Adoption and LGBTQ+ Discrimination


Adoption, an often-overlooked option for starting a family, can change a child’s entire world. While there are currently around 428,000 children in the United States’ foster care system, only an estimated 135,000 of them will be adopted this year. Recent studies show that only two percent of Americans have chosen to welcome a child into their family through adoption. The current imbalance between children entering the foster care system and children being adopted will only be exacerbated if our government continues to allow religiously affiliated adoption agencies to deny LGBTQ+ couples access to adoption. 

For LGBTQ+ couples, adoption is often a more viable option for having children than heterosexual couples. Because same-sex couples sometimes cannot conceive or afford to conceive a child in the “traditional” way, they often utilize sperm donations or surrogate mothers if they wish to have a biological child. However, even if a couple decides to conceive in one of these ways, they are still forced to utilize second-parent adoption for both partners in order to gain parental status of the child. Second-parent adoption occurs when one parent within an LGBTQ+ couple has a child biologically, and their partner is forced to apply to become the child’s legal parent, rather than automatically being granted parenthood like in the case of a biological mother and father. This discriminatory policy marks yet another hurdle through which queer couples must surpass since they cannot have children in the “traditional” sense. The traditional notion of a heterosexual couple giving birth to biological children to create a family is a social construct that has dictated the structure of American families for centuries. This concept makes it difficult for heterosexual couples to adopt because of the potential stigma of not having a “true” biological child or the image that something must be wrong in order for the couple to seek adoption. Therefore, LGBTQ+ couples are more disadvantaged when they defy the traditionally held cultural norm of union between a male and a female. Any other marriage is automatically viewed as unable to procreate biologically and, therefore, less valid or not a real family. This places severe limits on what can be considered a family within American culture. 

Currently, only eight states have laws that prohibit adoption discrimination based on sexual orientation, with only five of those including language to protect against discrimination based on gender identity and presentation. While 42 states have no explicit protections for LGBTQ+ couples looking to adopt, ten of these states allow adoption agencies to deny access to any couple if doing so would conflict with the agency’s religious beliefs. These policies put thousands of children under the harmful and inconsiderate control of religiously based agencies who deny them potential homes with loving families. 

Religiously discriminatory policies are meant to protect adoption agencies and their religious affiliations. Members of these agencies fear that a ban on their ability to turn LGBTQ+ couples away would be a hindrance to their religious freedom. Before same-sex marriage was legalized across the United States in 2015, religiously based adoption agencies utilized the rule that only married couples were allowed to adopt. Now that LGBTQ+ couples can marry, they are using the claim that allowing a same-sex couple to adopt would go against their religious views. They argue that forcing them to do otherwise would hinder their religious freedom and thus be unconstitutional. However, these individuals fail to consider that the very practices meant to preserve their religious freedom are limiting both the religious freedom of couples looking to adopt and of foster children themselves. The constitutional concept of religious freedom is the liberty to choose a religion, but it is also the freedom not to be religious. Religious standards and bans, within the context of adoption agencies, prevent a child from having a voice and opinion in the matter of who does or does not adopt them. Part of the religious agencies’ arguments for banning LGBTQ+ adoption is that children will not be brought up in a “traditional” home with “traditional” parents. This argument is the result of the previously mentioned social construction of society, which only allows for a cisgendered, heterosexual concept of family. This argument also fails to recognize the child’s desire to be adopted into a loving family, regardless of gender or sexual orientation. These agencies assume and impose a strict religious code on these children by denying them access to a family. 

Supporters of these anti-LBGTQ+ policies also argue that queer couples have plenty of opportunities to adopt a child through an agency that is not religiously affiliated. However, the leading group of people that homophobic adoption policies victimize are the children within the foster care system. When a state implements an adoption ban on LGBTQ+ individuals couples still have the opportunity to look in another state for a child. The child, on the other hand, doesn’t have a choice to relocate to another state and will be stuck within the adoption system that they are placed. A New York Times article by Dan Savage referencing Florida’s adoption bans draws attention to the fact that “the real choice for children waiting to be adopted in Florida and elsewhere isn’t between gay and straight parents, but between parents and no parents.” 

The harmful practice of imposing a religious belief as if it were a law upon the children who are stuck in this system is unconstitutional and a denial of life, liberty, and the pursuit of Happiness. Liberty is absent for children stuck in a system that is not designed to support efficient placement in a loving family but instead uses them as political pawns in a 250-year-old political debate. The underlying theme fueling this topic is one of the most essential principles of America’s founding: the separation of church and state. 

The First Amendment, protecting American citizens’ freedom of religion, is not an avenue through which religious organizations can hinder the basic freedoms of others. For example, when a religiously affiliated organization denies an LGBTQ+ couple or individual access to adopting a child. Religiously affiliated adoption agencies use their personal views, projected onto others, to prevent any behaviors or practices of others that do not align with what they consider “appropriate” or “morally acceptable” actions. Again, actions they deem moral or acceptable stem from the traditional family model. This social construct has also become a harmful tool used to further isolate LGBTQ+ couples from connecting with other families in American society. This uninvited and forceful use of religion against not only queer individuals but also the children under these organizations’ control is inherently a violation of fair and equal rights. Therefore, it is unconstitutional to deny adoption to LGBTQ+ couples on the basis of religion. Recent lawsuits have brought specific examples of this practice to light. 

On February 15, 2019, Americans for Separation of Church and State filed Madonna v. United States Department of Health and Human Services (HHS) to address the federal government’s funding of religious discrimination in South Carolina’s government adoption agencies. In January of 2019, HHS enacted a policy that allows all government-funded adoption agencies in South Carolina to discriminate against couples whose sexual orientation does not correlate with their religious beliefs. Americans United sued HHS on the grounds that it is unconstitutional for a federally funded adoption agency to utilize their religious beliefs to discriminate against potential parents. They also argued that South Carolina and HHS should not be allowed to spend tax dollars on homophobic practices and that HHS did not follow procedure by allowing South Carolina’s adoption agencies to ignore federal anti-discrimination laws. While lawsuits such as this one can help push the needle in the right direction, our government needs to implement a concrete policy to ensure discrimination against LGBTQ+ individuals ends. 

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The Equality Act, which passed the House of Representatives in March, would provide such protections to LGBTQ+ individuals, including those wanting to foster and adopt. However, critics fear this law would hinder religious freedom. In the case of adoption, the opinions which matter most are children inside of these foster care systems waiting to be adopted. Homophobic adoption practices violate the First Amendment of the Constitution: freedom of religion. Therefore, it is unconstitutional to discriminate against individuals wishing to adopt if doing so doesn’t align with personal religious beliefs.

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