In the Child's Best Interests: Defending Fair and Sensible Adoption Policies

April 1998

CONTENTS

Part I: Policy Memo
Part II: Legislative Strategies

Conservative organizations that claim to espouse "traditional family values" have promised to launch a nationwide campaign in 1998 to enact state-level legislation to prohibit adoption by lesbians and gay men. These threats of anti-gay and anti-child legislation have come in response to the increased willingness of courts, policymakers and legislators to recognize that lesbians and gay men can be good parents and should be evaluated on their parenting skills, rather than their sexual orientation. The recent settlement of an ACLU lawsuit in New Jersey, where the State agreed to allow lesbian and gay couples to adopt under the same standards applied to married couples, has increased the right wing's focus on this issue.

Anti-gay, anti-child adoption legislation can take several forms. The most obvious is a categorical ban on any adoption by lesbians or gay men, either as individuals or as couples. Only Florida and New Hampshire presently have such laws. A second approach is to prohibit adoption by any person who is living with a domestic partner, however defined. Still another approach is to prohibit adoption by any unmarried couple. Although all three approaches are motivated by anti-gay bias, the second and third disguise it a bit and make the debate more complex. They also are even more harmful to children since they disqualify more prospective parents. All three proposals should be strongly opposed by individuals and organizations committed to fairness and to sensible adoption policies.

This memo is designed to provide assistance in fighting these legislative proposals. The memo has four parts. Part I discusses the critical lack of adoptive parents throughout the country and the move toward making adoption policies more inclusive as a response to the problem. Part II suggests public education messages to use in opposing these adoption bills. Part III identifies the principal arguments of the bills' proponents, and provides responses. And Part IV discusses additional resources that are available to you.

Part I - A Crisis In Adoption

There is a critical shortage of adoptive parents in the United States, and as a result many children languish in foster care indefinitely. It is estimated that there are 500,000 children in foster care, and 100,000 need to be adopted.¹ But last year there were qualified adoptive parents available for only 20,000 of these children.² Many of these children have historically been viewed as "unadoptable" because they are not healthy white infants. Instead, they are often minority children and/or adolescents. Many have significant health problems.3

There is much evidence documenting the serious damage that long-term foster care often does to children. Children frequently become victims of the "foster care shuffle," in which they are moved from temporary home to temporary home. A child stuck in permanent foster care can live in twenty or more homes by the time she reaches eighteen. It is not surprising that long-term foster care is associated with increased emotional problems, delinquency, substance abuse and academic problems.⁴

In order to try to move children out of foster care, adoption policies have become increasingly inclusive over the past two decades. While adoption was once viewed as a service offered to infertile, middle-class, largely white couples seeking healthy same-race infants, adoption policies have modernized. In the past two decades, adoption agencies have changed their policies to make adoption possible for a much broader range of adults, including minority families, older individuals, families who already have children, single parents (male and female), individuals with physical disabilities, and families across a broad economic range. These changes have often been controversial at the outset. "At one time or another, the inclusion of each of these groups has caused controversy. Many well-intended individuals vigorously opposed including each new group as potential adopters and voiced concern that standards were being lowered in a way that could forever damage the field of adoption."⁵

As a result of the increased inclusiveness of modern adoption policies, thousands of children previously considered unadoptable now have permanent homes with qualified parents.

Part II - The Public Education Message

As all adoption statutes make clear, and as voters and legislators understand, nobody has the "right" to adopt a child. Instead, adoptive parents are chosen based on their documented ability to be good parents. The governing principle of all adoption policies is (or should be) the best interests of the particular child in need of placement in a permanent home.

Because nobody has the right to adopt, our opposition to anti-gay adoption bills is not based on "gay rights" and we should not frame our arguments that way. Instead, what we are arguing is that each adoption must be decided on a case-by-case basis, in the best interests of the child, not by new broad government regulations. Adoption decisions should be made by parents and professionals, not by politicians and the government. The important thing is making sure that the child has a permanent home, with adults who have the skills to be good parents. And all the evidence shows that lesbians and gay men can and do make good parents. (See Part III below). The issue is not "gay rights" or equality.

These adoption bills should also not be linked to the question of same sex marriage, which is a separate issue that has nothing to do with whether a person can parent. Nor is there any reason to make comparisons between gay/lesbian parents as a group versus heterosexual parents as a group. (The adopted child won't live with any group, but with the parent or parents who have been individually screened by the adoption agency.)

In sum, the overarching public education messages are:

The issue of adoption is best decided by parents and professionals on a case-by-case basis, not by politicians or the government.

The goal of adoption is to make sure that the child has a permanent home with people who have the skills to be good parents.

Lesbians and gay men can and do make good parents.

There is a critical shortage of adoptive parents, and children will be stuck in foster care permanently if we start adopting exclusionary adoption policies.

Part III - Responding To Proponents' Arguments

Here are some straightforward responses to the arguments of those who support anti-gay, anti-child adoption bills.

Argument:

Every child deserves to have a mother and a father who are married to each other.

Response:

Children who need to be adopted do not have the option of choosing between a married mother and father or some other type of parent(s). These children have neither a mother nor a father, married or unmarried. There are simply not enough married mothers and fathers who are interested in adoption. Last year only 20,000 of the 100,000 foster children in need of adoption were adopted, and this includes those children adopted by single people as well as married couples. Our adoption policies must deal with reality, or our children will never escape foster care.

Argument:

Children need a mother and a father to have proper male and female role models.

Response:

Children in foster care have neither a mother nor a father as role models. And children get their role models from many places besides their parents. These include grandparents, aunts and uncles, teachers, friends and neighbors. In a case-by-case evaluation, trained professionals can ensure that the child to be adopted is moving into an environment with adequate role models of all types.

Argument:

Gays and lesbians don't have stable relationships and don't know how to be good parents.

Response:

Like other adults in this country, the majority of lesbians and gay men are in stable committed relationships.⁶ Of course some of these relationships have problems, as do some heterosexual relationships. The adoption screening process is very rigorous, including extensive home visits and interviews of prospective parents. It is designed to screen out those individuals who are not qualified to adopt, for whatever reason. All of the evidence shows that lesbians and gay men can and do make good parents. The American Psychology Association, in a recent report reviewing the research, observed that "not a single study has found children of gay or lesbian parents to be disadvantaged in any significant respect relative to children of heterosexual parents" and concluded that "home environments provided by gay and lesbian parents are as likely as those provided by heterosexual parents to support and enable children's psychosocial growth."⁷ That's why the Child Welfare League of America, the nation's oldest children's advocacy organization, argues that gays and lesbians seeking to adopt should be evaluated just like other adoptive applicants.

Argument:

Children raised by gay or lesbian parents will be more likely to grow up to be gay themselves.

Response:

All of the available evidence demonstrates that the sexual orientation of parents has no impact on the sexual orientation of their children and that children of lesbian and gay parents are no more likely than any other child to grow up to be gay. There is some evidence that children of gays and lesbians are more tolerant of diversity, but this is certainly not a disadvantage. Of course, some children of lesbians and gay men will grow up to be gay, as will some children of heterosexual parents. These children will have the advantage of parents who are supportive and accepting in a world that can sometimes be hostile.

Argument:

Children who are raised by lesbian or gay parents will be subjected to harassment and will be rejected by their peers.

Response:

Children make fun of other children for all kinds of reasons: for being too short or too tall, for being too thin or too fat, for being of a different race or religion or speaking a different language. Children show remarkable resiliency, especially if they are provided with a stable and loving home environment. Children in foster care face tremendous abuse from their peers for being parentless. These children often internalize that abuse, and often feel unwanted. Unfortunately, they do not have the emotional support of a loving permanent family to help them through these difficult times.

Argument:

Lesbians and gay men are more likely to molest children.

Response:

There is no connection between homosexuality and pedophilia. All of the available scientific evidence shows that. Sexual orientation, whether heterosexual or homosexual, is an adult sexual attraction to others. Pedophilia, on the other hand, is an adult sexual attraction to children. Ninety percent of child abuse is committed by heterosexual men. In one study of 269 cases of child sexual abuse, only two offenders were gay or lesbian. Of the cases studied involving molestation of a boy by a man, 74% of the men were or had been in a heterosexual relationship with the boy's mother or another female relative. The study concluded that "a child's risk of being molested by his or her relative's heterosexual partner is over 100 times greater than by someone who might be identifiable as being homosexual, lesbian, or bisexual."⁸

Argument:

Children raised by lesbians and gay men will be brought up in an "immoral" environment.

Response:

There are all kinds of disagreements in this country about what is moral and what is immoral. Some people may think raising children without religion is immoral, yet atheists are allowed to adopt. Some people think drinking and gambling are immoral, but these things don't disqualify someone from being evaluated as an adoptive parent. If we eliminated from consideration all of the people that somebody thought was immoral, we would have almost no parents left to adopt. That can't be the right solution. What we can probably all agree on is that it is immoral to leave children languishing in foster care when there are qualified parents waiting to provide them with a stable and loving home. And that's what many gays and lesbians can do.

Part IV - Resources

For a more in-depth discussion of the research on lesbian and gay parenting, see Lesbian And Gay Parenting, American Psychological Association (1995). For a more extensive discussion of the policy and legal issues surrounding the question of adoptions by lesbians and gay men, see Issues In Gay And Lesbian Adoption, Child Welfare League of America (1995).

Please feel free to call Michael Adams, Staff Counsel at the Project at (212) 549-2627 for more information or to discuss legislative strategy around particular bills.

LEGISLATIVE STRATEGIES

Introduction

Efforts to defeat anti-gay, anti-child adoption legislation should employ the arguments and information contained in the ACLU's policy memorandum, "Defending Fair And Sensible Adoption Policies." In addition, there are a number of public education and legislative strategies that can and should be pursued, depending on your judgment about what makes sense in your State.

Strategies

I. Introduce Legislators And The Public To Lesbian And Gay Families

Nothing is more effective at debunking the biases and stereotypes invoked by opponents of "gay adoption" than actually showing legislators and the public who lesbian and gay parents are. The most effective way to do this is by getting lesbian and gay families to tell their stories in testimony before legislative committees, to the media, and in public meetings. The ACLU has found that the more legislators and the public get to hear the real-life stories of lesbians and gay men who are building families through adoption and other means, the more success we have in defeating anti-gay, anti-child adoption proposals.

In New Jersey, for example, the lead plaintiffs in the ACLU's class action suit over joint adoption rights played a critical role in building broad-based public support for the eventual settlement that was achieved. By speaking at ACLU press conferences and agreeing to be interviewed by television and radio shows, the couple focused public discussion about "gay adoption" on the real issue: placing parentless children in stable and loving homes. As a result of the historic nature of the New Jersey settlement, which guarantees that gay and heterosexual unmarried couples seeking to adopt will be evaluated by the same standards as married couples, right-wing organizations immediately vowed to overturn the agreement in the state legislature. However, because of the strong public support for the lead plaintiffs and their personal story, hostile legislative action may not be politically possible.

Try to find lesbian or gay couples or individuals who have adopted or are otherwise raising children and who are willing to tell their story in public. Work with them to help them be good communicators and to prepare them for the types of questions they will likely get from people who are either hostile or uninformed. Make sure they understand the public messages that we are trying to communicate in our efforts to defeat anti-gay, anti-child adoption proposals.

II. Build Alliances With Children's Advocacy Groups And Other Non-Gay Organizations

As we discussed in the ACLU policy memorandum, our arguments on "gay adoption" should focus on serving the best interests of children by finding them stable and loving homes. Because adoption is a children's issue, not a gay rights issue, it only makes sense that legislators and the public should be hearing from organizations that advocate for children's interests. You should try to build alliances with children's advocacy organizations, pediatricians, interested members of communities of faith, and others who have historically expressed a strong interest in the interests of children. Often this alliance-building will not be difficult. In the ACLU's experience, individuals and organizations who work with children in need of adoption usually put the interests of children first and do not fall prey to the unfounded biases and stereotypes being pushed by the far right and their allies. For example, the Child Welfare League of America, which sets national standards for children's services and is the oldest and largest children's advocacy organization in the country, says that gays and lesbians seeking to adopt should be evaluated just like everybody else.

There are many ways that non-gay allies can help. For example, representatives of children's advocacy groups and pediatricians can testify before legislators and speak at public events. Children's groups can join with you to publish supportive op ed pieces. (For a copy of an op ed piece on gay adoption recently authored by the ACLU and the Child Welfare League, contact the ACLU's Lesbian and Gay Rights Project.)

III.Legislative Strategies

Where possible, you should work to defeat hostile adoption legislation in an "up or down" vote on the proposed legislation. However, depending on the circumstances, this may not be the approach most likely to succeed. What follows are a number of proposed alternatives that can be introduced either as amendments or alternatives if it does not appear possible to kill a bad adoption bill on a straight vote.

A. "Case By Case Basis" Proposal

Modern adoption procedures almost always evaluate adoption applicants on a case by case basis, recognizing the unique needs of each child and the fact that prospective parents from diverse backgrounds and circumstances may be able to offer stable and loving homes. Categorical bans on adoption by lesbians and gay men are a radical departure from this modern trend and allow politicians to make decisions that should be made by parents and professionals. The "case by case basis" proposal is an alternative that rejects the meddling of politicians and ideologues and puts the focus where it should be: on the best interests of children.

Proposed Language:

"All adoption placements will be made on a case-by-case basis, in the best interests of the child in need of placement. Adoption placement decisions will take into account all factors that may be relevant to the needs of the individual child, including the likelihood of placing the child in another adoptive home if the placement under study is rejected."

B. Neutral Home Study On Sexual Orientation

All states require that a "home study" be conducted by a qualified agency before an adoption placement is approved. Home studies should thoroughly examine all factors that may be relevant to the child's best interests. Such studies are conducted by trained professionals and typically include visits to the home of the prospective parent(s), interviews of the applicant(s), etc.

When a couple seeks to jointly adopt, one focus of the home study will be the quality and stability of the relationship between the two prospective parents. The same question can and should be asked about the relationship regardless of whether it involves a married couple or a lesbian or gay couple: can this couple provide a loving and stable home for a child?

Making a neutral evaluation of the parents' sexual orientation as it relates to the child's interests may be one part of a home study. As long as the evaluation is not tainted by anti-gay bias, it should not present a problem.9

Proposed Language:

"All home studies conducted in connection with a possible adoption placement will consider the sexual orientation of the prospective parent(s) and will evaluate what, if any, effect parental sexual orientation is likely to have on the child. Any home study report that finds that parental sexual orientation is likely to have a deleterious effect on the child will explain the bases for this finding and will balance said effect against the likelihood and effects of the child remaining in foster care.

C. Study On Whether Sexual Orientation Effects Parenting Ability And Availability Of Qualified Adoptive Parents

Another alternative proposal provides for a study to determine whether sexual orientation effects parenting ability and whether there is a shortage of qualified adoptive parents (i.e. are there a sufficient number of qualified adoptive parents if gays and lesbians are eliminated from the pool?) Such a proposed study should be conducted by the state agency which is charged with implementing the state's adoption policies. This study would inform the Legislature about whether there is any scientific basis for a ban on gay and lesbian adoption. It would also advise the Legislature about the availability of adoptive parents in the state. All available scientific evidence indicates that sexual orientation has no bearing on an individual's ability to parent, and there is a critical shortage of qualified adoptive parents throughout the United States. (See ACLU Adoption Policy Memorandum).

Proposed Language:

"The [Department of Social Services] shall conduct a study to determine what if any effect the sexual orientation of an individual has on his or her ability to be a good parent. The study should be based on an evaluation of empirical research which has been conducted in compliance with scientifically accepted methods, and which is recognized by a broad spectrum of scientific professionals as reliable. The Department shall also determine the number of children who are presently available, or are likely to become available for adoption, and the number of qualified adoptive parents who have applied for an adoption placement. The results of this study shall be reported to the Legislature."

D. Codifying The Adoption Standards Of The Child Welfare League Of America

The Child Welfare League of America is the nation's oldest and largest children's advocacy organization. The CWL establishes national standards for children's services programs, including adoption. These standards form the basis for the national standards of the Council on Accreditation, which accredits non-profit social service agencies that work with children. The CWL encourages its nearly one thousand member organizations to abide by the organization's standards. CWL policy states that lesbians and gay men seeking to adopt shall be judged by the same standards that apply to heterosexuals.

Proposed Language:

"All adoption placements shall be made consistent with the standards established by the Child Welfare League of America."

E. Creating A Hierarchy Of Qualified Adoptive Parents

Child welfare professionals frequently note that adoption placement agencies generally have a hierarchy of qualified adoptive parents, even if this hierarchy is not formally stated. Married heterosexual couples are usually at the top of that hierarchy. Lesbians and gay men, whether single or in couples, usually fall farther down the "pecking order," although there may be exceptions in individual cases depending