Resources

HRC Issue Brief: Families

The Problem

In every corner of our nation, there are loving, committed same-sex couples making their lives together, many of them currently raising children or hoping to do so one day. While a growing number of states provide some form of legal recognition for their relationships – and the associated rights, benefits and protections critical to building safe and strong families – in most places in the United States, lesbian and gay couples are treated as legal strangers, to each other and in many cases to the children they are raising.

LGBT people who wish to open their homes and form families through foster care and adoption find numerous legal, policy and cultural barriers. This unequal treatment causes significant legal, financial and dignitary harms to our community and leaves far too many American children and families vulnerable.

 


Same-sex couples lack access to legal protections designed to support families

In more and more states, same-sex couples have access to some or all of the rights, benefits and responsibilities of marriage under state law, either through marriage or another form of relationship recognition like civil unions or domestic partnerships.[2] However, it remains true that in the majority of states, there is no legal recognition of these families and, even in the six states and the District of Columbia which have marriage equality today[3], lawfully married couples are treated as strangers by the federal government because of the discriminatory Defense of Marriage Act. This lack of recognition both attacks the dignity of LGBT people by treating them as second-class citizens and undermines the strength and stability of their families by depriving them of critical protections in taxation, healthcare, parenting, social safety net programs and many other areas.

Discriminatory laws and policies keep qualified LGBT foster and adoptive parents from providing loving homes to children in need

Same-sex couples are prohibited from jointly adopting by statute in Mississippi and Utah and by courts in Michigan; in many other states, the status of the law remains unclear.[4] Many adoption and foster care agencies are openly hostile to serving LGBT potential parents, and others simply lack the cultural competency to support them. With more than 100,000 children awaiting adoption in the foster care system, these discriminatory laws and policies not only harm same-sex couples, they keep kids in need from loving homes.

[5] View citation

Even when raising children, many LGBT people are not recognized as legal parents

Even when one partner is either the biological or adoptive parent of a same-sex couple’s children, the other partner is in many places unable to obtain legal recognition as parent. Again, state laws vary widely regarding LGBT parenting, but courts in at least four states – Kentucky, Nebraska, North Carolina and Ohio – have barred the same-sex partner of the legal parent from also becoming a legal parent to the children they are jointly raising through second-parent adoptions.[6] In addition, while some states’ courts have recognized limited parental rights – such as visitation – for LGBT parents who do not have a legal or biological relationship to their children, many others have not. As a result, many children are at risk of losing contact with and support from an unrecognized parent if a couple’s relationship ends.

Without legal recognition for their relationship with their children on the state level, many LGBT parents are also barred from accessing federal tax credits and other benefits designed to support families, enrolling their kids in certain federal health insurance programs, and ensuring that their children equally receive their Social Security benefits – among many other rights, benefits and protections.

[7] View citation

What has the Obama administration done to support LGBT families?

  • The Justice Department has stopped defending the discriminatory Defense of Marriage Act in court, and the President has endorsed the Respect for Marriage Act, legislation that would repeal DOMA and restore respect for all lawful marriages.
  • President Obama issued two Presidential Memoranda directing federal agencies to extend whatever benefits they could, under current law, to the same-sex partners of federal employees; these have included sick leave, long-term care insurance, relocation assistance, child care subsidies and others. The administration also supports legislation – the Domestic Partnership Benefits and Obligations Act – that would ensure the families of LGBT federal workers have equal access to health and retirement benefits. 
  • The Department of Labor issued guidance clarifying that LGBT parents can use unpaid time off under the Family and Medical Leave Act to care for a same-sex partner’s child, even when the partner does not have a legal or biological relationship to that child.
  • The Department of Health and Human Services (HHS) issued regulations requiring hospitals to respect the hospital visitation rights of LGBT families. 
  • HHS’s Centers for Medicare and Medicaid Services issued guidance clarifying that state Medicaid agencies can provide same-sex couples with equal access to the financial protections available to opposite-sex couples when a partner enters a nursing home or long-term care facility.
     

How is HRC working to advance protections for LGBT families?

  • HRC is working to advance marriage equality in states across the country and pushing Congress to pass the Respect for Marriage Act, ensuring that our marriages are treated equally by the federal government. HRC is also urging Congress to pass bills that address DOMA’s denial of certain tax, health insurance and other benefits to LGBT families.
  • HRC supports the Every Child Deserves a Family Act, legislation which would prevent discriminatory practices that leave LGBT youth waiting long periods to be placed in adoptive homes, and keep qualified LGBT individuals and couples from being approved as foster and adoptive parents.
  • HRC is urging the Office of Personnel Management (OPM) to ensure the children of LGBT federal employees have equal access to health insurance and other family benefits provided to the families of other federal workers.  
  • HRC Foundation’s All Children – All Families (ACAF) program helps public and private child welfare agencies more effectively recruit foster and adoptive parents from the over 2 million LGBT adults who want to parent.  ACAF-recognized agencies from coast to coast have seen significant increases in available, qualified parents for children in care.
  • HRC Foundation’s Healthcare Equality Index (HEI) engages the nation’s largest healthcare providers in establishing policies that insure LGBT patients and their families are treated with respect and dignity and at each other’s side when accessing care in hospitals across the U.S. The HEI is providing LGBT cultural competency training to thousands of hospitals administrators and managers, creating healthcare environment that welcome and affirm LGBT patients and their families.
  • The HRC Foundation’s Workplace Project and Corporate Equality Index has moved America’s largest employers, including the majority of the Fortune 500 to offer millions of working LGBT people and their families, domestic partner health care coverage as well as transgender-inclusive coverage.

 


[1] United States Census Snapshot: 2010, The Williams Institute, UCLA School of Law.

[3] These states are Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont and the District of Columbia.  This year, Maryland and Washington approved marriage equality legislation, but those laws are not yet effective and are likely to be subject to popular referenda.  Currently, Maryland recognizes lawful marriages between same-sex couples from other jurisdictions.

[5] Children’s Bureau, U.S. Department of Health and Human Services, 2010.

[7] “The Cost of Marriage Inequality to Children and Their Same-Sex Parents” Lisa Bennett and Gary Gates, April 2004, Human Rights Campaign Foundation.