Lesbian and Gay Families: Gender Nonconformity and the Implications of Difference

• Author: Carlos A. Ball
• Position: Professor of Law, University of Illinois
• Pages: 691-749

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For several years now, critics and proponents of lesbian and gay families have been debating the significance of the social science literature that has studied lesbian and gay parents and their children. As in many areas of social science research, the meaning and implications of the empirical data are highly contested. On one side of the debate, critics question the validity of the studies while suggesting that they nonetheless raise troubling concerns about the negative consequences for children of having lesbian and gay parents.¹ On the other side, proponents defend the validity of the studies and contend that the sexual orientation of lesbian and gay parents does not harm their children.²

In the last two years, two important reviews of the research have been added to the growing literature in this area. The first is a report issued by the Committee on Psychosocial Aspects of Child and Family Health ("the Committee") of the American Academy of Pediatrics ("AAP").³ The Committee's report reviews the research and finds that no meaningful differences exist between children raised by lesbian and gay parents and children raised by heterosexual parents. The report concludes that "parents'Page 692 sexual orientation is not a variable that, in itself, predicts their ability to provide a home environment that supports children's development."⁴ The second is an essay written by sociologists Judith Stacey and Timothy Biblarz titled "(How) Does the Sexual Orientation of Parents Matter?"⁵ In their essay, Stacey and Biblarz, who are otherwise supportive of families, headed by lesbians and gay men, argue that the social science research raises provocative questions about possible differences in the children studied.⁶ In particular, they note that there appear to be differences in the gender and sexual preferences and behavior of the children of lesbian and gay parents when compared to those of the children of heterosexual parents.⁷ Although the authors call for more research to be conducted, they nonetheless find it intriguing that some of the existing research (despite claims to the contrary made by the researchers themselves) raise the possibility that important and significant differences exist between the two groups of children.

Both of these publications have received an immense amount of attention in the popular press.⁸ Although there is of course no necessary correlation between the attention paid by the popular press to academic-type publications on the one hand and their importance or lasting impact on the other, I do believe that these two recent publications mark a significant turning point in the debate over parenting by lesbians and gay men. The Committee report, coming from such an august and highly respected organization as the American Academy of Pediatrics, will likely be very influential. In fact, it would not be surprising if the AAP's position on this issue, at least as reflected in the conclusions reached by its Committee, has an impact similar to the decision thirty years ago by the American Psychiatric Association to remove homosexuality from its diagnostic manual.⁹ The fact that starting in 1973, the professional organization of psychiatrists in the United States no longer considered homosexuality to be a mental illness, has had a positivePage 693 impact in destigmatizing homosexuality and has to some extent served as a counterweight to the still pervasive, but not quite so hegemonic understanding of homosexuality as a disease and an abnormality.¹⁰ By the same token, the fact that a committee of the professional organization of pediatricians has issued a report concluding that allowing lesbians and gay men to become parents is consistent with the best interests of children will further undermine the position taken by those who view a parent's same-gender sexual orientation as either inherently or potentially harmful to her or his children.

The impact of the Stacey and Biblarz essay, however, is a little harder to predict. On the one hand, it is clear that opponents of lesbian and gay families will welcome the essay. In fact, it has already been cited by commentators who do not believe that lesbians and gay men should become parents,¹¹ by judges in denying custody to lesbians and gay men,¹² and by state lawyers when defending the constitutionality of laws that treat lesbians and gay men differently than heterosexuals.¹³ Opponents of gay rights willPage 694 undoubtedly continue to make much of the suggestion, raised in an essay written by two sociologists who are supportive of lesbian and gay families, that there are in fact differences in the preferences and behavior of children of lesbians and gay men when compared to children raised by heterosexuals. The more interesting, and to some extent less predictable, question is how supporters of lesbian and gay families will address the suggestions of difference raised by Stacey and Biblarz.

In this article, I explore some of the policy and legal implications of difference as it relates to parenting by lesbians and gay men. In Part I, I summarize the findings and conclusions of both the AAP's Committee report and the Stacey and Biblarz essay.¹⁴ I dedicate the remainder of the article to a discussion of the implications of one of the differences noted by Stacey and Biblarz, namely, the differences in gender role conformity among the children of lesbians and gay men, as compared to that of the children of heterosexual parents. In Part II, I explain why, even if further research confirms Stacey's and Biblarz's initial suggestion that there are differences in gender role conformity between the two groups of children, it does not follow that our society should as a policy matter make it more difficult for lesbians and gay men to become parents.¹⁵ I argue that not all differences in this area should be equated with harm, especially when those differences relate to nonconformity with traditional gender roles and expectations.¹⁶ I also argue that our social norms relating to parental autonomy counsel against state interference in internal family matters in the absence of clear harm.¹⁷ The value of parental autonomy fosters a form of pluralism and diversity in the preferences and behavior of children that should be encouraged and celebrated rather than feared. In Part III, I argue that a reliance by a state on the need to avoid gender role nonconformity and to promote what it takes to be proper gender identity among children as a justification for prohibiting lesbians and gay men from adopting fails to pass constitutional muster under the Equal Protection Clause.¹⁸

I Lesbian and Gay Parents: Similarities and Differences

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The two recent publications on lesbian and gay parents noted above represent two distinct approaches to the research literature in this area. The Committee report for the most part emphasizes the similarities between lesbian and gay parents (and their children) on the one hand and heterosexual parents (and their children) on the other while the Stacey and Biblarz essay highlights differences.¹⁹ I summarize the findings and conclusions of each publication below.

A The Report by the Committee of the American Academy of Pediatrics

The Committee's report seeks to address the issue of whether the same-gender sexual orientation of parents negatively affects the well-being and development of children.²⁰ The report begins with a description of the challenges faced by lesbian and gay parents.²¹ In addition to facing the same obstacles that many heterosexual parents also confront such as limitations on time and finances, lesbian and gay parents face unique challenges; they usually for example, unlike most heterosexual parents, plan and make decisions involving how to form families (for example, via artificial insemination or adoption).²² They must also seek to secure, as best they can, the legal rights of the nonbiological or nonadoptive parent. This is a challenge usually not faced by heterosexual parents, most of whom automatically qualify for a host of legal rights and protections based on either their marital status or their biological connection to the child.²³ Finally, the report notes the challenges presented to lesbian and gay parents by the "emotional pain and restrictions imposed by heterosexism and discriminatory regulations."²⁴ The report explains how in some states same-gender coparents (unlike heterosexual spouses) cannot gain legal parental rights over their partners' children without first terminating the partners' parental rights.²⁵ The report also notes that lesbians and gay men have historically been prevented from becoming adoptive or foster parents and that many have been denied custody and visitation rights of children conceived in heterosexualPage 696 marriages.²⁶ The justification for the differential treatment of lesbian and gay parents by the law is often based on the presumption that the children of lesbians and gay men "would experience stigmatization, poor peer relationships, subsequent behavioral and emotional problems, and abnormal psychosexual development."²⁷

The scientific literature, however, suggests that this presumption is based more on myth and stereotype than on hard data.²⁸ The report's review of that literature covers three broad sets of studies. The first seeks to assess the attitudes...