LGBT Parenting Year in Review 2011

(Originally published as my Mombian newspaper column, hence the slightly belated posting here. But it’s still January, so I figure it’s still good.)

As 2010 gives way to 2011, let us ask: How has the year been in terms of political and legal progress for LGBT parents and our children?

The most notable parenting-specific win of the year was arguably Florida’s judicial overturning of its ban on adoption by gay men or lesbians. Mississippi, however, continues to ban same-sex couples from adopting, and Arkansas, Michigan, and Utah ban unmarried couples, which means essentially the same thing. The federal Every Child Deserves a Family Act, which would have withheld federal funds from states and other entities that discriminate against gay men and lesbians in adoption or foster care placements, was introduced in March, but failed to make it out of committee.

There were also state rulings in a variety of custody cases that pitted non-biological or non-adoptive parents against biological or adoptive ones. The rulings were mixed—in Texas, two different appeals courts even made opposite rulings about whether a non-biological mother has visitation rights.

And in a case with a wide impact, the North Carolina Supreme Court on December 20 voided the adoption by a lesbian nonbiological mother of the child she and her former partner, the biological mother, had been raising together. The ruling has thrown into question all other such “second-parent adoptions” in the state. 

On a more positive note, the U.S. Supreme Court rejected a fifth petition from Lisa Miller, an “ex-lesbian” mom who has been battling her former partner Janet Jenkins for custody of their daughter. Miller went into hiding with the girl a year ago, but her lawyers had asked the court to reconsider the Virginia ruling that requires Miller to comply with a Vermont Supreme Court order and give Jenkins primary custody.

Families played a strong role in the federal case to determine the constitutionality of California’s Proposition 8. The defense claimed that marriage should be limited to opposite-sex couples to ensure responsible procreation and child-rearing. District Court Judge Vaughn Walker, however, ruled for the plaintiffs, saying, “the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes.”

The defense used its same old argument, however, before the 9th Circuit Court of Appeal in December. The plaintiff’s attorneys seemed to negate it just as adeptly. Regardless of the final outcome, the hearings provided a very public airing of the extensive evidence about the suitability of same-sex parents. That can only be a good thing.

Some of the biggest steps forward for LGBT families this year came not from courts or legislatures, but from several federal departments:

• The Department of Health and Human Services (HHS) issued new regulations requiring that hospitals receiving Medicare and Medicaid funds must allow patients to designate their visitors, who could include same-sex partners and non-legal children. President Obama ordered HHS to take action after he heard the story of partners Janice Langbehn and Lisa Pond. A Florida hospital in 2007 kept Langbehn—and the couple’s three children—from Pond’s side as she lay dying from a sudden aneurysm.
• The Office of Personnel Management issued new regulations stating that federal employees may take sick or bereavement leave for same-sex domestic partners or children of a domestic partner.
• The Department of Labor clarified that under the existing Family and Medical Leave Act (FMLA), an employee may take unpaid leave to tend children under their care, “regardless of the legal or biological relationship.”
• The Department of Education likewise clarified that federal law requires schools to take action against bullying, including gender-based and sexual harassment of LGBT students.

Bullying, of course, burst into mainstream consciousness through a series of tragic, but highly publicized youth suicides related to anti-LGBT harassment. The greater awareness of the issue—including “It Gets Better” videos from President Obama, Vice President Joe Biden, and Secretary of State Hillary Clinton, among others—should help address the problem. It is a shame, however, that the awareness comes at the price of lives, and that steps to prevent such tragedies were not taken years ago. Two federal bills that would provide stronger anti-bullying protections for LGBT students died in committee.

The biggest LGBT victory of the year, the repeal of Don’t Ask, Don’t Tell (DADT), was not specific to LGBT parents, but will impact those of them in the military. First and foremost, they will likely find immediate emotional relief in no longer having to hide or worry that their child’s inadvertent comments could cost them their family’s livelihood.

They will be able to pursue second-parent adoptions in jurisdictions that allow them, without worrying about the public paper trail. They may also now marry or have civil unions/domestic partnerships without fear of the paper trail—and that may be a comfort to their children.

Similarly, they won’t have to worry about exposing their relationship by naming a partner as the recipient of certain “member-designated” benefits, such as being a life insurance beneficiary or having hospital visitation rights, as LGBT family law expert Nancy Polikoff explained in her blog November 30.

What they will not be able to do, however, is to receive the same benefits for a same-sex partner as for an opposite-sex spouse. The DADT repeal bill specifically says that it does not require benefits “in violation of . . . the ‘Defense of Marriage Act.’” Repeal of DADT was a major step forward. But full equality for lesbian and gay servicemembers and their families remains a future step.

There was definite progress in 2010, then, even though—as every parent knows—change is not always linear. Let us celebrate the victories and recommit ourselves to addressing the remaining obstacles.