With 2021 drawing to a close, I asked experts at some of the leading organizations fighting for LGBTQ families what they thought were the key legal and political wins — and losses — for LGBTQ parents and our children over the past year.
“The Biden/Harris Administration is the greatest advance for us, giving us some breathing room and a renewed sense of hope after four years of a heartless, soulless Administration that gave not one damn about us,” said Ellen Kahn, senior director of programs and partnerships at HRC, whose portfolio includes Welcoming Schools, All Children-All Families, and other initiatives for LGBTQ families and youth.
Stacey Stevenson, CEO of Family Equality, affirmed that “The Biden/Harris Administration is the most expressly LGBTQ+ friendly administration in history.” On his first day in office, Stevenson noted, President Biden issued an executive order telling all federal agencies that the federal ban on sex discrimination includes discrimination based on sexual orientation and gender identity, consistent with the 2020 Supreme Court ruling in Bostock v. Clayton County. Several federal agencies have already taken action based on this order, and Stevenson says she is “hopeful” the Department of Health and Human Services (HHS) will soon do so, “to protect LGBTQ+ youth, families of origin, and foster and adoptive parents from harmful discrimination in the child welfare system and other services.”
The Biden administration has also withdrawn letters that HHS under the Trump administration had sent to three states that allowed them to discriminate against LGBTQ foster parents. Now, said Polly Crozier, senior staff attorney at GLBTQ Legal Advocates and Defenders (GLAD), “HHS has been clear that states no longer have HHS permission to discriminate.”
On the legislative side, both Kahn and Stevenson pointed to the House’s passage of the Equality Act as a key win of the year. The Equality Act, Stevenson explained, would provide “consistent and explicit anti-discrimination protections for LGBTQ+ people and our children across key areas of life, including housing, credit, education, public spaces and services, and federally funded programs (including foster care and adoption services).” This is especially important because “The majority of LGBTQ+ people and families in the country — including the largest concentrations of LGBTQ+ people of color and low-income LGBTQ+ people — live in states with no explicit protections from discrimination.”
Kahn agreed that House passage of the Equality Act was “historic,” noting that many people do not realize that currently, “in many states, a two-mom family can be denied an apartment, or a two-dad family can be refused service at a retail store.”
On the state level, bills updating parentage laws to be more inclusive of all families passed this year in Connecticut, New York, and Rhode Island. Crozier called Connecticut’s update “the most comprehensive parentage reform to date in the U.S.”
Cathy Sakimura, deputy director and family law director at the National Center for Lesbian Rights, explained, “The increasing adoption of comprehensive parenting laws that are gender-neutral, address assisted reproduction and surrogacy, recognize functional parents, and in some states, protect children with multiple parents, are changing the landscape for LGBTQ families.”
Part of these changes includes expanded access to Voluntary Acknowledgments of Parentage (VAPs), simple, free forms that can be completed immediately after a child’s birth to establish parentage. VAPs, unlike birth certificates, are equivalent to court decrees. They have traditionally been used to allow unmarried genetic fathers to be recognized as parents, but Connecticut and Maine passed laws this year permitting parents of any gender, including intended parents through assisted reproduction, to access VAPs. Similar VAP laws also went into effect this year in Rhode Island and New York, making a total of 10 states that now offer expanded VAP access as a “critical procedural path” to parentage, said Crozier.
New laws in Connecticut and Nevada will also protect children with multiple parents, Sakimura added, “but courts in Maryland and Colorado declined to recognize these families.”
Other court decisions benefitted married same-sex couples both with and without children. The Colorado Supreme Court recognized that Obergefell v. Hodges, the 2015 U.S. Supreme Court decision establishing marriage equality nationwide, applies to common law marriages that began before that decision, Sakimura said.
Crozier observed, too, that after two class action lawsuits filed by Lambda Legal, “Social security survivor’s benefits are now equally available to everyone, including same-sex partners who could not marry their loved ones or who did not meet the nine-month standard [being married for nine months before being able to claim benefits] and may have thought it was futile to apply.”
The Arkansas Supreme Court also “held that a transgender father was a parent based on his marriage to the mother,” said Shelbi Day, chief policy officer of Family Equality.
The Idaho Supreme Court, however, ruled that the “marital presumption” (the legal principle that a child born to two married parents is assumed to be the child of both of them) did not apply to the nonbiological mother of a child conceived through assisted reproduction, said Crozier, “a reminder of ongoing discrimination against children of LGBTQ families and the need to protect children beyond the marital presumption.”
For unmarried same-sex parents in states without comprehensive, gender-neutral parenting statutes, there have had “both wins and setbacks,” Sakimura said. “Oklahoma rolled back its protections for unmarried same-sex parents,” but “the Supreme Courts of Kentucky and Alaska reaffirmed their protections for unmarried non-genetic parents.” And while one Tennessee Court of Appeals this year recognized unmarried same-sex parents using in vitro fertilization (IVF) to conceive, she noted, last year another held that unmarried same-sex parents who conceived through insemination could not be recognized.
More positively, Virginia this spring passed a confirmatory (second-parent) adoption bill that allows unmarried parents to establish a legal parent-child relationship through the step-parent adoption process, said Day.
Can we make further progress in 2022? In my next column, I’ll share what the above advocates see as the key goals for LGBTQ family equality in the coming year and how they think we can achieve them.
Dana Rudolph is the founder and publisher of Mombian (mombian.com), a GLAAD Media Award-winning blog and resource directory, with a searchable database of 800+ LGBTQ family books, media, and more.