June 15, 2017
In 2017, the fight both for and against equality for the LGBTQ community has grown fiercer. Progress, on the one hand, can be seen in the seven states that have introduced comprehensive nondiscrimination bills, preventing discrimination on the basis of sexual orientation and gender identity. Yet, regrettably, the Human Rights Campaign has already found some 100 anti-LGBTQ bills released in various states in the first few months of 2017 alone, including religious exemptions in the workplace and restricted access to health care for LGBTQ citizens.
In light of Pride Month, I recently sat down with Nancy Polikoff, author of Beyond (Straight and Gay) Marriage: Valuing All Families Under the Law and a professor of law at American University Washington College of Law, to discuss these issues and what’s being done to extinguish them . A lightly edited transcript of our conversation is below.
You’ve been a champion for LGBTQ for decades. Can you begin by explaining some of the work you’ve done and the impact you’ve seen made working in this space?
The vast majority of my work has been around the issue of LGBTQ parents, and I’ve been doing that for 40 years now. I started with custody rights of lesbian mothers when they were leaving heterosexual marriages and fighting for the custody of their children against their husbands or ex-husbands claiming that they were unfit because they were lesbian mothers. That was the main lesbian family law issue early on during the evolution of the modern gay rights movement.
By the next decade, lesbians had started the process of figuring out how to have children when they’d already come out as lesbians and weren’t going to have children in heterosexual marriages. That raised a series of new issues: recognizing the non-biological parents in the couple, developing a law to recognize a child had two parents when they were same-sex parents, and eventually a host of issues about assisted reproduction and how you do parentage in the context of assisted reproduction. Over the years, I’ve worked on all those issues, including getting states to allow a legally unrecognized parent to continue a relationship with the child even after her partner-relationship split up, developing second-parent adoptions, and then going on to develop new approaches to defining “parent,” so that even without second-parent adoption, you could have a child born to a same-sex couple who had both of those individuals of parents from birth because of the law.
However, I was also been very vocal during this period that putting a priority on marriage was problematic because it was detracting from the wide range of family relationships that gay people could build, and it was even channeling couple relationships into an existing institution that was not designed to meet the needs of same sex couples—or at least not all of them. It had baggage in it’s history of exclusion and oppression. Before the book I participated in the development of the “Beyond Marriage Statement” with a group of activists and others in the mid-2000s. That statement just commemorated its 10-year anniversary, as it was released in 2006. In the years before that, I was always striving to figure out how to develop relationship recognition possibilities that were not tied to marriage.
In 1960 the US Department of Public Welfare created requirements that assistance for children only be available if the child lived in what was considered a “suitable home,” where suitable homes meant married heterosexual families with “legitimate children.” Fast-forwarding to 2017, how would you like to see a “suitable home” defined?
A suitable home for a child is any home where the child is having his or her physical and emotional needs met by a parent. I wouldn’t define a suitable home based on who the adults or parents are who are providing that care. We need to be looking more at who is actually raising children, as well as what they need and what kind of assistance they could use from the state.
So with that in mind, do queer families tend to look a certain way today?
There isn’t any one way to say what queer families look like, because people are doing families and parentage in such a wide variety of ways. Obviously, there are a number of people who are living in what, other than the same-sex nature their relationships, looks a lot like conventional heterosexual marriages. But that’s not by any means everybody. There are single gay people raising children, and there are arrangements that are made. One of the things about raising children is that when a gay man or lesbian decides they want to become a parent, that is something they have to think through—it won’t just happen by accident.
That can lead people into creative arrangements where they make decisions with someone very close to them that they will raise a child together and that may not be a romantic partner. It may be a single lesbian and a single gay man who are very good friends and want to raise a child together. You also can have more than two people intentionally plan for a child together. If you have a gay male couple and a lesbian couple and they all want to raise a child, then you could have a four-parent situation, with arrangements made about where the child’s primary home will be. Then, there are all the people who don’t have children who may live in couple relationships that look much like marriages. But, they also may live in group settings with people who aren’t partners but feel a close sense of family, and it’s not only gay people who do this by any means.
Even with the legalization of gay marriage, there are still policies that don’t fully support the types of families we see today. What are some of those political hurdles?
I certainly think, and again this is because this has been my area of concentration, that getting the definition of “parent” right is important, so that you can recognize a child’s parent in a variety of arrangements. For instance, sometimes the second parent will be married to the woman who gives birth, but sometimes you will have more than two parents, or you have people who aren’t married but are making this commitment, or someone who after a period of time has fully functioned as a parent and the child thinks of this person as a parent.
I’ve been involved in a lot of efforts to develop model laws that will recognize who a child’s parents are so that the child gets the full benefits of the recognition of a parent relationship. The way I think about it is, I’m talking about who a child’s legal parents are, and that’s something the law has always defined. It’s a legal question: Who are a child’s legal parents? Here, we’re just asking to look at what that definition should be, keeping in mind different family situations.
You’ve used domestic violence to demonstrate how policies can—and must—change to support families. Domestic violence statutes used to cover only those who were married and living in the same home; they’ve since evolved to apply to other intimate relationships. Can you briefly talk about any policies today that are excluding the LGBTQ couples?
I don’t think marriage should be necessary for two people to be considered parents by any means. But I do think—since we have a legal system that presumes a mother’s husband to be her child’s parent—we should apply that to a mother’s wife as well. There are states that are refusing to do that because they’re saying, “this person can’t possibly be the biological parent.” Our response is that the law presumes the husband’s parentage isn’t linked to his biology—just to his marriage. If you’re going to do that for heterosexual couples, you should do that for same-sex couples, too. I also think, looking through the lense of how gay people are raising children, you can look for more inclusive solutions to that.
Black Americans disproportionately make up the bottom end of the income gap. How are LGBTQ black Americans, in particular, affected by some of the policies you’ve mentioned?
What we know from demographic research that’s come out of the Williams Institute at UCLA Law School is that there’s a correlation between race and poverty among LGBTQ Americans. And, there is quite a significant amount of poverty. What I really think this means is if the so-called gay agenda doesn’t include a very vigorous anti-poverty agenda, it won’t meet the needs of those people dealing with the problems associated with poverty, homelessness, housing insecurity, and food insecurity. Since we have the demographic information, we need to incorporate that into what we consider to be part of our agenda. To some extent I think we can assume the disproportionate poverty is based on the existence of discrimination, but it’s also based, for example, on individuals who aren’t supported by their parents, who disagree with their sexual orientation and other factors. For me, it’s simply making sure we run every policy initiative and every priority-setting program through looking at whether it meets the needs of the most disadvantaged and those likely to face multiple axes of discrimination and oppression.
To end on a less-bleak note, are there any positives in the quest for family equality?
The thing about family policy is that there’s a lot that takes place at the state level. That means you can have states that are leaders in coming up with policies that are good for a wide range of LGBTQ families. For example, in California, if you’re the only person legally recognized as a child’s parent, but you want to raise your child with somebody else who’s fully committed to parentage and you want that person to be a parent, then that person can become an adoptive parent of your child, and you also remain a legal parent of the child. You don’t have to be married, you don’t have to be intimate partners, you’re not required to live together. Of course, a court has to find the adoption in the best interest of the child, but it basically allows for a child to be raised by two people who aren’t making a romantic commitment to each other, but are making a commitment to co-parent a child. There is no other state that has a law as expansive as that.There are places where if a lesbian and a gay man wanted to raise a child together—obviously if the child is a biological child of both of them, they’ll both be parents—but suppose that isn’t possible, or suppose the woman is already pregnant and then decides to enter into this commitment with a gay male friend. In most states, they wouldn’t be able to do that. They’d be able to raise a child together, but the child wouldn’t get the benefit of two legally recognized parents. I think what we like to do is look at each state and look at where there are good examples of how the law ought to look. For example, there are states where if an employee dies at work and is living with somebody who is dependent on them, that person can collect workers compensation survivors benefits and doesn’t have to be the spouse of the person. It could be a non-marital partner. Most states would require that if those two people aren’t married to each other, then the workers compensation survivors benefits could go to an estranged family member of the person who died, which makes no sense at all if the person was living with a partner. They didn’t get married, but it doesn’t make them less intertwined. I like to look at the few states that have policies like that and say: This is what we should be doing everywhere.