This past year has been a banner year for LGBT people, especially in recognizing the rights of same-sex couples to create and grow their families. But what will 2014 bring? We posed this and other questions to Emily Hecht-McGowan, director of public policy for the Family Equality Council. She previously served as legal director for Servicemembers Legal Defense Network and was the assistant section director for the American Bar Association's Section of Individual Rights and Responsibiliites. She lives in Takoma Park, Md., with her wife and daughter.
The Advocate: What does the legislative landscape look like in 2014 for LGBT families? What should we be looking out for?
Emily Hecht-McGowan: We’ve seen incredible victories and momentum around marriage over the last year or so, but marriage equality is only one piece of the equation in achieving social and legal equality for families headed by LGBTQ parents. In the vast majority of states, LGBTQ parents still face barriers in creating families, whether because of blatantly discriminatory adoption laws, inadequate or noninclusive surrogacy laws, or even the lack of explicit nondiscrimination provisions in state family codes. Even when a same-gender couple is already raising children together and they are functioning as a complete family unit, in most states the second parent is unable to create a legal relationship with their own children because of the inability to do a second-parent adoption. This is why adoption is one of our top priorities for 2014, and we are working at the state level to advance a handful of LGBTQ-inclusive adoption and surrogacy bills.
At the federal level we have a bill, the Every Child Deserves a Family Act, which would prohibit any state that receives federal dollars for their state-run foster care systems — which is every state — to prohibit discrimination based on sexual orientation, gender identity, and marital status in foster and adoptive placements. There are about 400,000 youth in foster care across the U.S., with about 100,000 of them available for adoption each year. Each year about 25,000 of these kids “age out” of the system without ever finding permanent homes, which leaves them vulnerable to homelessness, poverty, early parenthood, and incarceration. With approximately 2 million LGBTQ people interested in fostering and/or adopting, ECDF, if passed, could go a long way in helping to solve this country’s foster care crisis.
In addition to advancing the ability of LGBTQ people to create families, we are also focused on the overall security of working families. There are currently no federal laws that explicitly prohibit discrimination based on sexual orientation and gender identity in employment, housing, or public accommodations. In 29 states — and more if you’re transgender — you can be fired, denied housing, and refused service in a restaurant simply because you’re LGBTQ. About 37 percent of LGBTQ people are raising children, and the highest proportion of these families live in states with no protections. Joblessness rates are higher for LGBTQ people than for non-LGBTQ workers, and for those who are employed, LGBTQ workers are more likely to earn lower wages than their straight counterparts. Additionally, same-gender couples raising children are more likely to be people of color and are twice as likely to live in poverty than their opposite-gender counterparts.
All of these factors make families headed by LGBTQ parents even more vulnerable to economic insecurity, which is why we must advance inclusive federal and state laws that address employment discrimination (the Employment Non-Discrimination Act), discrimination in housing (the Housing Opportunities Made Equal Act), paid sick days (the Healthy Families Act), and paid family leave (the Family and Medical Insurance Leave Act), and the lack of or inadequate access to health insurance and culturally competent care through implementation of the Affordable Care Act and the rollout of the state insurance marketplaces.
Family Equality Council has committed significant resources to advancing equality for our most vulnerable and underserved LGBTQ parents who are living, working, and raising their families in states with no protections for them or their children. This work is critical because these issues not only impact parents and their ability to provide for their children, but the lack of social and legal equality for LGBTQ-headed families also has an immediate, tangible, and long-lasting negative impact on our children.
What opportunities are there to score victories related to LGBT adoption in 2014?
There are a handful of states where we will see positive LGBTQ-inclusive adoption bills introduced in the coming year, and we have an opportunity in each of these states to advance the issue through strategic public education and legislative campaigns. Popular opinion is on our side, as the majority of Americans believe that children being raised by LGBTQ parents and same-gender couples deserve the same benefits and protections as children raised by opposite-gender parents. We have learned through experience that personal stories move people. The more they know about our families, the more they come to understand that our families are not so different from theirs.
We are also working on several surrogacy bills at the state level. In a handful of jurisdictions, such as New York and Washington, D.C., surrogacy contracts are still illegal and come with criminal penalties. In the majority of states, however, the law is silent on the issue of surrogacy which puts those engaging in surrogacy agreements in a state of uncertainty, leaving all parties — both the surrogate and the intended parent(s) — unprotected. We anticipate advancing surrogacy bills in at least three states in 2014 that will repeal statutes outlawing surrogacy and replace them with reasonable regulations and protections for all parties involved.
Are there any up-and-coming LGBT family rights advocates we should keep an eye out for? Politicians? Activists?
We should always keep an eye on our allies in Capitol Hill because they are our champions. But we’ve reached an historic moment in the 113th Congress because for the first time in history, we have two openly gay parents in the U.S. House of Representatives — Congressman Jared Polis and Congressman Sean Patrick Maloney. This is incredibly important in terms of visibility for LGBTQ-headed families in the U.S.
In terms of activists, I would keep an eye on two of Family Equality Council’s most effective programs, Outspoken Generation and Pearls of Wisdom. Outspoken is a program that empowers those with LGBTQ parents to share their stories, dispelling hateful myths and misinformation about our families and advocating for family equality on the local, state, and national levels. Pearls of Wisdom is designed to empower grandparents to share their experiences and tell their stories in an effort to reach new communities and educate the general public.
We’ve already seen the impact these kinds of programs can have as many of our Outspoken youth were quoted in the “Voices of Children” amicus brief that Family Equality Council filed in the two U.S. Supreme Court marriage cases — Windsor and Perry — this past spring.
Justice Kennedy quoted from our brief during the Perry argument when he said, “There is an immediate legal injury, and that's the voice of these children. There are some 40,000 children in California … that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?”
And it is clear from Justice Kennedy’s written opinion for the majority in the Windsor case that the impact of discriminatory marriage laws on children weighed heavily on his mind when he wrote about how DOMA “humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”
It has become clear that our best messengers and activists are and will continue to be our children — the Outspoken Generation. My own daughter, Sadie, is only 15 months old and is too young to speak up for herself. So I see these young people are her role models. They are speaking out for what they believe in; they are telling the truth. They are standing up for their families and are demanding that they be respected and valued, just the same as everyone else.
Are there opportunities for setbacks in rights LGBT families have won? Judicial or legislative?
Yes — always. We must be diligent in protecting the advances we’ve made thus far to ensure they are not rolled back. With increasing frequency, we are seeing opponents of LGBTQ equality using their religious beliefs to justify discrimination. There are several cases moving through the courts asserting religious liberty as the justification for this kind of discrimination, and we are watching these cases very carefully.
While we’ve seen these religious liberty arguments in many contexts with regard to LGBTQ people — for example, in employment, in the provision of services, etc. — the issue of religion-based discrimination is always a concern in the context of adoption. Religious freedom in America is guaranteed by the First Amendment, but what is not protected is the right to impose those beliefs on others who do not share them. We have seen this issue come up quite often in the context of adoption, where religiously affiliated adoption agencies want the ability to refuse to place children with LGBTQ people or same-gender couples. In Virginia, for example, we saw the passage of a law in 2012 that provides all licensed adoption agencies with the ability to refuse placement with anyone based on any “moral or religious objection.” This is a dangerous concept in adoption law and serves to significantly shrink the pool of foster and adoptive parents, which only serves to harm children who are in search of forever families.
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