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Making Public Policy Work for All Households

How Current Laws Fail to Address the Changing Reality of American Families

SOURCE: AP/Orlin Wagner

Public policy has not kept up with the changing reality of the American family. Our laws and discourse largely ignore the roughly 2 million children being raised by LGBT parents.

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Read the full report (pdf)

Read the executive summary (pdf)

Read the condensed report (pdf)

Read the report’s major findings (pdf)

Public discussion about American families often assumes the nation is largely made up of married heterosexual couples raising their biological children. Yet less than a quarter of all U.S. households fall into this category. Today’s children may be raised by grandparents, single parents, step-parents, aunts, uncles, or foster parents. Their parents may be married or unmarried. They also may be heterosexual or lesbian, gay, bisexual, or transgender—LGBT.[1]

Unfortunately, public policy has not kept up with the changing reality of the American family. Indeed, our laws and discourse largely ignore the roughly 2 million children being raised by LGBT parents. They also ignore children in other family configurations, such as those with unmarried heterosexual parents. As a result, most Americans are probably unaware of the many ways in which unequal treatment and social stigma harm the millions of children whose families do not fit into a certain mold.

A new report, “All Children Matter: How Legal and Social Inequalities Hurt LGBT Families,” from the Movement Advancement Project, the Family Equality Council, and the Center for American Progress offers one of the most comprehensive portraits to date of the wide range of challenges facing LGBT families in America.

It highlights three major needs that every child must have met: stable, loving homes; economic security; and health and well-being. In each of these areas, the report outlines how current laws and social stigma create challenges for LGBT families. The report offers detailed recommendations for eliminating or reducing inequities and improving the lives of children with LGBT parents. Where possible, the report also highlights how current laws and stigma harm children in other modern family configurations, such as those with unmarried heterosexual parents.

A summary of the report and its recommendations follows. You can read the full report here.

Key findings from the main report

LGBT families are numerous and diverse

  • The number of children with LGBT parents is significant. Roughly 2 million children are being raised by LGBT parents.
  • LGBT families are more likely to be poor. Contrary to stereotypes, children living in same-sex-couple households are twice as likely to live in poverty as children being raised by married heterosexuals households. Same-sex couples of color raising children are more likely to be poor than white same-sex couples raising children.
  • Same-sex couples raising children are more racially and ethnically diverse than married different-sex couples raising children. In all, 59 percent of same-sex couples with children identify as white compared to 73 percent of married different-sex couples with children. Same-sex couples of color are more likely to raise children than white same-sex couples.
  • LGBT families are geographically diverse. LGBT families live in 96 percent of U.S. counties, and same-sex couples in the South are more likely to be raising children than those in other regions of the country.
  • LGBT families are more likely to be binational. Among same-sex couples, 6 percent are binational compared to 4.6 percent of married heterosexual couples. Nearly half (46 percent) of binational, same-sex couples are rearing children compared to 31 percent of same-sex couples in which both partners are U.S. citizens.

Laws and stigma hurt children with LGBT parents

State and federal laws and practices often deny children legal ties to loving, responsible parents. In many states, LGBT adults face restrictions in adoption or fostering—even though roughly 115,000 children are awaiting “forever” homes. And when a child is born to a married heterosexual couple, that child generally enjoys the essential security of being the legal child of both parents. By contrast, a child born to (or raised by) two LGBT parents may have one parent deemed a legal stranger by law, threatening to undercut family permanency.

Today’s legal and social climate creates barriers to achieving loving, stable homes for children in the following ways:

  • Children denied permanent homes. Some states and agencies still refuse to place children with same-sex couples despite research consistently showing that children of LGBT parents fare just as well as other children.
  • Children denied legal ties to their parents. A child living with two parents of the same sex can be assured that their relationship to their parents will be recognized by law in fewer than half of U.S. states. So if a child is born using donor insemination, the partner of the birth mother may be a legal stranger to the child, despite acting as a parent from birth.
  • Children lack protection when their parents’ relationship dissolves or a parent dies. An LGBT parent who is not recognized as a parent by the law can lose custody or visitation rights even in instances when that parent is the most suitable caregiver and has acted as a parent for the child’s entire life.
  • Children live in fear that their families could be torn apart by a parent’s deportation. Children with binational same-sex parents are denied the same protections of family unity as their heterosexual peers. Under federal immigration law, LGBT Americans cannot sponsor a same-sex spouse or partner for permanent residency or citizenship, a right that heterosexual Americans have.

Laws and stigma create obstacles to economic security for children

Government-based economic protections, ranging from safety net programs to tax deductions to inheritance laws, help families meet their children’s basic needs, including obtaining food, shelter, and clothing.

Yet different treatment under the law creates barriers to economic security for LGBT families in the following ways:

  • Children fall through the safety net. Because many safety net programs apply antiquated definitions of family, a child with LGBT parents might be denied benefits provided to his or her non-LGBT counterpart simply because the child’s parents are LGBT. Most government safety net programs use a narrow definition of family tied to marital status, which often excludes same-sex partners and non-legally recognized parents and children. The result is that financially struggling families with LGBT or unmarried parents cannot accurately reflect their household size or economic resources and may be denied adequate assistance.
  • LGBT families face a higher tax burden. A series of tax credits and deductions are designed to help all families, regardless of economic circumstance, ease the financial costs of raising children. Tax law, however, also uses a narrow definition of family that excludes LGBT families. This exclusion usually results in a significantly higher tax burden for LGBT families.
  • LGBT families are denied financial protections when a parent dies or is disabled. Social Security benefits and inheritance laws aim to protect families when a parent dies or becomes disabled. But because the federal government fails to recognize LGBT families, such families may be denied critical Social Security death and disability benefits provided to non-LGBT families. And if a married heterosexual parent dies without a will, all the couple’s assets transfer tax free to the surviving spouse (and/or children). If a parent dies a wrongful death, minor children and sometimes legal spouses also can sue. Yet LGBT families have no such protections in states where their family ties are not legally recognized.

Laws and stigma create obstacles to physical and mental health and well-being

Government policies aim to ensure that children are physically and mentally healthy, and that they can access the basic resources they need to thrive, including quality and welcoming child care, education, and health care.

Yet children with LGBT parents face additional obstacles to achieving optimal health and well-being:

  • LGBT families face health coverage disparities and unequal access to health insurance. The Defense of Marriage Act prevents the federal government from recognizing the marriages of same-sex couples. This lack of recognition means that employers do not need to extend health insurance benefits to the same-sex partners of LGBT employees or to the children of these partners (assuming the employee is a legal stranger to the children). Even when employers choose to offer extended health insurance benefits, an LGBT family will be taxed on the value of the benefit while other families will not.
  • LGBT families face unwelcoming health care environments. Many professional caregivers—from physicians to counselors to the receptionists at medical facilities—are not accepting of, or trained to work with, LGBT families. Some medical providers have even refused to treat LGBT people, citing religious or personal reasons.
  • LGBT family members are restricted in providing care to each other. When an LGBT parent lacks legal recognition, he or she may be denied visitation rights as well as the ability to make medical decisions for his or her child. In addition, the federal Family and Medical Leave Act does not require employers to grant leave to a worker caring for a same-sex partner or spouse, even while heterosexual workers have this right.
  • LGBT families face social stigma and discrimination. Many of the challenges LGBT families face stem from a society that assumes that everyone is heterosexual and comes from a family with two married heterosexual parents. The stresses resulting from these expectations are heightened for LGBT families of color, who also have to contend with additional disparities as racial and ethnic minorities. Transgender parents and their children also face added strains.

Recommendations

The main report presents a detailed and comprehensive set of legal, policy, and cultural solutions to address the disparities and challenges outlined above. Below is a summary of key recommendations which, taken together, could virtually eliminate the legal inequities that harm the 2 million children with LGBT parents. Many of the recommendations would also help an array of other children, including those with unmarried parents and those awaiting adoption.

Legally recognize LGBT families

Pass comprehensive parental recognition laws at the state level to fully protect children in LGBT families. State parentage and adoption statutes should allow joint adoption by LGBT parents, recognize LGBT parents using assisted reproduction in the same manner as heterosexual parents, and provide avenues such as second-parent adoption and de facto parenting to allow LGBT parents to gain full legal recognition.

Legalize and federally recognize marriage for same-sex couples. Marriage for same-sex couples would help strengthen the legal ties of the entire family, including that between a child’s parents and between the child and his or her parents. Married LGBT parents would be recognized as legal parents upon a child’s birth, and they would also have access to joint and step-parent adoption. If recognized by the federal government, marriage would also allow accurate representation of LGBT families for the purposes of safety net programs, tax credits and deductions, inheritance and Social Security protections, immigration sponsorship, and other benefits. And it would make it easier for them to obtain family health protections, including insurance coverage and the right to decision-making, visitation, and family leave.

Provide pathways to immigration and citizenship for binational LGBT families. This should include legislation such as the “Uniting American Families Act,” which would add the category “permanent partner” to the list of family members already entitled to sponsor a foreign national for U.S. immigration.

Provide equal access to government-based economic protections

Recognize LGBT families and children across government safety net programs. A broad definition of family would allow LGBT families to accurately reflect their household across numerous government programs and protections. Forms and application procedures should also accommodate the reality of LGBT and other 21st century families.

Revise the IRS tax code to provide equitable treatment for LGBT families. The Internal Revenue Service should create a designation of “permanent partner,” who would be treated as a spouse for the purposes of the tax code. The IRS should allow not just legal parents but also de facto parents to claim a “qualifying child” on their tax filing.

Provide equitable economic protections when a parent dies or is disabled. Three steps should be taken to achieve this goal. First, broaden Social Security’s definition of family to allow an LGBT worker’s permanent partner and children to access survivor and disability benefits in the same manner as a heterosexual worker’s spouse and children. Next, states should change inheritance laws to treat LGBT permanent partners as spouses, and ensure children can inherit from a de facto parent when the parent dies without a will. Last, states should permit the filing of a wrongful death suit by any individual who can show economic dependence on a deceased person.

Provide equal access to health care

Advance equal access to health insurance and care. Pass laws ensuring that an LGBT worker’s domestic partner and dependent children have access to health insurance on equal terms with heterosexual families, including eliminating unfair taxation of these benefits. Encourage private employers to offer domestic partner benefits, and work to ensure the Affordable Care Act defines “family” broadly both federally and in the states.

Enable LGBT family members to care for one another. Pass or revise state hospital visitation and medical decision-making laws to be inclusive of LGBT families and de facto parents. Work with hospitals and other medical facilities and providers to enact LGBT-friendly policies related to visitation, advanced health care directives, and related issues. And revise the federal Family Medical Leave Act to allow same-sex partners to care for one another.

Protect LGBT families with antidiscrimination laws, antibullying laws and outreach

Pass state antibullying laws and laws barring discrimination in employment, adoption, custody and visitation, health services, housing, and credit. Legislation prohibiting bullying and harassment in schools and universities should explicitly protect students based on their sexual orientation, gender identity and expression, or association with LGBT people. Nondiscrimination laws should include similar protections.

Expand education and cultural competency training on LGBT families. Education and cultural competency training for a wide array of professionals should include outreach to adoption agencies and child welfare departments, judges and law students, government agency workers, health service providers, schools, and faith communities.

Provide education, services support, and research to help LGBT families

Create stronger support services for LGBT families, particularly families of color, low-income families, and transgender parents. Advocates should target LGBT families with focused outreach and services, including opportunities to participate in social and support groups. Advocates should also educate LGBT families about the need to establish parentage ties and other legal protections, and provide assistance in doing so.

Expand research on LGBT families and parenting, with an emphasis on filling gaps in data on families of color, low-income families, and transgender parents. This should include lobbying for expanded private and government research on LGBT families and parenting, such as improved demographic, financial, health, mental health, and other data.

Conclusion

Today’s American families are increasingly diverse. Yet current laws ignore modern realities—with devastating consequences. These laws deny children the protection of having a legal connection to a parent who cares for them. They undermine families’ economic strength by denying access to safety net programs, family tax credits, and health insurance and care. Antiquated laws can leave children destitute if a parent dies or becomes disabled. They can wrest children away from the most qualified caregiver if a child’s parents’ relationship dissolves.

Two million children are already being raised by LGBT parents, and there is no sound reason to exclude them from our public policies. The states and the federal government have a huge opportunity to modernize laws and regulations to put the best interests of children first, ensuring that all children receive equal protection under government laws and programs. It is a big challenge, but one that should be met.

Read the full report (pdf)

Read the executive summary (pdf)

Read the condensed report (pdf)

Read the report’s major findings (pdf)

Jennifer Chrisler is the Executive Director of the Family Equality Council, Ineke Mushovic is the Executive Director of the Movement Advancement Project, and Jeff Krehely is Director of the LGBT Research and Communications Project at American Progress.

Endnotes

[1]. This column uses “LGBT families” to refer to any household in which an LGBT adult or same-sex couple is raising a minor child or children. We use this term strictly for simplicity while noting its inaccuracy in that the term is not a reflection of the sexual orientation or gender identity of the children in such households.

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