What Makes a Family?: The Current Climate of LGBTQ+ Adoption Rights in the United States
BY Madeleine Bamford
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In 2022, the world is called to reflect on the past two and a half years. We’ve dealt with enough: the novel COVID-19 pandemic, the Capitol riots, millions of deaths, protests across all causes to support our communities, and many more events have shaped our perspectives and relationships drastically. However, one of the most impactful of these new changes was something much more domestic than national uprisings: greatly increased family time, or, for some, none at all. The polarization of an integral concept such as family time creates space for dialogue on the importance of family to our daily lives and, intriguingly, poses questions such as, “what makes a family?” Is it a traditional, “nuclear” familial image of the perfect American family? Or, is it a familial bond between parent(s) and child, in which both parties love and support each other for who they are?
Unfortunately, certain parts of the United States continue to discriminate against alternative forms of family, more specifically, LGBTQ+ couples looking to adopt or foster. As a historically marginalized community, queer prospective parents are met with yet another legal blockade preventing them from the United Nations recognized human right of family. Certain religious communities view these families as “unnatural” in the eyes of their religion, while others take to heart the perpetuated stigma surrounding LGBTQ+ people, fearful of queer parents “pushing their agenda onto children.” Neither of these are legitimate reasons to deny a loving, accepting family to not only queer parents but queer children in foster care. Legislation backed by religious opinion and historical stigma is not valid reasoning to deny LGBTQ+ adoptive parents, as they can provide a loving and accepting family dynamic to all children, especially those in the LGBTQ+ community.
A Brief History of LGBTQ+ Adoption/Discriminatory Legislation (2016-Present)
In the past three national administrations, the United States’ legislation on LGBTQ+ adoption rights has made more than one 180-degree turn. Beginning in 2016, with the introduction of the Trump-Pence Administration, LGBTQ+ adoption rights were seemingly on the back burner, yet they were slowly and silently being taken away. Previously in the Obama-Biden Administration, “45 CFR 75.300(c) barred discrimination on non-merit factors such as age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation in receiving benefits of HHS (Heath and Human Services) programs or in administering funded programs” (Friedman). However, under the Trump-Pence Administration, legislation was amended to read, “It is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services, to the extent doing so is prohibited by federal statute” (Friedman). Though seemingly granting identical rights as the previous legislation, the amended 45 CFR 75.300(c) reduces LGBTQ+ Anti-Discrimination rights by not requiring recognition of same-sex marriage. On the significance of the seemingly minute clause amendment, Ryan Thoreson, author of Transnational LGBT Activism: Working for Sexual Rights Worldwide (University of Minnesota Press, 2014) writes,
It also deletes a requirement that recipients recognize the marriages of same-sex couples, replacing it with a generic statement that the US Department of Health and Human Services will respect Supreme Court decisions. The previous regulation was used to ensure adoption and foster care agencies who receive federal support serve all qualified parents, including same-sex couples. Rolling back existing nondiscrimination protections will harm those families, as well as the many kids awaiting placement in loving and supportive homes. (Thoreson)
Throughout the life of the Trump-Pence White House, additional legislation was passed to allow foster care programs to continue to discriminate against queer prospective couples while still accepting tax-payer funds, refuse visas to same-sex partners of UN diplomats, and deny surrogate-born children citizenship (HRC). The stance of the Trump-Pence Administration was clear: they did not recognize LGBTQ+ couples as worthy of family rights.
As our nation transitioned to the Biden-Harris Administration in 2020, the White House views on LGBTQ+ issues again changed. The Biden-Harris Administration’s plans for LGBTQ+ rights as of July 2020 were to nationally ban conversion therapy and rescind the Trump-Pence Administration’s amendment on discriminatory adoption agencies receiving tax-payer funding. Unfortunately, in the current Congressional calendar year, no national motion on these two prospective legislative amendments has yet been made at the time of this essay. This leaves LGBTQ+ adoptive parents operating under the same laws made in 2016, allowing blatant discrimination by adoption agencies, as their income continues to go toward sustaining those agencies.
The Faith Problem: Catholic Charities and the LGBTQ+ Community
Catholic Charities, an adoption agency with 2,600 facilities nationwide, headquartered in midtown Manhattan, continues to be the main organization for LGBTQ+ adoptive parent discrimination. Using Catholic doctrine that bars against the same-sex marriage, Catholic Charities refuses queer adoptive parents whilst still accepting federal funding. The problem lies here. Under the United States Constitution and the results of Supreme Court Case Fulton v. City of Philadelphia, Catholic Charities is allowed to discriminate against queer prospective couples as a non-governmental, private adoption agency (Fulton v. City of Philadelphia 2). Some may come to the defense of Catholic Charities and similar organizations in stating their religious freedom to cater to whom they want. Out of religious freedom and respect of beliefs, Catholic Charities is granted this power, and though discriminatory, rightfully so. However, the issue lies in the continued federal funding, despite discrimination that violates the Equal Opportunity Clause.
Taxpayer dollars are going towards the active discrimination of LGBTQ+ couples, sometimes by those very people being discriminated against, unbeknownst to them. Former Executive Director of Catholic Charities Brian Cahill describes it best:
But in mouthing those words they gloss over the infuriating, insulting, wounding and chasm-like dichotomy between expressing respect for gays and lesbians while also actively advocating for and promoting policies that harm the LGBTQ+ community. Even if somehow their words are not hypocritical or disingenuous, their approach is so separated from Jesus’ message of love and inclusiveness that it is hollow and meaningless. (Cahill)
As described above, Jesus’s central message of loving and caring for thy neighbor is ignored by Catholic Charities in the face of a non-heterosexual community. The continued federal funding of an organization that supports these ideas is not only a violation of the Equal Opportunity Clause, but is also a violation of the LGBTQ+ community’s human rights.
But What About the Children?: Queer Kids in Foster Care
The North American Council on Adoptable Children (NACAC) estimates a minimum of 5-10 percent of youth in foster care identify within the LGBTQ+ community (NACAC). Statistically, that would equal 20,000–40,000 children in foster care that identify in the LGBTQ+ community in the United States alone. 40,000 children who fear they won’t be accepted by their new families; 40,000 children who worry they aren’t adoptable because they are queer; 40,000 children without access to LGBTQ+ adoptive parents to create an accepting home. Needless to say, this statistic is astonishing in the context of queer adoption rights. The NACAC puts the strife of queer youth into words:
For LGBTQ foster children and youth, discrimination, neglect, and mistreatment by peers, foster families, caseworkers, and other agency staff compound the problems facing many foster youth, resulting in higher risks of health and mental health problems, school failure, homelessness, and suicide. LGBTQ children and youth have a right to live in an environment that is safe, understanding, and supportive of their needs. (NACAC)
Many queer children would feel more comfortable in a home with those who understand firsthand what it means to be LGBTQ+. The pursuit of LGBTQ+ adoption rights is not limited to LGBTQ+ parents, but also for LGBTQ+ children deserving a loving family.
The Future of LGBTQ+ Adoption Rights
Despite previous reluctance to create new anti-discrimination legislation, a new bill has been introduced to both the House of Representatives and Senate in the 2020-21 congressional session: Every Child Deserves a Family Act (H.R. 3488; S. 1848). This new bill would
prohibit any child welfare agency receiving federal financial assistance from discriminating against any potential foster or adoptive family on the basis of religion, sex, sexual orientation, gender identity, or marital status. In addition, ECDFA would prevent discrimination against any foster youth because of their sexual orientation or gender identity. (HRC)
Additionally, taxpayer funding would be cut off from such institutions, allowing HHS to withhold funding from certain institutions on the premise of discrimination. Many institutions have expressed their support for the ECDFA, including the American Psychological Association, the American Medical Association, the American Academy of Pediatrics, the North American Council on Adoptable Children, the National Adoption Center, the Child Welfare League of America, and the American Bar Association (HRC).
So… What Now?: How to Take Action from a Civilian Position
On an individual level, the fight for LGBTQ+ adoption rights continues. So, what can you do to help? The biggest impact a constituent can have on congressional legislation is reaching out to one’s Congressional Representative and advocating for their support of the new ECDFA bill (H.R. 3488; S. 1848). The American Psychological Association has amazing resources on how to structure a phone call or email to your representative (mentioned resources can be found at https://www.apa.org/advocacy/guide/phone-call). Hearing a constituent’s reasoning and advocacy for a specific bill can bring pressure of support for your representative’s attention on the matter, furthering the fight for LGBTQ+ adoption rights.
As pandemics, riots, deaths, and protests continue to make our world difficult to navigate, our families and communities are what keep us motivated to wake up each morning and change the world. Though in the past, national administrations have amended adoption rights to be more exclusionary, proposed bills such as the Every Child Deserves a Family Act give hope to the future of all adoption rights. Providing children in foster care with loving, accepting homes would be far easier if we allowed LGBTQ+ couples to aid in the solution.
Works Cited
Cahill, Brian. “Here’s Why a Former Catholic Charities Head Opposes Excluding LBGTQ Adoptive Parents.” National Catholic Reporter, 10 Aug. 2021, https://www.ncronline.org/news/opinion/heres-why-former-catholic-charities-head-opposes-excluding-lbgtq-adoptive-parents .
“Every Child Deserves a Family Act.” HRC, Human Rights Campaign, 8 Oct. 2021, https://www.hrc.org/resources/every-child-deserves-a-family-act .
Friedman, Howard. “HHS Adopts Amended Rules Reducing LQBTQ Anti-Discrimination Protections.” Religion Clause, 8 Jan. 2021, http://religionclause.blogspot.com/2021/01/hhs-adopts-amended-rules-reducing-lqbtq.html.
Fulton v. City of Philadelphia. United States Supreme Court. Legal Information Institute, Cornell Law School, 17 June 2021. https://www.law.cornell.edu/supremecourt/text/19-123
HRC. “Trump v. Biden on LGBTQ Equality for Children and Families.” Human Rights Council, 23 July 2020, https://www.hrc.org/news/100-days-out-trump-v-biden-on-lgbtq-equality-for-children-and-families .
NACAC. “LGBTQ Children and Youth in Care.” The North American Council on Adoptable Children, 15 Oct. 2019, https://www.nacac.org/advocate/nacacs-positions/lgbtq-children-and-youth/ .
Thoreson, Ryan. “Trump Administration Again Weakens LGBT Protections.” Human Rights Watch, 8 Jan. 2021, https://www.hrw.org/news/2021/01/08/trump-administration-again-weakens-lgbt-protections#.
About the Author
Madeleine Bamford is a first-year student at Fordham University intending to major in International Studies with a minor in Journalism. Originally from Chicago, she loves all things urban, including exploring NYC’s numerous parks. Her passions for justice, cultural awareness, and journalism run deep, inspiring her to write on LGTBQ+ adoption legislation. She hopes her drive for equality will propel her to a career in international journalism.