid, the Dept. of Agriculture defines it to mean that
individuals or families fell into at least one of the following categories: “they worried whether
their food would run out before they got money to buy more; the food they bought didn’t last,
and they didn’t have the money to get more; they couldn’t afford to eat balanced meals; adults
ate less than they felt they should; adults cut the size of meals or skipped meals and did so inthree or more months.” See “What Is Food Security and Food Insecurity?” www.ers.usda.gov/
briefing/foodsecurity/measurement.htm.
197
Mark Nord, Alisha Coleman-Jensen, Margaret Andrews and Steven Carlson, “Household Food
Security in the United States, 2009, ERR-108,” U.S. Dept. of Agriculture, Econ. Res. Serv., 2010.
192

•• The Supplemental Nutrition Assistance Program(SNAP)198 provides monthly assistance to lowincome households to purchase food. The U.S.
Department of Agriculture directs funds for the
program to state agencies, which determine
eligibility and distribute assistance. Afterunemployment insurance, SNAP is often one of
the first government programs that families turnto in times of economic challenge because its
eligibility requirements are relatively simple.199
Individuals and families qualify for SNAP if they
have gross monthly income at or below 130% of
the federal poverty guidelines.200 In 2010, 43.2
million people received SNAP assistance, 75% ofwhom lived in households with children.201 The
assistance amount for a family is approximately
30% of the household’s monthly income. A familyof three, for example, would receive maximum
monthly SNAP assistance of $526.

•• The National School Lunch Program provides free•• The Special Supplemental Nutrition Program for

Women, Infants and Children (WIC) gives grants
to states to provide food assistance to infants
and children under five years old who live in lowincome families, and to provide food assistance andnutrition education to pregnant and postpartum
women. A qualifying three-year old child would
receive a monthly food package containing juice,milk, breakfast cereal, eggs, fruit and vegetables,
whole wheat bread, and peanut butter or legumes.
Pregnant women and children eligible for SNAP,
Medicaid or TANF are automatically eligible for
WIC, as are women and children whose incomesfall between 100% and 185% of the poverty
guidelines. Pregnant women and children who are
deemed to be at “nutrition risk” are also eligible for
WIC. In 2009, WIC helped approximately 9.1 million
women and children each month.203

Unlike other means-tested programs, food andnutrition assistance programs use a broad definition of what
constitutes a household. Eligibility is based on household
size and economic resources, yet a household can include
a person or group of people living together who buy foodand make meals together. There is no requirement thatapplicants be related legally or by blood.204 Furthermore,
the work requirement for adult applicants is waived forindividuals living in homes with children, regardless of thelegal relationship between the adult and the child.205
This broad definition of household is importantfor LGBT families, who research suggests may bedisproportionally food insecure. For example, the2007 California Health Interview Survey found that
50% of LGB Californians with children whose incomes
were at or below 200% of the poverty guideline were
food insecure compared to 41% of similarly situatedheterosexual Californians.206 Poor LGB individuals withchildren also were more likely to receive SNAP benefits(32% vs. 18% of poor heterosexual individuals withchildren, see Figure 27 on the next page).
One obstacle to obtaining needed food assistancefor many LGBT and other families is that adults andchildren must be citizens or eligible permanent
residents of the U.S. to qualify. This requirement can beharder for LGBT families to meet because they cannot
sponsor partners or non-legally recognized children
for immigration.207 An additional disparity arises fromthe fact that ineligible immigrant family members
still have their income included and are counted aspart of a household in determining its eligibility forfood assistance. This makes it harder for a binationalfamily to qualify, and when they do, only eligible family
members actually receive assistance, reducing overallhousehold assistance amounts.208
Previously called the Food Stamp Program.
Center on Budget and Policy Priorities (CBPP), “Policy Basics: Introduction to the Food Stamp
Program,” 2010.
200
A family of three would qualify with a gross monthly income of $1,984 or less.
201
CBPP, “The Food Stamp Program.”
202
Ibid.
203
Ibid.
204
U.S. Dept. of Agriculture (USDA), “FNS Pre-Screening Tool Help System,” www.snap-step1.usda.
gov/fns/tool/tutorial/helpfull.html#household.
205
U.S. Dept. of Agriculture, “Supplemental Nutrition Assistance Program,”www.fns.usda.gov/
snap/rules/Memo/PRWORA/abawds/abawdspage.htm; Washington State Dept. of Social and
Health Services, “Basic Food Work Requirements,”www.dshs.wa.gov/manuals/eaz/sections/
FSETabawds.shtml#388-444-0035.
206
MAP analysis of the 2007 and 2009 California Health Interview Survey.
207
U.S. Dept. of Agriculture, “SNAP,” www.fns.usda.gov/snap/applicant_recipients.
208
Nord et al., “Household Food Security.”
198
199

59

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN

or reduced-price lunches to low-income students.
The program is funded by the federal government
but administered by state education agencies in
conjunction with local school districts. Children
in families with incomes at or below 130% of thepoverty guidelines are eligible for free lunches,
while children in families with incomes between
130% and 185% of the poverty guidelines are
eligible for reduced-price meals. On the averageschool day in 2009, 31.3 million children were
provided lunches through this program.202

LGBT Families and Food Assistanceaveraged $13,600,214 41% of these households had
children,215 and 69% of public housing residents
identified as people of color.216

Figure 27: Percent of Low-Income Californians with Children
Receiving Supplemental Nutrition Assistance Program(SNAP) Benefits (2007 & 2009 California Health Interview Survey)
HeterosexualHeaded Families•• Section 8 Housing Choice Voucher Programprovides vouchers to eligible families, the elderly anddisabled individuals to find housing in the private
market.217 Eligible individuals and families may findany housing that meets the requirements of the
program and then use a voucher to pay all or someof the rent. Individuals or households qualify if they
are “very low-income,” defined as having income ator below 50% of the median income in the area.218 In
2008, 5.1 million people received Section 8 housing
vouchers.219 Households receiving vouchers had
an average household income of $13,100, 54%
were families with children, and 62% of individual
voucher recipients were people of color.220

18%60
LGB-Headed
Families

32%

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN

Note: Low-income is defined as 200% of the federal poverty guideline.
Source: MAP analysis of the 2007 and 2009 California Health Interview Survey.

Lastly, since most states do not recognize twoparents of the same sex, even eligible LGBT families
may not understand that they can apply for foodassistance—and they may face discrimination when
doing so. Applications for food assistance require an inperson eligibility interview, and agency workers may behostile, making applicants uncomfortable about listingsame-sex partners. Similarly, the National Center forTransgender Equality notes that if a transgender person
fills out food assistance paperwork with a gender otherthan that assigned to them at birth, inconsistencies
between the paperwork and gender attached to theirSocial Security number may trigger disqualifications infood assistance programs.209

Public Housing and Housing AssistanceTwo primary federal programs help vulnerable
people obtain safe and affordable housing: the Public
Housing Program and the Section 8 Voucher program.
The U.S. Department of Housing and Urban Development(HUD) provides most of the funding for these programs,
which are administered locally by public housing
agencies.210 For both programs, qualifying families
receive subsidized rent or rental assistance but are stillrequired to pay some portion of the rental cost, usually
30% of their monthly income.211•• The Public Housing Program provides rental housing
for eligible individuals and families, the elderly andpersons with disabilities.212 To qualify, individuals
or households must be considered “low-income,”
which HUD defines as having a household income
at or below 80% of the median income for samesized households in the same geographic area. In
2008, 2.2 million people lived in public housing.213
Household incomes among this population

While local public housing agencies determine
eligibility for both of these programs, HUD sets maximum
income limits for recipients. Because income levels varyby region, HUD income limits for “low-income” or “verylow-income” households vary accordingly (see Table 5 on
the next page).

LGBT Families and Housing Assistance
HUD uses a broad definition of family for the purposesof granting housing assistance. It encompasses “two or
more persons related by blood, marriage, adoption orother operation of law (such as guardianship or a custodyorder), or two or more persons who are not so related
but will live together in a stable relationship and shareresources.”221 This definition of family covers many different
living situations and accurately counts LGBT families.
National Center for Transgender Equality, “Transgender Equality and the Federal Government,” 2009.
Some states also provide funds to assist families in securing safe, affordable housing.
211
U.S. Dept. of Housing and Urban Development, “Housing Choice Voucher Program Guidebook,”
2001; U.S. Dept. of Housing and Urban Development, “HUD’s Public Housing Program,” http://
portal.hud.gov/hudportal/HUD?src=/topics/rental_assistance/phprog.
212
Dept. of Housing and Urban Development (HUD), “FY 2010 HUD Income Limits Briefing
Material,” 2010.
213
HUD, “A Picture of Subsidized Households–2008,”www.huduser.org/portal/picture2008/
index.html.
214
Ibid.
215
CBPP, “Policy Basics: Introduction to Public Housing,” 2008.
216
HUD, “Subsidized Households 2008.”
217“Very low-income” is defined as having incomes that do not exceed 50% of the median incomein the area. HUD, “FY 2020 Income Limits.”
218
HUD, “FY 2020 Income Limits.”
219
HUD, “Subsidized Households 2008.”
220
CBPP, “Policy Basics: The Housing Choice Voucher Program,” 2009.
221
HUD, “Public Housing Occupancy Guidebook,” 2003.
209

210

However, LGBT families receiving Section 8 Housing
Choice Vouchers must still find a place to live, and manyvoucher recipients (especially those who are African
American or Latino/a) report that landlords refuse torent to them.222 Similarly, one study (not specific to
Section 8 vouchers) showed that same-sex couples
encountered discrimination in 27% of cases where they
sought to rent or buy a home.223 Another study showedthat 19% of transgender respondents had been refuseda home or apartment because of their gender identity
or expression (see Figure 28).224 Documented race-based
discrimination in housing means that LGBT families ofcolor likely face an even greater challenge when trying
to use housing vouchers.

Experiences of discrimination are most likely incommunities that lack fair housing laws prohibiting
discrimination based on sexual orientation and gender
identity. Currently 15 states and D.C. have such laws,225
while another six states prohibit discrimination based on
sexual orientation only.226 The federal Fair Housing Act
prohibits housing discrimination based on sex and gender(among other things) but does not include protections
for sexual orientation, gender identity or marital status.
It may be possible, however, for individuals who werediscriminated against because of their gender identity tomake a claim of sex/gender discrimination. In early 2011,
HUD distributed fliers to educate the LGBT community
about this protection (see flier at right).

Area of Residence

Public Housing:
Low-Income
Threshold (80%)

Section 8 Vouchers:
Very Low-Income
Threshold (50%)

New York, NY MetroArea$63,350$39,600

Des Moines, IA$58,550$36,600

Gulfport-Biloxi, MS$42,000$26,250

Source: Dept. of Housing and Urban Development (HUD), “FY 2010 HUD Income Limits Briefing
Material,” 2010

Figure 28: Percent of Transgender Americans
Reporting Housing Discrimination
19%

19%

11%

Refused a home

EvictedBecame homeless

Source: Jaime M. Grant, Lisa A. Mottet, Justin Tanis, Jack Harrison, Jody L. Herman and Mara
Keisling, “Injustice At Every Turn: A Report of the National Transgender Discrimination Survey,”
National Center for Transgender Equality and National Gay and Lesbian Task Force, 2011.

Additionally, HUD has recently announced several proposals designed to ensure equal access to housing for LGBT
Martha M. Galvez, “What Do We Know About Housing Choice Voucher Program Location
Outcomes?” What Works Collaborative, 2010; Margery Austin Turner, Stephen L. Ross, George
C. Galster and John Yinger, “Discrimination in Metropolitan Housing Markets: National Resultsfrom Phase I HDS 2000,” Urban Institute, 2002. This study found that African American renters
experienced negative treatment in more than one out of five instances, and Latino/a renters
experienced negative treatment in one out of four instances.
223
Fair Housing Center of Southeastern Michigan, “Sexual Orientation and Housing Discriminationin Michigan: A Report of Michigan’s Fair Housing Centers,” 2007.
224
Grant et al., “Injustice at Every Turn.”
225
California, Colorado, Connecticut, D.C., Hawaii, Illinois, Iowa, Maine, Minnesota, Nevada, New
Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington.
226
Delaware, Maryland, Massachusetts, New Hampshire, New York and Wisconsin.

61

222

Fliers released by HUD in 2010 to educate LGBT Americans about housing discrimination.

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN

In addition to hurdles in the private housing market,
LGBT applicants face barriers when trying to access public
housing or public housing assistance. These barriers arise
from three primary factors. First, local housing agency
officials may not know that LGBT families are eligible forhousing (see sidebar, page 62). Second, LGBT families
themselves may not know that they are eligible. And
third, LGBT families may face discrimination or hostiletreatment from other residents.

Table 5: Definition of “Low-Income” and “Very LowIncome” for a Family of Fourchildren, and families who meet household size,
income and asset criteria. Children under 6 yearsof age are eligible for Medicaid if they live inhouseholds with household incomes at or below
133% of federal poverty guidelines.232 Children
ages 6 to 18 years qualify with household incomesat or below 100% of poverty guidelines. States
must provide eligible children with a minimum
set of services such as immunizations, doctor visits
and hospital care. Some states add coverage foritems including vision care and prescription drugs.

Despite Broad Definition of Family,
Housing Agencies Discriminate Against
LGBT Families

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN

62

Despite HUD’s broad definition of family, LGBT families
may be denied assistance by local housing agencies.
For example, in 2009, Mitch Cain, a transgender
man living in Washington, was not permitted to add
Michelle DeShane, his domestic partner, to his Section
8 housing voucher. When the Richland Housing
Agency receptionist handed them the application
to add Michelle to the voucher, she told them, “I
don’t think we take your kind here.” When the couple
attempted to return the completed application they
were told that they should go to Benton County where
housing authorities “accept everyone, even Martians.”
Mitch and Michelle were denied the opportunity tolive together because Richland Housing Agency staff
erroneously believed Mitch and Michelle didn’t meetthe definition of “family.”227
Similarly, in response to a HUD proposal that would
clarify that current guidelines are already inclusiveof LGBT families, the Kirbyville Housing Authority
in Texas submitted comments that the new rule(which simply clarifies existing regulations) would“abandon all the morality and values our country
was founded on” and violates “traditional definitionsof the family, morality and decency.”228
people. These include amending the Fair Housing Act to prohibit discrimination on the basis of sexual orientation andgender identity,229 studying housing discrimination against
LGBT people,230 adopting a new rule clarifying that the term
“family” includes LGBT individuals and couples,231 and providing non-discrimination training for housing agency staff.

•• CHIP allows states to insure children from lowincome families whose incomes may be too high toqualify for Medicaid. While eligibility for CHIP varies
by state, most states cover uninsured children withhousehold incomes as high as 400% of the poverty
guidelines. CHIP provides less extensive healthcoverage than Medicaid, but generally still includes
regular checkups, immunizations, hospital care andsupplemental services for children with special needs.
Together, Medicaid and CHIP insure one-third ofAmerican children (26 million children).233 And yet one
in ten children in the U.S. (8.3 million) still lack healthinsurance entirely (see sidebar on page 63). In somestates, CHIP and Medicaid are administered jointly, whilein other states they are two separate programs. The
specific health services available to children throughMedicaid and CHIP vary by state. For both programs, thefederal government sets minimum eligibility criteria, but
states may expand eligibility and pay an additional shareof program costs, and many states do so. The Affordable
Care Act, passed in March 2010, expands coverage forchildren who were previously ineligible for Medicaid andCHIP and prohibits denial of health insurance coveragefor children with preexisting conditions.234
Adapted from Northwest Fair Housing Alliance, “Domestic Partnered Couple Raise Awareness ofDiscrimination,”www.nwfairhouse.org/projects.php?id=269.
Adapted from Regulations.gov, “Comment Submitted by Wesley Bell, Kirbyville Housing Authority,”
HUD-2011-0014-0170, www.regulations.gov/#!documentDetail;D=HUD-2011-0014-0170.
229
HUD, “The State of Fair Housing: Annual Report of Fair Housing FY 2009,” 2010.
230
HUD, “FY 2020 Income Limits.”
231
This rule would also require local housing agencies to comply with local and state non-discrimination
laws covering sexual orientation and/or gender identity. Finally, the rule specifies that receipt of an
FHA-insured mortgage must be based on the credit-worthiness of the applicants and not on unrelated
factors such as sexual orientation or gender identity. HUD, “Proposed Rule: Equal Access to Housing in
HUD Programs–Regardless of Sexual Orientation or Gender Identity,” Federal Register, 2011.
232
In 2014, as a result of changes to healthcare laws, virtually all individuals (including children) living
in households with incomes at or below 133% of poverty guidelines will be eligible for Medicaid.
233
Estimates culled by Urban Institute and the Kaiser Commission on Medicaid and the Uninsured from
U.S. Census Bureau, Current Population Survey, 2010 Annual Social and Economic Supplement.
234
Families USA, “Fact Sheet: Understanding the New Health Reform Law,” July 2010. www.
familiesusa.org/assets/pdfs/health-reform/Low-Income-Children.pdf.
227

Medicaid and Children’s Health Insurance
Program (CHIP)
Federal and state governments jointly offer several
means-tested programs to ensure that low-income andvulnerable children have access to health care. The twolargest of these programs are Medicaid and the Children’s
Health Insurance Program (CHIP). (For a discussion of
insurance coverage through employers, see “Ensuring
Health and Well-Being For Children”.)•• Medicaid provides healthcare coverage to poor
older adults, disabled people, pregnant women,

228

Uninsured American Children
Nearly all uninsured American children live in families
with incomes below 200% of the federal poverty
guidelines. Although most children (75%) have atleast one parent who is employed full time,235 many
employers do not offer insurance and many families
cannot afford to pay their own premiums. Access tohealth insurance varies by race and ethnicity.
Percent of Children Without Health Insurance, By Race
17%

Latino/a

11%

Black

White

10%

Source: Federal Interagency Forum on Child and Family Statistics, “America’s Children in
Brief: Key National Indicators of Well-Being,” 2010.

LGBT Families and Medicaid and CHIP
Medicaid and CHIP use a narrow definition offamily, considering only a child’s legal parents whencalculating income and household size. Because thefederal government gives states flexibility in setting
eligibility guidelines, states may recognize samesex partners if they choose, even if both are not thelegal parents of the child. However, few states haveadopted a broader recognition of LGBT families intheir Medicaid and CHIP programs since the federal
government withholds funds for families fallingoutside of federal guidelines.236 This is true evenamong states that extend marriage or comprehensive
relationship recognition to LGBT couples.

Supplemental Security Income (SSI)The Supplemental Security Income (SSI) programprovides financial assistance to adults and children whoare blind or disabled and who lack financial resources.
The SSI program is administered by the Social Security
Administration. Some states supplement federal SSI
assistance with additional state support.

LGBT Families and SSI

63

SSI employs a narrow definition of family. The Social
Security Administration will only consider the resourcesof a federally recognized spouse of an adult applicant
or the legal parents of a minor applicant to determine
eligibility. Even if a same-sex couple is legally married orin another valid union, the federal government will notrecognize that relationship because of DOMA.
If a blind or disabled child has two legally recognizedsame-sex parents, the child will be treated identically toa child with two heterosexual parents. However, if only
one LGBT parent is recognized, the result is an inaccurate
count of household members and economic resources.
As with all means-tested programs, this inaccurate count
may make it easier or harder for the child to qualify thanif the family’s configuration were counted accurately,
depending on the family’s financial situation.
Finally, a disabled or blind LGBT parent, even if
married, will always be treated as a single person
when applying for SSI because the parent’s same-sex
relationship is not recognized by the federal government.

Child Care and Early Child Education Assistance
The rise in the number of single-parent families andtwo-parent families in which both parents work has focusedincreased attention on the importance of affordable,
quality child care and early education. The average annual
cost of full-time child care for an infant in a center ranges
from $18,750 in Massachusetts to $4,550 in Mississippi.238
These costs can make child care an especially difficult
financial burden for low-income families.
Several government programs provide financial
assistance to help low-income families obtain child careand early childhood education.
Federal Interagency Forum on Child and Family Statistics, “America’s Children in Brief: Key
National Indicators of Well-Being,” 2010, www.childstats.gov/americaschildren/famsoc.asp.
236
Asserted by the U.S. Dept. of Health and Human Services, Centers for Medicaid Services, in May
2004; and explained in the plaintiff’s complaint in Massachusetts v. U.S. Dept. of Health andHuman Services 698 F.Supp.2d 234 (D.Mass. 2010).
237
Consortium for Citizens with Disabilities, “Social Security Fact Sheet,” 2010.
238
National Association of Child Care Resource & Referral Agencies, “Issue: Ensuring Affordable
Child Care,” 2010.
235

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDRENAll Children

7%

In 2010, 7.6 million people received SSI assistancebased on blindness or disability, including 1.2 million
children.237 While the assistance amounts vary basedon an individual’s income and household size, theaverage assistance amount is $499 per month; themaximum assistance is $674 for an individual and$1,011 for a married couple.

•• Child care assistance programs designed to help

64

low-income families are administered at the statelevel and vary by state. The bulk of funding forchild care assistance is federal but states may also
contribute some funding.239 Families receiving
assistance can choose any approved care provider,including a qualified individual. In 2010, the federal
government allocated $5 billion to the Child Care
Assistance Program, which supports more than 1.6
million children each month.240 In 2009, the majorityof children (57%) who received subsidized child carethrough this program were from communities of color.

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN•• The Head Start Program is federally funded but
operated by local nonprofit organizations acrossthe country such as churches, public schools andnonprofit community organizations. Head Start
provides free educational programming and childcare to low-income preschool children to help them
gain the skills needed to be successful in school. The
Early Head Start Program is designed for children
from birth to age three. In 2009, more than 904,000
children participated in Head Start programs atsome point during the year, the majority of whom(60%) were from communities of color.241 In 2010,
federal spending on Head Start and Early Head Start
programs totaled $7.2 billion.242
Families who qualify for Head Start or child careassistance are usually required to share in the cost ofcare by making a co-payment to the provider. This copayment is based on household income, family size, thenumber of children in care, and the number of hours achild is enrolled in care each week.243

LGBT Families and Child Care AssistanceChild care assistance programs and Head Start both
employ a narrow definition of family. Only the economic
resources of parents or guardians who are related “by blood,
marriage or adoption” are considered.244 A non-legally
recognized parent would not be considered part of thefamily for the purposes of establishing eligibility for childcare assistance programs, Head Start or Early Head Start. As
with other means-tested programs, the lack of recognitionof LGBT families can make it easier to qualify for child careand early child education assistance, or result in unfair denialof this assistance, depending on the family’s circumstances.
Head Start and Early Head Start programs do notconsider a child’s immigration status.245 In fact, some states
have specific Head Start and Early Head Start programs

designed especially for migrant and seasonal workers. Childcare assistance programs, however, are more complicatedbecause they are funded through TANF and the Child
Care and Development Block Grant. As a result, only legal
immigrant children who have been in the U.S. for at least
five years are eligible to receive child care assistance.
Because binational LGBT families cannot use family visas tosponsor spouses or their children for immigration, it may be
more difficult for them to qualify for child care assistance.

Educational Loans, Grants and Scholarships
In 2010, the federal government provided more than$134 billion in loans, grants and work-study funds to 14
million students to pursue postsecondary education.246
For the 2007-2008 school year (the most recent year forwhich data is available), 66% of all undergraduate students
received some type of financial aid; the average amountof aid received by those students was approximately$9,100, $6,600 of which came from federal sources.247 This
assistance has become increasingly important as the costof attending college has soared in recent years. In 2008,
the average cost to attend a four-year public college
was 48% of a low-income family’s income and 26% of amoderate-income family’s income.248
To be considered for educational aid, students are
required to complete a federal form called the Free
Application for Federal Student AID (FAFSA). In 2010,
more than 21 million FAFSA forms were filed.249 The
information collected on the FAFSA is used to determine
eligibility for financial aid and the amount of a student’s
financial aid package. While the form is primarily
designed for applying for federal educational aid, moststates and private aid sources also rely on the FAFSA.
U.S. Dept. of Health and Human Services, Administration for Child and Families, “Resources for
Parents,” www.acf.hhs.gov/programs/ccb/parents/index.htm#pay.
U.S. Dept. of Health and Human Services, Administration of Children & Families, “FFY 2009 CCDF
Data Tables,” www.acf.hhs.gov/programs/ccb/data/ccdf_data/09acf800_preliminary/table1.htm.
241
U.S. Dept. of Health and Human Services, “Head Start Program Fact Sheet: Fiscal Year 2010,”
www.acf.hhs.gov/programs/ohs/about/fy2010.html.
242
Ibid.
243
For example, a family of three with an income at 100% of the federal poverty level ($18,530)
would pay nothing in California, Indiana, Kansas, New Jersey, Rhode Island, South Dakota,
or Vermont. But the same family would be responsible for $253 per month (or 17% of their
total income) in Colorado and North Dakota. National Women’s Law Center, “State Child Care
Assistance Policies 2010: New Federal Funds Help States Weather the Storm,” 2010.
244
U.S. Dept. of Health and Human Services, Administration for Children and Families, Early Childhood
Learning & Knowledge Center, “The 2007 Family Income Guidelines, ACF-IM-HS-07-05.”
245
Hannah Matthews, “Immigrant Families and Child Care Subsidies: What Federal Law andGuidance Says,” CLASP, 2010.
246
U.S. Dept. of Education (DOE), “Federal Student Aid, Annual Report 2010,” 2010.
247
Christina Chang Wei, Lutz Berkner, Shirley He, Stephen Lew, Melissa Cominole and Peter
Siegel, “2007-08 National Postsecondary Student Aid Study (NPSA:08): Student Financial
Aid Estimates for 2007-08 (First Look),” National Center for Education Statistics, Institute of
Education Sciences, 2009.
248
Advisory Committee on Student Financial Assistance, “The Rising Price of Inequality: How
Inadequate Grant Aid Limits College Access and Persistence,” 2010.
249
DOE, “Federal Student Aid 2010.”
239
240

LGBT Families and Educational Loans

Family Struggles to Complete FAFSA

The FAFSA form uses a narrow definition of family,
including only legally recognized parents and stepparents
in determining household size and income.250 The form
asks for information about the child’s parent(s), andexplicitly states that only a “biological or adoptive parent”
may be listed. Therefore, a child living with two same-sex
parents can only list legal parents on the form. Even if thechild’s parents are married, a same-sex partner cannot be
considered a stepparent for the purposes of completing
the FAFSA, since the federal government is prohibitedby DOMA from recognizing the marriage of the child’s
parents.251 In addition, even if a child from an LGBT family
has two legal parents under the FAFSA definition, theform is not gender neutral, but asks for information about“father/stepfather” and “mother/stepmother.”252
LGBT parents who apply for their own educational
assistance are impacted by the FAFSA’s narrow definitionof family as well. In estimating a family’s Expected
Family Contribution or EFC (the amount the family cancontribute toward an individual’s education on its own),
the FAFSA formula favors students with spouses and/or
dependent children.253 In many instances, the federal
government (and colleges and universities as well)
may provide additional financial aid to students withdependent children, students with spouses in school, or
students with spouses taking care of young children.

Government Forms and Defining Family
Even when government programs and aid include
broad definitions of family for eligibility purposes,
LGBT families with children may not know that they are
eligible to apply. This sometimes incorrect perception
is reinforced by government forms that try to fit
applicants into a series of ill-fitting boxes that ignore
the reality of today’s families.
Throughout their lives, children and their parents
must often complete forms to receive government
assistance, attend school and obtain health insurance andmore. Significant numbers of these applications—including more than 70 forms across 11 federal departments
alone—gather information about the legal parent(s) of achild by requiring applicants to specify both “mother” and“father” and/or asking for a “mother’s maiden name.”
This is almost always unnecessary. What thefederal government truly needs is information about
the identity, consent and/or financial position of legal

Story provided by Family Equality Council.

parents—not their gender. Consider the current Social
Security card application (see next page), which would
be difficult for a child with two mothers or two fathers tocomplete. If the names on the application do not fit into
the gender-based boxes on the form, the agency may
return the form or simply refuse to process it.
Government forms can be especially challenging
for transgender parents. When forms ask for the sex of aparent, should transgender parents list their sex assigned
at birth, or the one that matches how they live their lives?
Many forms, especially those for government assistance,
DOE, “Free Application for Federal Student Aid: July 1, 2011-June 30, 2012 (2011-2012 FASFA),” www.
fafsa.ed.gov/fotw1112/pdf/PdfFafsa11-12.pdf. For more about LGBT families and FAFSA, see Crosby
Burns, “Unequal Aid: Discriminatory Treatment of Gay and Transgender Applicants and Families
Headed by Same-Sex Couples in the Higher Education Financial Aid Process,”The Center for American
Progress, August 2011, http://www.americanprogress.org/issues/2011/08/pdf/lgbt_higher_ed.pdf.
251
Stepparents are listed only if they are the spouse of the parent with whom the child lived mostin the last 12 months. If the child lives equally with both parents, the stepparent listed is the
spouse of the parent who provided the most financial support during the last 12 months. Other
relatives are not considered parents for the purposes of FAFSA unless they have legally adopted
the child, including grandparents, foster parents, legal guardians and other relatives.
252
DOE, “2011-2012 FASFA.”
253
DOE, “The 2011-2012 EFC Formula Guide,” 2010,“ http://ifap.ed.gov/efcformulaguide/attachm
ents/101310EFCFormulaGuide1112.pdf.
250

65

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN

Susan and her partner, Sara, are the legal adoptive
parents of their daughter, Nina. When Nina tried toapply for federal aid using the FAFSA form, listing bothof her legal parents as the form requires, she received
an email from the U.S. Department of Educationreferring to her as an “orphan.” Susan spoke directlywith a staff member at the department to explain that
Nina has two legal mothers, but the official repeatedlyreferred to DOMA and its ban on federal recognitionof same-sex couples’ marriages. DOMA, however, says
nothing about parent/child relationships, and theofficial was confused by the fact that Susan and Sara
are both legal parents of Nina. Even though Susan andSara clearly indicated that Nina was adopted by bothof her parents, the official asked questions that Susan
could not imagine other adoptive parents being
asked, such as, “Who is the biological mother?” Susan
was finally able to clear up the confusion by asking thecollege for assistance with the FAFSA process. But theindignity and frustration of the process added to thealready tense experience of choosing colleges, andSusan and Nina are not looking forward to repeating
the annual application process.

Social Security Form Hinders Application

66

Like many government forms, the Social Security card application includes spots only forMother and Father. LGBT families struggle to complete such forms.

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN

Sam and his husband applied for a Social Security cardfor their adopted son, Jacob, when he was six months
old. As LGBT families often do to protect themselves,
Sam brought with him to the Social Security office
documentation beyond what the application form
requires: birth records, adoption papers, judicial orders,pediatrician and vaccination records, and adoption
agency papers, to name a few. Sam filled out theapplication, but when he turned it in, the administratingclerk “did a double take” when he realized that there
were two dads listed on the form. Sam asked if heshould cross out “mother” on the application andwrite in “father 2” or “dad 2.” The clerk told Sam he
could not cross off “mother” and must instead “choose
one of Jacob’s dads to be listed as the mother.” Samfelt humiliated to be one of two legal fathers and yet
have to list himself or his husband as a “mother.” But
he did so in order to advance the application. The
clerk completed the application, gave Sam a receipt,
and said Jacob would receive a Social Security card inseveral weeks. The card never came.
When Sam called, the office had no record of theapplication. When Sam went to the office with theapplication receipt, officials said he needed to start
the entire process over. They assured Sam that this“never” happens and they couldn’t imagine how theapplication was lost.
Story provided by Family Equality Council.
254

U.S. Dept. of State, “Consular Report of Birth Abroad Certificate Improvements,” PRN:
2010.1854, December 22, 2010.

Governments Take Small Steps in
Recognizing Diverse Families
The Obama Administration has stated that it isinterested in recognizing all families and progress isoccurring on some fronts. For example, in December
2010 the State Department announced a redesign of
the Consular Report of Birth Abroad (an application
for U.S. citizenship for a child born overseas to a U.S.
citizen) and the DS-11 Passport Application (required
for first-time passport applicants and applicants who
are under 16 years of age). The new forms request
information about “Mother/Parent 1” and “Father/
Parent 2” to allow a gender-neutral descriptionof a child’s parents.254 This redesign represents
the first time that federal government forms willrecognize the possibility of two parents of the samegender. Similar changes have been made to stateand local government forms. For example, several
forms required to access public health insurance in
Massachusetts allow applicants to select “Mother/
Co-Parent” and “Father/Co-Parent”.
require a signature stating that all the information is trueand indicate that applicants may face criminal penalties
if the form is completed falsely. And given that many
government agencies cross-reference applications forbenefits with other government systems, an application
for assistance filed by a transgender person may be
flagged as fraudulent and could be delayed or denied.

Challenge: A Higher Tax Burden for LGBT
Families
In addition to safety net programs targeted atfamilies who are struggling financially, the government
provides important tax credits and deductions that aredesigned to help all families, regardless of economic
circumstance, ease the financial costs of raising a family.
Of total federal spending on children in 2009, more than
one-third fell into the category of federal tax credits anddeductions (see Figure 25 on page 51).
These tax credits and deductions are based on a
narrow definition of family. This usually means that LGBT
families are excluded from the support these programs
provide. This exclusion has tangible effects on LGBT
families, often by forcing them to pay higher taxes thanother families in similar economic circumstances.

Tax Credits and Deductions for Families

and family circumstances. For example, marriedheterosexual couples must file as either “married
filing jointly” or “married filing separately.” When filinga joint return, a married couple’s income is combinedand deductions and credits are taken together. When
filing separately, each spouse reports his or her
own income and relevant deductions and credits.

The primary tax credits and deductions aimed at
American families include:•• The tax exemption for dependents, which reduces
taxable income by $3,650 for each dependent a taxpayer can claim, including a spouse and children.255•• The Child Tax Credit, which reduces income tax

Having two filing statuses for married couples allows
families to choose which status is most beneficial tothem. In most cases, married couples will pay less tax
when filing jointly. This is especially true for families
with just one earner or families in which there arelarge differences in earnings between partners. The
tax rate is lower for joint filers, and some credits anddeductions are only available to couples filing jointly,
such as earned income tax credits and educationcredits (see detailed discussion below). However,filing a joint return can be a disadvantage for somefamilies, especially those with roughly equal incomes.

due by $1,000 for each child under the age of 17.256•• The Earned Income Tax Credit (EITC), which
provides assistance to low-income working
individuals and families. The credit reduces theamount of tax that an individual or couple owes
and may also result in a refund.257•• The Child and Dependent Care Credit, which

Because the federal government does not recognize
the relationships of same-sex couples, LGBT families
cannot file a joint federal tax return, even if they arelegally married. Instead, LGBT individuals must fileas “single” or—if they meet the narrow criteria—as“head of household.”260 For example, consider anLGBT couple with one partner earning approximately$60,000 per year and the other partner having no
income. The partner earning $60,000 would facea marginal tax rate of 25%—or a tax burden of
approximately $15,000. But if this family could file asa married couple, they would face a marginal tax rateof 15%—or a tax burden of approximately $9,000.
Because of their inability to file a federal tax return
as a married couple, the LGBT family must pay $6,000
more in taxes. Additionally, only one member of thecouple can claim the credits associated with having achild, and the law generally requires that this be thelegally recognized parent (even if this parent receives
little benefit from the tax credit).

•• Education-related

deductions, which allow
families to reduce their taxable income by thecost of tuition and associated fees, up to $4,000,
for children and other family members who are
pursuing higher education.

•• Adoption credits, which reduce taxes by theamount spent on certain adoption expenses.

•• Estate tax exemption, which allows major assets tobe transferred, tax-free, to a legally-recognized spouse.

How Tax Law Defines “Family”
The federal tax code uses a narrow definition offamily. Generally speaking, the federal government only
recognizes married heterosexual spouses and legally
related children or relatives for the purposes of filingtaxes and qualifying for tax credits and deductions. Statetax law varies, but most states use similarly restrictive
definitions of family.259•• Filing Joint Federal Tax Returns. Individuals
completing their federal returns can choose from four
primary filing statuses: single, married filing jointly,
married filing separately, and head of household.
How an individual files depends on marital status•• Claiming a Qualifying Child. Households raisinga minor or dependent child qualify for many tax
Internal Revenue Service (IRS), “Six Important Facts about Dependents and Exemptions,”
accessed January 11, 2011, www.irs.gov/newsroom/article/0,,id=202335,00.html.
256
IRS, “Publication 972–Child Tax Credit,” 2010.
257
IRS, “Earned Income Tax Credit Central,” www.eitc.irs.gov/central/main/.
258
IRS, “Top Ten Facts About the Child and Dependent Care Credit,” accessed March 15, 2010, www.
irs.gov/newsroom/article/0,,id=106189,00.html.
259
An analysis of state tax law is beyond the scope of this report.
260
Head of household filing status is reserved for unmarried individuals who paid more than half
the household costs for another person who lives with the taxpayer.
255

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN

allows taxpayers to reduce their taxes by theamount spent on child care for children under
the age of 13 or for other dependents to care forthemselves.258 The credit ranges from 20-35% of
dependent care expenses paid (up to $3,000 in
expenses for one dependent or $6,000 for two or
more dependents), and also depends on the tax
payer’s income.

67

Table 6: Summary of Key Tax Credits and Deductions and Impact on LGBT Families
Credit/deduction

How it works
for marriedheterosexual
couples

How it works
for same-sex
couples

Net impact on same-sex
couplesIf filing
separately, thehigher-earning
parent can claim
the exemption,
maximizing the
tax reduction

A legal parent
earning morethan $3,650
must claim theexemption, even
if this results inhigher overallfamily taxes

Negative. Same-sex couples
cannot optimize their taxes,
resulting in higher taxes thancomparable heterosexual
couplesIf filing
separately, thehigher-earning
parent canclaim the credit,
maximizing the
tax reduction

Only the legal
parent can claim
the credit, even if
he or she owes notaxes and cannot
benefit from it

Negative. Same-sex couples
cannot optimize their taxes,
resulting in higher taxes thancomparable heterosexual
couples

Reduces taxes
due but may also
result in a refund
for low-income
families

Couples mustfile jointly, but
may qualify at ahigher income
if they have aqualifying child

Only the legal
parent can claim
the child andmust qualify
based onindividual income
alone

Varies. Like other meanstested programs, a legal
parent may be more likely toqualify when considered asingle parent in some cases,
but in other cases could beless likely to qualify

Reduces taxes
due by up to$1,050 (for one
dependent)
or $2,100 (fortwo or more
dependents) forthe expenses
associated withtaking careof a child or
dependent

Couples must file
jointly, but cantake the credit for
their children or
each otherA legal parent
earning morethan $3,650 mustclaim the credit,
even if this resultsin higher overallfamily taxes;
LGBT taxpayers
also cannot get acredit for care of asame-sex partner

Negative. Same-sex couples
cannot optimize their taxes,
resulting in higher taxes thancomparable heterosexual
couples

Couples mustfile jointly, but
can take thededuction for
expenses for
self, spouse or
childrenA legal parent
earning morethan $3,650
must claim thededuction, even if
his or her income
is too low tobenefit from it

Negative. Same-sex couples
cannot optimize their taxes,
resulting in higher taxes thancomparable heterosexual
couples

Married couples
must file jointly
and the expenses
must beassociated witha joint adoption
and can only be
deducted once

Both taxpayers
can take the fullamount of thecredit for a joint
adoption, and it
can also be used
for a secondparent adoption

Positive. Both LGBT parents
can claim full adoptionrelated expenses rather than
filing one joint claim; note,however, that LGBT families
also generally face more
adoption expenses since state
law often does not recognize
both parents as legal parents(see “Securing Stable, Loving
Homes for Children”)

What it is261

Who qualifies for the credit/
deduction
Legal parent
with a“qualifying
child”

68

Dependency
Exemption(See page 69)

Child Tax
CreditGOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN(See page 70)

EarnedIncome Tax
Credit(See page 70)

Child and
Dependent
Care Credit(See page 70)

Education
Deductions(See page 71)

Adoption
Credit(See page 71)

261
262

Reduces taxable
income by $3,650
for the taxpayer,
spouse and eachqualifying childor relative

Reduces taxes
due by $1,000 foreach qualifying
child

Reduces taxable
income by up
to $4,000 intuition expenses
for children or
dependents

Reduces taxes
due by up
to $13,170
for adoption
expensesNon-legally
recognizedLGBT parent
whose child
may beconsidered a“qualifying
relative”262

Only if thelegal parent
earns lessthan $3,650

If the childis under theage of 17

If the childis under theage of 13 or
physicallyor mentally
incapable ofself-care

Only if thelegal parent
earns lessthan $3,650
and the childmeets theother criteria

Only if thelegal parent
earns lessthan $3,650

Not
applicableNot all families who qualify for these tax credits and deductions actually use them.
Note that non-legally recognized parents of a child cannot claim that child as a “qualifying child” but, depending on circumstance, may be able to obtain a partial or full tax credit by claiming that child asa “qualifying relative.”deductions or credits, as long as the child is a“qualifying child” as defined by tax law. Amongother criteria, a qualifying child must be thetaxpayer’s legal child or stepchild, a foster child,minor sibling or stepsibling, or a descendent of
any of these, such as a grandchild.263 This definition
excludes children of LGBT parents who cannot
establish a legal parent-child relationship.

•• Claiming a Qualifying Relative. In addition to

For example, a lesbian couple, Mary and Jane,are raising Jonathan. Only Mary is recognized as
Jonathan’s legal parent. Jane, who earns more thanMary, would not be able to take any deductions or
credits for Jonathan because he would not count as
either a qualifying child or as a qualifying relative.
Assuming Mary earns little income, this puts Maryand Jane at a disadvantage because Mary does
not benefit from claiming Jonathan on her taxes,
which must be filed independently of Jane’s.
In some limited cases, LGBT parents who cannot
claim their child as a qualifying child might still
be able to claim the child as a qualifying relative,
though this does not result in the same level of tax
credits and deductions. If the legal parent earns lessthan $3,650 and is not required to file a tax return,the non-legally recognized parent can claim both hisor her partner and the child as qualifying relatives.264
Note that a married heterosexual family in a similar
situation would be able to file a joint return and thecouple would claim the child as a qualifying child,rather than as a qualifying relative.

The Impact of Tax Credits and Deductions on LGBT
Families
We now explore each of the major tax credits anddeductions for families—and how LGBT families may be
restricted in claiming them.

69

Dependency Exemption. In general, a taxpayer
is allowed to claim one dependency exemption forherself, one for a heterosexual spouse (if filing jointly
and regardless of the spouse’s income) and one for each“qualifying child” or “qualifying relative.” In 2010, eachdependent reduced the taxpayer’s taxable income by$3,650, lowering the taxable income of a family of four by$11,400. For a family of four with an income of $45,000,
this would reduce the tax due by about $1,095.265
LGBT families can be at a significant disadvantage
when it comes to claiming the dependency exemption.
Unlike married heterosexual couples, an LGBT taxpayer
cannot claim the dependency exemption for a same-sex
spouse or partner unless the partner meets the narrow
definition of a qualifying relative (explained above).266
Similarly, in most cases, only the legally recognizedLGBT parent can claim the dependency exemption fora qualifying child.
Consider, for example, a lesbian couple with a childwhere the legal parent works part-time and earns $5,000
per year and the non-legal parent works full-time andearns $45,000 per year. If this family could file a joint tax
return, the family’s total income of $50,000 would be
reduced by $10,950 (three dependency exemptions),
leaving the family with a taxable income of $39,050. This
would save the family roughly $1,642 in taxes (or $547 intaxes per dependency exemption) assuming a marginal
tax rate of 15%.267 This family cannot file jointly, though,and the legally recognized parent must claim the childfor the dependency exemption. Because her income isalready so low, the family would receive no tax benefit
from claiming the dependent child.
The IRS actually uses four criteria to determine who is a qualifying child. See IRS, “A ‘Qualifying
Child’,” last modified October 31, 2007, www.irs.gov/newsroom/article/0,,id=133298,00.html.
This assumes that the non-legally recognized parent meets other criteria such as living in thehousehold and providing over half of the financial support for each claimed qualifying relative.
265
This tax saving assumes a 15% marginal tax rate. IRS, “IRS Bulletin, Notice 2008-5,” January 14,
2008.
266
IRS, “Publication 501,” 2010.
267
IRS, “2010 Individual Income Tax Rates, Standard Deductions, Personal Exemptions and FilingThresholds,” 2009.
263
264

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN

claiming a qualifying child, individuals or couples
filing jointly can claim certain exemptions or credits
for a “qualifying relative.” A qualifying relative mustbe legally related to the taxpayer or must live withthe taxpayer as a member of his or her household.
This individual also must have a gross income forthe year that is less than $3,650, must receive half
or more of his or her support for the year from thetaxpayer, and must not have been claimed as aqualifying child or relative by another taxpayer. In
most cases, a child cannot be considered a qualifying
relative for a non-related taxpayer because the childis already the qualifying child of another taxpayer
such as the child’s legally recognized parent (whomust claim the child in most cases). As a result,most LGBT taxpayers cannot claim their nonlegally recognized children as qualifying relatives.

See Table 6 on the previous page for an overview
of key tax credits and deductions and how they apply
differently to LGBT families.

Child Tax Credit. As noted above, the Child Tax
Credit reduces taxes due by up to $1,000 for each childunder the age of 17. The amount of the credit is reduced
for those who earn more than a certain income level; asingle person’s tax credit begins to decline once his or her
income reaches $75,000, while a married couple’s credit
declines once their combined income reaches $110,000.

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN

70

LGBT families may be treated differently in two ways
when it comes to the Child Tax Credit. First, because
the marriages of same-sex couples are not recognizedby the federal government, it is possible that a couple
may not receive the full Child Tax Credit even though
their combined household income is less than $110,000.
Imagine a situation in which one partner makes $80,000–
making him ineligible for the full Child Tax Credit as asingle person. His partner has an income of $20,000. Ifthey were able to file as a married couple, this couple
would be eligible for the full Child Tax Credit, with a total
household income of $100,000.
Second, because of the definition of a qualifying
child, the children of a taxpayer’s partner may not
be claimed for the Child Tax Credit. As a result, LGBT
families cannot always ensure that the higher-income
parent claims a child for the purposes of the credit.
This, combined with the lack of ability to file jointly, canincrease the family’s overall tax burden.
Earned Income Tax Credit (EITC). In most cases,
the EITC reduces the amount of tax owed by low- or
moderate-income working people, but it may also resultin a tax refund. In addition to the federal EITC, 23 statesand D.C. have state EITC programs.268 The EITC is one of
the largest sources of cash assistance to low-income
working families.269 A recent study found that half of all
families with children receive the EITC at some point.270 As
shown in Figure 29, in 2009, 26 million households (or 23%
of all households) received the EITC.271 It is estimated thatin 2009, 3.3 million children were lifted out of poverty as aresult of the EITC, without which the poverty rate amongchildren would have been nearly one-third higher.272
For 2010, an individual was eligible for the EITC if
her adjusted gross income was less than $13,460, with
the income limit raised to $35,535 if the individual had
a qualifying child.273 For married heterosexual couples,the couple’s adjusted gross income must be less than
$18,470, or $40,545 if the couple has a qualifying child.
Because the EITC is based on income and household
size, it is much like the means-tested programs

Figure 29: Percent of Households Receiving Earned
Income Tax Credit (EITC) (2009)
100% = 113.6 million households

Received EITC,
23%

Did not receive
EITC, 77%

Source: U.S. Census Bureau, “ACS Demographic and Housing Estimates,” 2009 American Community
Survey 1-Year Estimates; IRS, “Earned Income Tax Credit Central.”described earlier. As a result, an individual LGBT family’s
circumstances will determine whether the family finds
it easier than a similar heterosexual family to qualify for
the EITC, whether the family receives a smaller or larger
credit in relation to other families, or whether the family
is unfairly denied this important benefit.
Child and Dependent Care Credit. Heterosexual
taxpayers who pay someone to care for a qualifying child,spouse or other qualifying relative so they can work or
look for work are eligible for the Child and Dependent
Care Credit.274 These taxpayers can reduce the amount oftax they owe by a percent of total care costs (up to $3,000
for the care of one child or spouse and $6,000 for thecare of two or more children or a spouse and children).
To be eligible, the child must be under the age of 13, orthe spouse, older child or qualifying relative must be
physically or mentally incapable of self-care.
Because it only applies to care for qualifying
children or qualifying relatives, in most cases a nonlegally recognized LGBT parent cannot use this credit
even if that parent pays the child care costs. Moreover,because same-sex couples are not legally recognizedby the federal government, an LGBT individual cannot
CBPP, “State Earned Income Tax Credits,” Policy Basics, 2009.
Frank Sammartino, Eric Toder and Elaine Maag, “Providing Federal Assistance for Low-Income
Families Through the Tax System: A Primer,” Urban Institute, 2002.
270
CBPP, “ The Earned Income Tax Credit,” Policy Basics, 2009.
271
IRS, “Earned Income Tax Credit Statistics,” 2011.
272
CBPP, “Earned Income Tax Credits.”
273
IRS, “Up-to-Date Tax Credit Eligibility Information for Tax Year 2010,” http://eitcoutreach.org/
wp-content/uploads/2008/03/Income-Guidelines-20101.pdf.
274
IRS, “Publication 503.”
268
269

use this tax credit for care of a physically or mentally
incapacitated partner or spouse unless the partner or
spouse meets the criteria for a qualifying relative.
Education Deduction. Taxpayers who pay foreducational expenses for themselves, spouses ordependents can reduce their taxable income by
deducting up to $4,000 in tuition expenses andmandatory enrollment fees. Many families use thisdeduction to help with the cost of college for children. In
most cases, however, only the legally recognized parent
can take this deduction. So if the non-legally recognizedparent in an LGBT family pays for a child’s education, thatparent cannot take the deduction. An exception to thisrule is in cases when the non-legally recognized parent
provides all of the financial support for the child and thelegally recognized parent has no income, so the taxpayer
can claim the child as a qualifying relative.

LGBT families can use the adoption credit in several
ways. First, like married heterosexual couples, LGBT parents
can use the credit to offset the costs of a joint adoption.
Married heterosexual couples must file a joint return inorder to claim the credit. Because same-sex couples are
not treated as married couples and cannot file a joint
return, each partner can claim up to $13,170 in expenses,
meaning that a same-sex couple could use adoption
credits to offset up to $26,340 in joint adoption costs.
In addition, LGBT families can use the adoption
credit to help offset the costs associated with a secondparent adoption for the non-legally recognized parent.
By contrast, married heterosexual couples cannot use
adoption credits for costs associated with a stepparent
adoption.276 However, as explained in “Securing Stable,
Loving Homes for Children“, LGBT parents are often forced
to adopt their own children to secure parenting rights. So,
while this tax credit can help LGBT families with adoption
costs, LGBT families often pay additional costs to obtain thesame parenting rights that married heterosexual couples
receive automatically. Finally, this tax credit is not available
to parents, whether LGBT or heterosexual, who complete
an adoption through a surrogate parenting arrangement.
Gift and Estate Taxes. Because the relationships
of same-sex couples are not recognized by the federal

Any time one partner in a same-sex couple transfers
assets to the other (such as putting a person on the title ofa car or a house), the federal government considers thata gift subject to federal gift taxes. Married heterosexual
couples, on the other hand, are exempt from the federal
gift tax when such transfers occur. For same-sex couples,
if one partner gives more than $13,000 in cash or assets
to the other partner in any given year, the giving partnermust file a gift tax return. This can make it difficult to
put even simple purchases like a second family car in
the name of the lower-income spouse. Asset transfers
between non-recognized parents and their children also
may also be subject to the gift tax.
Similarly, when a heterosexual spouse dies, thesurviving spouse will pay no taxes on the transfer ofassets such as a home, money in bank accounts andfurniture. Yet, because same-sex couples are not legally
recognized by the federal government, surviving
same-sex partners are required to pay the estate tax if
the value of the assets they receive is greater than $5
million (as of 2011).277

Calculating the Impact of an Unequal Tax CodeIn order to see how the tax code’s different treatmentof LGBT and other families has a real and substantial
impact on economic security for LGBT families andtheir children, let’s consider two families that meet thefollowing criteria:•• Each family has two children278•• The first family is headed by a married heterosexual
couple and the second by a same-sex couple where
only one partner is the legal parent of the children•• The primary earner in each couple makes $40,000
per year•• The secondary earner of each couple makes $5,000
per year and is enrolled in community college parttime, but the primary earner pays the tuition of $1,000
IRS, “Topic 607–Adoption Credit,” accessed December 9, 2010, www.irs.gov/taxtopics/tc607.html.
IRS, “Adoption Benefits FAQs,” accessed November 19, 2010, www.irs.gov/individuals/
article/0,,id=231663,00.html.
277
Michael D. Steinberger, “Federal Estate Tax Disadvantage for Same-Sex Couples,” The Williams
Institute, 2009.
278
Each couple has two children under 12, but with the same-sex couple, those children are legally
related only to the secondary earner.
275

276

71

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN

Adoption Credit. If a family adopts a child under theage of 18, all qualified adoption expenses up to $13,170(in 2010) may be deducted from the family’s taxable
income, including state-imposed fees, attorney’s costs
and fees, home evaluation fees and filing fees.275

government, LGBT couples are limited in their ability
to transfer tax-free assets from one partner to another.
This is particularly an issue for LGBT couples where one
partner has more economic resources than the other.

Table 7: Unfair Taxation Burdens LGBT Families
Married Heterosexual
Couple (Filing Jointly)

72

Same-Sex Couple (Filing Separately)Same-sex primary earner,
not legal parent

Same-sex secondary earner,
legal parent$45,000$40,000$5,000($11,400)($5,700)($5,700)($14,600)($3,650)($10,950)

Tuition & Fees
Deduction281($1,000)$0$0

Taxable Income$18,000$30,650$0Tax$1,866$4,175

Child Credit284$1,440$0$2,000Child and Dependent
Care Credit285

$560

$0

$0

$50

$0

$2,010Tax Due/Refund Amount$50 Refund$4,175 Tax Due$2,010 Refund

Net Family Refund/Taxes Owed:$50 Refund

IncomeDeductions
Standard Deduction279
Dependent Exemption

280

282

Credits

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN

Non-Refundable283

Refundable
Earned Income Tax Credit$2,165 Due in Taxes•• The heterosexual family has an extra $2,215 tax liability

Bottom Line:

LGBT family loses more than
$37,019 over 12 years•• Each couple has two children under 12; in thesame-sex couple’s family, the children are legally
related only to the secondary earner•• The primary earner in each couple pays $2,800 inchild care costs
As shown in Table 7, the LGBT family pays $2,215
more in taxes compared to the married heterosexual
couple family because of the LGBT family’s inability toaccess various tax credits and deductions.286

annually vs. the LGBT family•• Over 12 years, invested at a 5% rate of return, this equates toan additional $37,019 for the heterosexual family•• If this amount remains invested, when the children are 18
and headed to college, the total would be $49,609

Standard deductions are $11,400 for married couples filing jointly; $5,700 for single filers.
Dependent exemption is equal to $3,650 for each of the following: taxpayer, spouse, child andother dependents.
281
Taxpayers can take a deduction for tuition and fees paid. If income is less than $130,000 for
married couples, families can take up to $4,000.
282
Calculated using IRS, “1040 Instructions,” 2010.
283
This credit is not refundable, meaning that if it is greater than the amount of tax due, the family
does not get a refund for the balance. So in this case, the family’s tax burden is reduced to $0 as
a result of both the Child Tax Credit and the Child and Dependent Care Credit.
284
Assumes the primary earner of each couple pays $2,800 in child care costs. Families can takeup to $1,000 per child, but the amount is reduced by the amount of the Child and Dependent
Care Credit. For the married family in this example, the child credit would then be $2,000 minus$560, or $1,440.
285
Families can earn a credit for child and dependent care paid. The amount of the credit depends
on the income level of the taxpayer. For example, for an income level of $45,000, taxpayers cantake 20% of tuition and fees paid, but no more than $4,000.
286
If these families’ financial situations stay the same and tax rates do not change, this will be theamount these families pay until the children turn 13. Past age 12, child care expenses are nolonger eligible for the Child and Dependent Care Credit, so the additional amount that the LGBT
family pays in taxes will be reduced.
279
280

Family of Five Pays $1,490 More in Taxes
Reprinted with permission from GLAD.

The death or disablement of a parent is a devastating
event for a child. Most families can be assured, however,that they will be recognized and protected by laws
designed to provide stability and economic security
when a parent dies or becomes disabled.

Suzanne and Geraldine Artis, along with their three boys, paid $1,490 more in taxes in 2009
because they could not file a joint tax return.

Because they can’t file joint returns, the couple paid
an extra $1,490 to the federal government in 2009—
money that they would like to have put toward
college funds for the boys. Additionally, the family
worries about having a paper trail linking only oneof them to their children; Suzanne wonders, “If thepapers say that I’m the only parent, or vice versa,
I worry that if something happened to one of us,
would there be an issue?”
Adapted from GLAD, “They’re Not My Property, They’re My Family,” http://www.glad.org/
doma/stories/theyre-not-property-theyre-my-family.

In March 2010, 3.3 million children received TANF benefits compared to 4.3 million children
receiving OASDI benefits. TANF data available from U.S. Dept. of Health and Human Services,
Administration for Children and Families, “TANF: Total Number of Child Recipients, Fiscal
and Calendar Year 2010,” March 16, 2011, www.acf.hhs.gov/programs/ofa/data-reports/
caseload/2010/2010_children_tan.htm; Social Security benefit data available from Social
Security Administration (SSA), “Fact Sheet on the Old-Age, Survivors and Disability Insurance
Program,” accessed July 1, 2010.
288
Ibid.

Heterosexual families can access Social Security
benefits designed to protect a deceased or disabledworker’s family. These benefits comprise 5% of totalfederal government spending on programs benefiting
children (see Figure 25 on page 51). Additionally, if amarried heterosexual parent dies without a will, all of
the couple’s assets—such as the home and savings—will
immediately transfer to the surviving spouse (or surviving
spouse and children). If a parent dies as a result of anegligent or willful act of someone else, minor children(and in some cases, legal spouses) can sue for wrongfuldeath and obtain further economic support. LGBT families,
however, have no such assurance. Therefore, children inthese families face not only the emotional trauma of thedeath or disablement of a parent, but often the added
burden of losing their family home or becoming destitute.

Social Security Survivors and Disability
Insurance Benefits
Most people think of Social Security as a program
designed to provide benefits to older Americans. In fact,
however, the Old-Age, Survivors and Disability Insurance(OASDI) program, administered by the Social Security
Administration, provides more benefits to children
than any other social program.287 The OASDI program
functions much like life or disability insurance forfamilies: when a worker who is entitled to Social Security
benefits retires, becomes disabled or dies, the worker
and his or her spouse and unmarried children under theage of 18 may be eligible for benefits.
As shown in Figure 30 on the next page, of the 4.3
million children receiving OASDI benefits, the majorityof children (87%) receive benefits as a result of thedisablement or death of a parent.288 Many more children
live in households that receive OASDI benefits, but they
may not themselves be direct recipients of such benefits.
The following scenarios focus on benefits given to workers
and their families after a worker’s disablement or death,rather than retirement, given that very few families havechildren under the age of 18 when a worker retires.

73

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN

The Artis Family—Suzanne and Geraldine and theirthree boys, Geras, Zanagee and Gezani—lives in
Clinton, Connecticut. Suzanne and Geraldine havebeen together for more than 16 years, and in 2009
they were legally married. They are both legal parentsof their boys. While they can file a joint return inConnecticut, DOMA prevents them from filing a joint
federal tax return. As a result, they have to “carve up”
their family on their tax forms, because they can’t
both claim their children as dependents. In someyears, Suzanne claims all three boys, while in others,
Geraldine claims all three boys. There have been also
been years where Suzanne has claimed one of theboys, while Geraldine has claimed the other two.
“I don’t like to have to divide them up. They’re notproperty, they’re my family,” said Suzanne.

287

Challenge: Children Denied Protections
When a Parent Dies or is Disabled•• When a working parent becomes disabled. OASDI

Figure 30: Why Children Receive OASDI Benefits
2010 Databenefits are available to individuals who haveworked and earned a wage for a set amount oftime but who are now prevented from working
for a year or more due to a medical disability. The
monthly benefit amount is based on an individual’s
age and past earnings. Eligible family members,
including children under the age of 18, can also
receive benefits when a worker is disabled. The
average monthly benefit for a child of a disabledworker was $318 in 2010 (approximately 75% of
the parent’s monthly benefit).289

74

Retiredparent,13%
Disabled parent,
42%
Deceased parent,
44%

unmarried minor children and a surviving spouse
who cares for minor children may be eligible
for OASDI survivor benefits. These benefits aredesigned to help families with the loss of income
associated with the worker’s death. Similar todisability benefits, survivor benefits are tied to theworker’s years of work and past earnings. In 2011,
the average monthly benefit for a child of a deceased
working parent was $751 per month, though many
children receive higher benefits.290 For example,
in 2010, if a 41-year old worker making $40,000
each year died, each surviving child would receive
approximately $963 per month, with a maximum
monthly family benefit for his surviving spouse andany children totaling approximately $2,328.291
OASDI benefits are crucial for the children who
receive them. In 2008, Social Security benefits lifted morethan 1 million children out of poverty.292 Social Security
benefits are particularly vital for children of color: 20%of all children receiving Social Security survivor benefits
are African American, while African American children
comprise only 14% of all U.S. children.293 The National
Urban League found that Social Security lifts four times
as many African American children out of poverty thanwhite children.294 In addition, the U.S. Government
Accountability Office found that African American and
The maximum Social Security retirement benefit for a worker retiring at age 66 is $2,366(assumes maximum taxable income each year from age 21 to 66), SSA, “Maximum Social
Security Retirement Benefit,” May 6, 2011, http://ssa-custhelp.ssa.gov/app/answers/detail/a_
id/5/~/maximum-social-security-retirement-benefit.
290
Ibid.
291
Calculated using the Social Security Quick Calculator, www.ssa.gov/OACT/quickcalc/index.html.
292
Paul N. Van de Water and Arloc Sherman, “Social Security Keeps 20 Million Americans Out of
Poverty: A State-by State Analysis,” Center on Budget and Policy Priorities, 2010.
293
SSA, “Social Security Is Important to African Americans,” June 2010; U.S. Census Bureau, “Table
S0901: Children Characteristics,” 2006-2008 American Community Survey 3-Year Estimates,
available through http://factfinder.census.gov.
294
Valerie Rawlston, “The Impact of Social Security on Child Poverty,” The National Urban League
Research and Public Policy Dept., May 2000, www.nul.org/content/impact-social-securitychild-poverty-may-2000.
289

Note: May not add to 100% due to rounding.
Source: U.S. Census Bureau, “ACS Demographic and Housing Estimates,” 2009 American Community
Survey 1-Year Estimates; IRS, “Earned Income Tax Credit Central.”Family Plans for the Worst Because Social
Security Benefits May Not Be Available
Reprinted with permission from GLAD.

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN•• When a working parent dies. When a worker dies,Paul and Bob Ruseau with their two children, Matthew and Nev. The family worries about
what would happen if Paul were to get sick or die unexpectedly.

Paul and Bob Ruseau adopted their sons, Matthew and
Nev, from foster care. “We began parenting like mostfamilies—by jumping into the deep end of the pool,”says Bob. “We wanted to have a stay-at-home parent,so the day that we got the call that we were matchedwith Matthew and Nev, I made the choice to leave
my job… having a parent at home makes the kids
feel stable and secure, but it has been a big financial
challenge to lose my income.” Like most families, Pauland Bob worry about providing for their children, andabout what would happen to their children if one ofthem were to get sick or die unexpectedly. Paul hastaken out extra life insurance because Bob would notreceive Social Security survivor benefits if something
were to happen to Paul.
Adapted from GLAD, “DOMA Stories: Jumping in the Deep End of the Pool,” http://www.
glad.org/doma/stories/jumping-in-the-deep-end-of-the-pool.

Latino/a workers had higher disability rates than white
workers, so their families were more likely to receive
OASDI benefits resulting from disability.295

Family Left Destitute After Being Denied
Social Security Survivor Benefits

LGBT Families and Social Security Survivors andDisability Insurance Benefits

In 1998, Nicolaj (Nic) Caracappa was born throughdonor insemination to New Jersey couple Eva Kadray
and Camille Caracappa. Eva gave birth to Nic, who wasgiven Camille’s last name. Eva became a stay-at-homemom while Camille continued working as an oncology
nurse. They consulted a lawyer about completing asecond-parent adoption of Nic by Camille, but theywanted to wait until they had another child so they
could adopt both children at the same time. Sadly,
they never had a chance to bring another child home.
When Nic was two years old, Camille left for work
one day and never came home; she suffered a brain
aneurysm and died the same day.

OASDI uses a narrow definition of family. Unlike
many federal programs, OASDI benefits for children
are not tied to the marital status of a child’s parents,
but rely on the legal relationship between the retired,disabled or deceased parent and the child. Despite
the importance of OASDI benefits to the well-being ofchildren and families following the disability or deathof a working parent, children of LGBT parents may bedenied these protections.

Eligibility for the stepchild of a deceased or
disabled worker. Unlike children of heterosexual
parents, children of legally married same-sex couples
cannot receive OASDI benefits through a stepparent.
In general, a child is eligible for OASDI benefits througha heterosexual stepparent if the child was receiving atleast half of his or her support from the stepparent298andhas been a stepchild for at least one year before thestepparent becomes disabled (if applying for disability
benefits), or for at least nine months before the deathof the stepparent (if applying for survivor benefits).299
While the government generally relies on a state’s
determination of a parent-child relationship to establish
a child’s right to benefits, in December 2010 the Social
Security Administration determined that, unlike children
in heterosexual families, children in LGBT families are noteligible for benefits through a non-adoptive stepparent,
even if the parents are legally married in their state.300

Eva applied for child Social Security survivor benefits
for Nic. Those benefits—many thousands of dollars
a year—are designed to compensate a child forthe economic loss of a parent. The Social Security
Administration denied Nic the benefits because
Camille had not been Nic’s legal parent. Had New
Jersey recognized Camille as Nic’s legal parent uponhis birth, the two-year-old would not have beendenied those benefits, and Nic’s loss of a parent
would not have been compounded by economic
catastrophe—the loss of his family’s entire income.
Adapted from Polikoff, “A Mother Should Not Have to Adopt Her Own Child,” 266-7.

U.S. General Accountability Office, “Social Security and Minorities: Earnings, Disability Incidence andMortality Are Key Factors That Influence Taxes Paid and Benefits Received (GAO-03-387),” 2003.
296
In 2007, the Dept. of Justice issued a memorandum clarifying eligibility of children born intoa legally recognized same-sex marriage, civil union or domestic partnership for the purposesof Social Security benefits. See Steven A. Engel, “Memorandum Opinion,” October 16, 2007,
www.justice.gov/olc/2007/saadomaopinion10-16-07final.pdf. There have been several cases
in which the SSA has granted OASDI benefits to children who have not been legally adopted,
but whose parents obtained a parentage order. In 2009, after two years of delay, the SSA
granted benefits to the children of a gay man based on a parentage order; but in this case, thefather was also listed on the children’s birth certificate. It is not clear if the children would havebeen able to access OASDI benefits if the man had not been listed on the birth certificate of hischildren, but had only obtained an order of parentage. See Lambda Legal, “Day v. SSA, et al.,”www.lambdalegal.org/in-court/cases/day-v-social-security-administration.html.
297
National Center for Lesbian Rights, “Public Benefits Guide,” in press.
298
SSA, “GN 00306.232 Dependency Requirements–Stepchild,” https://secure.ssa.gov/apps10/
poms.nsf/lnx/0200306232.
299
SSA, “331. Stepchild-Stepparent Relationship,” Social Security Handbook, June 2004, www.
socialsecurity.gov/OP_Home/handbook/handbook.03/handbook-0331.html.
300
SSA, “SSA’s Program Operations Manual System,” Section PR 01605.035 New York, accessed
January 20, 2011, https://secure.ssa.gov/apps10/poms.nsf/lnx/1501605035. This link has
subsequently been removed, and requests for more information via a Freedom of Information
Act request have been denied.
295

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN

Eligibility for the child of a deceased or disabledworker. In general, only the legal child of a worker iseligible for OASDI benefits. Legally recognized childrenof two same-sex parents, whether or not those parents
are allowed to marry, can access OASDI benefits in thesame manner as a child with heterosexual parents.296 In
instances where a child seeks to access benefits througha legal parent who is not a biological or adoptive parent(such as a parent with a parentage judgment or parental
presumption), current Social Security policy requires that
all claims be referred to the Social Security Administration’s
regional counsel, which can result in additional delays ordenials.297 A child cannot access OASDI benefits if a nonlegally recognized parent retires, is disabled or dies.

75

76

Eligibility for a surviving spouse taking care of a child.
The OASDI program also provides benefits to surviving
spouses or ex-spouses to help care for a child under the ageof 16 in the case of a worker’s death. To qualify, the spouse or
ex-spouse must have been married to the deceased worker
for at least nine months and must be taking care of thedeceased spouse’s child. Because the federal government
does not recognize same-sex relationships, surviving samesex spouses cannot access such OASDI benefits. The childmight still receive his or her own survivor benefit, but only
if the deceased worker was a legally recognized parent.

Inheritance

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN

When a person dies, any property titled in the
deceased’s name at the time of death becomes part ofthe deceased’s gross estate. These assets are distributed
according to either the deceased’s will or living trust,or, in the absence of these documents, according tostate intestacy law.
People are generally advised to establish a will toensure that their wishes are respected after they die,
yet a 2009 survey found that only 35% of Americans
had done this.301 When someone dies intestate (without
a will), state law dictates how and to whom the assets
are distributed. Intestacy laws are designed to distributeassets in a way that people would likely choose to
distribute them through a will. These laws essentiallyserve as default wills, ensuring that those closest to thedeceased—often spouses, children and other family
members—will be provided for in the absence of thedeceased’s intentional distribution of assets.
In 16 states, when someone dies without a will, thesurviving spouse receives all the assets, regardless ofwhether the couple has children.302 In the other states,
the surviving spouse receives a percentage (often
50%) and the remaining percentage is split among any
surviving children.303 If the deceased does not have asurviving, legally recognized partner or child, the estate
will instead be distributed to the deceased’s parents andrelatives based on bloodline and adoption.

LGBT Families and InheritanceIntestacy laws vary by state, but most use a narrow
definition of family that excludes same-sex partners andchildren who lack legal ties to their parents.
Most same-sex partners cannot inherit intestate.
Intestacy laws first and foremost recognize the surviving

spouse of the deceased. Because same-sex partners
are legal strangers under the law in most states, intestacy
statutes generally do not provide for surviving same-sex
partners. While 15 states and D.C. recognize the relationships of same-sex couples and another three states provide the ability for same-sex partners to inherit as a spouseunder intestacy laws,304 same-sex partners in the remaining
32 states cannot inherit if their partner dies intestate.
Children cannot inherit intestate from non-legally
recognized parents. Whether or not a child inherits also
depends on the legal relationship between the childand the deceased parent. Any child who is not a legally
recognized child of the deceased is not covered byintestacy statutes, even if the deceased acted as a parent
and provided for the child since birth.
There is an exception in some states for children
born through donor insemination. In 2009, the Uniform
Probate Code, which acts as a model law for issues
pertaining to probate, was amended to establish
a presumption of parenthood for the purposes ofinheritance from parents of these children. As a result,three states and D.C. now allow a child born to a lesbian
couple using donor insemination to inherit fromboth mothers.305 However, the Uniform Probate Codeamendment only appears to apply to couples having achild using reproductive assistance. It does not apply tosituations where a same-sex partner acts as a stepparent
but cannot adopt the child.
The two broad problems outlined above can resultin the following complications for LGBT families where
one or both parents die without a will:•• Nobody inherits. In cases where neither the childnor the surviving partner had a legal relationshipto the deceased (the non-legally recognizedmother dies and the family lives in a state that
did not recognize the relationship of the parents),
Lawyers.com Wills and Estate Planning Survey conducted by Harris Interactive, December
2009, www.lexisnexis.com/media/press-release.aspx?id=1268676534119836.
In Alaska, Colorado, Hawaii, Minnesota, Montana, New Jersey, North Dakota and West Virginia,
the surviving spouse receives the entire deceased’s estate if the surviving spouse is the parentof all the deceased’s children and the deceased spouse is the parent of all the surviving spouse’schildren. In Arizona, Iowa, Ohio, Oregon, South Dakota, Utah, Virginia and Washington, thesurviving spouse receives the entire estate if the surviving spouse is the parent of all the
deceased’s children. Kurt R. Nilson, “Interactive Summary of State Laws,” MyStateWill.com,
accessed January 19, 2011, www.mystatewill.com/state_summaries.htm.
303
Ibid.
304
Colorado, Maine and Wisconsin.
305
As of January 2011, Colorado, New Mexico, North Dakota and Utah have adopted the2008 Uniform Probate Code Amendments. Uniform Law Commission, “Legislative Fact
Sheet - Probate Code Amendments (2008),” http://uniformlaws.org/LegislativeFactSheet.
aspx?title=Probate%20Code%20Amendments%20(2008).
301
302

neither survivor would be able to inherit understate intestacy laws, and the family’s home and all
financial assets could be given to the deceased’s
parents, siblings or distant relatives.

Costs of Legal PlanningBecause LGBT families and their relationships—
partner-to-partnerandparent-to-child—areoften not legally recognized, many LGBT families
must undertake complicated and costly legal
and financial planning in an attempt to replicate
the legal protections taken for granted by mostheterosexual couples and their children.

•• Only the surviving child inherits. In cases where
only the surviving child has a legal relationship tothe deceased, that child will then inherit the entiretyof the decedent’s estate. This can happen when alegal parent dies and the surviving parent—who
may or may not also be the child’s legal parent—isdeemed a legal stranger to the deceased due to lackof relationship recognition. When a child under theage of 18 inherits from his or her deceased parent’s
estate, either through a will or through intestacy law,a responsible adult is usually designated to provide
financial guardianship until the minor reaches 18 or
21, depending on the state in which the child lives.
This is particularly likely if the child inherits property
or assets in excess of $20,000, but that number
varies by state.306 In these situations, a court would
need to designate a financial guardian to manage
the assets. Depending on the characteristics of thefamily and the jurisdiction, it is possible that a court
might designate someone other than a surviving
partner (especially if that partner is not the child’slegal parent) as a guardian. As a result, the family’s
assets could be controlled by a relative who has
no caretaking relationship to the child, putting thefamily’s home and financial security at risk.

Most people are advised to have in place an arrayof legal documents, regardless of whether they areLGBT or not. For LGBT families, these documents
are crucial if a couple’s relationship or a parentchild relationship is denied legal recognition. Even
if they have legal recognition, LGBT families arestill advised to undertake the legal and financial
planning to ensure that their families are protected
when they cross state lines.

As these scenarios demonstrate, intestacy statutes
do not adequately protect same-sex couples and theirfamilies, who may be left unprotected in the eventof intestate death of one of the parents. Same-sex
couples can get legal counsel to try and address someof the shortcomings of intestacy laws, but this can be
costly for families (see sidebar). Furthermore, it requires
sophisticated knowledge about the gaps in the law anddoes not provide fail-safe protection.

LGBT Families Face Added Challenges in Probate
Even when LGBT families have engaged in estate planning and established a will, it must still be validated throughthe probate process. Probate is a public process, throughwhich family members may contest the terms of the will byraising objections. Depending on the particular family situation, it is possible that surviving biological family members
could argue that the relationship between the surviving
partner and child was not a “real” relationship. This could
lead the probate court to ignore the wishes of the deceased
person as expressed in the will and award the assets to othersurviving family members, again leaving a surviving partnerand children without a legal right to the assets.
306

ENotes.com, “Encyclopedia of Everyday Law: Guardianships and Conservatorships,”accessed January
19, 2011, www.enotes.com/everyday-law-encyclopedia/guardianships-and-conservatorships.

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN

While many of the necessary forms can be
downloaded online, LGBT families often seek out theadvice of lawyers to help resolve the complexities offamily configurations and varied federal, state andlocal laws. This can substantially add to the costs oflegal planning. The total cost for getting all legal
documents in place can range from $300 to morethan $6,000 depending on the complexities of afamily’s financial and personal situation. These do
not include the costs of a second-parent adoption
or other parentage action, if needed. A detailed
list of recommended legal forms and documents is
included in the Appendix on page 120.

•• A child only receives a partial inheritance. Finally, ifboth parents die, the surviving child may have theability to inherit only from the legally recognizedparent. The child could be entirely cut off frominheriting a non-legally recognized parent’s assets.

77

Wrongful Death
When a person dies, depending on the situation, it
may be possible for family members to sue for wrongfuldeath. Such a suit may result in family members receiving
financial payments from the responsible party.
78

In general, a wrongful death suit can be brought
by a family member when someone’s negligent or
intentional actions caused a person’s death. The mostcommon incidents that result in wrongful death suits arefatal car accidents and medical malpractice. If successful,wrongful death suits can result in monetary awards forthe loss of the deceased’s expected earnings, pain andsuffering for the survivors and funeral expenses, among
other things. Receiving this financial compensation may
help surviving partners and children ease the financial
loss associated with the death of a loved one.

GOAL 2: ENSURING ECONOMIC SECURITY FOR CHILDREN

LGBT Families and Wrongful Death
In most states, the determination of which family
members can sue for wrongful death follows the samelines as intestacy law—that is, only legally recognizedfamily members can sue for wrongful death, with spouses
having first priority, followed by children, parents andother more distant relatives. As a result, in most states,same-sex partners cannot sue for the wrongful death of apartner, and children who are not the legally recognizedchildren of the deceased cannot sue either. LGBT families
may thus be excluded from the potential financial
assistance that a wrongful death suit may provide.
This is not true in all states, however. Recognizingthat wrongful death suits are an important part of thelegal structure in place to help families who endure aloss due to negligence or intentional acts, some stateswith even minimal recognition of LGBT couples allow asame-sex partner to sue for wrongful death. Also, LGBT
families living in states that recognize same-sex couples
through marriage or comprehensive relationshiprecognition can sue for the wrongful death of a partner.
The ability of a child to sue for the wrongful deathof a non-legally recognized parent, on the other hand, isless certain. In most states, a child without a legal tie tothe deceased is excluded from suing. However, several
states have expanded the definition of who can sue forwrongful death. For example, in Arizona and Michigan,
any person named in the deceased’s will is able file asuit. In West Virginia, any individual who can establishthat he was financially dependent on the deceased cansue. Similarly, in California, any minor who lived with thedeceased for at least three months and was dependentfor half of his support on the deceased can file a suit.

Recommendations Overview: Ensuring
Economic Security for Children
The recommendations table at the end of this reportprovides a detailed and comprehensive overview of how
to address the inequitable laws and stigma that make itharder for children with LGBT parents to achieve economic
security. However, broadly speaking, recommendations
fall into the following major categories:
BROAD LEGAL RECOGNITION OF LGBT FAMILIES•• Pass comprehensive state legislation to allow legal
recognition of LGBT parents•• Legalize and federally recognize marriage forsame-sex couples•• Provide pathways to immigration and citizenshipfor binational LGBT families
EQUAL ACCESS TO GOVERNMENT-BASED ECONOMIC
PROTECTIONS•• Recognize LGBT families and children acrossgovernment safety net programs or adopt a broad
definition of family for the following government
safety net programs:
		a. Temporary Assistance for Needy Families (TANF)
		b. Public Housing and Housing Assistance		c. Medicaid and Children’s Health Insurance
Program (CHIP)
		d. Supplemental Security Income (SSI)
		e. Educational loans, grants and scholarships
		f. Tax credits and deductions for families•• Revise the Internal Revenue Service (IRS) tax code
to provide equitable treatment for LGBT families•• Provide equitable economic protections when aparent dies or is disabled, including in:		a. Social Security Survivors and Disability Insurance
Benefits
		b. Inheritance law
		c. The right to sue for a wrongful deathNON-DISCRIMINATION/CULTURAL COMPETENCY

and parents should be able to take care of their children. Yet in LGBT families, parents may be denied
the ability to visit or make medical decisions for theirchildren or for each other. They may also be unable
to take leave to care for a sick spouse or partner,
which further weighs on a family’s well-being.

•• Pass employment non-discrimination protections•• Strengthen agency and service provider nondiscrimination policies•• Provide cultural competency training for frontline
agency workers

4. A climate of social stigma creates special
challenges for LGBT families. Children should
be welcomed and supported in schools, public
institutions, places of worship and the broader
communities in which they live. Yet because LGBT
families continue to be stigmatized and are often
rendered invisible, children in these families face
an array of added challenges that create barriers tofeeling safe and welcome.

RESEARCH AND EDUCATION•• Educate LGBT families about current laws and how toprotect themselves, including information on government program eligibility, tax law and estate planning,
and the establishment of needed legal documents

GOAL 3: ENSURINGHEALTH AND WELLBEING FOR CHILDREN

Unfortunately, inequitable laws and social stigma
often act against the health and well-being of children
in LGBT families. The unique challenges facing thesechildren fall into four major categories:
1. Children experience inequitable access to healthinsurance. Healthcare policy should help ensurethat all American children have access to quality
physical and mental health care. Yet children in LGBT
families are often denied health insurance extended
to children in heterosexual families, and when they
have insurance, LGBT families pay additional taxes.
2. Children face unwelcoming health care environments. Even when children with LGBT parents do
obtain health insurance coverage, they and theirparents can face hostile or culturally incompetent
health care providers, making their experience withthe healthcare system needlessly stressful and discouraging LGBT families from seeking needed care.
3. Laws and policies make it more difficult for LGBT
families to take care of one another. Committed
couples should be able to take care of each other,

The impact of these barriers on LGBT families is
profound. This section of the report explains how thesebarriers impede LGBT family health and well-being
and proposes solutions for addressing the problems
outlined above.

Challenge: Unequal Access to Health
Insurance
Health Insurance Disparities
Most Americans obtain health insurance throughtheir employer or the employer of a family member.307 In
general, employers may choose whether or not to offer
health insurance to their workers and their families, aswell as which family members an employee may enroll
in employer-sponsored programs. However, once set, an
employer’s policies must be applied consistently to its
employees. For example, an employer is not required tooffer a retirement plan, but if the employer does offer
such a plan, it cannot be made available to only men, butmust be offered to both men and women.
Regulation of employee benefits falls under thefederal Employee Retirement Income Security Act(ERISA), which does not recognize same-sex couples
because of DOMA. This means that many employers
are not required to offer health insurance benefits to307

58.5% of workers get insurance from their employers; see Elise Gould, “Employer-Sponsored
Health Insurance Erosion,” Economic Policy Institute, 2009, www.epi.org/publications/entry/
health_picture_20090910. Kaiser Family Foundation (KFF) reached a similar conclusion (59%of firms of three or more workers); see “Employer Health Benefits: 2010 Annual Survey,” KFF and
Health Research & Education Trust, 2010, 48, http://ehbs.kff.org/pdf/2010/8085.pdf. For children
specifically, see “Health Coverage of Children: The Role of Medicaid and CHIP,” KFF, July 2010, www.
kff.org/uninsured/upload/7698-04.pdf. KFF found that in 2008, of the nearly 79 million children
in the United States, the majority (58%) received health insurance from a parent’s employersponsored plan or through private sources.

GOAL 3: ENSURING HEALTH AND WELL-BEING FOR CHILDREN

Concern for the health and wellbeing of American families is an
important focus of social policy. Governments at alllevels have policies in place to help ensure that children
are physically and mentally healthy, and that they live incommunities that provide them with what they need to
grow into happy, productive adults. This includes accessto health insurance and quality care and supportive
educational, religious and community environments.

79the partners of LGBT workers, even if those workers arelegally married in their state (although employers may
choose to offer these benefits electively).308 An addedcomplication is that sometimes insurance companies
will refuse to underwrite policies extending healthinsurance to same-sex partners.309

80

Not surprisingly, this inconsistent extension of healthinsurance benefits leads to reduced health insurance
access for LGBT people, including couples and families.
Data show that LGBT Americans are less likely to have
health insurance than their heterosexual counterparts,
and researchers believe that children raised by LGBT
parents are also less likely to have health insurance:

Figure 31: Percent of Adults with Health Insurance
82%

77%
57%

Heterosexual Adults

LGB Adults

Transgender Adults

Source: Jeff Krehely, “How to Close the LGBT Health Disparities Gap,” Center for American Progress,
December 2009.

•• For LGBT adults:•• As shown in Figure 31, approximately 82% of

Figure 32: LGB Adults with Health Insurance
by Race/Ethnicity

heterosexual adults have health insurance,compared to 77% of LGB adults and 57% oftransgender adults310

91%

88%

86%

GOAL 3: ENSURING HEALTH AND WELL-BEING FOR CHILDREN•• Only 51% of transgender Americans have health64%

insurance through an employer, compared to
58% of the general population311•• For same-sex couples:•• Same-sex couples are two to three times more
likely to be without health insurance coveragethan married different-sex couples312

Asian/PacificIslander

White

Black

Latino/a

Source: Jeff Krehely, “How to Close the LGBT Health Disparities Gap,” Center for American Progress,
December 2009.

•• Partnered gay men were 42% as likely to havereceived employer-sponsored dependent
coverage as were married heterosexual men313•• Partnered lesbians were only 28% as likely
as married heterosexual women to receive
health benefits through the employer of a
spouse or partner314
These disparities are especially pronounced among
LGBT people of color. For example, data from the
California Health Interview Survey find that Asian orPacific Islander and white LGB adults are more likely
to have health insurance (91% and 88%, respectively)
than are black and Latino/a LGB adults (86% and 64%,
respectively) (see Figure 32).315
While these studies do not include insurance rates
for the children of same-sex couples, research suggeststhat companies that do not extend health insurance
benefits to an employee’s domestic partner are
unlikely to extend benefits to children of that domestic
partner.316 Likewise, an employer might offer health

Employers that provide health insurance benefits directly to employees (self-insured plans) are
not required to offer domestic partner benefits because ERISA preempts state law. Employers
who purchase health insurance from an insurance company (fully insured plans) must adhere
to state insurance laws and DOMA’s application to ERISA does not apply. In some states withrelationship recognition, the state insurance department has stated that such employers are
required to provide benefits equally to same-sex spouses and partners.
309
GLAD, “Domestic Partnership Benefits Overview,” December 2010.
310
Jeff Krehely, “How to Close the LGBT Health Disparities Gap,”Center for American Progress, December
2009, www.americanprogress.org/issues/2009/12/pdf/lgbt_health_disparities_race.pdf.
311
Grant et al.,“Injustice at Every Turn.”A previous survey by the National Center for Transgender Equality
and the National Gay and Lesbian Task Force found those figures were 40% and 62% respectively.
See www.thetaskforce.org/downloads/reports/fact_sheets/transsurvey_prelim_findings.pdf.
312
Michael A. Ash and M.V. Lee Badgett, “Separate and Unequal: The Effect of Unequal Access to
Employment-Based Health Insurance on Same-Sex and Unmarried Different-Sex Couples,”Contemporary Economic Policy, 24, 582-599, http://wiwp.law.ucla.edu/wp-content/uploads/
Badgett-Ash-HealthInsuranceInequality-Oct-2006.pdf.
313
Ninez A Ponce, Susan D. Cochran, Jennifer C. Pizer, and Vickie M. Mays, “The Effects of Unequal Accessto Health Insurance for Same-Sex Couples in California,” Health Affairs, 29, 1539-1548, http://
content.healthaffairs.org/cgi/content/abstract/hlthaff.2009.0583.
314
Ninez et al., “The Effects of Unequal Access.”
315
Krehely, “How to Close the LGBT Health Disparities Gap.”
316
Ninez et al., “The Effects of Unequal Access.”308

When LGBT families are deemed ineligible forhealth insurance benefits or COBRA, they mustobtain their own insurance or go without it, creating
added costs to family security. 321 The average annual
cost to purchase health insurance for a family of fouron the private market is $7,102 (compared to $3,997
for an employee’s portion of the premiums of a plan
through an employer). This means the average LGBT
family would pay $3,105 more each year because theparents cannot enroll their family in an employersponsored plan. 322

LGBT Families Pay Extra Taxes on Health Insurance
Even when employers electively offer extended healthinsurance benefits for same-sex partners and non-relatedchildren, families who use these benefits will be taxed on
the value. This is because federal tax law currently allows an
employer to provide health insurance to the heterosexual
spouse of an employee and to the employee’s legal children
as a tax-free benefit. However, when employers offer thesame benefit to same-sex couples or the non-legally
related child of an employee, federal law treats the value

Jerry Savoy is anattorney at the Officeof the Comptroller of
the Currency for thefederal government.
He lives in Danbury,
Conn.,
withhis
husband, John, who isa stay-at-home dadtaking care of thecouple’s three children.
Jerry Savoy, John Weiss and their three children have Because Jerry is ahigher health insurance costs because John cannot federal employee, andbe enrolled in health insurance through Jerry’s job.
the federal government doesn’t offer domestic partner benefits, Jerry is
unable to provide health insurance for his husband.
So, while the couple’s three children have healthinsurance through the federal government as part of
Jerry’s family plan, Jerry had to purchase anindividual plan for John that costs $440 per month.
“We have three kids that we have to raise,” says Jerry.
“We live paycheck to paycheck just like everybody
else. We are a family just like the person across thestreet that’s entitled to put their spouse on theirhealth insurance. Why can’t we do that?”
Adapted from GLAD, “The Pedersen Plaintiffs: Damon “Jerry”Savoy & John Weiss,”http://www.
glad.org/doma/plaintiffs-pedersen/#plaintiff_1206.

Employee Benefit Research Institute, “Domestic Partner Benefits: Facts and Background,” 2009,www.ebri.org/pdf/publications/facts/0209fact.pdf.
Health coverage of children should improve in coming years as a result of the 2010 Affordable Care
Act, which requires most Americans to enroll in a qualified health insurance plan by 2014, when state
health insurance exchanges will be established to help more Americans afford coverage. The law also
takes several steps to expand children’s access to healthcare coverage, including extending federal
funding for the Children’s Health Insurance Program (CHIP); providing federal funding to states toassist children in gaining access to this program; and creating tax credits and incentives as well asother mechanisms to lower the cost of health care for children and expand access to preventive care.
Yet disparities between children in LGBT families and those in other families are likely to persist as
long as LGBT families cannot establish full parent-child relationships. See “The Affordable Care
Act Gives Parents Greater Control Over Their Children’s Health Care,” www.whitehouse.gov/files/
documents/health_reform_for_children.pdf and Kellan Baker and Jeff Krehely, “Changing the
Game: What Health Care Reform Means for Gay, Lesbian, Bisexual, and Transgender Americans,”
March 2011, www.americanprogress.org/issues/2011/03/pdf/aca_lgbt.pdf.
319
HRC, “Equal Access to COBRA Act,” http://www.hrc.org/laws-and-legislation/federal-legislation/equal-access-to-cobra-act.
320“Qualified beneficiaries” (defined by COBRA as spouses or dependent children of the covered
employee) have an independent right to elect coverage, while certain other categories ofbeneficiaries may only elect COBRA coverage if given permission by the covered employee. See
IRS Code at 26 U.S.C. § 4980B(g)(1) (2006); DOL Code at 29 U.S.C. § 1167(3) (2006); and HHS
Code at 42 U.S.C. § 300bb-8(3) (2006).
321
As noted above, some of this may change as a result of the 2010 Affordable Care Act.
322
Estimate of average annual premium for family from KFF, “Survey of People Who Purchase Their
Own Insurance,” 2010 and “Employer Health Benefits: 2010 Annual Survey.”
317
318

81

GOAL 3: ENSURING HEALTH AND WELL-BEING FOR CHILDREN

Finally, LGBT families also face disparities in keeping
coverage when losing or changing jobs through thefederal Consolidated Omnibus Budget Reconciliation
Act (COBRA), which enables employees to keep their
existing job-related health insurance coverage forthemselves and their families for 18 months after
they have lost their jobs. Current law does not requirethat employers, even those who provide domestic
partner benefits, give employees the opportunity toenroll same-sex partners and spouses in insurance
provided through COBRA, nor to avail themselves ofthe funding Congress has authorized to help families
pay for it. 319 COBRA is currently unclear about whether
children without a legal relationship to the covered
employee are considered dependent children for the
purposes of continuing coverage. In certain situations,domestic partners and their children can only obtain
COBRA coverage if the covered employee authorizes
it, which can leave partners and children uncovered if
a couple’s relationship ends.320

Family Spends $5,000 Per Year for Health
Insurance Because Federal Government
Doesn’t Recognize LGBT Families
Reprinted with permission from GLAD.

insurance to a worker’s domestic partner but not to thedomestic partner’s child(ren). Of employers that offer
benefits to domestic partners, 83% also offer coverageto their dependents.317 Therefore, the child of a samesex couple will sometimes be denied coverage unlesshe or she is the legal child of the employee.318

of the extended insurance benefits as taxable income.323 In
some cases, same-sex couples also have to pay additional
state taxes. Taxation of health benefits costs the average
employee with domestic partner benefits $1,069 more per
year in taxes than a married heterosexual employee withthe same coverage. Employers also are required to pay
payroll taxes on the value of domestic partner benefits,costing them an estimated $57 million per year.324
82

96%

57%

Disparities in Coverage Through Private Employment
Data from the Bureau of Labor Statistics finds thatfewer than three in ten (29%) private sector employees
have access to healthcare benefits for domestic partners.325
Similarly, the vast majority of private companies (96% ofcompanies with 50 or more employees, and 69% of thosewith three or more employees) offer health insurance totheir workers, and many of these also extend benefits toworkers’ families.326 Yet just 57% of large firms electively
offer health insurance to workers’ same-sex domestic
partners (see Figure 33).327 For the overwhelming majorityof these firms (88%), the cost of offering this extended
insurance is less than 2% of total benefit costs.328

GOAL 3: ENSURING HEALTH AND WELL-BEING FOR CHILDREN

Figure 33: Large Companies Offering Health Insurance

Offer Health Insurance

Source: HRC, “Corporate Equality Index 2011.”

University Professor Could Lose Benefits
for Her Family
Corey Seemiller and her partner, Karrie Mitchell, live inArizona with their infant daughter. Because Corey and
Karrie can’t marry in Arizona, and because the availability of second-parent adoption is uncertain, Karrieis their daughter’s only legal parent. Corey and Karrie
have tried to create as much security for their daughter as possible. Through a co-parenting agreement
and a power of attorney, Corey can make decisions
about their daughter’s medical care and education,and the couple has created a trust to care for theirdaughter if anything were to happen to one of them.

Disparities in Coverage Through Government
Employment
Coverage for federal employees. Federal employees
and their families are eligible for more than 300 healthinsurance plans under the Federal Employees Health
Benefits Program.329 To be eligible for federal family
health insurance benefits, a person must be a covered
federal worker’s heterosexual spouse or legal child,stepchild or foster child (children must be unmarried,
under 22 years old, and live with the covered worker).330
When these benefits are offered, the IRS typically requires employers to determine a fairmarket value of the benefit, report it on the W-2 form, and then tax it. In an effort to offset theinequitably applied tax, some employers, including Apple, Facebook and Google have begun
to use their own funds to pay additional compensation to workers in same-sex partnerships.
Employees with partners who qualify as “dependents” are not required to pay this additional
tax. As described in “Tax Credits and Deductions for Families” on page 69, for an individual toqualify as an employee’s dependent, the employee must provide more the half the person’s
total support, the person must have total income less than $3,650, the person must live withthe employee, and the person cannot be claimed as anyone else’s dependent.
324
M. V. Lee Badgett, “Unequal Taxes on Equal Benefits: The Taxation of Domestic Partner Benefits,”
The Williams Institute and the Center for American Progress, December 2007, http://wiwp.law.
ucla.edu/wp-content/uploads/Badgett-UnequalTaxesOnEqualBenefits-Dec-2007.pdf.
325
Access to domestic partner benefits varies by employer and employer and whether the partner is of
the same-sex or different-sex. U.S. Dept. of Labor, Bureau of Labor Statistics, “Employee Benefits in
the United States – March 2011,” July 26, 2011, http://www.bls.gov/news.release/ebs2.nr0.htm.
326
Bloomberg says 96% of 50+ employers provide health insurance, but it is not clear if that
includes coverage for families. John Tozzi, “Small Employers Struggle to Offer Health Insurance,”
Bloomberg Businessweek, October 6, 2009, www.businessweek.com/smallbiz/content/
oct2009/sb2009106_487565.htm and “Employer Health Benefits: 2010 Annual Survey.”
327
HRC, “Corporate Equality Index 2011,” 7, http://www.hrc.org/files/assets/resources/
CorporateEqualityIndex_2011.pdf.

Offer Domestic Partner Benefits

Fortunately, Corey works for the University of
Arizona, which offers domestic partner benefits tothe partners of gay and lesbian employees and theirchildren. However, in 2009 Arizona passed legislationthat prohibited any state institution from offering
domestic partner benefits. This legislation is being
challenged in court, but if it is allowed to takeeffect, families like Corey and Karrie’s will be unable
to access domestic partner benefits and family healthinsurance coverage.

323

Adapted from Lambda Legal, Diaz v. Brewer (formerly Collins v. Brewer),
http://www.lambdalegal.org/in-court/legal-docs/collins_az_20100107_amendedcomplaint-us-district-court.html.

Hewitt Associates, “Benefit Programs for Domestic Partners and Same-Sex Spouses,” July 2005.
Naomi G. Goldberg, Christopher Ramos and M.V. Lee Badgett, “The Fiscal Impact of Extending
Federal Benefits to Same-Sex Domestic Partners,” The Williams Institute, September 2008,
http://wiwp.law.ucla.edu/wp-content/uploads/Badgett-Goldberg-Ramos-S2521FiscalAnalysisSept-2008.pdf.
330
U.S. Office of Personnel Management, “FEHB Eligibility,” www.opm.gov/insure/health/eligibility/index.asp.
328
329

Figure 34: Coverage of State Employees
Washington
New Hampshire
MontanaNorth
DakotaVermont

22 states + D.C. offer healthbenefits to same-sex partnersof state employees

Maine

Minnesota

OregonIdaho
Wyoming

South
DakotaPennsylvania
Illinois

Colorado

Arizona

New Mexico

KansasOklahoma

Indiana

Ohio
Virgina

KentuckyNorth Carolina

Tennessee
Arkansas
Georgia

Connecticut

28 states do not provide
health benefits to same-sex
partners of state employees

New Jersey

West
Virginia

MissouriMassachusetts
Rhode Island

Iowa

Utah
California

New York

MichiganNebraska

NevadaWisconsin

83

DelawareMarylandDistrict ofColumbia

South
Carolina

Alabama
AlaskaTexas

Mississippi

Louisiana
FloridaHawaiiCoverage for state employees. Twenty-two states
plus D.C. offer benefits to same-sex partners of state
employees (see Figure 34).333 But children of domestic
partners might not be covered if the child is not also
the legal child of the worker. As of March 2011, theDepartment of Labor estimated that 33% of state andlocal government employees had access to healthcare
benefits for domestic partners.334

Health Disparities for LGBT Individuals andFamilies
LGBT families’ lower rates of health insurance areparticularly troubling given that LGBT adults face healthdisparities when compared to the general population(see Figure 35 on the next page). Key disparities can beseen in access to care and in the incidence of HIV/AIDS,
mental health disorders, and chronic physical conditions
such as diabetes and arthritis among LGBT individuals
and families. Factors that give rise to these healthdisparities include: high rates of stress due to systematic
harassment and discrimination; medical providers’ lack of
cultural competency; and lower rates of health insurance.

For example, unwelcoming health care environments(described below) mean that LGBT people are more
likely than their heterosexual peers to delay testing andscreening for certain illnesses like heart disease andbreast cancer. This may explain why LGB adults are more
likely to have had cancer.335 While the vast majority ofLGBT adults are well adjusted and mentally healthy,336
LGB adults are more likely to report experiencing
psychological distress, which researchers have attributed
to the accumulated effects of stigma and discrimination(see Figure 36 on the next page).337 While several studies
provide information about the health status of the LGBT
population, much is still not known about LGBT people
and families due to a consistent lack of data collection.
See the first section of this report, “Securing Stable, Loving Homes” for the challenges faced byLGBT families in establishing legal relationships.
332
Goldberg et al., Extending Federal Benefits to Same-Sex Partners, 2008.
333
HRC, “Statewide Employment Laws & Policies,” www.hrc.org/documents/Employment_Laws_
and_Policies.pdf. According to HRC, these states offer “benefits” generally, i.e., not just healthbenefits. Note that although Nevada has comprehensive relationship recognition, the state’s
domestic partnership law excluded healthcare benefits from being offered to state employees.
Note also that while Delaware was not listed by HRC, its recent passage of civil unions for samesex couples will also extend health insurance coverage to public state employees.
334
Bureau of Labor Statistics, “Employee Benefits in the United States – March 2011.”
335
Krehely, “How to Close the LGBT Health Disparities Gap.”
336
Institute of Medicine, “The Health of Lesbian, Gay, Bisexual, and Transgender People,” March 31, 2011, 158.
http://iom.edu/Reports/2011/The-Health-of-Lesbian-Gay-Bisexual-and-Transgender-People.aspx.
337
Ilan H. Meyer, “Prejudice, Social Stress, and Mental Health in Lesbian, Gay, and Bisexual
Populations: Conceptual Issues and Research Evidence,” Psychological Bulletin, 129:5 674-697.
331

GOAL 3: ENSURING HEALTH AND WELL-BEING FOR CHILDREN

Because of the restrictive federal definition of family,
same-sex partners and any children not legally related to
the worker (as interpreted under federal law) are denied
health insurance coverage.331 In 2008, the government
paid an average family health insurance benefit of$8,137, although this coverage and benefit was denied
to the families of LGBT workers.332

Figure 35: Percent of Adults Reporting Excellent
or Very Good Overall Health83%

Heterosexual Adults

LGB Adults

84

77%

67%

Transgender Adults

Source: Massachusetts Department of Public Health, “The Health of Lesbian, Gay, Bisexual andTransgender Persons in Massachusetts,” 2009.

Figure 36: Percent of Adults Reporting Psychological Distress18%

Heterosexual Adults

20%

GOAL 3: ENSURING HEALTH AND WELL-BEING FOR CHILDRENLGB Adults

Challenge: Unwelcoming Health Care
Environments
Having health insurance coverage does not always
mean having access to quality care, as health careenvironments are often inhospitable to LGBT families. Many
professional caregivers—from physicians to counselors to
the receptionists at medical facilities—are not acceptingof, or trained to work with, LGBT families. These providers
may be hostile, discriminatory or simply unaware that
LGBT families exist. Some medical providers have evenrefused to treat LGBT people citing religious or personalreasons. According to one study, the result of these andother barriers is that 29% of LGB adults delayed or neversought medical care for themselves, versus only 17% ofheterosexual adults;338 a recent national study found thatthe figure for transgender adults was 48%.339 (See Figure 37.)
Research confirms anti-LGBT bias within many areasof the medical profession.340•• A study by the Public Advocate of New York foundSource: Jeff Krehely, “How to Close the LGBT Health Disparities Gap,” Center for American Progress,
December 2009.

that in New York City’s health care facilities, “LGBTindividuals experience hostility and discriminationin care,” and “concerns about homophobia andtransphobia keep LGBT individuals from using
health care services.”341

Figure 37: Percent of Adults Delaying
or Avoiding Medical Care•• In a New York “needs assessment survey,” 42% of
48%Transgender Adults

LGB Adults

Heterosexual Adults

29%

17%

Source: Jeff Krehely, “How to Close the LGBT Health Disparities Gap,” Center for American Progress,
December 2009; Jaime M. Grant, Lisa A. Mottet, Justin Tanis, Jack Harrison, Jody L. Herman andMara Keisling, “Injustice At Every Turn: A Report of the National Transgender Discrimination
Survey,” National Center for Transgender Equality and National Gay and Lesbian Task Force, 2011.

Center for American Progress analysis of the 2007 California Health Interview Survey.
Grant et al.,“Injustice at Every Turn.”
340
Lambda Legal, “Achieving Health Care Fairness: Medical Providers’ Obligation to Follow AntiDiscrimination Laws,” August 2009, http://data.lambdalegal.org/publications/downloads/
fs_achieving-health-care-fairness.pdf.
341
Public Advocate for the City of New York, Improving Lesbian, Gay, Bisexual and Transgender
Access to Health Care at New York City Health and Hospital Corporation Facilities, 2008.
342
Somjen Frazer, “LGBT Health and Human Services Needs In New York State,” 2009, www.prideagenda.
org/Portals/0/pdfs/LGBT%20Health%20and%20Human%20Services%20Needs%20in%20
New%20York%20State.pdf.
343
MAP,“Advancing Transgender Equality,”2009.
344
Grant et al.,“Injustice at Every Turn.”
338
339

LGBT respondents said that community fear or
dislike of LGBT people was a problem for them inaccessing health care, and nearly 40% said there
were not enough health professionals who are
adequately trained and competent to deliver
health care to LGBT people.342•• Up to 39% of transgender people face harassment
or discrimination when seeking routine healthcare.343 A comprehensive report on discrimination
faced by transgender Americans found that 19%
were refused medical care due to their transgenderor gender non-conforming status, with larger
percentages for transgender people of color.344
While little data exists on the specific experiences ofchildren of LGBT parents, children are also affected by
the hostility extended to their parents, and, as a result,
may suffer inferior health care treatment or outcomes.
A family may, for instance, shy away from scheduling achild’s doctor’s visit in an effort to shield him or her fromhostile questions or misunderstandings. For parents
who must rely on medical professionals with unknownattitudes toward LGBT patients, concerns linger about
treatment of them and their children, which can makecare more difficult to obtain.345

with immediate family members, and to develop written
policies stating they will not deny visitation privileges on
the basis of sex, sexual orientation or gender identity.349

Challenge: Family Members Restricted in
Taking Care of Each Other

While the new policy was an important step forward,
it is only helpful in cases where the patient is capable ofdesignating preferred visitors. If an LGBT person is rushed
to the hospital and is mentally incapacitated, dependingon the state and hospital, that person’s same-sex partner
may not be allowed to visit the patient. Also, if thepatient is a child living with a non-legally recognizedparent, that parent may not be allowed to visit the child.

Hospital Visitation and Medical DecisionMaking
Every day, government and private health careproviders apply different definitions of the word
“family”—both legal and social—when making lifeand-death decisions about individuals’ well-being.
Most hospitals have policies that specifically define
who may visit or make decisions for an incapacitatedpatient, generally prioritizing or restricting such rights
to legally-defined “immediate family” members such aslegal spouses, siblings, children and parents.346 These
policies must conform to state law, where it exists, but
can sometimes include expanded family definitions.

Hospital visitation disparities. In the 15 states, plus
D.C., that allow marriage or comprehensive relationshiprecognition for same-sex couples, same-sex couples
have the same hospital visitation rights as heterosexual
couples. Several other states ensure visitation rights
either through a general (but limited) relationshiprecognition law or through a specific “designated visitor”
policy designed for hospital scenarios.347 Hospitals also
set their own policies. According to the Human Rights
Campaign’s Health Equality Index, which reviewed arepresentative sample of 200 major health care facilities,
less than a third of hospitals in 2010 had policies thatallowed same-sex couples and parents the same
visitation access as heterosexual couples and parents.348
To address these disparities, the Obamaadministration issued a memorandum in 2010 requiring
all hospitals nationwide that participate in Medicaid
and Medicare to honor the wishes of patients regarding
approved visitors. The new policy, which took effect inJanuary 2011, makes it a “condition of participation” forthese hospitals to allow such visitation on an equal basis

Medical decision-making for an incapacitatedpartner. Unless an LGBT patient has specific and often
expensive legal documents in place, his or her partner
may be excluded from making medical decisions. While
the Obama administration’s hospital visitation memo
described above requires hospitals to respect valid
decision-making designations if patients have them inwriting, this policy does not help patients who are incapacitated and do not have, and cannot sign, such forms.
LGBT adults who want to pre-designate their wishes
and their medical decision-makers need both a living will(a set of health care instructions that outline one’s wishes
for treatment should one become incapacitated) and ahealthcare power of attorney (which designates a trusted
person to make medical decisions on one’s behalf should
one become incapacitated). These two documents are often
combined into an advanced healthcare directive (AHD).
Individual state laws govern how medical providers must
respond to AHDs,350 including what powers designatedindividuals are entitled to, what the documents must say,and when they are presumed valid.351
See, for instance, Baker and Krehely,“Changing the Game.”
Matthew Stiff, “Breaking Down Barriers: An Administrator’s Guide to State Law and Best Policy
Practice for LGBT Healthcare Access,” HRC Foundation, June 2010, www.hrc.org/documents/HRC_
Foundation_-_Breaking_Down_Barriers_-_An_Administrators_Guide.pdf.
347
Three states extend equal visitation through limited relationship recognition laws: Colorado,
Maryland and Wisconsin. Six states allow visitation through a “designated visitor” policy, similar tothe policy required of hospitals by the Obama administration’s 2010 directive: Kentucky, Minnesota,
Nebraska, North Carolina, Virginia and West Virginia. In addition, Georgia and South Carolina allow
patients to designate a “healthcare agent” for visitation. See HRC, “Hospital Visitation Laws,” www.
hrc.org/documents/hospital_visitation_laws.pdf.
348
HRC Foundation, “Healthcare Equality Index 2010: Creating a National Standard for Equal
Treatment of Lesbian, Gay, Bisexual and Transgender Patients and Their Families,” April 2010,16, http://www.hrc.org/files/assets/resources/HealthcareEqualityIndex_2010.pdf.
349“Presidential Memorandum Hospital Visitation,” April 15, 2010, www.whitehouse.gov/thepress-office/presidential-memorandum-hospital-visitation. The new rules are part of the Codeof Federal Regulations, at 42 CFR 482.13(h) and 42 CFR 485(f).
350
In 1982, the Uniform Law Commission began drafting model law on health care consent policy,
but not all states have adopted these laws. See Stiff, “Breaking Down Barriers,” 8. The American
Bar Association Commission on Law and Aging has information on specific state laws at www.
abanet.org/aging/legislativeupdates/home.shtml.
351
Stiff, “Breaking Down Barriers.”Healthcare.
345

346

GOAL 3: ENSURING HEALTH AND WELL-BEING FOR CHILDREN

Unfortunately, the restrictive definition of family
still used by too many state laws and hospital policies
not only hurts LGBT families, but can also mean that
unmarried heterosexual couples, single people, widows
and widowers, members of religious orders and thoserelying on close friends are denied the comfort of a loved
one in their time of need.

85While obtaining an AHD seems straightforward intheory, relying on one has many weaknesses in practice:

Excerpt from President Obama’s 2010
Hospital Visitation Memo:•• First, many people are not aware of the need for,or do not have the means to obtain, these types oflegal documents. Although the exact percentageof Americans with AHDs is unknown, one study by
the Pew Research Center found that just under athird of American adults had living wills.352
86

Every day, all across America, patients are denied
the kindnesses and caring of a loved one at theirsides—whether in a sudden medical emergency
or a prolonged hospital stay. Often, a widow or
widower with no children is denied the support
and comfort of a good friend. Members of religious
orders are sometimes unable to choose someone
other than an immediate family member tovisit them and make medical decisions on theirbehalf. Also uniquely affected are gay and lesbian
Americans who are often barred from the bedsidesof the partners with whom they may have spentdecades of their lives—unable to be there forthe person they love, and unable to act as a legal
surrogate if their partner is incapacitated.

•• Second, medical providers often ignore or refuse
to honor the AHDs of LGBT people. While thismay be illegal, many LGBT people do not have theresources to challenge these actions, nor can theseactions usually be challenged in the timeframe
required in a medical emergency.

•• Third, in order to successfully protect themselves,

GOAL 3: ENSURING HEALTH AND WELL-BEING FOR CHILDREN

LGBT families must remember to carry their AHDs
with them at all times—if an individual is rushed
to the hospital without these documents, a loved
one can legally be denied decision-making rights.

For all of these Americans, the failure to have theirwishes respected concerning who may visit themor make medical decisions on their behalf has realconsequences. It means that doctors and nurses
do not always have the best information about
patients’ medications and medical histories andthat friends and certain family members are unable
to serve as intermediaries to help communicate
patients’ needs. It means that a stressful and at times
terrifying experience for patients is senselesslycompounded by indignity and unfairness. And itmeans that all too often, people are made to suffer
or even to pass away alone, denied the comfort ofcompanionship in their final moments while a loved
one is left worrying and pacing down the hall.

Given the limitations of AHDs and the fact thatfew people have them, it is important that state laws
designate default medical decision-makers for an adultpatient who is incapacitated. States with marriage orcomprehensive relationship recognition for same-sex
couples recognize such couples for medical decisionmaking. Additionally, some states have specific statutes
that address medical decision-making by same-sex
partners. As shown in Figure 38 on the next page, states
can be roughly categorized as follows:353•• “LGBT-inclusive” states. Nineteen states and D.C.
offer legal recognition of same-sex couples throughmarriage or comprehensive relationship recognition
or by including “same-sex spouse” or “domestic
partner” in priority lists (default lists outlining who canmake medical decisions for an incapacitated patient),
giving same-sex partners equal or substantiallyequivalent standing to a heterosexual spouse.

•• “Limited recognition” states. Thirteen states offersome recognition for LGBT partners through broad
language, such as inclusion of “close friend” in the priority lists, usually after legally-related family members.

•• “Legal stranger” states. Eighteen states use narrow
definitions of family that even exclude “closefriends.” In these states, a same-sex partner has
no chance to be designated as a medical decision
maker for an incapacitated partner absent an AHD.

Source: “Presidential Memorandum Hospital Visitation,” April 15, 2010, www.
whitehouse.gov/the-press-office/presidential-memorandum-hospital-visitation.

Note that medical institutions are bound by state law
and could be subject to punishment if they defer medical
decision-making to someone not authorized by thestate’s priority list. This means that even when a hospitalwould prefer to have an LGBT-friendly policy, it may nothave that option if it is in a state with restrictive law.
The Pew Research Center, “Strong Public Support For Right To Die,” January 6, 2006, http://people-press.org/reports/pdf/266.pdf.
353
Stiff, “Breaking Down Barriers,” 14-17. This was updated by MAP to classify Delaware, Illinois
and Nevada as “LGBT-inclusive” given that these states all have comprehensive relationshiprecognition for same-sex couples. State classification is shown in Figure 38.
352

Figure 38: Medical Decision-Making Policies
Washington
New Hampshire
MontanaNorth
DakotaVermont

19 states + D.C. have LGBTinclusive laws

Maine

Minnesota

OregonIdaho
Wyoming

South
DakotaPennsylvania
Illinois

Colorado

Arizona

New Mexico

KansasOklahoma

Indiana

Ohio
Virgina

KentuckyNorth Carolina

Tennessee
Arkansas
Georgia

13 states provide limited
recognition of LGBT partners(e.g., as a “close friend”)

Connecticut
New Jersey

West
Virginia

MissouriMassachusetts
Rhode Island

Iowa

Utah
California

New York

MichiganNebraska

NevadaWisconsin

Delaware18 states treat LGBT partners
as legal strangers

87

MarylandDistrict ofColumbia

South
Carolina

Alabama
AlaskaTexas

Mississippi

Louisiana
FloridaHawaiiDefining who is a parent for the purposes of consenting to a minor’s medical treatment is a complex matter.
While state laws usually address a parent’s right to makemedical decisions for a dependent child, many such laws
do not spell out who qualifies as a parent; some states
do not codify these parental rights at all. Amid such legal
uncertainty, individual institutions are left to set policies
about parental consent while conforming to broad state
legal requirements that mandate the “informed consent
of a parent” for major medical procedures.
Like state laws, these institutional policies can vary
widely. Some hospitals define precisely who is a parent,
while others do not. Among those that include definitionsin their policies, some have liberal interpretations (coveringde facto parents, foster parents and stepparents) whileothers define parent or guardian narrowly to include only
custodial or biological parents.355
In addition, demonstrating that someone is a defacto parent to a child can be difficult, especially inthe stressful and sometimes desperate setting of a
medical emergency. The legally recognized parent cansign documentation such as a “power of attorney forparental authority” granting a non-legally recognizedparent the power to make medical decisions for a child,but state law and the unfamiliarity of medical providers
with the legal processes involved can limit how effective
such documents are in practice.356 Many families may
not be able to afford such documents and many may
not even know they are required. Parents who do havesuch documents may not always carry them at all times.
Finally, in cases where a de facto parent is informallyraising the child of an absentee parent, the de facto
parent may not be able to gain needed signatures.
The exceptions, depending on state statute, can include treatment for sexually transmitted
diseases, substance abuse, sexual assault and family planning. In addition, “emancipatedminors” tend to be covered under laws governing AHDs and surrogate selection. See Stiff,“Breaking Down Barriers.”
355
Stiff, “Breaking Down Barriers,” 14-17.
356
All states have laws addressing the validity of powers of attorney, and depending on thestate and the situation, the power granted by such documents can be limited or broad.
These documents are in no way a substitute for full legal recognition of a parent, particularly
because they rely on the consent of the recognized parent, which may not be granted in casesof relationship dissolution or death. See “Power of Attorney and Health Care Forms by State,”
U.S.LegalForms.com, www.uslegalforms.com/powerofattorney.
354

GOAL 3: ENSURING HEALTH AND WELL-BEING FOR CHILDREN

Medical decision-making for a child. With some
exceptions, minors are not considered capable ofmaking major medical decisions on their own and are
not allowed to enter into AHDs.354 Therefore, state law
generally requires hospitals and medical providers to
obtain a legal parent’s consent for medical treatment(which is documented as part of the medical recordsof the child). A non-legally recognized LGBT parent (oranyone who functions as a de facto parent, such as afamily friend or extended relative raising a child) willoften be unable to make routine or emergency medical
decisions for a child. This hurts not only children in LGBT
families, but also children raised in other households
that lack full, legal parental recognition (a fact that
disproportionately affects children of color).

GOAL 3: ENSURING HEALTH AND WELL-BEING FOR CHILDREN

88

Photo by Leslie Von Pless. Reprinted with permission from Lambda Legal.

Lack of Family Recognition Impacts
Children, Family’s Health Care
Together for more than 35
years, Maureen Kilian andCindy Meneghin haveraised two children. The
couple has always tried toprepare their children for
the questions that may
come with having lesbianparents, including ways forthem to cope withdiscrimination. However,Maureen Kilian and Cindy Meneghin, with Maureen and Cindy were
their two children, faced uncertainty during
a medical emergency when the hospital staff not prepared for how theirdidn’t understand their family.
children would react to thepolitical discussion about civil unions and marriage in
New Jersey. Their son, Josh, sent a letter to the governor
asking why his parents can’t marry. As Cindy explains,“He has said to me, ‘No one is giving us a real answer for
why they have the right to deny us our right as a family.’
What am I supposed to say to him?”
When Cindy was admitted to the hospital, one of
the nurses didn’t know what a civil union was, andCindy worried that Maureen wouldn’t be able to
make medical decisions on her behalf if she wereincapacitated. The hospital staff was also reluctant toshare important medical information with Maureen,
despite their civil union.
Adapted from Lambda Legal, “Plaintiffs in the New Jersey Marriage Lawsuit: Lewis v. Harris,”
http://www.lambdalegal.org/publications/factsheets/fs_plaintiffs-in-nj-marriagelawsuit-lewis-v-harris.html.

This means children facing a medical emergency may
be in the care of a parent who is not authorized to makelife-saving or life-altering decisions. Hospitals that wish
to adopt more liberal interpretations of who constitutes
a parent open themselves up to liability risks, which is adisincentive to establishing more inclusive policies.357

Family Leave
The 1993 federal Family and Medical Leave Act(FMLA) requires public and large private employers to
grant up to 12 weeks of unpaid annual leave to allow
workers to care for a spouse, child or parent (except inlaws) with a serious health condition.358 The FMLA gives
these caregivers flexibility, leave and job security.

Taking care of a child. The FMLA has a broad definition of who can take leave to care for a child. It defines
a worker’s “son or daughter” as a biological, adopted or
foster child; a stepchild; or “a child of a person standingin loco parentis.”359 In 2010, the U.S. Department of Labor
issued a clarification indicating that the in loco parentis
clause allows any worker who is acting (or intends to act)
as a parent to take leave under FMLA to care for that sickor newborn (or newly adopted) child, even if the worker
is not recognized as a legal parent under state law. Thisnot only allows non-legally recognized LGBT parents totake leave to care for their children, but also, for example,
an uncle to take leave to care for a child whose single
parent is on active military duty. The clarification was animportant step and sent a strong signal that the manydifferent kinds of caretakers who act as parents can takeleave to continue their care under FMLA. The Williams
Institute estimates the clarification will allow care for up to
100,000 additional children living in LGBT households.360
Taking care of a partner. Unfortunately, the FMLA is
not similarly broad in allowing workers to take care of a
loved one who is not a legally recognized spouse or blood
relative, even if the non-recognized family member shares ahousehold. Although they may do so electively, employers
are not required to grant leave to allow an employee tocare for a same-sex partner or spouse, an unmarriedheterosexual partner or a non-legally recognized family
member (for example, close friends who share a home
together). Again, this disproportionately affects not only
LGBT families, but also families of color who are often lesslikely to fall within commonly defined boundaries.
Among LGBT families, a worker taking time off tocare for a sick or injured partner risks losing his or her
job. In addition, many LGBT workers are not safe taking
such leave because doing so could require revealing
their sexual orientation (and they may lack employment
non-discrimination protections in their state). While it isimportant for parents to be able to care for their children,
it is also important for families and the children they raisethat parents be able to care for each other. A child should
never see one parent forced to choose between providing
for the family or taking care of his or her partner.
Stiff, “Breaking Down Barriers,” 14-17.
U.S. Dept. of Labor, “Family and Medical Leave Act,” www.dol.gov/whd/fmla. Workplaces offewer than 50 employees are not required to grant leave.
359
U.S. Dept of Labor, “Administrator’s Interpretation No. 2010-3,” June 22, 2010, www.dol.gov/
whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.htm.
360
M.V. Lee Badgett, “The Impact of Expanding Leave Rights to Care for Children of Same-Sex
Partners,” The Williams Institute, June 2010, http://wiwp.law.ucla.edu/wp-content/uploads/
Badgett-FMLA-Jun-2010.pdf.
357
358

Department of Labor Issues New Guidance
That Broadly Interprets “Child” Within FMLA“No one who loves and nurtures a child day in andday out should be unable to care for that childwhen he or she falls ill. No one who steps in toparent a child when that child’s biological parents
are absent or incapacitated should be denied leaveby an employer because he or she is not the legal
guardian. No one who intends to raise a child should
be denied the opportunity to be present whenthat child is born simply because the state or an
employer fails to recognize his or her relationshipwith the biological parent. These are just a few ofmany possible scenarios. The Labor Department’s
action today sends a clear message to workers
and employers alike: all families, including LGBT
families, are protected by FMLA.”
Source: Hilda L. Solis, Secretary, U.S. Department of Labor, June 23, 2010.

Challenge: Social Stigma andDiscrimination
The lived experiences of LGBT families vary widelyand defy generalization. Indeed, despite the uniquepressures LGBT families face, what is perhaps mostremarkable about children raised by LGBT parents is how
much they are like other children.362 Yet several themes
emerge when LGBT families are asked to describe theireveryday lives. These include:•• The unique family pressures associated with being
LGBT families being rendered invisible and not valued•• Laws and practices that prevent these families
from being welcomed within broader community
institutions•• Unsafe and unwelcoming schools that fail toprovide safety for children•• The added challenges facing racially and ethnicallydiverse LGBT families

Unique Pressures for LGBT Families and Their
ChildrenMany of the challenges LGBT families face stemfrom a society that assumes, expects and too often
demands behaviors and family configurations basedon heterosexual assumptions. Even today, many
Americans assume that all children live in a family withtwo married heterosexual parents. The stresses resulting
from these expectations and demands are heightenedfor LGBT families of color, who also have to contend
with the inadequate attention given by laws, policies
and institutions to the needs and concerns of racialand ethnic communities. Transgender parents and theirchildren also face added strains; a child with a visibly
gender non-conforming transgender parent may be
more identifiable than a child with LGB parents and, asa result, more likely to face onerous mistreatment.363
This section briefly describes some of the key social andemotional challenges faced by LGBT families.
Lack of legal recognition is emotionally burdensome.
The vulnerability of families where parents lack legal
ties to their children adds stress, fear and uncertainty
for everyone. LGBT parents who lack legal recognition
are sometimes less certain about their own place in thefamily. For example, in a study of African American lesbianfamilies, this sense of displacement is particularly true forlesbian stepparents.364 This research also suggests that insituations where there is one legal parent and one nonlegal parent, a power dynamic may arise where the legal
parent has more power and consequently an unequal
footing in the relationship, the household decisions andthe decisions pertaining to the care of the child.
HRC, “FMLA Equivalent Benefit for LGBT Workers,” http://www.hrc.org/resources/entry/familyand-medical-leave-act-fmla-equivalent-benefit-for-lgbt-workers. The California law grants
registered domestic partners the same benefits as heterosexual spouses.
362
As described in the introduction of the report, a large body of research finds that the childrenof LGBT parents are psychologically similar to children raised by married heterosexual
couples. Studies have found that children raised in LGBT families have a somewhat greater
understanding and awareness of diversity than other young people. Children of LGBT parents
also report they are more likely to feel empathy for those who encounter discrimination due
to race, income, class or religion, and more likely to challenge homophobia or discrimination
when they see it. Goldberg, Research on the Family Life Cycle.
363
Tina Fakhrid-Deen and COLAGE, Let’s Get This Straight: The Ultimate Handbook for Youth with
LGBTQ Parents, Seal Press, 2010; COLAGE, “Not So Gay: Differences Between KOTs and Children
with LGB/Q Parents,” www.colage.org/resources/not-so-gay-differences-between-kots-andchildren-with-lgbq-parents.
364
Mignon Moore, “Gendered Power Relations Among Women: A Study of Household Decision
Making in Black, Lesbian Stepfamilies,” American Sociological Review, 75(6), 2008.
361

89

GOAL 3: ENSURING HEALTH AND WELL-BEING FOR CHILDRENStates that wish to address the inadequacies of
FMLA can create their own laws that provide broader
medical leave, and a number of states do so. For example,
the California Family Rights Act (CFRA) requires large
employers to give 12 weeks of unpaid leave to care for aseriously ill domestic partner.361

This section examines the experiences of LGBT
families and how experiences of stigma are stressful
and detrimental to the well-being of children andtheir parents.

GOAL 3: ENSURING HEALTH AND WELL-BEING FOR CHILDREN

90

In the event that a relationship dissolves, thepossibility of having a parent-child relationship torn apartat the hands of an ex-partner or a court creates additional
stress for non-recognized parents and uncertainty forchildren. Transgender parents and their children inparticular may live in fear that their relationship will besevered. In the National Transgender Discrimination
Survey, 29% of respondents whose intimate relationships
ended as a result of their coming out as transgenderindicated that their ex-spouse or partner limited or
stopped their relationship with children because of theirtransgender identity; 13% of the respondents reported
that a court or judge stopped or limited their relationships
with their children. Both multiracial and African Americantransgender parents were more likely than others toreport these obstacles to maintaining a relationship with
their children, as were low-income respondents.365
Trouble finding language to talk about family.
LGBT families develop language with which to talkabout themselves, including words to identify anddescribe the household’s parents. Outside the home,children and parents in LGBT families encounter books,
television shows, teachers, peers and other parents witha limited awareness of the diversity of today’s families.
Children may be asked, “Who is your real mother?,” aquestion that can confuse and offend both the childand the non-biological parent, whose connection to
her child is called into question.366 People may also
assume that a child is “missing” a parent and ask, forexample, “Where is your father?” For younger children,in particular, these questions can be confusing anddisorienting and can undermine, over time, a healthy
sense of their own family.367
Facing the pressure to be perfect. LGBT families often
feel pressure to be a model family, surpassing standards
to which all other families are held. Especially if they are
the only LGBT family in a school or community, they may
worry that others will form judgments about all LGBT
people based on their individual family.368 This pressure
can be difficult for both parents and children. Parents may
feel they cannot ask for help in dealing with the usual
stresses of parenting, and children may feel they cannot
talk about the struggles they face growing up. Some fearthat any problem they “go public with” will be mistakenly
attributed to having LGBT parents. They also may fear that
their parents—and other LGBT parents—will be criticizedor even politically penalized or restricted in their ability to
be parents as a result of any problems they share.369

Hostile and inappropriate questions or comments
directed at children of LGBT parents. According to childrenof LGBT parents, reactions to discussing their families
include surprise, disapproval and hostility, often followed
by intrusive questions attempting to further clarify thefamily structure. An additional challenge for children ofLGBT parents is persistent outside questioning of the child’s
own sexual orientation. Children of LGBT parents report thatstrangers often assume that since the child’s parents are
LGBT, the child might be also, leading to invasive questions
about a child’s sexual orientation starting at a very young
age. Children of LGBT parents may therefore be wary about
discussing their families, and may further feel guilt about
this wariness. In some cases, any questions about thesexual orientation of family members may feel like a threat.
The concealment that children may engage in as a result
can create a sense of shame and may also discourage themfrom seeking needed help out of fear that they could “out”
their family with harmful consequences.
Politicizing the family. Over the past 20 years, LGBT
families have often been on the front lines of culture
wars, even when they have not sought out the fight. In
the news, on television and on street corners, opponents
and proponents of LGBT rights have debated the abilityof LGBT people to be parents and what impact theirorientation may have on children. For LGBT families,
these political debates and conversations are deeply
personal. One can only imagine how a young child might
react to seeing a political ad claiming so-called dangers
of letting two women marry if that child himself has twomoms, let alone news reports about a hate crime against
someone who is LGBT.370 During the public dialogue
about California’s Proposition 8, which restricts marriage
to a man and a woman in California, one newspaper
quoted the child of same-sex parents wondering, “What’s
going to happen to my family?” if the measure passes.371
Grant et al., “Injustice at Every Turn.”
H.J. Makadon, K.H. Mayer, J. Potter, and H. Goldhammer, The Fenway Guide to Lesbian, Gay,
Bisexual, and Transgender Health, American College of Physicians, 2007.
367
Family Equality Council, “Talking to Our Children About Our Families,” www.familyequality.org/
pdf/talkingtochildren.pdf.
368“Every time children with LGBT parents agree to talk,… participate in research, or even comeout about their family in a social setting, they know they are not only representing their own
families—they are opening the window to an entire population.” Abigail Garner, Families Like
Mine: Children of Gay Parents Tell It Like It Is, Harper Collins, 2004, 20.
369
Goldberg, Research on the Family Life Cycle. See also Garner, Families Like Mine, 20. One lesbianparent poignantly expressed her concerns in a blog post: “This pressure to be perfect places anenormous strain on our families and can prevent us from seeking important mental health,substance abuse or other services that could address the very problems we feel constrained
from discussing. It leaves service providers unaware of the need to put certain programs inplace. And it can prevent us from reaching out to friends and family for support.” Cindy Rizzo,“LGBT Families and the Pressure to Be Perfect,” www.equalfamily.org/blog/?p=327.
370
Garner, Families Like Mine, 96.
371
Seth Hemmelgarn, “Kids Feel the Impact of Prop 8,” The Bay Area Reporter, 2009, www.ebar.
com/news/article.php?sec=news&article=3770.
365
366

Having spent nearly 25
years together, TomDavidson and Keith
Heimann are raising
their two adopted
daughters, Grace andMarie. Keith teaches at
a community college,
and his family received
healthinsurance
benefits through his
employer. During astatewide
audit,Tom Davidson and Keith Heimann, with their
however, Keith’s familydaughters, lost health insurance for several months
because they lacked “adequate documentation” of coverage was canceled
their family’s legal ties.
because they lacked“adequate documentation” of his relationship with Tom
and his children. Even though Tom and Keith entered acivil union in New Jersey in 2007 and were married in
California in 2008, the state auditor failed to recognize
their relationship. Tom and the couple’s daughterswent several months without health insurance while
Tom and Keith sought to provide documentation andhave the family’s insurance reinstated.
Adapted from Lambda Legal, Garden State Equality, et al., v. Dow, et al., http://www.
lambdalegal.org/in-court/legal-docs/gse_nj_20110629_complaint-for-declaratoryand-injunctive-relief.html.

For instance, children may overhear negative comments about their parents from extended
family or may simply be aware of their extended family’s disapproval of their parents and theirrelationship. Goldberg, Research on the Family Life Cycle.
373
Erich, Leung and Kindle (2005) cited in Goldberg, Research on the Family Life Cycle. Interestingly,
gay and lesbian couples report that they received more support from their families after they
become parents than when they were childless. Goldberg, Research on the Family Life Cycle.
374
Goldberg, Research on the Family Life Cycle.
375
Preliminary analysis of 2010 Social Justice Sexuality Survey conducted by Juan Battle, Antonio(Jay) Pastrana, Jr. and Jessie Daniels, www.socialjusticesexuality.com.
376
Goldberg, Research on the Family Life Cycle.
377
Mignon Moore, in press, Invisible Families: Gay Identities, Relationships and Motherhood Among
Black Women, University of California Press, 2011.
372

91

GOAL 3: ENSURING HEALTH AND WELL-BEING FOR CHILDREN

Disconnect from LGBT community. While thenumber of LGBT families is increasing, it is still thecase that an LGBT family could be the only one in a
town or community. Similarly, childrearing rates in theLGBT community are lower than in the heterosexual
community. As a result, there are few models, limited
resources and less social support for LGBT parents toseek out as challenges arise. Some LGBT people whohave children feel alienated or excluded from thebroader LGBT community. Lesbian mothers in one survey
said they felt less support from their LGBT friends after
becoming parents.376 While media attention to LGBT
families frequently focuses on financially comfortable,
white couples who created a family together, that
configuration is not reflective of the bulk of LGBT families.
The popular narrative excludes the varied experiences
and challenges of a wide range of LGBT parents,
including those who are low-income, families of color
and those who live outside urban, coastal communities.
Moreover, the experiences of LGBT parents who cameout after becoming parents are often very different fromthose of LGBT parents who had children after coming
out. One researcher found that “mothers becoming
lesbians” (women who had children before coming out)
were less likely to be involved in the LGBT community
than were “lesbians becoming mothers” (women whocame out before having children).377

Family Loses Health Insurance Because of“Inadequate Documentation”
Photo by Leslie Von Pless. Reprinted with permission from Lambda Legal.

Strained relationships with extended family.
Despite growing visibility and acceptance, many LGBT
people still lack traditional sources of support fromparents, siblings and other blood relatives—relationships
disrupted as a result of prejudice after coming out as
LGBT. The absence of familial support can impact how
LGBT families function.372 In one study, lesbians and gay
men who adopted children reported less support fromtheir families than their heterosexual counterparts.373
Support from extended family also varies within LGBT
families. For example, a survey of lesbian couples withchildren found that biological mothers enjoyed morefamilial support than non-biological mothers. In thosecases where the non-biological mothers later secured
legal parentage, their families then became more devoted
to the child(ren).374 Yet, in a 2010 survey of LGBT parentsof color, the majority of black, Latino and Asian/PacificIslander LGBT parents said that they were supported bytheir families as an LGBT person; with two of out five LGBT
black, Latino and Asian/Pacific Islander parents saying
they were “completely supported” by their families.375

LGBT Families in the Broader Community

GOAL 3: ENSURING HEALTH AND WELL-BEING FOR CHILDREN

92

Everyday concerns and traveling from state tostate. Even for LGBT families who are able to establish
legal parent-child relationships in their home states,
they worry that they may not be recognized as a family
when they travel or have to relocate for work. ManyLGBT parents carry thick packets of paperwork, including
copies of birth certificates, adoption decrees, domestic
partnership agreements and living wills, just to make surethey will be recognized as a legitimate family if the worstcase scenario were to occur. As one family in Colorado
explained, “We have to carry cards right now that allow
access to our powers of attorney, but we’re at the mercyof that paperwork arriving in time for it to be useful and[must wonder if ] medical personnel will even respect it.”378
Constraints on employment options. Americans
primarily receive health insurance through theiremployers—so much so that some people purposely
seek out a job with a specific employer because of thehealth insurance benefits. For LGBT families who receive
coverage through work, changing employers could
mean the loss of domestic partner benefits, which could
leave a partner and her children without insurance.
Similarly, while 21 states and D.C. have laws prohibiting
discrimination on the basis of sexual orientation and 15
states and D.C. prohibit discrimination based on gender
identity, LGBT parents who have to relocate for a job risk
losing such protections. As a result, LGBT parents can feelconstrained in where to live and how to economicallyprovide for their families.
Faith and religion. LGBT families of faith may findit challenging to be a part of a religious community.
A growing number of churches and communities offaith are welcoming of LGBT families.379 Yet some LGBT
parents, especially those living in a community thattakes a conservative stance on the notion of family, may
not be able to find a religious community that affirms
their families.380•• A study of same-sex couples living in downstate
Illinois found that only 28% reported membershipin a supportive congregation.381•• A study of gay Catholics found that only 44% wereout to clergy in their local churches.382
Some LGBT families who attend more conservative
churches try to hide the parents’ relationship. As ablack lesbian couple remarked in a dissertation about

black lesbians and community, “We don’t go to church
holding hands…, we don’t go to church for that. We
go for the Word.”383 Such families, and especially thechildren of same-sex couples, can struggle with hearing
negative things said about their family from the pulpit.
As a result, if an LGBT family cannot find a welcoming
place of worship, many may choose to stop attending
services rather than put themselves in unwelcome
settings. Despite the challenges in finding acceptance incommunities of faith, in a 2010 survey of LGBT people ofcolor, 73% of Asian/Pacific Islander LGBT parents, 73%
of black LGBT parents and 63% of Latino LGBT parents
said their religious tradition or spiritual practice had apositive influence or no influence on their understandingof their LGBT identities.384
Community belonging. Being part of an LGBT family is
not the only aspect of a child’s or parent’s identity or senseof self. LGBT families are diverse and so are their needs andinterests. Some LGBT parents worry about how they or theirchildren will be received by a sports team or at the public
library, or how the family will be otherwise received in the
broader community. For example, a report by San FranciscoLGBT Family Collaborative includes the story of a lesbian
couple with a special-needs daughter who worried about
participating in a disability advocacy organization becauseof its more conservative, religious membership.385
Community acceptance can be a particular problem
for transgender parents and their children. Researchshows that transgender people are at a much greaterrisk of experiencing discrimination and hate crimes
than are LGB or heterosexual people, and in many states
they are not legally protected from discrimination. As
one transgender parent noted, LGBT parenting groups
Ginger Delgado, “Couple Vows to Carry Torch for Gay Marriage in Colorado,” www.kdvr.com/
news/kdvr-couple-gay-marriage-colo-20110406,0,4819824.story.
Regina Kleiner, May 19, 2010, www.examiner.com/lgbt-parenting-in-hartford/catholicchurch-provides-spirituality-option-for-lgbt-families.
380
Very few studies inquire about LGBT Americans’ experiences with religious communities. A
2000 survey of black LGBT Americans found that 43% of respondents had negative experiencesin religious communities, and black lesbians and transgender people were more likely thanblack gay men to report such experiences; Juan Battle, Cathy J. Cohen, Dorian Warren, Gerard
Fergerson and Suzette Audam, “Say It Loud, I’m Black and I’m Proud,” www.thetaskforce.org/
downloads/reports/reports/SayItLoudBlackAndProud.pdf.
381
Ramona Faith Oswald, Abbie Goldberg, Kate Kuvalanka and Eric Clausell, “Structural and Moral
Commitment Among Same-Sex Couples,” Journal of Family Psychology, 22:3 411-19, http://
clarkscene.clarku.edu/faculty/goldberg/OSWALD%20GOLDBERG%20ET%20AL.%20JFP%20
2008.pdf.
382
Andrew KT Yip, “Dare to Differ,” Sociology of Religion, 1997, 58:2 165-180, http://socrel.
oxfordjournals.org/content/58/2/165.full.pdf.
383
Valerie Quinn Glass, “Black Lesbian Families and their Relationships with their Families ofOrigin,” 2010 dissertation, http://scholar.lib.vt.edu/theses/available/etd-11092010-124413/
unrestricted/Glass_VQ_D_2010.pdf.
384
Preliminary analysis of 2010 Social Justice Sexuality Survey.
385This collaborative includes COLAGE, Our Family Coalition and the San Francisco LGBT
Community Center. “Our Families,” LGBT Family Collaborative, 2007, www.sfcenter.org/pdf/
OurFamilyReport.pdf.
378
379

The School Experiences of Children with LGBT
Parents
Even when LGBT families can create affirming andsupportive social networks, many LGBT parents express
concern about the environment that their children willencounter at school.

Even for those LGBT parents who have the resourcesto choose a private school,389 not all private schools areopen to the children of LGBT families. For example, several
Catholic schools have refused, or withdrawn admission
to, children of LGBT parents. In 2010, Catholic schools
in Boulder, Colorado, and Hingham, Massachusetts,
withdrew the acceptances of children upon learning thatthe children had lesbian parents.390 There are, however,other parochial schools that have revised policies to be
inclusive. For example, in January 2011 the Archdioceseof Boston revised school admission policies to indicatethat schools cannot “discriminate against or exclude any
categories of students.”391
LGBT parents and their children face several schoolrelated concerns:
Bullying and harassment. As efforts to prevent
bullying of LGBT youth in schools have grown, far lessattention has been paid to the children of LGBT parents
who also can experience bullying and harassment. A 2008
survey of LGBT parents and their school-age children foundthat 40% of students with LGBT parents reported being
verbally harassed about their families.392 Additionally, overa third (38%) of these students reported being harassed
for their real or, usually, perceived sexual orientation. This

93
Jeff Lutes (Left) and his partner, Gary Stein, are raising three children. Gary and two of the couple’schildren are deaf. They have written a book about diversity, adoption and deaf culture called Okin the
Panda Bear Finds His Family.

study also found that children from LGBT families whoreported high levels of harassment were more likely toreport missing school because they felt unsafe.
Even when children in LGBT families are not thetargets of bullying or harassment, three-quarters ofstudents in such families reported hearing derogatory
terms about LGBT people at school393—terms used torefer to people like their own parents.394 In very few cases
did students report that school personnel intervened.
In fact, a large minority of respondents (39%) said they
heard teachers or other school staff make inappropriate
remarks about LGBT people.395
Hostile administrators, teachers and parents. ManyLGBT parents note that they face prejudice or hostility fromschool personnel.396 For example, having a teacher position
the presence of a child with LGBT parents in his classroom
as “an issue” to be dealt with automatically injects a feelingof abnormality for that child, his classmates, other parents
and school personnel. Similarly, school personnel may
MAP telephone interview with Vivienne Ling, board member, Our Family Coalition, December
3, 2010.
Kosciw and Diaz, Involved, Invisible, Ignored.
388
Survey of LGBT families conducted by GLSEN, COLAGE and the Family Equality Council. See also
J.G. Kosciw and E.M. Diaz, Involved, Invisible, Ignored: The Experiences of Lesbian, Gay, Bisexual
and Transgender Parents and Their Children in Our Nation’s K-12 Schools, GLSEN, 2008, www.
glsen.org/binary-data/GLSEN_ATTACHMENTS/file/000/001/1104-1.pdf.
389
The average annual tuition at a private school is $8,549, but it rises to $17,316 for a nonsectarian private school. Council for American Private Education, “Facts and Studies,” www.
capenet.org/facts.html.
390
Lisa Wangsness, “Two Views on Excluding Lesbians’ Son,” The Boston Globe, May 13, 2010, www.
boston.com/yourtown/hingham/articles/2010/05/13/students_exclusion_draws_denial;
Valerie Richardson, “Colorado Catholic School Rejects Gay Parents’ Children,” The Washington
Times, March 10, 2010, www.washingtontimes.com/news/2010/mar/10/colorado-catholicschool-rejects-gay-parents-kids.
391
Wangsness, “Archdiocese Issues No-Discrimination Admissions Policy,” The Boston Globe, January
13, 2011, www.boston.com/news/education/k_12/articles/2011/01/13/archdiocese_issues_
no_discrimination_admissions_policy.
392
Kosciw and Diaz, Involved, Invisible, Ignored.
393
Ibid.
394
Garner, Families Like Mine.
395
Kosciw and Diaz, Involved, Invisible, Ignored.
396
Daniel Ryan and April Martin, “Lesbian, Gay, Bisexual, and Transgender Parents in the Schools
Systems,” School Psychology Review, 29:2 207-216, 2000.
386
387

GOAL 3: ENSURING HEALTH AND WELL-BEING FOR CHILDREN

Geographic and financial constraints mean that LGBT
families often cannot choose which school their childattends. Parents with more economic resources or wholive in areas with multiple schools may have more flexibility
in choosing places to live or sending children to schools
where harassment is less likely to occur. While only 17% of
all LGBT families reported choosing the school their childattends because it had a reputation for being welcoming ofLGBT families, 46% of LGBT parents who send their children
to private, non-religiously affiliated schools reported that
this was a top reason for choosing that school.387 Perhaps
for this reason, fewer children of LGBT parents attend publicschool (78% versus 89% of all children).388

Reprinted with permission of Jeff Lutes.

become places for LGB parents to socialize, whereas hertransgender parenting group focuses on the different
challenges and fears of transgender parents.386

Family in New Mexico Files Lawsuit
Against School
In June 2011, the Bissell-Peterson family filed alawsuit against Martin Luther King Elementary in
Rio Rancho, N.M., where their 11-year-old daughter,
Jenna, was enrolled. Shannon, one of Jenna’s parents,
alleges that her daughter was bullied because of her
family. For example, when Jenna wrote a story about
her mothers getting married, her teacher responded
by telling her that her parents’ marriage wasdisgusting and that no one needed to know about
it. The teacher then required Jenna to write her story
about something else. The girl also experienced
bullying from her fellow classmates, including being
pushed to the ground and scraping her face.

94

Every Trip to the Doctor or School Requires
an Explanation for Family in New Jersey
Photo by Leslie Von Pless. Reprinted with permission from Lambda Legal.

GOAL 3: ENSURING HEALTH AND WELL-BEING FOR CHILDREN

Adapted from Jeff Maher, “Suit Claims Girl Discriminated Against for Having Gay Parents,” KOB
Eyewitness News 4, June 9, 2011.

The Nicholson-McFadden Family has to cross things out on forms at school and the doctor andexplain their family to staff.

Anytime that Karen and Marcye Nicholson-McFadden and their two children, Kasey and Maya, travelout of New Jersey, they worry about what may happen. While the couple has a civil union in New Jersey, they are very aware that other states may notrecognize their relationship or their legal ties totheir children. Every time the family visits the doctor or the children’s schools, Karen and Marcye aretreated differently. They have to explain their family
to staff, and they regularly have to cross things out
on government, doctor and school forms to makethose forms represent their family.
Adapted from Lambda Legal, “Plaintiffs in the New Jersey Marriage Lawsuit: Lewis v. Harris,”
http://www.lambdalegal.org/publications/factsheets/fs_plaintiffs-in-nj-marriagelawsuit-lewis-v-harris.html.

question the ability of a non-legal parent to participate inschool activities, attend parent-teacher conferences, or pickup a child from school. This renders such a parent invisible,
harming both the parent and the child. School forms thatask for a “mother” and a “father” may also alienate and makeinvisible LGBT parents and their children, as may curricula
such as family tree exercises that ask children to talk about
their “mom and dad,” without any understanding thatmany children are raised by parents, grandparents, aunts
and other family members.
Added pressure to perform. As noted earlier,LGBT families often feel the pressure to be perfect. Thispressure manifests itself in at least two ways at school.
First, despite hostile school climates, LGBT parents are
more likely than other parents to be involved in theirchildren’s schools—they are more likely to volunteer,attend parent-teacher conferences and to contact
teachers about their children’s academic performanceor school experience. 397 Second, because the issueof LGBT parenting is sometimes politicized and canappear under a public magnifying glass, children may
not seek out the academic help they need because
they worry that any academic challenges or social
difficulties they demonstrate will be associated withthe fact that they have LGBT parents. One scholar ofLGBT families notes the example of a teen raised by
two women who never discussed with teachers orfriends the fights she had with her parents because ofconcerns that they would reflect poorly on all lesbianparents. In another case, a daughter kept from her
mothers the fact that she had been harassed at schoolfor being part of an LGBT family in an effort to shield
her parents from homophobia.398

Challenges for LGBT Parents of Color and Their
Children
Until recently (and still today), few LGBT organizations
have taken steps to address the intersections of racism,
homophobia and transphobia that result in economic andeducational barriers for many LGBT people of color.399 In a2010 survey of LGBT people of color, LGBT parents ofcolor indicated that non-discrimination and economic
issues, access to marriage and relationship recognition,and overall equality and acceptance were the top threeissues they personally faced (while discrimination and
397
398
399

Kosciw and Diaz, Involved, Invisible, Ignored.
Garner, Families Like Mine.
Applied Research Center, “Better Together: Findings on the Relationship between Organizationsand LGBT Communities,” 2010, www.arc.org/images/lgbt%20report_091710_final.pdf.

Next, in large cities, LGBT community organizations
are often based in heavily LGBT neighborhoods. Yet
many LGBT people of color do not live in these areas,
instead living in communities with other racial or ethnic
minorities.401 As a result, LGBT families of color may haveless access to programming offered by LGBT organizations.

Lesbian Parents Worry About Children’s
Experiences at School
Reprinted with permission from Lambda Legal.

overall equality and acceptance, HIV/AIDS and sexual
health, were the top issues facing LGBT communities
of color).400 Yet, half of black LGBT parents (51%), Latino
LGBT parents (50%) and Asian/Pacific Islander LGBT
parents (52%) said that the LGBT community was notdoing enough to address economic justice. Additionally,
more than half (55%) of black LGBT parents, 47% of
Latino LGBT parents and 43% of Asian/Pacific IslanderLGBT parents said that the LGBT community was notdoing enough to address racial justice and equality.

The Lael Family, from New Jersey, worries about how their children will be treated at school byteachers, other parents and other children.

Adapted from Lambda Legal, “Plaintiffs in the New Jersey Marriage Lawsuit: Lewis v. Harris,”
http://www.lambdalegal.org/publications/factsheets/fs_plaintiffs-in-nj-marriagelawsuit-lewis-v-harris.html.

Many LGBT families are multiracial, which canpresent unique challenges. For example, parents raisingchildren of different racial or ethnic background reportstruggling to help their children feel fully a part of theircommunity of origin. Children raised in such families
may experience confusion and disconnect from boththeir parents’ communities and the communities withwhich they identify.
Preliminary analysis of 2010 Social Justice Sexuality Survey.
Unpublished research conducted by Gary J. Gates.
402
Battle et al., “Black and I’m Proud.”
403
Preliminary analysis of 2010 Social Justice Sexuality Survey.
404
Vickie M. Mays, Linda M. Chatters, Susan D. Cochran and Joanna Mackness, “African American
Families in Diversity: Ga Men and Lesbians as Participants in Family Networks,” Journal ofComparative Family Studies, 29:1 73-87, 1998.
400
401

GOAL 3: ENSURING HEALTH AND WELL-BEING FOR CHILDREN

Suyin and Sarah Lael, from New Jersey, are raising theirthree children: Zenzali, Tenaj and Danica. The couple
thinks a lot about how their children are treated atschool by their teachers, their peers and by otherparents. For example, even though Suyin and Sarah
can’t get married because they live in New Jersey, theylegally changed their last names so that the entire
family would have the same name. “We decided to
do this before she [Zenzali] entered kindergarten
because… we wanted to add another signal forteachers and administrators that they should deal withboth of us as parents and treat our daughter’s family asa family,” Suyin explained. Children at the girls’ schools
understand what it means to be married and divorced,
but that when Suyin and Sarah’s children try to explain
a civil union their friends are confused. The family
also talks openly about the discrimination that theirchildren may face because they are African American.

Even when LGBT families of color can access LGBT
organizations, they often do not feel welcome. In a 2000
survey of black LGBT people, 31% of respondents indicatedthat they have had only negative experiences withprimarily white LGBT organizations.402 In a 2010 survey ofnearly 5,000 LGBT people of color, LGBT parents of color
indicated that, for the most part, they felt comfortable asa person of color in the LGBT community.403 Yet, one-third(34%) of black LGBT parents said that they have sometimes
or always felt uncomfortable in the LGBT community
compared to 30% of Latino LGBT parents and 27% of Asian/Pacific Islander LGBT parents. Similar numbers of LGBT
parents of color said that they had sometimes or always
felt uncomfortable in their racial or ethnic community
because of their sexual orientation; 34% of Asian/PacificLGBT parents said they had felt uncomfortable becauseof their sexual orientation compared to 32% of Latino
parents and 28% of black parents.
A survey of black lesbians found that they were muchless likely to turn to the LGBT community for support andsocial ties than are white lesbians. Black lesbians
instead turn to their extended families and the black
community for support.404 Similarly, LGBT parents ofcolor often feel they must choose between their sexual
orientation/transgender identity and their racial or
ethnic identity. Many LGBT families of color express adesire to feel welcome as an LGBT family within theirown communities as opposed to needing to seek out
LGBT spaces that will welcome them as a family of color.
As one black lesbian parent said, “I want to know who
is queer-friendly in my community center, not to join awhite group to be queer.”95

Recommendations Overview: Ensuring
Health and Well-Being

96

The recommendations table at the end of this reportprovides a detailed and comprehensive overview of
how to address the inequitable laws and stigma thatmake it harder for children with LGBT parents to achieve
health and well-being. However, broadly speaking,recommendations fall into the following major
categories.
BROAD LEGAL RECOGNITION OF LGBT FAMILIES•• Pass laws barring discrimination in employment,
health services, housing and credit•• Pass legislation to prohibit bullying and harassment in schools and universities•• Expand supportive learning environments withteacher certification programs, school psychologist
and counselor programs, and curriculum reform•• Educate and provide cultural competency training

recognition of LGBT parents as legal parents

to a wide array of professionals including adoption
agencies, government agency workers, healthservice providers, schools and faith communities•• Legalize and federally recognize marriage for•• Work with the Department of Health and Human•• Pass comprehensive state legislation to ensuresame-sex couples•• Provide pathways to immigration and citizenshipfor binational LGBT families
HEALTH INSURANCE AND ACCESS TO QUALITY CARE•• Pass laws ensuring that workers’ domestic partners
GOAL 3: ENSURING HEALTH AND WELL-BEING FOR CHILDRENSOCIAL STIGMA AND DISCRIMINATION

and dependent children have access to healthinsurance on equal terms with other families,
including equal tax burdens•• Encourage private employers to offer domestic

Services to ensure that its proposed work to expand
health care training programs addresses the needsof LGBT families•• Work with organizations that accredit healthservice providers to develop standards forserving LGBT families
SERVICES TO SUPPORT LGBT FAMILIES•• Create stronger support services for LGBT families•• Work with faith communities to ensure that LGBT

partner benefits

families feel welcome in places of worship•• Work to ensure that the Affordable Care Act•• Be more inclusive of transgender parents and theirdefines “family” broadly for the purposes of LGBT
family inclusion•• Provide greater support for LGBT families of

FAMILY MEMBERS TAKING CARE OF EACH OTHER•• Pass or revise state visitation and medical decisionmaking laws to be inclusive of LGBT families and defacto parents•• Work with hospitals and other medical facilities andfamilies in LGBT community spaces
color and multiracial LGBT families within LGBT
organizations•• Work with organizations of color to support
multiracial LGBT families and LGBT families of color
RESEARCH ON LGBT FAMILIES

providers to enact LGBT-friendly policies related tovisitation, AHDs and related issues•• Expand research and data collection on LGBT family•• Revise the FMLA to broaden the definition of•• Emphasize research and data collection on

covered caregivers

health disparities and needs
transgender parents and LGBT families of color

CONCLUSION AND DETAILEDRECOMMENDATIONS
Today’s American families are diverse. Some children
are raised by grandparents or aunts and uncles. Others
live in families headed by a single parent, an LGBT parent
or a same-sex couple. Still others live in adoptive families
or foster homes. But the needs of children are the same
regardless of what their family looks like.
Archaic and discriminatory laws ignore the modern
realities of American families. Such laws make it difficult for
many children to have a legal connection to a parent whocares for them. Lack of recognition can have a detrimental
impact on children if a parent dies or becomes disabled, orif the parents’ relationship dissolves. Families may not beable to access safety net programs designed to support
and protect children because these programs rely on
outdated definitions of family. Finally, a child’s access toemotional and physical support can be severely limitedby the invisibility of their family configurations.

LGBT families—and all diverse families—need not
be marginalized and excluded from the vital economic,
social and cultural networks that exist to ensure that
American children can achieve their full potential. This
report provides recommendations ranging from federal
legislative solutions to suggestions for continuing
education for physicians and teachers. Taken together,
they provide a framework to help ensure that all children
can thrive, regardless of what their families look like. In
fact, all American families are strengthened when thediversity of families is recognized.

•• Allowing all children to create legal bonds
with parents, regardless of their parents’ sexual
orientation, gender identity or marital status•• Changing law and public policy to provide diverse
families with equal access to government-based
economic protections and programs•• Actively creating a culture that affirms thevalue of all children and decreases stigma anddiscrimination against LGBT and other 21st century
families
Important changes to law and society can makecertain that all children are valued and that families havethe tools they need to raise strong, healthy children.
LGBT families—like all American families—want theopportunity to provide stable, loving homes to theirchildren. They want the economic and emotional
resources to raise healthy, successful children, andthe opportunity to be an integral part of broader
communities that are welcoming and supportive ofthem and their children. We hope that national attention
to the challenges and solutions outlined here will help
make this a reality for more American families.

97

CONCLUSION AND DETAILED RECOMMENDATIONSChildren raised in LGBT families also face social andcultural stigma that can stand in the way of becoming
full, welcomed members of their communities. Similarly,
these children may lack competent and caring healthproviders or may face hostile school environments.

The recommendations provided in this report canbe summarized as three broad points:

Detailed Recommendations Table
Goals Accomplished by Recommendation

RECOMMENDATION

Goal # 1:
Securing
Stable, Loving
Homes

Goal #2:
Ensuring
Economic
Security

Goal #3:
Ensuring
Health andWell-Being

LEGALLY RECOGNIZE LGBT FAMILIES
98

RECOGNIZE LGBT PARENTS AS LEGAL PARENTS
Pass comprehensive parental recognition laws at the state level to fully protect children in LGBT
families.

•• Revise parentage and adoption statutes to allow joint and second-parent adoption, parental

presumption, and legal recognition of de facto parents and the intended parents of children bornusing assisted reproduction (these recommendations are explained in detail beginning on thenext page)405•• Passing comprehensive parental recognition laws would solve at least 13 major problems outlinedin this report:•• Help provide forever homes to children in foster and government care•• Ensure that a child with same-sex parents enjoys the security of legal ties to both parents•• Hold parents financially and legally accountable for providing for their child•• Help prevent awarding of custody that is not in the child’s best interests in cases of parental
CONCLUSION AND DETAILED RECOMMENDATIONS

death or relationship dissolution•• In the case of death or disablement of a parent:••Protect children’s rights to Social Security survivor and disability benefits••Ensure appropriate awarding of inheritance••Allow children to sue for wrongful death of a parent•• Help provide economic security by accurately counting LGBT parents for the purposes of:••Applying for safety net programs••Accessing federal tax credits•• Enhance LGBT family health and well-being by ensuring all parents have full access to:••Hospital visitation of a child••Medical decision-making for a child•• Help ensure a parent’s health insurance benefits also cover their child•• Ensure that both parents are recognized for everything from picking up a child from daycare
to signing school forms

405

These reforms could be achieved through revisions to the Uniform Parentage Act, last amended in 2002. The legal mainstream has acknowledged the need to protect children in LGBT and other
non-traditional families by ensuring that parenting law protects all families without regard to sexual orientation or marital status. Both the American Bar Association and the National Conferenceof Commissioners on Uniform State Laws have recommended model laws that incorporate the realities of such family configurations for the purposes of recognizing parentage in cases of assisted
reproduction and intestate succession. See American Bar Association Model Act Governing Assisted Reproductive Technology § 603, 2008, www.abanet.org/family/committees/artmodelact.pdf andUnif. Probate Code § 2-120(f), 2008.

Goals Accomplished by Recommendation

RECOMMENDATION

Goal # 1:
Securing
Stable, Loving
Homes

Goal #2:
Ensuring
Economic
Security

Goal #3:
Ensuring
Health andWell-Being

ADOPTION AND FOSTERING LAWS
Pass or amend state adoption laws or regulations to allow unmarried and same-sex couples tojointly adopt and foster children.

•• Laws and policies should specifically affirm the rights of same-sex and unmarried couples to99

jointly adopt children (which may involve changing laws and policies that currently specify that a“husband and wife” may jointly adopt and updating the language to make it neutral with respect
to gender and marital status)•• Possible models for legislative/regulatory action include: New York’s 2010 statute allowing
unmarried partners to adopt jointly;406 and regulations in Oregon stating that unmarried couples
may petition to adopt jointly407

Repeal or overturn discriminatory state law restricting adoption and fostering by same-sex or
unmarried couples.408•• Nebraska and Utah currently restrict fostering. Nebraska, North Carolina, Mississippi, Louisianaand Utah prohibit joint adoption while Arizona gives preference to married couples•• States should also strike language from statutes or regulations that explicitly authorizes theconsideration of moral or religious beliefs as reason to discriminate in placement decisions (North
Dakota, for example, allows agencies to deny placement based on religious or moral beliefs)

Pass or amend donor insemination laws to clarify the parenting rights and obligations of allparties.

•• Laws should allow same-sex and unmarried couples who intend to parent together to establish
legal parentage of their children•• These laws should include consent-to-insemination provisions that make clear the rights andobligations of intended parents and of donors•• Regulatory fixes or official statements should recognize intended parents by ensuring that officesof vital statistics place the names of both parents on birth certificates. For example:•• The New Mexico donor insemination statute currently does not have a birth certificate
provision, which could be resolved with a regulatory fix•• Iowa, where same-sex couples can marry and should therefore enjoy parental presumption,

has no donor insemination statute and the attorney general has refused to place the namesof two women on a birth certificate

PARENTAL PRESUMPTION LAWS
Pass or amend state parental presumption laws that are neutral with respect to sexual orientationand marital status.

•• Even where a couple does not or cannot marry or otherwise formalize their partnership parenting
law can determine intent (and thereby distinguish who should be considered a legal parent•• This can be done through consent and “hold out” provisions that allow a court to adjudicate
whether someone has consented to parent or has functioned as a parent409

Laws of New York, Domestic Relations, Article 7, Title 1, §110 states “any two unmarried, adult intimate partners together may adopt another person,” http://public.leginfo.state.ny.us/LAWSSEAF.cgi?
QUERYTYPE=LAWS+&QUERYDATA=$$DOM110$$@TXDOM0110+&LIST=LAW+&BROWSER=EXPLORER+&TOKEN=21690900+&TARGET=VIEW.
407
The regulations state that the Office for Services to Children and Families or any contracted private agency “shall accept applications from couples (married or unmarried) or individuals (married or
unmarried).”OR. ADMIN. R. 413-120-0200(3) and HRC, “Oregon Adoption Law,” http://www.hrc.org/laws-and-legislation/entry/oregon-adoption-law.
408
At the federal level, legislation such as the Every Child Deserves a Family Act would encourage states to amend their laws to ensure non-discrimination in foster care and adoption. See page 110 for
more about this legislation.
409
See, for instance, Washington State’s 2011 revision of its parenting act, which has such a provision and bases it on the Uniform Parentage Act. Clarifying and Expanding the Rights and Obligations ofState Registered Domestic Partners and Other Couples Related to Parentage, H.R. 1267, www.washingtonvotes.org/2011-HB-1267.
406

CONCLUSION AND DETAILED RECOMMENDATIONSDONOR INSEMINATION LAWS

Goals Accomplished by Recommendation
Goal # 1:
Securing
Stable, Loving
Homes

RECOMMENDATION

Goal #2:
Ensuring
Economic
Security

Goal #3:
Ensuring
Health andWell-Being

SURROGACY LAWS
Create or update surrogacy statutes to clarify parentage and avoid needless legal battles.

•• Surrogacy law should clarify who is a parent; potential solutions include:•• Legislation such as a bill introduced in Connecticut to allow intended parents using surrogacy

100

to obtain a parentage finding and to be named on a replacement birth certificate410•• Laws governing and facilitating the award of pre-birth parentage judgments, which arecommonly granted in California and give judges the needed leeway to create parentage forintended parents of children born through surrogacy

SECOND-PARENT ADOPTION LAWS
Pass or revise state adoption laws to permit second-parent adoption by same-sex or heterosexual
partners, irrespective of marital status.

•• Statutes should allow someone who intends to parent a child, and who has the permission of thelegal parent, to gain parenting rights without terminating the rights of the legal parent•• These laws should ensure that the same-sex or unmarried partner of a biological or adoptive parent

CONCLUSION AND DETAILED RECOMMENDATIONS

can adopt without undergoing a home study, and in an affordable, streamlined manner (secondparent adoptions should be no more burdensome than stepparent adoptions and could conceivably
be granted using the stepparent adoption process)•• States that have laws explicitly allowing such adoptions include Montana and Colorado
DE FACTO PARENTING LAWS
Pass state laws allowing courts to recognize de facto parenting as a basis for full legal parentage.

•• While an adoption is the most secure and widely recognized way to legalize a non-biologicalchild-parent tie, states may also pass de facto parenting statutes which are similar to secondparent adoption statutes but result in a court judgment rather than an adoption judgment•• These laws should allow those who show they have functioned as parents to seek not only custodyand visitation rights but full parentage, so they may enjoy appropriate legal standing in the livesof children with whom they have formed a relationship, whether or not they have a biological or
legal relationship to the children•• The 2009 de facto parenting law in Delaware provides a model:•• Allows those who have functioned as (and assumed the role of ) parents to become full legal
411

parents (either with the consent of the legal parent or by a court judgment in the case of acustody dispute)•• Is neutral with respect to sexual orientation and marital status•• Can also be used for a wide variety of family configurations besides LGBT families, such as
when a legal parent’s sibling or close friend has functioned as a parent and the child’s bestinterest is served by continuing and formalizing that relationship

PARENTAGE JUDGMENTS
Pass or amend state laws clarifying when courts have the power to issue parentage judgments
awarding full parenting rights and obligations.

•• Courts may issue a parentage judgment based on a parental presumption, consent-to-inseminate
provision, de facto parenting doctrine or law, or in other circumstances•• For example, some courts have issued pre-birth parentage judgments for children born using

assisted reproduction (for states where no such case law exists, it would be helpful to pass laws
articulating this as an option)

410
411

HRC, “Equality From State to State,”2009. Some such laws only apply to gestational surrogacy. Other restrictions apply in current statutes, which should be reconsidered to ensure applicability to same-sex couples.
Note that this report looks almost exclusively at how changes in law impact LGBT families with children—there are many other ways DOMA’s repeal would benefit same-sex couples but are not specificto LGBT families with children (for example, access to Social Security spousal benefits). These are not captured here.

Goals Accomplished by Recommendation
Goal # 1:
Securing
Stable, Loving
Homes

RECOMMENDATION

Goal #2:
Ensuring
Economic
Security

Goal #3:
Ensuring
Health andWell-Being

LEGALIZE AND FEDERALLY RECOGNIZE MARRIAGE FOR GAY AND LESBIAN COUPLES
Repeal the Defense of Marriage Act (DOMA).

•• DOMA prevents the federal government from recognizing same-sex couples under various
laws and safety net programs—even couples who are legally married in their states•• Repeal of DOMA is a critical step but would only help same-sex couples living in states where101

they can legally marry. Also, some federal programs independently define spouses to include
only individuals of a different sex; consequently, DOMA’s repeal would not automatically resultin equal treatment for LGBT families across all programs

Legalize marriage for same-sex couples in all states.

•• Marriage for same-sex couples, together with the repeal of DOMA, would address at least five of
the major problems identified in this report:412•• Allow same-sex couples to jointly adopt, complete stepparent adoptions and enjoy thepresumption of parenthood•• Allow LGBT Americans to sponsor a spouse for immigration purposes, furthering family
permanence•• Help provide economic security by accurately counting LGBT spouses for the purposes of:••Applying for safety net programs••Accessing tax credits and deductions that rely on legal relationships between a couple
413••Protecting the inheritance of a surviving spouse/parent should the other parent die
intestate••Protecting a surviving parent’s rights to Social Security survivor and disability benefits
should the other parent die•• Enhance LGBT family health and well-being by ensuring that all parents have full access to:••Medical decision-making for a spouse••Family medical leave to take care of a sick spouse•• Help ensure that a parent’s health insurance also covers the child’s second parent
PROVIDE PATHWAYS TO IMMIGRATION AND CITIZENSHIP FOR BINATIONAL FAMILIES
Pass legislation such as the federal Uniting American Families Act (UAFA), which would add thecategory “permanent partner” to the list of family members already entitled to sponsor a foreign
national for U.S. immigration.

•• Allow binational, same-sex couples to sponsor a foreign national partner or spouse for immigrationin order to:•• Prevent scenarios where families are needlessly ripped apart because one parent cannot
become a permanent resident or citizen•• Assure children that they need not fear the dissolution of their families•• Ease constraints in applying for safety net programs, tax credits and deductions that impose
restrictions based on immigration status•• Alternatively, the freedom to marry and the repeal of DOMA would allow the sponsorship of alegally-recognized, same-sex spouse for immigration purposes

412
413

Note that this report looks almost exclusively at how changes in law impact LGBT families with children—there are many other ways DOMA’s repeal would benefit same-sex couples but are not specificto LGBT families with children (for example, access to Social Security spousal benefits). These are not captured here.
Note that while some of the addressed problems appear duplicative of the problems addressed by parental recognition, in fact, this is not the case. For example, parental recognition may address asurviving child’s right to inheritance or Social Security survivor benefits, but spousal recognition addresses the right of a surviving parent to the same. Both impact the family’s economics.

CONCLUSION AND DETAILED RECOMMENDATIONS

filing taxes

Goals Accomplished by Recommendation

RECOMMENDATION

Goal # 1:
Securing
Stable, Loving
Homes

Goal #2:
Ensuring
Economic
Security

Goal #3:
Ensuring
Health andWell-Being

Enact comprehensive immigration reform that includes avenues to legal status for undocumented
immigrants already living and working in the U.S.

•• In addition to UAFA, comprehensive immigration reform would provide legal paths to permanent
residency and citizenship for LGBT and other immigrants•• Lawmakers should include UAFA language in any comprehensive immigration reform legislation

102

Call on U.S. Citizenship and Immigration Services, the U.S. Department of Homeland Security, the U.S.
Attorney General and the U.S. Department of State to take other actions to support LGBT families such as:414•• Prohibiting discrimination in immigration decisions on the basis of sexual orientation or gender
identity and conducting cultural competency training in all relevant immigration agencies•• Refraining from denying green card applications of same-sex spouses, and stop deportations of
those spouses while DOMA litigation is ongoing415•• Allowing same-sex partnerships that are legally recognized in foreign or domestic jurisdictions tobe legally valid for U.S. immigration purposes•• Counting LGBT partnerships on an equal basis with heterosexual partnerships in determining
eligibility for release from immigration detention, and recognizing the status of a family entering
the U.S. on the I-94 customs declaration (the form that must be completed upon entry)

CONCLUSION AND DETAILED RECOMMENDATIONSPROVIDE EQUAL ACCESS TO GOVERNMENT-BASED ECONOMIC PROTECTIONSRECOGNIZE LGBT FAMILIES AND CHILDREN ACROSS GOVERNMENT SAFETY NET PROGRAMSDEFINE FAMILY BROADLY ACROSS GOVERNMENT PROGRAMS
Implement a consistent and broad definition of family across federal government programs.

•• Diverse families would no longer have to navigate a maze of definitions (which results in somefamilies being accurately included in some programs but not in others). Depending on the specificsof the safety net programs, several options exist to expand the current definition of family, including:•• Creating a unique definition of “domestic partner” for federal purposes that would allow

partners in same-sex couples to access safety net assistance in the same way as spouses(for those programs that recognize stepparents, one domestic partner could be eligible forassistance through the other domestic partner without the need for an adoption)416•• Using the definition of in loco parentis to allow those who act as parents of a child to beconsidered parents for the purposes of these programs417•• Using the definition of family currently used by the U.S. Department of Housing and Urban

Development: “two or more persons who are not so related but who live together in a stable
relationship and share resources”418•• Using the definition of family used by the U.S. Department of Agriculture for food and nutrition
assistance: “a group of people living together who buy food and make meals together”419•• Using the definition of family member and immediate relative employed by the federal Officeof Personnel Management for the purpose of determining eligibility for emergency leave forfederal employees: “any individual related by blood or affinity whose close association withthe employee is the equivalent of a family relationship”420“Family, Unvalued: Discrimination, Denial, and the Fate of Binational Same-Sex Couples Under U.S. Law,” 16-17.
The Dept. of Justice recently decided it would no longer defend DOMA in court, a promising development with respect to the status of binational couples. See “Letter from the Attorney General toCongress on Litigation Involving the Defense of Marriage Act,” February 23, 2011, www.justice.gov/opa/pr/2011/February/11-ag-223.html.
416This could work in two ways. First, the legal relationships of same-sex couples at the state level would be recognized as “federal domestic partners.” Second, same-sex couples who are not or cannot belegally recognized at the state level would be required to submit an affidavit stating that they qualify based on several criteria including that both individuals are of the same-sex, are unmarried but
in a committed, intimate relationship with one another, and are not a domestic partner of any person except the other individual.
417
Recent federal clarification for the Family and Medical Leave Act (FMLA) allows individuals who are standing in loco parentis for a child to access FMLA benefits.
418
HUD, “Public Housing Occupancy Guidebook,” 2003.
419
USDA, “FNS Pre-Screening Tool Help System.”
420
U.S. Office of Personnel Management, “Definitions Related to Family Member and Immediate Relative for Purposes of Sick Leave, Funeral Leave, Voluntary Leave Transfer, Voluntary Leave Bank, andEmergency Leave Transfer,” www.opm.gov/oca/leave/html/FamilyDefs.asp.
414
415

Goals Accomplished by Recommendation

RECOMMENDATION

Goal # 1:
Securing
Stable, Loving
Homes

Goal #2:
Ensuring
Economic
Security

Goal #3:
Ensuring
Health andWell-Being

TEMPORARY ASSISTANCE FOR NEEDY FAMILIES (TANF)
Revise requirements, definitions and priorities for TANF to reflect today’s families.

•• Federal and state definitions of who is considered part of the “assistance unit” for TANF should

be broadened to include any adult who lives with a child and provides economic and emotional
support to that child•• The government also should revise paternity and child support enforcement processes under

103

TANF so that parents applying for assistance are asked if there is another parent responsible forthe child’s well-being and support (this change would ensure that TANF reflects the various ways
in which children actually come into families, including adoption, intentional single parenthood
and assisted reproduction)

FOOD AND NUTRITION ASSISTANCE
Ensure equal access for LGBT families to food and nutrition assistance.

•• While current food and nutrition assistance eligibility rules allow diverse families to apply, the U.S.
Department of Agriculture should issue clarifications to agency staff to ensure that eligible LGBT
families are not turned away when applying for assistance•• The U.S. Department of Agriculture policy should be broadened to prohibit discrimination basedon family status, sexual orientation and gender identity, and it should be expanded to cover foodassistance programs421
as parents (de facto parents) are exempted from the three-month work requirement associatedwith receiving SNAP422

PUBLIC HOUSING AND HOUSING ASSISTANCE
Prioritize the implementation of the federal Department of Housing and Urban Development (HUD)
2011 rule clarifying that the current definition of family includes LGBT families.

•• The January 2011 proposed rule clarifies that family includes LGBT families, and that adults whoare standing in loco parentis should be considered part of a household—as should the children ofdomestic partners•• Also clarify that local housing agencies should make every effort to determine who is taking careof a child, ensuring that individuals who provide shelter and other basic necessities to a child canclaim that child as a dependent for the purposes of housing assistance (this clarification would
help not only LGBT parents who may not have legal custody of their children, but also other family
members who may be taking care of children but who lack the ability to establish legal custody)

The U.S. Dept. of Agriculture’s non-discrimination policy prohibits discrimination based on sexual orientation, but it does not apply to federal assistance programs operated by the Food andNutrition Service, including SNAP, school lunch programs and WIC. U.S. Dept. of Health and Human Services, “Food and Nutrition Service, Civil Rights,” www.fns.usda.gov/cr/justice.htm.
422
Currently able-bodied adults without children may only receive food stamps for three months in a 36-month period unless they work at least 20 hours a week.
421

CONCLUSION AND DETAILED RECOMMENDATIONS•• The U.S. Department of Agriculture should issue a clarification indicating that those who function

Goals Accomplished by Recommendation

RECOMMENDATION

Goal # 1:
Securing
Stable, Loving
Homes

Goal #2:
Ensuring
Economic
Security

MEDICAID AND CHILDREN’S HEALTH INSURANCE PROGRAM (CHIP)
Revise Medicaid and CHIP definitions and procedures to be inclusive of LGBT families.

•• The definition of family should include same-sex partners and permanent partners, as well as
104

any children for whom an adult is standing in loco parentis to allow adults who are providing
substantially for a child to be counted for eligibility purposes•• States should expand eligibility for Medicaid and CHIP to increase the number of children served aswell as take steps to treat same-sex couples as married for the purposes of determining eligibility:•• For example, Massachusetts passed legislation in 2008 to treat married same-sex couples asmarried for the purposes of Medicaid eligibility•• In 2008, when the State of New York began recognizing the out-of-state marriages ofsame-sex couples, the state’s Office of Health Insurance Programs issued a memorandum
instructing agency staff to ensure that same-sex spouses were considered for the purposes ofdetermining Medicaid eligibility

SUPPLEMENTAL SECURITY INCOME (SSI)
Broaden the definition of spouse and child to include diverse families in the SSI sections of thefederal Social Security Act.

•• The Social Security Administration should update SSI eligibility criteria to include same-sex
CONCLUSION AND DETAILED RECOMMENDATIONS

spouses, domestic partners or permanent partners when an adult applies for assistance•• The eligibility criteria should be updated to ensure that de facto parents are counted when a childapplies for SSI•• Allow applicants to identify themselves as the child, stepchild or adopted child of a person inloco parentis as defined in the recent FMLA interpretation

CHILD CARE AND EARLY CHILD EDUCATION ASSISTANCE
Broaden the definition of family for Head Start and other child care assistance programs.

•• The child care assistance programs’ definition of parent should include de facto parents
EDUCATIONAL LOANS, GRANTS AND SCHOLARSHIPS
Broaden the definitions in the Free Application for Federal Student Aid (FAFSA) to include options
for diverse families.

•• The FAFSA definition of parent should include non-legally recognized parents who provide atleast 50% of an applicant’s financial support (one example of such a definition could be the in loco
parentis definition currently used for the FMLA•• Revise FAFSA to allow LGBT families and other diverse families to accurately report their financial

situations (changing “Father/Stepfather” and “Mother/Stepmother” to “Parent 1” and “Parent 2”
would allow LGBT families to include both legal parents and their economic resources in theirapplication)

Goal #3:
Ensuring
Health andWell-Being

Goals Accomplished by Recommendation

RECOMMENDATION

Goal # 1:
Securing
Stable, Loving
Homes

Goal #2:
Ensuring
Economic
Security

Goal #3:
Ensuring
Health andWell-Being

CREATE FORMS AND APPLICATION PROCEDURES THAT ACCOMMODATE LGBT FAMILIES
Revise government forms and application procedures to make them more inclusive of LGBT families.

•• Federal, state and local governments should revise forms to allow diverse families to accurately report who
is legally and financially responsible for a child (forms could include options such as “Parent 1/Parent 2”)•• Agencies should revise application materials to explicitly signal, in text and pictures, that diverse

105

families are considered families•• For example, the New York City Housing Authority mentions “domestic partners” on its
application form, and the Minneapolis Public Housing Authority allows families to identify asame-sex partner or other adult using the “co-head” or “other adult” designation423•• Local agencies should expand the application options available to families (telephone interviews,
for example, could help alleviate the fear of being “outed” that some LGBT families experience)424•• Government workers responsible for reconciling sex designations with Social Security numbers

or other identifying information should be authorized to seek more information before rejecting
a person’s application; they should be trained to approach these situations with sensitivity andrespect, based on an understanding that for some transgender people, sex designations acrossdocuments may not necessarily match•• The National Center for Transgender Equality recommends that the Office of Management and
REVISE THE IRS TAX CODE TO PROVIDE EQUITABLE TREATMENT FOR LGBT FAMILIES
Revise the IRS tax code to provide equitable treatment for LGBT families.

•• Advocates should press for the following changes in the IRS code:•• Definition of spouse. The IRS should create a designation of a “permanent partner,” whowould be treated as a spouse for the purposes of the tax code. Individuals in a committed
relationship—whether legally recognized as a domestic partnership, civil union or marriage,
or not legally recognized—would qualify if they met certain criteria. This would allow allLGBT couples, whether they could marry or not, to file joint tax returns and be eligible fortax-related credits and deductions designed for married couples, including the dependent
exemption, the Earned Income Tax Credit, and provisions related to gift and estate taxes.

•• Definition of qualifying child. The IRS should alter the definition of a “qualifying child” toinclude children of de facto parents or parents who stand in loco parentis to more accuratelyreflect today’s families. This would allow LGBT and other parents to access the dependent
exemption, the child tax credit and the Earned Income Tax Credit.

•• Child and Dependent Care Credit. To help families with the high costs of child care anddependent care, the IRS should modify the Child and Dependent Care Credit so that any
person who pays for the child care or dependent care of another person can claim the credit.
This would help not only LGBT families who cannot claim this credit for their non-legally
related children or partners, but also other families where a grandparent or other person
assists the family with child care costs.

•• Education (tuition and fees) deduction. To encourage investment in higher education, the IRS

should allow any individual who pays the tuition and fees of another person—regardless of thelegal relationship to that person—to take this deduction. This would help LGBT families with thecost of college tuition for their children. In addition, it would make it easier for an LGBT person to
return to college because his or her partner could use this deduction to offset the cost of tuition.

Explicit mentions of LGBT families are important, especially in states that restrict marriage to heterosexual couples. By signaling on the application materials that all families are eligible for assistance,
public housing agencies can show families that despite discriminatory state and federal laws, they are families for the purposes of housing assistance.
424
Similar efforts have been made to increase participation in SNAP by mixed-immigration status families and limited English-proficient families.
425This would mean removing the non-mandatory gender field from the Social Security Number Verification System (SSNVS), which is used by employers and government agencies, and making it
simpler for transgender individuals to change their gender in the system. “Transgender Equality and the Federal Government,” February 2009, http://transequality.org/Resources/NCTE_Federal_
Government_web.pdf.
423

CONCLUSION AND DETAILED RECOMMENDATIONS

Budget issue guidance to agencies to only collect sex-or gender-related data on government
forms when entirely necessary or relevant425

Goals Accomplished by Recommendation

RECOMMENDATION

Goal # 1:
Securing
Stable, Loving
Homes

Goal #2:
Ensuring
Economic
Security

PROVIDE EQUITABLE ECONOMIC PROTECTIONS WHEN A PARENT DIES OR IS DISABLED
SOCIAL SECURITY SURVIVORS AND DISABILITY INSURANCE (OASDI) BENEFITS
106

Revise OASDI regulations to recognize a child’s dependence on a non-legally recognized parent oradult.

•• The Social Security Administration should allow a child to claim benefits upon the death or

disability of an adult who acts as a parent in the child’s life, regardless of the legal relationshipbetween the child and the parent•• The Social Security Administration should provide parental benefits to adults who will be taking
care of the children (under 16) of deceased workers, including surviving same-sex spouses,
domestic partners or permanent partners of a child’s legal or de facto parents•• Expanding who is eligible to receive these benefits would not only permit the surviving partner(or former partner) of the worker to access important financial resources, but would also recognize
the variety of individuals who may care for a child in the event of a parent’s death, as well as thefinancial challenges that come with providing for a child

INHERITANCE

CONCLUSION AND DETAILED RECOMMENDATIONS

Adopt the Uniform Probate Code’s 2009 amendment on inheritance for children born through donor
insemination.

•• States should adopt the 2009 changes so that children born to same-sex couples throughassisted reproduction can inherit from both parents, regardless of whether a they are both legally
recognized as parents

Amend state intestacy laws to allow domestic partners and children of de facto parents to inherit
without a will.

•• States should amend their intestacy laws so that, should a person die without a will, his or her
domestic or permanent partner can inherit in the same manner as a spouse, and any children forwhom the deceased was acting as a de facto parent can inherit in the same manner as legal children

WRONGFUL DEATH
Alter states’ wrongful death statutes to take into consideration diverse families.

•• States should permit any individual who can prove economic dependence on a deceased person(including same-sex partners and non-legally recognized children) to file a wrongful death suit
when a partner or parent is killed as a result of negligence or intent•• For example, the West Virginia statute indicates that “any persons who were financially dependent
on the decedent at the time of his/her death” are eligible to bring a wrongful death suit

Goal #3:
Ensuring
Health andWell-Being

Goals Accomplished by Recommendation

RECOMMENDATION

Goal # 1:
Securing
Stable, Loving
Homes

Goal #2:
Ensuring
Economic
Security

Goal #3:
Ensuring
Health andWell-Being

PROVIDE EQUAL ACCESS TO HEALTH CAREADVANCE EQUAL ACCESS TO HEALTH INSURANCE
Pass federal legislation that provides for equal treatment related to the provision and taxation ofhealth insurance benefits.

107•• Lawmakers should end federal taxation of benefits provided to same-sex partners and other“non-spouse” beneficiaries under employers’ health plans by passing the Tax Equity for Domestic
Partner and Health Plan Beneficiaries Act/Tax Equity for Health Plan Beneficiaries Act (DP Tax)426 orsimilar legislation•• Lawmakers should update the ERISA to ensure that when companies elect to extend healthbenefits to employees’ spouses and/or children, they must also extend such benefits to employee’s
permanent partners and/or children for whom the employee is acting as a de facto parent427•• Repeal of DOMA would secure equal extension of health insurance benefits to same-sex couples
in states with marriage or comprehensive relationship recognition

Pass federal and state legislation to extend health insurance benefits to government employees’
domestic partners and children for whom they stand in loco parentis.

•• Legislation such as the Domestic Partnership Benefits and Obligations Act would extend health•• States that have not already done so can pass similar legislation protecting the families of statepublic employees

Eliminate state taxes on domestic partner benefits.

•• States that mimic federal tax guidelines and impose an additional state tax on domestic partner
benefits should eliminate their state’s portion of this tax (which tends to be smaller)

Require that insurance plans sold through state insurance exchanges offer domestic partner
benefits if they offer spousal benefits—and also coverage for children for whom an adult stands inloco parentis.

•• Advocates should work to ensure that state health insurance exchanges created by the Affordable

Care Act include regulations supporting comprehensive non-discrimination policies and generally
support the goal of expanding coverage for LGBT and other non-recognized families•• States can and should establish certification requirements for qualified health plans that prohibit
discrimination on the basis of sexual orientation, gender identity or marital status

Provide equal access to COBRA benefits.

•• The Equal Access to COBRA Act would extend COBRA coverage to anyone who is covered underan employer’s group health plan, including same-sex partners and spouses•• The IRS should amend its regulations to make COBRA available to any person covered by an
employee’s health plan prior to the qualifying event (thus eliminating the difference in status
created by current law, which separates beneficiaries into two classes: those with an independentright to access COBRA benefits and those who must rely on permission from the covered worker)

The bill would “exclude the value of employer-provided health insurance for a domestic partner or other non-spouse beneficiary from an eligible employee’s income, as it does for benefits provided fora spouse or dependent. This legislation does not mandate that employers provide coverage to non-spouse beneficiaries. Nor does it establish criteria for determining which beneficiaries qualify… The
bill simply eliminates the unfair taxation of benefits that employers choose to provide. The bill would also make clear that domestic partners or non-dependents can be included in pre-tax cafeteria
plan elections, permit Voluntary Employees’ Beneficiary Associations (VEBAs) to provide full benefits to domestic partners and non-dependents, and extend Health Related Savings Accounts to coverdomestic partners and other non-dependents. Finally, the bill would equalize the treatment of health coverage for spouses and for domestic partners and other non-dependents for payroll tax
purpose.” HRC, “Tax Parity for Health Plan Beneficiaries Act,” H.R. 2088 and S. 1171, http://www.hrc.org/laws-and-legislation/federal-legislation/tax-parity-for-health-plan-beneficiaries-act.
427
ERISA allows employers operating in multiple states to follow one set of rules (rather than potentially 50 different sets of state rules). Because it is a federal law, even states that allow same-sex
couples to marry cannot require employers to provide health benefits to same-sex couples since, under DOMA, ERISA does not currently recognize same-sex relationships. ERISA does not provide aclear definition of spouse; therefore, without DOMA, the meaning of spouse would be based on state law.
428
Goldberg et al., Extending Federal Benefits to Same-Sex Partners, 2008.
426

CONCLUSION AND DETAILED RECOMMENDATIONS

insurance benefits to domestic partners of federal employees, providing coverage to more than
30,000 partners and children428

Goals Accomplished by Recommendation

RECOMMENDATION

Goal # 1:
Securing
Stable, Loving
Homes

Goal #2:
Ensuring
Economic
Security

Goal #3:
Ensuring
Health andWell-Being

Encourage private employers to electively offer domestic partner benefits.

•• Advocates should work with governments, private employers, insurance companies, unions andothers to encourage employers to electively offer domestic partner benefits, and press insurancecompanies to allow such coverage429

108

Work to ensure that the Affordable Care Act defines family broadly for the purposes of includingLGBT families.

•• The new federal health care reform law includes many references to “family,” “child,” “spouse”
and “parent,” some of which are as yet undefined, leaving LGBT and other families vulnerable todisparities•• Federal and state regulations tied to the law should make clear that these terms are defined inways that include LGBT and 21st century family relationships, even when state parentage laws
inadequately recognize such family ties

ENABLE LGBT FAMILY MEMBERS TO CARE FOR ONE ANOTHER
Revise and expand state hospital visitation and medical decision-making laws to be inclusive of
today’s families, including LGBT families and de facto parents.

•• Laws that identify default visitors and decision-makers should include domestic partners, de facto
CONCLUSION AND DETAILED RECOMMENDATIONS

parents, and other non-legally recognized family members such as “close friends”430•• Several model laws at the state level make it easier to designate someone for medical decisionmaking, whether or not that person is part of a domestic partnership:•• The Arizona Advance Health Care Directive Registry allows residents to store living wills andpower-of-attorney documents online, which doctors and nurses can access to determine thetype of care a person wants, even if that person is incapacitated431•• Maryland’s Medical Decision-Making Act of 2005 allows members of same-sex couples who meetcertain criteria to make medical decisions for their incapacitated partners•• The Colorado Domestic Partner Registry allows individuals to fill out and submit a form that,among other things, allows a person to designate another individual for medical decisionmaking and disposition of remains

Work with hospitals and other medical facilities and providers to enact LGBT-friendly policies related
to visitation, advanced health care directives (AHDs) and related issues.

•• Hospitals should have a specific, written policy that is broadly understood by staff to avoid conflict,liability or tragedy (best practices include the following):•• Creating written visitation policies that incorporate a broad definition of family and are explicitly

inclusive of same-sex relationships and the children of same-sex partners, and reduces thepossibility that staff will interpret policies in ways that reflect bias432•• Taking proactive steps to demonstrate that AHDs will be honored as valid, regardless ofthe state in which they were executed and regardless of who has been appointed as thedesignated agent•• Having AHD forms onhand at admission so partners, spouses and friends can easily andquickly attest to their relationship•• Explicitly defining parents, for the purposes of parental consent and visitation, to include
those standing in loco parentis

Some employers committed to equality have increased the salaries of LGBT employees to help pay for their additional tax burden. HRC’s Corporate Equality Index tracks and promotes the success of thiseffort in private industry. HRC Foundation, “Healthcare Equality Index 2010.”
430
Many surrogate-selection statutes require a close friend to sign an affidavit, under penalty of perjury, attesting to their relationship, a sound mechanism for ensuring that broad decision-making policy
does not incur undue risk for either patients or hospitals. Stiff, “Breaking Down Barriers,” 14.
431
The Arizona Secretary of State’s office oversees the registry. Each user receives a file number and password, which can be filed with the user’s medical records. The service is free, although users stillneed to draft and finalize their living wills, powers of attorney, etc. The state’s website provides instructions on how to prepare these documents on one’s own or with the help of an attorney.
432
For model language, see Stiff, “Breaking Down Barriers.” See also “cultural competency training,” HRC Foundation, “Healthcare Equality Index 2010.”
429

Goals Accomplished by Recommendation

RECOMMENDATION

Goal # 1:
Securing
Stable, Loving
Homes

Goal #2:
Ensuring
Economic
Security

Goal #3:
Ensuring
Health andWell-Being

Revise the Family and Medical Leave Act (FMLA) to broaden the definition of covered caregivers.

•• Federal lawmakers should expand the law to include leave to care for a domestic partner, samesex spouse, parent-in-law, adult child, sibling or grandparent433•• Broader language, such as that found in the Family and Medical Leave Inclusion Act, would also

help heterosexual domestic partners, single adults, widows and widowers—anyone who gives
care to, or relies on care from, non-biological family members

109•• For example, FMLA could adopt language similar to the National Family Caregiver Support Program,which broadly recognizes “an adult family member, or another individual, who is an informal
provider of in-home and community care to an older individual”

Broaden the definition of covered caregivers in state family and medical leave laws.

•• States can and do create laws that provide broader medical leave than the federal government•• Those states with broader family leave laws that can serve as a model for others include: California,

Connecticut, Hawaii, Massachusetts, New Jersey, New Mexico, Oregon, Rhode Island and Vermont,plus D.C.

PROTECT LGBT FAMILIES FROM DISCRIMINATIONPASS EMPLOYMENT NON-DISCRIMINATION PROTECTIONS•• ENDA would prohibit discrimination against employees on the basis of sexual orientation orgender identity by civilian, non-religious employers of 15 or more employees (ENDA has been
introduced in every Congress since 1994 but has yet to pass)•• Passing ENDA is critical to:•• Securing the financial health of LGBT families and reducing or eliminating economic disparities
between LGBT and other families•• Protecting LGBT workers who need to take care of sick family members but fear losing theirjobs by revealing they are LGBT

Pass state-based employment protections for LGBT people.

•• States that currently lack protections for LGBT workers should pass sexual orientation and gender
identity employment protections434

Implement federal, state and local executive orders or ordinances requiring contractors to adopt
non-discrimination protections.

•• Executive orders can require that contractors conducting business with federal, state and local

governments for a variety of services (including construction, roadwork, and military defense) do
not discriminate against their LGBT employees

433
434

The Williams Institute estimates this would affect 215,000 families, giving about 430,000 individuals the ability to provide greater care for their same-sex partners. M.V. Lee Badgett, “The Impact ofExpanding Leave Rights to Care for Children of Same-Sex Partners,” The Williams Institute, June 2010, http://wiwp.law.ucla.edu/wp-content/uploads/Badgett-FMLA-Jun-2010.pdf.
According to the Human Rights Campaign, 21 states plus D.C. provide protection for employees against discrimination on the basis of sexual orientation, 15 of which (along with D.C.) also ban
discrimination on the basis of gender identity and expression. Some additional states have regulations banning discrimination against public employees. HRC, “Statewide Employment Laws & Policies.”

CONCLUSION AND DETAILED RECOMMENDATIONSPass the federal Employment Non-Discrimination Act (ENDA).

Goals Accomplished by Recommendation

RECOMMENDATION

Goal # 1:
Securing
Stable, Loving
Homes

Goal #2:
Ensuring
Economic
Security

Goal #3:
Ensuring
Health andWell-Being

PASS AND STRENGTHEN ADOPTION AND FOSTER CARE NON-DISCRIMINATION LAWS
Pass legislation that ties federal funding for adoption and foster care services to non-discrimination
practices based on sexual orientation and gender identity.

•• Such legislation, currently contained in the Every Child Deserves a Family Act, would strip federal

110

funding from any state or agency that discriminates in adoption or foster care placements on thebasis of sexual orientation, gender identity or marital status•• The act would also direct the Secretary of Health and Human Services to publish guidance thatwould:•• Identify casework policies and practices that are noncompliant•• Expand recruitment of qualified prospective parents•• Provide cultural competency training to relevant agencies, caseworkers, judges, attorneys
and prospective parents

Pass or revise state laws or policies barring discrimination in fostering and adoption placement on
the basis of sexual orientation, gender discrimination, or marital or partnership status.

•• State laws and policies should specifically affirm the rights of same-sex and unmarried couples to
CONCLUSION AND DETAILED RECOMMENDATIONS

jointly adopt children•• California, Massachusetts, New Jersey and Oregon provide model laws
PASS CUSTODY AND VISITATION NON-DISCRIMINATION LAWS
Pass laws barring discrimination in awarding custody and visitation rights on the basis of sexual
orientation, gender identity or marital status.

•• D.C. has a law that includes sexual orientation in a list of factors that cannot be considered incustody decisions;435 gender identity should be added to the list and to other state-level legislation•• A bill introduced in New York would prevent a judge from considering a parent’s decision toundergo gender reassignment when making a custody determination, or from requiring theparent to refrain from proceeding as a condition of custody436

PASS NON-DISCRIMINATION PROTECTIONS IN HEALTH SERVICES
Pass state-based, non-discrimination laws that apply to health care providers.

•• These laws can provide legal recourse for LGBT families who experience discrimination in hospitals
and other medical facilities•• To be effective, non-discrimination laws should cover public accommodations (not justemployment) and gender identity and expression (not just sexual orientation)•• States with non-discrimination laws that do not cover public accommodations should expand or
amend their laws

“In any proceeding between parents in which the custody of a child is raised as an issue, the best interest of the child shall be the primary consideration. The race, color, national origin, political affiliation,
sex, or sexual orientation of a party, in and of itself, shall not be a conclusive consideration.” Child Custody and Visitation Law, 16-914. Custody of Children, (a)(1)(A), www.divorcelawinfo.com/dc/flc.htm.
436
HRC, “Equality From State to State,”2009.
435

Goals Accomplished by Recommendation

RECOMMENDATION

Goal # 1:
Securing
Stable, Loving
Homes

Goal #2:
Ensuring
Economic
Security

Goal #3:
Ensuring
Health andWell-Being

PASS STRONGER ANTI-BULLYING LAWS
Pass federal and state legislation that would more strongly address and prohibit bullying andharassment in schools and universities.

•• Legislation such as the Safe Schools Improvement Act would prohibit bullying and harassment

in schools, ensure that schools and districts have student conduct policies making clear thatbullying and harassment are prohibited, and require that schools maintain data about bullying
and harassment incidents

111•• The Student Non-Discrimination Act which prohibits any school program or activity receiving

federal assistance from discriminating against any student based on sexual orientation or gender
identity would ensure that LGBT individuals can receive a quality education and protect childrenof LGBT parents from discrimination•• Legislation such as the Tyler Clementi Higher Education Anti-Harassment Act would require
universities and colleges to ensure that students are protected from bullying and harassment•• State-level anti-bullying legislation should explicitly enumerate sexual orientation and gender

identity as protected categories, and explicitly protect students from bullying and harassment
based on their association with LGBT people to help ensure the safety of children with LGBT
parents or friends

Pass the federal Housing Opportunities Made Equal (HOME) Act.

•• This would amend the Fair Housing Act to prohibit discrimination based on sexual orientation,
gender identity, marital status or source of income and would expand the term “familial status” tobe inclusive of modern family arrangements•• Failing passage of the federal HOME Act, advocates should press for state-based housing
protections for LGBT people

Pass the Freedom from Discrimination in Credit Act.

•• This legislation would assist LGBT families in obtaining educational and other loans by amending

the Equal Credit Opportunity Act to prohibit discrimination on the basis of sexual orientation andgender identity in the provision of credit (the law currently prohibits discrimination on the basisof marital status, along with other factors including race and sex)

STRENGTHEN AGENCY AND SERVICE PROVIDER NON-DISCRIMINATION POLICIES
Encourage adoption and foster care agencies, government agencies and medical institutions to
adopt non-discrimination policies that include family status, sexual orientation and gender identity.

•• Agencies that work with LGBT families or children should adopt and implement non-discrimination
policies that explicitly include marital status, sexual orientation and gender identity•• Policies are especially important for state and local government agencies that administerfederal programs in locales that currently lack explicit sexual orientation and gender identity
nondiscrimination laws•• Policies should be documented in staff manuals and supported by staff training•• Agencies and institutions should make all forms gender-neutral (for example, by listing “Parent 1/
Parent 2”)

CONCLUSION AND DETAILED RECOMMENDATIONSPASS HOUSING AND CREDIT NON-DISCRIMINATION PROTECTIONSGoals Accomplished by Recommendation

RECOMMENDATION

Goal # 1:
Securing
Stable, Loving
Homes

Goal #2:
Ensuring
Economic
Security

Goal #3:
Ensuring
Health andWell-Being

Engage state agencies and departments to issue affirmative practices, statements andinterpretations of adoption and fostering policy.

•• State Departments of Social Services or Human Services could issue guidance to all state agencies
noting that current regulations do not prohibit fostering by same-sex or unmarried couples, andaffirming that these couples can make suitable foster parents

112•• In states where laws do not ban joint adoption, an official such as the attorney general could

issue a statement saying that the state interprets existing law to allow same-sex joint adoption•• Advocates could seek a memo or statement from the head of the state child welfare or family
services agency requiring adherence to non-discrimination, making clear that the agency ordepartment takes seriously its commitment to LGBT-affirmative policies

EXPAND EDUCATION AND CULTURAL COMPETENCY TRAINING ON LGBT FAMILIESPROVIDE CULTURAL COMPETENCY TRAINING FOR FRONTLINE AGENCY WORKERS
Provide cultural competency training for government agency staff.

•• Educate workers, especially those in states without any recognition for same-sex couples, that
CONCLUSION AND DETAILED RECOMMENDATIONS

some programs have broader definitions of family that include LGBT families so that LGBT families
feel comfortable reaching out for help through local assistance offices437•• Individual caseworkers should undergo training to ensure that they are welcoming and affirmingof LGBT families who may seek safety net assistance•• Training should seek to ensure staff awareness of and compliance with agency non-discrimination
policies and state and local non-discrimination laws, if applicable

Provide cultural competency training for adoption agencies and social workers.

•• Training should emphasize best practices in placement with diverse families, LGBT parenting

research and the support of mainstream child welfare agencies for adoption and fostering bysame-sex couples•• Child welfare agencies and LGBT family groups can form a national partnership to advance culturalcompetency and share information on best practices around adoption by LGBT parents•• LGBT organizations should work with schools of social work to provide information and training
on these issues•• Training should be based on curricula such as “Promising Practices in Adoption and Foster Care”
produced by the Human Rights Campaign’s All Children–All Families initiative

Reach out to mainstream service providers to ensure that their services are LGBT-family friendly.

•• This is particularly important for families of color who may be more likely to use providers andresources in their own communities that are not LGBT-specific437

Among federal agencies whose staff should undergo training about diverse families are the following that deal most directly with LGBT families: Dept. of Health and Human Services, including theAdministration for Children and Families and the Health Care Financing Administration; Social Security Administration; Dept. of Agriculture, including the Food and Nutrition Service; HUD, including the
Office of Public Housing; IRS; Dept. of Education, including the federal Pell Grant Program; and Dept. of Homeland Security. State and local agencies that administer federal programs include Public Health
Departments and Departments of Human Services.

Goals Accomplished by Recommendation

RECOMMENDATION

Goal # 1:
Securing
Stable, Loving
Homes

Goal #2:
Ensuring
Economic
Security

Goal #3:
Ensuring
Health andWell-Being

FOCUS EXPANDED EDUCATION AND TRAINING ON JUDGES AND LAW STUDENTS
Educate and inform adoption and family law judges and law students about LGBT parents andparenting research.

•• LGBT organizations should work with judges, law clerks and law students to inform them about
the research on LGBT parenting and the support of mainstream child welfare agencies for adoption
and fostering by same-sex couples

113•• Advocates also should support and expand judicial training efforts such as those offered by The
Williams Institute at UCLA School of Law, which offers judges workshops on LGBT family law•• Additional training content for these audiences should include information on state court
precedents that have interpreted existing law broadly to apply to same-sex parents even when
statutes may appear to apply only to married/heterosexual parents438

PROVIDE CULTURAL COMPETENCY TRAINING FOR PHYSICAL AND MENTAL HEALTH SERVICESPROVIDERS
Educate health care providers about LGBT families and their medical issues and needs.

•• Health care providers should receive training and information about unique health issues facing

LGBT families, including the need for cancer screenings and preventive care, HIV/AIDS-related
care and appropriate mental health services
fertility services, OB/GYN services and surrogacy•• Education programs receiving federal funding should be required to incorporate LGBT culturalcompetency in their curricula•• Hospital administrators and staff should be made fully aware of what the law says and what they
can and cannot do to help LGBT families requiring medical treatment and emergency services•• Training and education for these audiences should pay special attention to challenges facing

transgender patients and partners of patients in an effort to reduce hostile or unwelcoming
attitudes or behaviors•• The U.S. Dept. of Health and Human Services should make sure that its proposed work to expand

and improve training programs in the health care industry addresses the needs of LGBT families439

Work with organizations that accredit health service providers to develop standards for serving
LGBT families.

•• Advocates can work with accreditation groups that receive funds from federal sources such as Medicaid,
Medicare or Area Agencies on Aging to develop policies and standards for LGBT families, for example:•• The Joint Commission evaluates whether a facility is eligible for Medicare reimbursements;
in 2009, it released standards stating that patients have a right to care free of discrimination
based on sexual orientation and gender identity/expression•• The American Medical Association has adopted 28 policies indicating the importance of
culturally competent care that addresses the needs of the LGBT community440•• LGBT family care may also be guided by the National Hospital Association, the National
Nurses Association and similar organizations, many of which have issued positive statements
on LGBT parenting and health outcomes for LGBT people

See Susan Gluck Mezey, Gay Families and The Courts: The Quest for Equal Rights, Rowman & Littlefield, 2009, 27-37, for examples of judges using “best interest of the child” to interpret legislative
intent broadly.
439
In response to the 2010 presidential memorandum on hospital visitation, the Dept. of Health and Human Services has announced it will “encourage new and existing health profession training
programs, including behavioral health (e.g. mental health, substance abuse, and HIV) programs, to include LGBT cultural competency curricula.” In conjunction with the LGBT community, theHealth Resources and Services Administration will “convene professional groups that represent LGBT health providers and students to identify challenges and opportunities for training LGBT
providers and to isolate strategies geared toward increasing culturally competent care for LGBT patients.” This work should include a focus on children with LGBT parents.
440
See the American Medical Association homepage: www.ama-assn.org.
438

CONCLUSION AND DETAILED RECOMMENDATIONS•• Training content should include medical care specific to LGBT people having children, such as

Goals Accomplished by Recommendation

RECOMMENDATION

Goal # 1:
Securing
Stable, Loving
Homes

Goal #2:
Ensuring
Economic
Security

Goal #3:
Ensuring
Health andWell-Being

PROVIDE TRAINING AND INFORMATION TO SCHOOL PERSONNEL ABOUT LGBT STUDENTS AND FAMILIES
Expand efforts to increase supportive learning environments through teacher certification programs,
school psychologist and counselor programs, and curriculum reform.

•• School personnel, including teachers, administrators and other staff, should be provided with

114

resources about the diversity of families (including LGBT families and the challenges that they face inschool settings) to help them become more welcoming of LGBT families in the classroom and school•• Advocates should disseminate guides and other materials providing suggestions on how to

produce LGBT-friendly school forms, plus curricular suggestions to ensure that children can talk
openly about the diversity of their families•• Materials can cover such topics as how to talk to other parents about LGBT families, and how toensure that all school personnel are welcoming and supportive of all children•• For example, “The Respect for All Project” from GroundSpark has worked to develop inclusive

schools and communities since 1992 in partnership with the National Education Associationand the National Association of School Psychologists441•• Schools could adopt the “Welcoming Schools” curriculum as a modelor adopt the
Department of Education’s model training on creating welcoming schools for diverse families
442

CONCLUSION AND DETAILED RECOMMENDATIONSEXPAND SUPPORT FOR LGBT INCLUSION IN FAITH COMMUNITIESWork with faith communities to ensure that LGBT families feel welcome in places of worship.

•• Advocates should work with national and international religious representatives, as well as local
places of worship, to build support for and acceptance of LGBT families and to provide ideas androadmaps for creating welcoming congregations•• Advocates should reach out to the broader LGBT community to ensure understanding of andsupport for LGBT families of faith

PROVIDE EDUCATION AND SERVICES SUPPORT TO HELP LGBT FAMILIESEDUCATE LGBT FAMILIES ABOUT CURRENT LAWS AND HOW TO PROTECT THEMSELVES
Educate LGBT families about the need to establish parentage ties and other legal protections where
possible, and provide assistance in doing so.

•• Advocates should support the creation of a clearinghouse of data about LGBT families, their needs,
rights and disparities. This could be modeled after the National Resource Center on LGBT Aging443•• Advocates should consider a targeted community and public education campaign aimed at LGBT
families to increase understanding among LGBT families about steps they can take to protect theirfamilies, and provide support for putting any needed legal documents in place, including:•• Documents to establish legal parenting ties and related protections such as a parenting
agreement, co-guardianship designations or appointment of guardianship•• Economic documents such as a will and tax planning•• Health care documents such as advance health directives and medical powers of attorney•• LGBT parents also should be educated about the rights of their children in schools and local
communities and how to address school bullying

Among the resources used by GroundSpark is the film “That’s A Family,” which showcases elementary school-aged children talking about their families, which include children being raised by grandparents,
foster parents, a lesbian-headed family, and a single parent-headed household, among others.
442“Welcoming Schools” is a partnership between the National Education Association and the Human Rights Campaign that takes an LGBT-inclusive approach to addressing family diversity, genderstereotyping and bullying in K-5 learning environments. It provides administrators, educators and parents and guardians with resources to create positive, inclusive and welcoming learning environments
for all students. See Welcoming Schools homepage: www.welcomingschools.org.
443
The National Resource Center on LGBT Aging is a project of SAGE (Services and Advocacy for Gay, Lesbian, Bisexual & Transgender Elders), the American Society on Aging and several other aging and LGBT
organizations. It was established in 2010 through a grant from the U.S. Dept. of Health and Human Services as the nation’s first technical assistance resource center aimed at improving the quality ofservices and supports offered to LGBT older adults. See National Resource on LGBT Aging homepage: www.lgbtagingcenter.org.
441

Goals Accomplished by Recommendation

RECOMMENDATION

Goal # 1:
Securing
Stable, Loving
Homes

Goal #2:
Ensuring
Economic
Security

Goal #3:
Ensuring
Health andWell-Being

CREATE STRONGER SUPPORT SERVICES AND OUTREACH FOR LGBT FAMILIES
Target LGBT families for focused outreach and support services.

•• Conduct outreach to prospective and existing LGBT adoptive and foster parents•• Agencies and publicly-supported “family resource centers” (which serve as community hubs)

115

should be encouraged to conduct direct outreach to the LGBT community when seeking
prospective homes for waiting children•• Communities should establish non-profit adoption exchanges such as “Families Like Ours,”
which focus on bringing together and supporting LGBT pre- and post-adoptive families•• Communities should replicate partnerships such as the one between the Human Rights
Campaign’s All Children – All Families initiative and the Los Angeles County Dept. of Children
and Family Services to engage LGBT families as prospective parents for waiting children (theprogram is federally funded)•• Conduct outreach to low-income LGBT families•• Advocates should conduct targeted outreach to broaden access to needed government
protections (for example, low-income LGBT families may not know that they are eligible forfood assistance programs and housing assistance)444•• Advocates also can encourage and facilitate partnerships between local agencies and LGBT
Create opportunities for LGBT families to participate in social, advocacy and support groups.

•• The LGBT community should be more supportive of families by creating new and expanded
opportunities for them to come together to share their successes and challenges•• Parenting support groups should prioritize combating the “pressure to be perfect” that isoften felt by children in LGBT families, and should give parents and children the space to
speak openly about these challenges•• Organizations should provide opportunities for children with LGBT parents to interact, findsupport and socialize

CREATE INCLUSIVE ENVIRONMENTS FOR ALL LGBT FAMILIES, PARTICULARLY TRANSGENDER
PARENTS AND FAMILIES OF COLOR
INCREASE INCLUSION OF LGBT FAMILIES IN PUBLIC AND COMMUNITY OUTREACH
Expand public education efforts that are supportive of LGBT families.

•• Advocates should work to increase positive representations of LGBT families in the media andpopular culture•• Media coverage of LGBT families should include low-income families, rural families and families
of color, as well as blended LGBT families where one parent is an acting or legal stepparent•• Efforts to teach the public about the diversity of today’s families should address children

raised in single-parent households and/or by caregivers other than biological parents to help
challenge the notion that children raised in diverse families are “missing” a parent

444
445

A 2003 study by the Urban Institute found that some state agencies engage in media campaigns to increase awareness to particular communities, such as limited English-proficiency communities, about
the availability of public assistance. U.S. Dept. of Health and Human Services, “The Application Process for TANF, Food Stamps, Medicaid and SCHIP,” January 2003.
Anyu Fang, Recommendations for Food Stamp Outreach for Sacramento County, Sacramento Hunger Coalition, 2007.

CONCLUSION AND DETAILED RECOMMENDATIONS

community centers to provide one-on-one assistance in filling out applications for families, aswell as providing eligibility information to LGBT families445

Goals Accomplished by Recommendation

RECOMMENDATION

Goal # 1:
Securing
Stable, Loving
Homes

Goal #2:
Ensuring
Economic
Security

Goal #3:
Ensuring
Health andWell-Being

CREATE SUPPORTIVE ENVIRONMENTS FOR TRANSGENDER PARENTS AND THEIR FAMILIES
Include transgender parents and their families within LGBT community spaces.

•• Efforts such as the newly launched “I AM: Trans People Speak” provide an important platform forbringing visibility to transgender parents446

116

CREATE SUPPORTIVE ENVIRONMENTS FOR LGBT FAMILIES OF COLOR
Provide greater support for LGBT families of color and multiracial LGBT families within LGBT
organizations.

•• Given that LGBT families are more likely than heterosexual families to complete a transracial

adoption,447 advocates should support programs that aim to help trans-racial LGBT families address
underlying issues of race, culture and class such as Our Family Coalition in Northern California,
which provides opportunities for trans-racial LGBT families to discuss their experiences448

Work with organizations of color to support multiracial LGBT families and LGBT families of color.

•• Advocates should work with people of color organizations to expand understanding of andresources for children of color in LGBT families•• This is important since people of color are sometimes more comfortable turning to these
CONCLUSION AND DETAILED RECOMMENDATIONS

community organizations for assistance instead of relying primarily on LGBT organizations thatmay predominantly serve white families

Ensure that images of LGBT families reflect the diversity of all families.

•• LGBT organizations should take steps to ensure that people of color can see themselves in portrayalsof LGBT families on organization websites and in publications and other materials

EXPAND RESEARCH ON LGBT FAMILIESSUPPORT EXPANDED RESEARCH ON LGBT FAMILIES AND PARENTING
Lobby for and fund expanded private and government research on LGBT families and parenting.

•• Research is critical to communicating to stakeholders and policymakers the nature and extent of
the needs of LGBT families; however, there is gravely insufficient data about LGBT families•• Governments and agencies should collect LGBT data in all federal, state and local studies including
demographic studies, studies on physical and mental health, economic studies and more•• In addition, parenting studies should focus on diverse LGBT families, including transgenderparents, gay men and racially and economically diverse families449

See homepage: www.transpeoplespeak.org.
A 2009 study of 106 adoptive families (56 same-sex couples and 50 different-sex couples) found that same-sex couples were more likely to complete a transracial adoption (54% versus 30%). This was due, in part,to the fact that the same-sex couples were more likely to be interracial themselves. But even excluding those couples, 42% of same-race, same-sex couples adopted transracially, compared to 24% of same-race,
different-sex couples. Rachel Farr and Charlotte Patterson, “Transratial Adoption by Lesbian, Gay, and Heterosexual Couples,” Adoption Quarterly, 12:187-204, 2009, http://people.virginia.edu/~cjp/articles/fp09.pdf.
448
Our Family Coalition, “Colors of Our Families 7 Week Series.”
449
The majority of research conducted thus far focuses on white, middle- and upper-income lesbian-headed households.
446
447

Goals Accomplished by Recommendation

RECOMMENDATION

Goal # 1:
Securing
Stable, Loving
Homes

Goal #2:
Ensuring
Economic
Security

Goal #3:
Ensuring
Health andWell-Being

Expand research and data collection on LGBT family health disparities and needs.

•• Advocates should push for all government public health surveys to include questions about
sexual orientation and gender identity•• The U.S. Department of Health and Human Services has announced it will draw on a report by

the prestigious Institute of Medicine (IOM) calling for increased research and data collection on
LGBT health needs

117•• The report found that “to advance understanding of the health needs of all LGBT individuals,
researchers need more data about the demographics of these populations, improved
methods for collecting and analyzing data, and an increased participation of sexual andgender minorities in research”450•• An IOM committee will help expand research on the health of LGBT people, and specifically
include reducing the proportion of LGBT people suffering from depression, obesity andsubstance abuse451•• Advocates should press the Secretary of Health and Human Services to include sexual orientation andgender identity for the purposes of data collection in order to take advantage of the 2010 Affordable
Care Act, which allows the Department to designate specific populations that would benefit fromadditional data collection to combat health disparities•• States should investigate family health disparities related to sexual orientation and gender
identity in their Behavioral Risk Factor Surveillance Systems452

451
452

Institute of Medicine, “The Health of Lesbian, Gay, Bisexual, and Transgender People.”
U.S. Dept. of Health and Human Services, Recommended Actions, www.hhs.gov/secretary/about/lgbthealth.html.
Many states, including California, Massachusetts, New Mexico, North Carolina, North Dakota and Wisconsin, have already added such questions to their Behavioral Risk Factor Surveillance Systems. Baker
and Krehely, “Changing the Game.”

CONCLUSION AND DETAILED RECOMMENDATIONS450APPENDICES
Glossary of Acronyms Used in this Report

APPENDICES

118

ACLU

American Civil Liberties Union (see Acknowledgements)

ACS

American Community Survey (see page 119)

AHD

Advanced Health Care Directive (see page 85)

BEST

Basic Economic Security Table (see page 55)

CHIP

Children’s Health Insurance Program (see page 62)

COBRA

Consolidated Omnibus Budget Reconciliation Act (see page 81)

DOMA

Defense of Marriage Act (see page 49)

EFC

Expected Family Contribution (see page 65)

EITC

Earned Income Tax Credit (see page 70)

FAFSA

Free Application for Federal Student AID (see page 64)

FMLA

Family and Medical Leave Act (see page 88)

GLAD

Gay and Lesbian Advocates and Defenders (see page 122)

HUD

U.S. Department of Housing and Urban Development (see page 60)

IRS

Internal Revenue Service (see page 4)LGBT

Lesbian, gay, bisexual and transgender (see page 1)

MAP

Movement Advancement Project (see inside cover)

OASDI

Old-Age, Survivors and Disability Insurance (see page 73)

PTA

Parent-Teacher Association (see page 16)

SNAP

Supplementary Nutrition Assistance Program (see page 59)

SSI

Supplemental Security Income (see page 63)

TANF

Temporary Aid for Needy Families (see page 57)

WIC

Special Supplemental Nutrition Program for Women, Infants and Children (see page 59)•• Percentages of lesbian and bisexual women who

Estimating the Number of Children with
LGBT Parents

reported that they had given birth to a child, had
lived with a non-biological child that was under
their care and responsibility, or that they werecurrently raising children.453

Estimating the number of children being raised byLGBT parents is difficult. Researchers face a lack of data,
particularly with respect to transgender parents. Veryfew surveys ask about sexual orientation, and there are
no representative surveys that ask about gender identity.
Even when surveys do ask about sexual orientation,
stigma causes under-identification and under-counting.
An explanation of how MAP derived the estimate of two
million children being raised by LGBT parents follows.

Key Data Forming the Basis of MAP’s Analysis forLGBT Parents
Several types of data (with varying sources, dates
and data sets) were used as the basis for MAP’s estimatesof the number of children with LGBT parents:•• Percentages of gay and bisexual men who reported
they have had either a biological or adopted child,or that they were currently raising children.454•• Percentages of transgender adults who reported
that they were currently raising children.455•• Recent estimates of the total population of LGBT
people.456
Gates et al., “Adoption and Foster Care”; 2009 California Health Interview Survey.
Ibid.
455
Grant et al., “Injustice at Every Turn”; Equality South Carolina, “A Survey of South Carolina’s
Lesbian, Gay, Bisexual and Transgender Community,” 2010, www.scequality.org/public/files/
docs/SurveyFinal.pdf.
456
Gates, “How Many People are Lesbian, Gay, Bisexual and Transgender?”453
454•• U.S. population estimates for adults of child-rearingage (18-44) and cohabitation rates.457•• Child-rearing rates and average number of children
per household of same-sex couples.458
MAP applied population estimates to each of the
major data sets (three for LGB parents and one fortransgender parents), which resulted in estimates ofbetween 2.0 and 2.8 million children being raised byLGBT parents. To be conservative, MAP used the lowest
estimate of two million children currently being raisedby LGBT parents or same-sex couples.

Methodology for LGB Parents

The California Health Interview Survey, conducted
every two years, is the largest state-based health survey in
the U.S. and includes questions about sexual orientation.
In the 2009 survey, 19% of lesbian women and 29% of
bisexual women reported that they were currently raisingchildren, compared to 4% of gay men and 7% of bisexual
men.460 This data set also includes information about
cohabitation status. Applying these rates of child rearing
and cohabitation rates to the LGB population estimate,
MAP analysis suggests that up to 1.9 million children are
currently being raised by at least one LGB parent.
The U.S. Census, which is conducted every ten
years, and its annual counterpart survey, the American
Community Survey (ACS), provide information about
the number of individuals in same-sex couples who
are raising children. The census and the ACS countMethodology for Transgender Parents

119

Because no large surveys ask questions about gender
identity, estimates of parenting by transgender people
are difficult to obtain. A 2011 meta-analysis conductedby The Williams Institute estimates that 0.3% of American
adults, or 700,000 Americans, are transgender.462 The
recent National Transgender Discrimination Survey(2009) found that 38% of transgender respondents
identified as parents and 18% were currently raising achild.463 A 2010 survey of transgender people living inSouth Carolina found a similar rate of parenting—31% oftransgender respondents were parents.464 Given the lackof data about transgender parents and their children,
more research and questions about gender identity areneeded on more surveys. For MAP’s analysis, we used
estimates of between 100,000 and 200,000 children whoare being raised by a transgender parent.
U.S. Census Bureau, “Selected Social Characteristics in the United States” and “ACS Demographicand Housing Estimates,” 2006-2008 American Community Survey 3-Year Estimates.”
458
Gary J. Gates, “Same-Sex Spouses and Unmarried Partners in the American Community Survey,”
The Williams Institute, September 2009.
459
Gates et al., “Adoption and Foster Care.”460
2009 California Health Interview Survey.
461
Gates, “Same-Sex Spouses and Unmarried Partners in the American Community Survey.”462
Gates, “How Many People are Lesbian, Gay, Bisexual and Transgender?”463
Grant et al., “Injustice at Every Turn.”
464
Equality South Carolina, “A Survey of South Carolina’s Lesbian, Gay, Bisexual and Transgender
Community.”
457

APPENDICESFirst, analysis of the 2002 National Survey of
Family Growth by The Williams Institute found that
35% of lesbian-identified women and 65% of bisexualidentified women between the ages of 18 and 44
had given birth to a child, while 23% of lesbians andbisexual women reported that they had lived witha child they did not give birth to but was under their“care and responsibility.”459 Of gay-identified men,
16% reported having had a biological or adopted
child, while 48% of bisexual men reported having hada biological or adopted child. Applying these rates ofchild rearing to the most recent estimates of the LGB
population provided by The Williams Institute and thepercent of the population between the ages of 18 and44; the number of children in a household; and current
U.S. cohabitation rates, MAP analysis estimates there
are approximately 2.6 million children currently being
raised by at least one LGB parent.

the number of same-sex couples who use the term
“husband/wife” or “unmarried partner,” but do notinclude questions about sexual orientation. Of these“same-sex couple” households identified in the 2009
ACS, The Williams Institute found that 21% were raising,on average, two children.461 Applying this statistic to
the LGB population estimates and taking into consider
cohabitation rates, MAP analysis suggests that up to
2.3 million children are being raised by an LGB parent
or same-sex couple.

Creating and Protecting a Family is Costly for LGBT Parents
Table 8: Creating and Protecting A Family Is Costly for LGBT Parents
CREATING A FAMILY: COSTLY PROCESSES OFTEN REQUIRED TO CREATE LGBT FAMILIES120

The process

Description

How much it can cost

Adoption—through apublic, child welfare
agencyAdoption costs vary widely depending on the unique circumstances of each family.
In general, adopting through a child welfare agency is less costly than other adoption
options. Adoptions conducted through child welfare agencies often require many steps,
including a home study, attorney’s fees and travel expenses.

Less than $2,500465

Adoption—private orinternational

Private and international adoptions are much more costly than are adoptions throughchild welfare agencies, as are adoptions of newborn children. Private adoptions often
require many steps, including a home study, legal fees and court costs.

International
adoptions—$7,000-$30,000
Domestic private or
independent adoptions
within the U.S.—$5,000-$40,000466

Second-Parent
AdoptionA second-parent adoption is often more expensive than stepparent adoption and may
include a home study$1,200-$4,000467

Donor Insemination

The costs associated with donor insemination can vary depending on whether a woman
becomes pregnant during the first insemination cycle. Included in these costs are doctor’svisits—which are often required by law in order to take advantage of donor insemination
statutes regarding parentage—and the genetic material.

$500-$1,000 for first
insemination cycle

Surrogacy arrangements require complicated medical and legal services. As such thecosts range widely depending on the exact circumstances.

$115,000-$150,000469

Egg Donation &Surrogacy$300-$700 for each
additional cycle, if
needed468

APPENDICESPROTECTING A FAMILY: GENERAL DOCUMENTS RECOMMENDED FOR MOST PEOPLE
Document

What it does

How much it can costWill

A will is an important document for establishing what happens to a person’s assets
upon death, including how they are allocated and to whom. For LGBT families, this isparticularly important because surviving partners and children may not be able to receive
assets without a will. A will can also designate a guardian for a person’s surviving minor
children. While it would not be legally binding, it can be a good starting place for a judge
who will make the final custody decision.

$500-$3,000 dependingon the complexities ofa family’s financial andpersonal situation

Power of Attorney:
Financial

In the case of physical or mental incapacitation, a financial power of attorney grants anotherperson the ability to make financial decisions, such as paying bills or selling property. Given
that LGBT families may not be legally recognized, this is an important document to ensurethat a partner can make necessary financial decisions in a given situation.

Power of Attorney:
HealthSimilar to a financial power of attorney, this document allows a person to make medical
decisions in the event of the incapacitation of another person.

Living Will (AHD)

Also known as an “Advanced Health Care Directive,” a living will makes an individual’s
wishes known if that individual is unable to speak for themselves. A living will usuallyrefers to a person’s desire to receive or avoid life-sustaining medical procedures.

U.S. Dept. of Health and Human Services, “Funding Adoption.”
Ibid.
Haynes, “Palmer answers questions about same-sex adoptions.”; Allen, “Second Parent Adoption: An Outline.”
468
Amy Agigian, Baby Steps: How Lesbian Alternative Insemination Is Changing the World, Wesleyan University Press, 2004; cited in Goldberg, Research on the Family Life Cycle.
469
According to one surrogacy agency specializing in LGBT families, cited in Goldberg, Research on the Family Life Cycle.
465
466
467

PROTECTING A FAMILY: DOCUMENTS PARTICULARLY IMPORTANT FOR SAME-SEX COUPLES
Document

What it does

How much it can cost

Re-title Assets to be“Joint Tenants”

By re-titling assets to be “Joint Tenants in Common” or “Joint With Rights of Survivorship,”
two or more people can be listed as owners of property. Some LGBT families may
undertake this process to ensure that both partners are listed on the deed. This sort ofre-titling, however, can have both state and federal tax implications for couples who are
not recognized as married on the state or federal level.

$100 or more
depending on
the situation andcomplexities

When one person dies under a “Joint Tenants in Common” arrangement, the surviving
person continues to own half of the property, while the other half is placed in the
deceased’s estate and is administered according to a will or through the probate process.
In a “Joint With Rights of Survivorship” arrangement, when one person dies, the surviving
person assumes all ownership of the property.
121

Because of the privilege given to married heterosexual couples in most states, when
one spouse dies, half or more of the deceased’s assets automatically transfer to thesurviving spouse.
Living Trust

Establishing a trust is a way to ensure that certain assets—physical or financial—can bepassed to another person without going through the probate process.

$750-$2,000 dependingon the complexities

Domestic Partnership
Agreement

In states that lack legal recognition for same-sex couples, such couples are advised tocreate a domestic partnership agreement, which is a written document (usually preparedby a lawyer) that states when the relationship started, what assets belonged to eachmember of the partnership when the relationship began, and how the assets will be
distributed if the couple splits. While such an agreement is neither legally binding nor
recognized by most states, it can help give structure to a separation or provide evidenceof a relationship if a will is contested.

$300-$350

PROTECTING A FAMILY: DOCUMENTS PARTICULARLY IMPORTANT FOR LGBT PARENTS
What it does

How much it can cost

Co-Parenting
AgreementThis agreement, which is particularly important in situations where establishing clear
legal parentage is not an option, allows a couple to set up rights and responsibilities
around parenting—particularly if the couple were to separate at a later date. For example,
the agreement may state that the couple intentionally created a family together and thatparents agreed to jointly and equally share in parental responsibilities. This agreement
would also set terms for parenting time and financial support in the case of separation.
While not legally binding, it does provide some framework for a couple and could bereferred to by a judge to establish the intentions of the couple.

$350-$500

Appointment ofGuardianA couple could set up an appointment of guardian, which would designate a person,
often the non-legally related partner, to serve as the guardian of a child in the case ofincapacitation or death of the legal parent. While this appointment is not necessarily
legally binding, it does give the appointed person more standing to petition forpermanent guardianship or adoption.

$325-$500

Donor Insemination
Agreement

When a woman becomes pregnant using a known or unknown donor, the donor willoften surrender any parental rights, either at the sperm bank (for an unknown donor) or
through a donor insemination agreement (for a known donor). While these agreements
may not be honored by a judge (in some cases depending on state statute), they canserve as important evidence of the intention of the woman being inseminated toparent without the parental involvement of the donor, and the intention of the donor torelinquish parenting rights.

$325-$500

Power of Attorney for
Parental Authority

Depending on the state, a parent may be able to grant a power of attorney for parental
authority for a child to another person, such as a same-sex partner. This document would
allow the partner to make decisions about the care, custody and control of the child.

$100-$300

PROTECTING A FAMILY: DOCUMENTS PARTICULARLY IMPORTANT FOR LGBT PARENTS
Document

What it does

How much it can cost

Divorce Proceedings
for Transgender
Parents

A divorce can be difficult to obtain without adequate legal representation, particularly
in situations where a parent comes out as transgender and then separates from apartner. Transgender parents may face a difficult ex-spouse who tries to use the person’stransgender status as a reason to withhold custody or to receive more alimony or childsupport, so it is often recommended that transgender parents obtain a lawyer.

$5,000-$15,000

APPENDICES

Document

Interviewees
For this report, MAP interviewed more than 60 researchers, scholars, economists, attorneys and organization
leaders who provided thought leadership, issue perspectives, strategic input and directional counsel. We gratefullyrecognize their willingness to share their time and expertise.

•• Clinton Anderson,

Director, Office of LGBT
Concerns, American Psychological Association•• Judy Appel, Executive Director, Our Family
Coalition
122•• Jessica Arons, Director, Women’s Health and Rights
Program, Center for American Progress•• Katie Belanger, Executive Director, Fair Wisconsin•• Flor Bermudez, Staff Attorney, Youth in Out-of-Development, National Council of La Raza•• Marissa Guerrero, Doctoral Candidate, Universityof Chicago•• Paulina Hernandez, Co-Director, Southerners on
New Ground (SONG)•• Daryl Herrschaft, Director, Workplace Project,

Home Care Project, Lambda Legal

Human Rights Campaign•• Terry Boggis, Director, Center Kids, Center Families,•• Christine James-Brown, President and CEO, ChildThe LGBT Community Center (New York City)

Welfare League of America•• Mary Bonauto, Civil Rights Project Director, GLAD•• Heather Boushey, Senior Economist, Center for•• Waldo E. Johnson, Jr., Associate Professor, School

American Progress•• Moira Bowman, EMERJ Movement Building
Director, Asian Communities for Reproductive
Justice

APPENDICES•• Mark Glaze, Principal, The Raben Group•• Ruben Gonzales, Deputy Vice President, Resourceof Social Service Administration, University of
Chicago•• Ellen Kahn, Family Project Director, Human Rights
Campaign•• Kristina Burrows, Staff Attorney, California Rural•• Mary Kator, Chief Counsel, Rainbow Law Center•• Jessica Lee, Racial Justice and Alliance Building

Legal Assistance

Program Manager, Basic Rights Oregon•• Alexandra

Cawthorne, Research Associate,
Poverty & Prosperity and Women’s Health & Rights
Programs, Center for American Progress•• NTanya Lee, Executive Director, Coleman Advocates•• Cristy Chung, Community Programs Director,

CEO, National Black Justice Coalition

GroundSpark•• Cathy J. Cohen, Professor of Political Science,
University of Chicago•• Matt Coles, Director, Center for Equality, ACLU•• Marta Cook, Research Assistant, Faith & Progressive
Policy Initiative, Center for American Progress•• Donna Cooper, Senior Fellow, Economic Policy,
Center for American Progress•• Joan Entmacher, Vice President and Director, Family
Economic Security, National Women’s Law Center•• James Esseks, Director, LGBT & AIDS Project, ACLU•• Pooja Gehi, Director of Litigation and Advocacy,
Sylvia Rivera Law Project

for Children and Youth•• Sharon J. Lettman-Hicks, Executive Director and•• Jodie Levin-Epstein, Deputy Director, CLASP•• Beth Littrell, Staff Attorney, Lambda Legal•• Eileen Lopez, Family Recruitment Program Director,
New York Council on Adoptable Children•• Gerald P. Mallon, Professor and Executive Director,
National Resource Center for Permanency andFamily Connections, Hunter College•• Vivienne Ming, Board of Directors, Our Family
Coalition•• Mignon Moore, Associate Professor of Sociology,
UCLA•• Joy Moses, Senior Policy Analyst, Poverty &Prosperity Program, Center for American Progress•• Jeffrey T. Parsons, Chair, Psychology Department,•• Camilla Taylor, Marriage Project Director, Lambda

and Co-Director, Center for HIV Educational Studies& Training, Hunter College

Legal•• Julia Po, Program Coordinator, Our Family Coalition•• Francine Ramsey, Executive Director, Zuna Institute•• Lisbeth Melendez Rivera, Executive Director,
UNID@S•• Chad Ruppel, Program Analyst, U.S. Department of•• Harper Jean Tobin, Policy Counsel, National Center
for Transgender Equality•• Michael Jose Torra, Principal, The Raben Group•• Dan Torres, Project Manager, Proyecto Poderoso,
National Center for Lesbian Rights and California
Rural Legal Assistance

Housing and Urban Development•• Kenneth D. Upton, Jr., Supervising Senior Staff•• Liz Schott, Senior Fellow, Welfare Reform andAttorney, Lambda Legal

Income Support Division, Center on Budget andPolicy Priorities•• Luz Vega-Marquis, President and CEO, Marguerite•• Julie Shapiro, Professor of Law, Seattle University•• Barbara Warren, Director, Center for LGBT Social

School of Law

Science & Public Policy, Hunter College•• Arloc Sherman, Senior Researcher, Center on•• Bridget J. Wilson, Attorney, Rosenstein, Wilson &Budget and Policy Priorities

Dean•• Anna Marie Smith, Professor of Government,•• Alan Wolberg, Morgan Stanley Smith Barney•• Portia Wu, Vice President, National Partnership forCornell University•• Nadine Smith, Executive Director, Equality Florida•• Lavi S. Soloway, Attorney, Masliah & Soloway•• Tom Sullivan, Deputy Director, Family Project, and123

Casey Foundation

Women and Families•• Sylvia Yee, Vice President of Programs, Evelyn &Walter Haas, Jr. Fund

Editor, Health Care Equality Index, Human Rights
Campaign
APPENDICES

124

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