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.



One of the earliest reports of an adoption by an openly gay person in the United States appeared on the front page of The Advocate in August 1974.


While Florida (in 1977) and New Hampshire (in 1987) enacted statutes banning gay adoption, the laws in the other states remained silent on the issue. (One exception was New York, which in 1978 issued a regulation stating that adoption “applicants shall not be rejected solely on the basis of homosexuality.”) This regulatory void provided lesbians and gay men, especially those living in relatively tolerant parts of the country, with the opportunity to pursue adoption as a way of becoming parents.

One of the earliest reports of an adoption by an openly gay person in the United States appeared on the front page of The Advocate in August 1974 (pictured). The article reported that a 12 year-old boy, whom the social worker described as having “effeminate tendencies” and whose placement had been rejected by a married heterosexual couple, was adopted by an openly gay man in southern California.

In 1979, the gay media wrote about a gay couple — one a physician and the other a minister with the Metropolitan Community Church in San Francisco — that had jointly adopted a 2-year-old boy. This appears to have been the first time that a same-sex couple adopted a child anywhere in the country. Also that year, the New York Times reported that a gay minister in Catskill, New York, who lived with his partner, was permitted to adopt a 13-year-old boy.

During the 1970s and early 1980s, there were other gay men, as well as lesbians, who adopted children, but many of them appear to have done so without revealing their sexual orientation. Since in most jurisdictions, prospective adoptive parents were not asked about their sexual orientation, it was possible for lesbians and gay men to refrain from volunteering information about their personal relationships without having to make false statements.

Instances in which officials denied the adoption applications of openly gay people served as clear disincentives for others to come out of the closet while seeking to become parents. In 1975, after Draffan McBride, a Scottish immigrant and a physician living in Arizona, applied to adopt a child as an openly gay man, child welfare authorities turned him down. He reapplied three years later, this time with his same-sex partner of eight years. That petition went before an Arizona trial judge who denied it because of the men’s relationship. McBride later surmised that if he had not mentioned his homosexuality when he had applied as a single man, he would likely have been allowed to adopt. But he chose not to pursue that route, explaining that if “I keep things aboveboard and don’t try to hide anything, then I have nothing to feel guilty about.” In 1979, the state did permit a 16-year-old boy — whose parents had thrown him out of their home after he told them he was gay — to live with McBride and his partner until the teenager enlisted in the Army.

A few years later, another Arizona court considered an adoption application submitted by a bisexual man. The application had been endorsed by his social worker and by the appropriate state agency. The court of appeals, however, affirmed a trial judge’s denial of the application, in part because of the man’s bisexuality. The court, after noting that the petitioner had testified that he might have a sexual relationship with a man in the future, pointed out that sodomy was a crime in Arizona. It then went on to conclude that it “would be anomalous for the state on the one hand to declare homosexual conduct unlawful and on the other [to] create a parent after that proscribed model, in effect approving that standard, inimical to the natural family, as head of a state-created family.”

But four years later, another court, this time the Ohio Supreme Court, became the first appellate court in the country to hold that the sexual orientation of an openly gay man did not legally preclude him from adopting.

Tags: Politics