'Deeply hurtful': More states make it harder for LGBTQ people to foster or adopt children

·14 min read

Fatma Marouf and Bryn Esplin wanted a big family. The married couple, who both work as professors at Texas A&M University, knew they had love and security to give. 

But when they applied to foster a refugee child under a U.S. Department of Health and Human Services program operated by the Conference of Catholic Bishops in Fort Worth, Texas, they were told they couldn’t move forward. The agency wouldn’t work with two mothers.

“They said you have to ‘mirror the Holy Family’ and I was stunned,” said Marouf. “I didn't really know what that meant."

Esplin, who grew up Mormon and always thought, the more children in the home, the merrier, was also shocked.

“It was deeply hurtful,” she said.

The couple is now at the forefront of a series of legal battles playing out across the nation over the civil rights of same-sex couples to parent children. LGBTQ activists said there has been a growing resurgence of state legislation and lawsuits in recent years trying to block these couples from fostering or adopting children, even in some cases going as far as to make it difficult for same-sex parents to have rights to children they conceived through fertility treatments.

LGBTQ activists warn attacks on same-sex parents are part of a larger campaign to discredit LGBTQ couples and challenge gay marriage. Many legal scholars have said the Supreme Court’s ruling last week overturning Roe v. Wade, which had protected abortion rights for nearly 50 years, has provided a path for other rights not explicitly detailed in the U.S. Constitution to be scrutinized, including gay marriage.

At the center of these parenting disputes are two very different viewpoints. The first is that denying same-sex couples equal rights as different-sex couples is discriminatory, homophobic and illegal under the Constitution’s equal protection clause. LGBTQ activists note such policies can make it harder to find homes for children in need – there are more than 400,000 foster children across the United States and experts predict the number of children who will need temporary and permanent homes could balloon over the next decade with abortion rights being restricted in many states.

The other viewpoint is that religious institutions should not be forced to serve people who do not share their beliefs that marriage is only between a man and a woman and that children should ideally have one male and one female parent.

Fatma Marouf (left), Bryn Esplin (right), and their daughter at home in Fort Worth, Texas.
Fatma Marouf (left), Bryn Esplin (right), and their daughter at home in Fort Worth, Texas.

Many same-sex couples said they only found out about the barriers to parenthood after they made the decision to start a family. After the Supreme Court’s 2015 ruling declaring gay marriage a constitutional right, these couples said they were flabbergasted to find out they were being ruled out as parents because of who they love.

“I’m a law professor, and I was still completely shocked that it was allowed,” said Marouf of learning in 2017 that she and her wife could not foster a refugee child through Catholic Charities Fort Worth. The couple is at the center of a lawsuit against the Department of Health and Human Services and the Conference of Catholic Bishops over the matter. “It would be like telling me you have to be a Catholic to apply.”

In al, 12 states allow state-licensed child welfare agencies to refuse to work with LGBTQ couples if doing so conflicts with their religious values, including Texas, Virginia and Arizona, according to the Movement Advancement Project, a think tank focusing on LGBTQ research. Arizona passed its policy in April. Only 29 states and Washington, D.C., explicitly prohibit discrimination in adoption based on sexual orientation and gender identity.

Plaintiff Jim Obergefell holds a photo of his late husband John Arthur as he speaks to members of the media after the U.S. Supreme Court handed down a ruling regarding same-sex marriage June 26, 2015, outside the Supreme Court in Washington, D.C. The high court ruled that same-sex couples have the right to marry in all 50 states.
Plaintiff Jim Obergefell holds a photo of his late husband John Arthur as he speaks to members of the media after the U.S. Supreme Court handed down a ruling regarding same-sex marriage June 26, 2015, outside the Supreme Court in Washington, D.C. The high court ruled that same-sex couples have the right to marry in all 50 states.

The breakdown is similar when it comes to foster care services.

“It has been a challenging few years,” said Naomi G. Goldberg, LGBTQ program director for the Movement Advancement Project.

The Supreme Court ruling on gay marriage sparked a backlash that has only grown, said Goldberg. “We saw states reacting to that and saying, ‘We still don’t want to treat couples fairly.’”

Activists are pushing for the Biden administration to issue a Health and Human Services policy prohibiting discrimination in government-licensed foster and adoption services. Passage of the Equality Act, which would expand civil rights laws to include protections based on sexual orientation and gender identification, would also better guard same-sex couples, said Goldberg.

Research shows being LGBTQ is immaterial to someone’s ability to be a good parent, said Camilla B. Taylor, director of constitutional litigation for Lambda Legal. Government-funded foster and adoption agencies that refuse to work with same-sex families are violating the 14th Amendment’s equal protection clause, she added. Lambda Legal is representing Marouf and Esplin in their lawsuit against the federal government.

The First Amendment also prohibits the government from favoring any one religion or faith, meaning religious organizations shouldn’t be able to punish prospective parents who don’t share their values, Taylor said.

“There are certainly efforts underway to chip away at marriage equality, if not overrule it altogether,” said Taylor. “We know we are going to have a fight on our hands.”

Supreme Court ruling sparked backlash to LGBTQ rights

The backlash against same-sex couples isn’t new. In the 1980s and 1990s, in part because of the AIDS epidemic and widespread homophobia, a handful of states passed laws or debated passing laws preventing same-sex couples from adopting or serving as foster parents. New Hampshire became the first state to repeal its ban in 1999, according to the ACLU. 

More recently, the Supreme Court’s Obergefell v. Hodges ruling in 2015 establishing the federal right to gay marriage acknowledged LGBTQ families who had long been raising “hundreds of thousands of children.” And in 2017, the Obama administration enacted rules prohibiting discrimination in adoption and foster care agencies funded by Health and Human Services.

But as more states have contracted foster care services to private agencies and more LGBTQ couples have expressed a desire to adopt, the national debate over who is allowed to care for children has intensified.

In 2019, the Trump administration granted a waiver from federal non-discrimination rules to South Carolina that allowed the state to continue its contract with a religious organization that refused to work with same-sex couples. In that instance, a Christian lesbian couple, Eden Rogers and Brandy Welch, were told by Miracle Hill Ministries, the state’s largest foster care contractor, that they could not be foster parents because they were a same-sex couple. Lambda Legal is also representing the couple in its ongoing legal fight against the Department of Health and Human Services and the state of South Carolina.

In 2020, after the Trump administration vowed to remove all Obama-era protections against discrimination in federally funded adoption and foster care, Tennessee joined the list of states embracing similar measures to allow government-funded foster care and adoption agencies to exclude LGBTQ families.

The Supreme Court dealt somewhat of another setback to same-sex couples when it ruled in 2021 that the city of Philadelphia had to work with a Catholic organization that said religious beliefs meant it would not place children with same-sex couples. Supreme Court Chief Justice John Roberts said in the ruling that “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” but concluded there could be an exception for religious reasons in this specific case.

Breanne Brodak, left, and Cortney Tucker kiss after getting married in Pontiac, Mich., Friday, June 26, 2015, after The Supreme Court declared that same-sex couples have a right to marry anywhere in the United States. Michigan was one of 14 states enforcing a ban on same-sex marriage.
Breanne Brodak, left, and Cortney Tucker kiss after getting married in Pontiac, Mich., Friday, June 26, 2015, after The Supreme Court declared that same-sex couples have a right to marry anywhere in the United States. Michigan was one of 14 states enforcing a ban on same-sex marriage.

Despite barriers, same-sex families are thriving. There are roughly 543,000 married same-sex couples and another 469,000 same-sex couples who are not married but live together. Of those, roughly 16.2% are raising children, according to the Williams Institute, a think tank focused on LGBTQ law and policy at the University of California, Los Angeles.

Compared with different-sex couples, same-sex couples are seven times more likely to foster or adopt, the Williams Institute found. Many of these families represent people of color. About 34% of African American LGBTQ adults and 39% of Latino LGBTQ adults are raising children, while 21% of white LGBTQ adults are parents.

And it’s likely the need for same-sex adoptions will only grow, with Millennials and Gen Z Americans identifying as LGBTQ at much higher rates than previous generations, said Kerith J. Conron, research director at the Williams Institute.

With so many children in need, federal contractors shouldn’t be allowed to discriminate against LGBTQ couples, said Cathryn Oakley, state legislative director and senior counsel at the Human Rights Campaign, an LGBTQ civil rights organization. The group recommends that LGBTQ parents take extra protections, such as adopting the child their partner gave birth to during the relationship, which Oakley called “a deeply discouraging thing” for many same-sex couples.

“That is a really disheartening thing for folks to have to do. Why shouldn't your relationship with your child be treated the same way as the relationship that other parents have with their child,” she said. “It is humiliating and degrading because that is not something that a different-sex couple would be encouraged to do or experience. There would be no confusion or assumptions.”

LGBTQ parents forced to adopt their biological children

Colorado House Majority Leader Daneya Esgar and her wife, Heather Palm, are one of the same-sex couples at the forefront of the fight for equal parental rights. The couple had a daughter through in vitro fertilization, with the genetic material coming from Palm, and Esgar carrying the baby. Then Palm found out that because she hadn’t given birth to the child, she would have to adopt her daughter through a stepparent adoption process, Esgar said.

“It was completely insane to us,” Esgar said. “I can’t believe this is still something that exists that no one talks about. You would never assume things are still so unequal."

Esgar worked with lawmakers in Colorado this spring to pass Marlo’s Law, named after her daughter, which ensures same-sex couples have a more streamlined process to guarantee their parental rights.

Daneya Esgar
Daneya Esgar

Esgar said she is concerned about the recent wave of anti-LGBTQ curricula adopted in conservative states and worries more gay rights could soon disappear. She wants more allies talking to their school boards, writing letters to elected officials, in the streets protesting anti-LGBTQ measures. At the same time, she said she is buoyed by the many Pride flags she sees in different communities.

Esgar said people who question the integrity of her family are coming from a place of fear. When Marlo turns one year old in July, the family will get together for a small party to celebrate.

“Marlo is one of the most loved children I’ve ever seen,” Esgar said. “People just adore her and how can you not? You walk into a room and the girl lights up.”

LGBTQ parents can lose rights in divorce

In Oklahoma, a case has challenged whether same-sex parents can continue to have claims to a child after a divorce.

Kris Williams and her then-wife had a child using a sperm donor. Both had been active in LGBTQ civil rights movements, protesting a 2018 state law that allowed religious organizations to refuse to help same-sex couples foster or adopt.

When their child was born, Williams cut the umbilical cord in the hospital. The couple named the child after her uncle, said Hanna Roberts, a lawyer with the American Civil Liberties Union of Oklahoma, which is representing Williams in the case.

Then Williams’ wife took steps to end the marriage in 2021. She claimed that because Williams didn’t have biological ties to the child and had not adopted the child, she had no rights. Her wife also claimed in court documents that Williams had physically attacked her. At the same time, the sperm donor was demanding rights to the child. Williams’ name was removed from the birth certificate, Roberts said.

Williams’ case made plain how tenuous LGBTQ parental rights might be, said Roberts. For months, Williams has not been able to see her child. But same-sex couples were meant to enjoy all the benefits of marriage as other couples under the Supreme Court ruling, including not having to adopt the child they had with their spouse, said Roberts.

“It is not a question of whether or not these rights were extended to same-sex couples,” Roberts said. “Is it just a question of whether or not states are going to recognize that these rights have been extended.”

A person spreads wings with the words "Black Trans Lives Matter" written on them during the Brooklyn Liberation's Protect Trans Youth event at the Brooklyn Museum on June 13, 2021, in the Brooklyn borough in New York City. Brooklyn Liberation organized a march and rally as an emergency action response to legislation to restrict trans rights across 34 states.
A person spreads wings with the words "Black Trans Lives Matter" written on them during the Brooklyn Liberation's Protect Trans Youth event at the Brooklyn Museum on June 13, 2021, in the Brooklyn borough in New York City. Brooklyn Liberation organized a march and rally as an emergency action response to legislation to restrict trans rights across 34 states.

Critics of same-sex parents point to values

Many critics of same-sex parents point to their religious beliefs against same-sex relationships, while others insist a so-called traditional family is simply best.

Lynn Wardle, a retired law professor at Brigham Young University in Utah who has advocated against same-sex marriage, said children raised by same-sex couples “can turn out just wonderfully." Still, he feels strongly that children are more likely to have a better life if they have both a mother and a father. He said children have historically been raised by different-gender parents and when that doesn’t happen, either because of divorce or a parent dies, children can face greater challenges.

“It’s a moral issue, and people feel strongly that children have a right to be raised by a mom and dad, not by two men or two women,” he said.

Religious organizations that don’t want to work with same-sex couples shouldn’t be forced to do so, said the Rev. Paul Sullins, a research faculty member at Catholic University in Washington, D.C., and a senior research associate at the Ruth Institute, a Louisiana-based Catholic organization that opposes gay marriage. Those couples should turn to non-religious organizations, he said.

“If a Jewish deli doesn't want to have non-kosher food, it doesn't burden the general public if there are lots of delis with non-kosher food,” he said.

He said it is in the best interest of children to place them in a home that more closely represents their culture, such as placing Black children with Black parents when possible and straight kids with straight parents. He pointed to data that shows gay male couples are more likely to practice open relationships than other couples and that lesbians have higher divorce rates compared with other couples. 

He said he would support some exceptions, such as same-sex couples adopting a child who is related to them.

Parents with love to offer children

For many LGBTQ activists, it is not acceptable for the government to fund agencies that shun same-sex couples.

Youth activist Javier Gomez reacts after President Joe Biden handed him a pen he used to sign an executive order at an event to celebrate Pride Month in the East Room of the White House, Wednesday, June 15, 2022, in Washington.
Youth activist Javier Gomez reacts after President Joe Biden handed him a pen he used to sign an executive order at an event to celebrate Pride Month in the East Room of the White House, Wednesday, June 15, 2022, in Washington.

Marouf first visited Catholic Charities Fort Worth as part of her work as an immigration attorney. During a tour of the facility, staff showed her where refugee children were living and invited her to apply to become a foster mother.

Marouf and Esplin wanted to grow their family and many of the refugee children in Fort Worth came from the Middle East just like Marouf’s family. When the agency initially described the requirements of becoming a foster parent, they never mentioned that same-sex couples would not be considered.

After they were denied, Marouf reached out to federal officials to inquire whether the agency’s refusal to work with them was legal. She imagined they would say something like, Oh, no, they can’t do that, let’s call them. For months, she said, she didn’t get a reply.

Fatma Marouf (left), Bryn Esplin (right), and their daughter at home in Fort Worth, Texas.
Fatma Marouf (left), Bryn Esplin (right), and their daughter at home in Fort Worth, Texas.

A spokesperson for the Department of Health and Human Services did not respond to USA TODAY’s request for comment. A spokesperson for the Conference of Catholic Bishops, which receives millions of dollars in grant funding from the federal government to help find homes for refugee and migrant children, also did not respond to a request for comment. In 2019, a federal district court denied motions by the Department of Health and Human Services and the Conference of Catholic Bishops to dismiss the lawsuit.

While waiting for their lawsuit to move forward, Marouf, now 45, and Esplin, now 38, used fertility treatments to have a biological daughter, who is now nearly 3. Both of their names are on the girl’s birth certificate.

“Our daughter is the light of our lives and so you can’t even begin to articulate and appreciate that love until you have it, even though we always knew we wanted a family,” said Esplin. “I continue to believe that Fatma and I have so much to offer.”

Sometimes the couple is asked whether they would consider moving to a more progressive state where they might not have to fight so hard to be recognized.

Marouf and Esplin said they want to stay and make it better for other same-sex couples in Texas.

“The message it sends to our kid and to society is that we are not adequate parents,” Marouf said. “And to us, that is a battle worth fighting.”

This article originally appeared on USA TODAY: With Roe decision, LGBTQ parents worry their rights will be hit next

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