When the State Discriminates

Author Carlos A. Ball chronicles the stories of LGBT parents who have fundamentally changed how American law defines and regulates parenthood in this excerpt from The Right to Be Parents: LGBT Families and the Transformation of Parenthood.



George Rekers (left) had come to the attention of the state’s lawyers because he had previously testified in other proceedings involving the constitutionality of bans on same-sex marriage and adoption.


Less than a year after the federal court of appeals upheld the constitutionality of Florida’s gay adoption ban, state officials asked Martin Gill and his partner Tom Roe, a gay couple living in North Miami, to care for two brothers, one a baby and the other four years old. Although Martin and Tom had fostered several children before, they initially told officials they could not take the brothers in because they were planning to move to Georgia. But after the state agency’s representatives assured them that the placement would be temporary, Martin and Tom agreed to take the children into their home.

When the brothers first arrived, they both had bald patches on their heads caused by ringworm. The younger boy was also in severe pain from an ear infection that had gone untreated. The older child was silent and sullen, apparently traumatized and depressed after being taken away from his biological family. He did not speak for several weeks, and when he did finally start to do so, it was difficult to understand what he was saying. The 4-year-old also “had never seen a book, could not distinguish letters from numbers, could not identify colors, and could not count.”

Martin and Tom quickly grew attached to their foster sons, happily giving up their plan to leave the state in order to continue caring for them. The baby also quickly bonded with the two men, but it took the older child some time to do so. Eventually, however, his depression lifted and he became a happy and talkative child who refused to go to school in the mornings without first hugging his “daddy” and his “papi.” He also went from being behind educationally — he had to repeat the first grade — to making significant progress in school. A court would later conclude that the children had healed — both physically and emotionally — in the men’s care and that they were thriving in their home environment.

The boys became eligible for adoption in 2006 when a court terminated the biological parents’ rights. A year later, after no one else had come forward expressing an interest in adopting them, Martin filed an adoption petition. And, with the assistance of the ACLU, he requested that the court rule that the gay adoption ban violated the state constitution.

One of the differences between the federal litigation in Steven Lofton’s case a few years earlier and the state litigation in Martin Gill’s case was that a trial was held in the latter. This provided the ACLU with the opportunity to inform the court, through expert witnesses, of the extensive social science research that, over several decades, had studied the children of lesbian and gay parents and concluded that they were as well adjusted psychologically and socially, and did as well academically, as the children of heterosexuals.

For its part, the state contended during the trial that lesbians and gay men threatened the well-being of children because their relationships were more unstable and they suffered from greater psychiatric disorders and rates of substance abuse than heterosexuals. The sole witness whom the state called to testify in support of these controversial contentions was Dr. George Rekers, a clinical psychologist and an ordained Baptist minister. 

The state paid Rekers, a fierce opponent of gay rights, over $120,000 for his work on the case. Rekers had come to the attention of the state’s lawyers because he had previously testified in other proceedings involving the constitutionality of bans on gay marriage and adoption. As the New York Times reported, Rekers had become well known for testifying in court that “gay men and lesbians lead parlous lives and raise troubled children.” Less than two years after making the same claims during the Florida adoption trial, the media reported that Rekers had recently traveled to Europe with a male prostitute whom he had met through a website called “rentboy.com.” This led the state attorney general’s office to announce that it would no longer be using Rekers’s services in the litigation. 

The ACLU lawyers, during the trial, did not have much difficulty rebutting Rekers’s inflammatory contentions about LGBT parenting through expert witness testimony. Those witnesses noted that gay people are no more susceptible to psychological disorders, relationship instability, or domestic violence than are heterosexuals. That testimony, when coupled with the extensive evidence introduced during the proceedings regarding the ability of lesbians and gay men to be good and effective parents, led the trial court, in November 2008, to strike down the gay adoption ban.

Almost two years later, a Florida appeals court upheld that ruling by also concluding that the ban violated the state constitution’s guarantee of equal protection. The state appellate court, unlike the federal courts in Steven Lofton’s case a few years earlier, rejected the notion that there was any plausible justification for a policy that prevented all lesbians and gay men, and no others, from the opportunity to show that they could be good adoptive parents. In doing so, the court noted the extensive reports and studies from social scientists finding “that there are no differences in the parenting of homosexuals or the adjustment of their children.... Based on the robust nature of the evidence available in the field, this Court is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption.”

Shortly after the court’s ruling, the state announced that it would not appeal the case to the state supreme court. This meant that, for the first time in thirty-three years, lesbians and gay men were eligible to adopt children in Florida. One of them was Martin Gill, the gay man who (along with his partner) had six years earlier opened his home to two scared and neglected little boys and provided them with the kind of happy and safe home environment that all children are entitled to have.

Despite the long-delayed victory by LGBT parenting advocates in Florida, there are other states that continue to restrict the ability of lesbians and gay men to become parents. One of them is Arkansas. In 2006, the state supreme court struck down a regulation that prohibited lesbians and gay men from serving as foster parents. Conservative activists then persuaded Arkansas voters to approve a ballot measure that would prohibit cohabiting couples from adopting or serving as foster parents. But in 2011, the Arkansas Supreme Court once again intervened by holding that the proposed law, which never went into effect, impermissibly interfered with the constitutional right of individuals to sexual privacy. The measure, the court explained, was constitutionally deficient because it asked prospective parents to choose between the protected right to engage in sexual conduct in the privacy of the home and the opportunity to foster or adopt a child.  

As courts continue to grapple with the constitutionality of parenting restrictions that affect lesbians and gay men in some states, adoption and foster care remain viable parenting options for prospective lesbian and gay parents in many other states. A study published in 2007 found that there were 65,000 children nationwide living with lesbian and gay adoptive parents, and that there were 14,000 children being cared for by lesbian and gay foster parents. The existence of this large number of families is in part due to the actions of those individuals, several of whom we have profiled in this chapter, who in the past refused to give up their dreams of becoming parents even after being told by child welfare officials that their same-sex sexual orientation and relationships rendered them incapable of being good parents.

It has not only been lesbians and gay men who have found themselves in court battling for recognition of their parental rights. As we will see in the next (and final) chapter, the intersection of parenthood and gender identity has also been the subject of litigation as courts have grappled with how the law should respond to the transsexuality of some parents.


Excerpted from the book The Right to Be Parents: LGBT Families and the Transformation of Parenthood, published by NYU Press.

Tags: Politics