For over 40 years, LGBTQ parents have been fighting for the right to be openly LGBTQ and parents. Many of us, however, are unaware of this history and the shoulders on which we stand. Rutgers University law professor Carlos Ball here addresses this gap. Ball, a gay dad himself, traces the court cases that have led to the increased recognition and protection of LGBTQ-headed families, focusing on the personal stories behind the lawsuits as much as on the legal arguments, creating a compelling work that will be of broad interest to more than just lawyers.
LGBTQ parenting, Ball says, has undergone “a quieter revolution” than marriage equality. Marriage equality, he says, “is primarily a constitutional [issue] involving weighty policy questions.” LGBTQ parenting law, however, has evolved from “highly individualized litigation” and cases that are “not ultimately about the rights of LGBTQ people, but are instead about the interests of children.”
LGBTQ parenting cases have nevertheless “worked in the aggregate to transform the legal definition of family and parenthood in fundamental ways.” They have done so in three areas: establishing how the law determines when individuals who have no biological or adoptive links to children should be granted parental rights; determining who is eligible to become foster and adoptive parents; and determining how the law should respond to changes in assisted reproduction technologies.
The first two chapters look at some of the earliest cases involving lesbian moms and gay dads, respectively—cases in which a parent comes out after being in a heterosexual marriage and must fight for child custody or visitation. The courts here took up the question of whether lesbians and gay men could be good parents, and most put the burden on lesbian and gay parents to prove they would not cause harm to their children.
Some of the most heart-wrenching cases are from these early years. In 1976, for example, Marianne MacQueen’s former husband abducted their four-year-old son, taking him to live with his new wife. MacQueen fought for custody, but in 1979 a court terminated her parental rights entirely, the same day the new wife was allowed to adopt the boy. MacQueen did not regain the right to visit him until the boy was 10.
Chapter Three moves us forward in time to when lesbian couples were choosing to have children together. Some of these couples broke up, however, and would fight over custody, in cases that often pitted a biological mother against a non-biological mother. And Chapter Four looks at cases involving the rights of sperm donors or partners donating eggs. Courts in these cases grappled not only with the question of who was a good parent, but with the more fundamental one of who is eligible to be considered a child’s parent in the first place.
Chapter Five looks at foster care and adoption rights for LGBTQ people, including the right to adopt jointly and to do a second-parent adoption of a partner’s legal child.
Finally, Ball devotes an entire chapter to cases involving transsexual parents. As with those of gay and lesbian parents, these cases have centered either on the ability of the transsexual person to be a good parent, or on whether they should be considered parents of children with whom they do not have a biological connection. Ball notes, though, that transsexual parents are even more at risk than gay parents of losing their parental rights altogether—as in the case of Martha Boyd, a transsexual woman who, like Marianne MacQueen above, lost her parental rights, which were granted to her ex-spouse’s new spouse. Unlike MacQueen, however, she never regained even visitation.
At the same time, Ball informs us that “one of the strongest judicial condemnations of denying parental rights” based on LGBTQ identity came early—in 1973—in the case of Mark Randall, a transsexual man.
Ball urges that in the future, all courts must look at the actual relationships children have with their caretakers. Biology, marital status, sexual orientation, and gender identity are not what determine whether someone is a good parent, he says. What matters is “how they carry out their responsibilities of parenthood.”
While we are still far from that goal, we have made tremendous progress over the last 40 years, as Ball has masterfully shown. Most jurisdictions now put the burden of proof on the heterosexual parent to show that a gay ex-spouse will cause harm to a child. More allow LGBTQ parents to foster or adopt children.
Collectively, the legal successes of LGBTQ parents “helped to make possible the raising of tens of thousands of children in loving homes,” Ball says, adding, “It is ultimately the success stories of the actual parenting—more than the litigation victories—that will lead the country to provide LGBTQ families with the legal recognition and social respect they deserve.”
The Right to Be Parents is essential reading not only for family lawyers and policy makers, but also for any LGBTQ parents looking to know more about the history of which they are part.
