Foster care, adoption and the LGBTQ family

Becoming well-versed on laws and issues an imperative

Winning approval to foster a child can mean months of waiting, and navigating the road to adoptive parenthood may require years. Activists and politicians, meanwhile, battle ceaselessly to gain whatever ground they can in pursuit of their ultimate policy goals. For LGBTQ people considering fostering or adoption, therefore, it’s vital not only to become well-versed in the relevant laws already on the books, but to follow closely any developments that may affect their ability to expand their families in the future — in particular, the rise of so-called “religious exemption” statutes.

Laws specifically governing foster eligibility are both less common and less clear than those pertaining to legal, permanent adoption, with 42 states having no law addressing fostering by LGBTQ individuals and families. What rules do exist are more likely to limit than to protect their rights. While it is possible to count on one hand the states that prohibit discrimination against prospective foster parents on the basis of sexual orientation, and even fewer cite gender identity as a protected characteristic, 10 explicitly allow child-placement agencies to refuse service when they deem that to provide it would violate their sincerely held religious beliefs. Locally, South Carolina and Virginia are among the jurisdictions to have embraced such measures, which in all cases apply to both fostering and adoption. Proposed religious exemptions elsewhere met with mixed results as the most recent legislative session came to a close in May: Oklahoma Gov. Mary Fallin signed into law another license to discriminate, in the form of SB 1140; Kansas’ HB 2481 died in conference; and Colorado’s SB 241 was defeated on a voice vote in the Senate.

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(Intriguingly, at least one challenge currently making its way through the courts reveals the potential impact of state-level religious exemption law on the global stage. In February, Lambda Legal filed a suit in federal court against the U.S. Department of Health and Human Services and the U.S. Conference of Catholic Bishops, an affiliate of which had refused to allow a Texas lesbian couple to apply to become foster parents to an unaccompanied refugee child. According to the USCCB partner organization, the household of Fatma Marouf and Bryn Esplin, who are married, did not “mirror the Holy Family.”)

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The Obergefell decision helped to nullify de facto prohibitions on fostering or adoption by LGBTQ couples who could previously have been turned down on the basis that they were unmarried, or that their marriages were unrecognized in their states of residence. Married couples, now unequivocally including those of the same sex, are expressly permitted to pursue joint adoption in all 50 states and the District of Columbia. Similarly, a same-sex spouse must be granted equal protection in pursuing stepparent adoption of their partner’s child. Partners whose unions are not legally binding may face greater hurdles when seeking to become parents, either jointly or through second-parent adoption.

Where does all this leave Carolinians? The Human Rights Campaign’s All Children – All Families initiative evaluates child and family welfare agencies across seven policy areas it designates “benchmarks of LGBTQ inclusion” and publicizes those it has awarded its seal of recognition, as well as those in the process of conferring with the Human Rights Campaign Foundation — the campaign group’s charitable arm — in pursuit of that endorsement. Of the nearly 100 agencies participating, only one is located much closer than Atlanta, Ga. Nathanson Adoption Services in Charlotte, N.C. has yet to achieve what Human Rights Campaign terms “leader” status, but its self-assessment is under review. North Carolina’s ban on second-parent adoption, a process by which one partner in an unmarried same- or different-sex couple adopts the biological or adoptive child of the other without diminishing the latter’s parental rights, was overturned following a lawsuit filed by the ACLU in 2013.

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