Perspectives on Sexual Orientation and Gender Identity in Family Law

• Author: Carlos A. Ball,Charlotte J. Patterson
• Date: 01 July 2018
• Published date: 01 July 2018
• DOI: http://doi.org/10.1111/fcre.12352

INTRODUCTION TO THE SPECIAL ISSUE

PERSPECTIVES ON SEXUAL ORIENTATION AND GENDER

IDENTITY IN FAMILY LAW

Charlotte J. Patterson and Carlos A. Ball

Recent years have seen tremendous changes in family law that are relevant to lesbian, gay, bisex-

ual, transgender, and questioning/queer (LGBTQ) parents, prospective parents, and their children

here in the United States. Only twenty years ago, the legal circumstances of LGBTQ couples and

families in the United States were very different than they are today. Many states still had sodomy

laws on the books and same-sex marriages were not recognized by law in any state of the union.

Lesbian mothers and gay fathers were often denied custody of their children. Access to reproductive

technology and other medical facilities and providers was routinely denied to LGBTQ individuals

and couples. Transgender parents have also experienced many difficulties and challenges inside and

outside of the courts. For many years, family courts were often openly hostile to LGBTQ people.

The history of social science research is one of many factors that have affected the legal rights of

LGBTQ persons. The research of social scientists with lesbian and gay parents and their children,

and the ways in which its conclusions have been taken up by major professional organizations such

as the American Psychological Association and the American Medical Association, has played an

important part in changing both public opinion and legal decision making in family courts across

the country. Through expert testimony in court and through amicus briefs filed by professional orga-

nizations, research by social scientists has been brought to bear in many legal cases. The social sci-

ence consensus that children of LGBTQ parents are developing normally has led to many important

changes in decision making around custody and visitation as well as adoption and other matters in

family courts throughout the United States.

Many legal changes for LGBTQ people in this country can be traced back to important

U.S. Supreme Court decisions of recent years. In Lawrence v. Texas, 539 U.S. 558 (2003), the

Court found sodomy laws to be unconstitutional. In Obergefell v. Hodges, 135 S. Ct. 2584 (2015),

the Court recognized that same-sex couples have a constitutional right to mar ry. Pavan v. Smith,

137 S. Ct. 2075 (2017), clarified that same-sex couples are entitled to all rights associated with mar-

riage enjoyed by other-sex couples. In this climate, same-sex sexuality is no longer considered crim-

inal, children born to married same-sex couples are recognized as the children of both partners to a

marriage, and many children in this way receive benefits such as health insurance that they might

otherwise have been denied.

Even so, as family law experts have been quick to point out, LGBTQ parents and prospective

parents still face many legal issues. Some of these legal issues are due to the laws of other coun-

tries, which can limit opportunities for adoption of children from overseas by LGBTQ adults in the

United States. Additional legal issues may stem from difficulties in accessing the legal system itself

and/or obtaining accurate and updated information about that system. Still other challenges may

arise from the fact that, in their efforts to become parents, many LGBTQ people are likely to utilize

reproductive technology, and there remain unsettled legal questions in this area. In this Special Issue

Correspondence: cjp@virginia.edu; cball@law.rutgers.edu

FAMILY COURT REVIEW, Vol. 56 No. 3, July 2018 361–363

© 2018 Association of Family and Conciliation Courts