LGBTQ+ ADOPTIONS & BERT'S ADOPTION

Brothers and Sister (2002) blemish.jpg

Brothers and Sister

(Frank, Llweyen, Ernie, Bert, & Tracy)

2002

Frank, Llweyen, Ernie, Bert and Tracy as they grew up to young adults defied the initial expectation represent a generation of young adults who have defied the initial expectation of their peers, many of whom died from unusual infections by their first or second birthdays. Bert was one of the few exceptions and probably had the most success with early treatment when at the age of eight had his HIV status had seroreverted to negative. These young people are part of the Millennial Generation - the 911, and AIDS generation that has proven to be resilient in their daily battle to take care of themselves*. As these young men navigate themselves through their daily intake of HIV medications, they continue to grow and experience what any young adult aspire to living a content and productive life they continued to grow.

Adoption by single LGBT individuals is now legal in every jurisdiction in the United States, while adoption by same-sex couples is also legal in all the 50 states and the District of Columbia, as of June 26, 2015. Mississippi was the last state in the U.S. to prohibit adoption by same-sex couples, only ending enforcement of its ban when a federal judge ruled it unconstitutional in March, 2016.
   
Supreme Court Justice, Clarence Thomas, in his concurring opinion on June 24, 2022 on the decision to overturn the 49-year-old Roe v. Wade abortion rights ruling, identified three past rulings that he called “demonstrably wrong decisions”: the Supreme Court’s ruling in Obergefell, a 2003 high court case that established the right to have gay sex, and a 1965 case establishing married couples’ right to contraception. At the beginning July 2022, 10 anti-LGBTQ laws went into effect, all of them related to education. The laws ("Don't Say Gay Bills") include Florida’s novel restrictions banning classroom discussions of gender and sexuality, which have become a template for other states seeking to limit what students learn about these issues and when.

On July 1, 2022 the White House issued a statement: " This is discrimination, plain and simple It is part of a disturbing and dangerous nationwide trend of right-wing politicians cynically targeting LGBTQI+ students, educators, and individuals to score political points. It encourages bullying and threatens students' mental health, physical safety, and well-being. It censors dedicated teachers and educators who want to do the right thing and support their students. And it must stop."

Adoption by single LGBT individuals is now legal in every jurisdiction in the United States, while adoption by same-sex couples is also legal in all the 50 states and the District of Columbia, as of June 26, 2015. Mississippi was the last state in the U.S. to prohibit adoption by same-sex couples, only ending enforcement of its ban when a federal judge ruled it unconstitutional in March, 2016.

As of 2022 there has been a growing resurgence of state legislation and lawsuits in recent years trying to block LGBTQ couples from fostering or adopting children. In some cases, states have made it difficult for same-sex parents to have rights to children they conceived through fertility treatments. 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.

For updates on LGBTQ+ Adoptions please refer to:
https://www.lgbtmap.org/equality-maps/foster_and_adoption_laws

Bert (2014).jpg

Historical Legal Ramifications: The Adoption of Bert

In 1991, Florida’s child welfare agency asked Steven Lofton and Roger Croteau to take a three-month-old infant named Bert into their home. Bert, at birth, had tested positive for HIV antibodies.  Lofton and Croteau were already serving as foster parents to three other HIV-positive children: Frank, Ginger, and Tracy.

In 1994, they learned that Bert longer had the detectable antibodies for HIV and tested HIV-negative. Newborns keep their mother’s antibodies until 18 months; Bert tested positive at birth, indicating exposure to HIV but not necessarily infection by the virus. Bert eventually lost his mother’s antibodies and began testing negative (sero-reverted) for HIV. Once that happened, according to Florida regulations, Bert became eligible for legal adoption. But when Lofton applied to adopt Bert legally, the government denied his application because, at that time, state law prohibited lesbians, gay men, and bisexuals from adopting. As Florida saw it, Lofton and Croteau were good enough to serve as foster parents to the children but not good enough to become their full legal parents.

After state officials began taking steps to find a heterosexual adoptive family for Bert, Lofton, with the assistance of the ACLU, filed a lawsuit in federal court arguing that Florida’s adoption ban violated the Constitution. Specifically, Lofton’s case contended that the adoption ban violated his constitutional rights to due process and equal protection. The former claim implied that the state of Florida had encouraged Steven to establish a parent-child relationship with Bert. The latter claim was grounded in the idea that it was discriminatory for the state to render all lesbian, gay, and bisexual people—regardless of background, experience, and personality—ineligible to adopt. Bert lived with Lofton and Croteau for almost nine years when the lawsuit was filed. The relationship was now subject to constitutional protection.

Unfortunately, the legal arguments raised by Lofton and his ACLU lawyers did not persuade the federal courts. In 2004, a federal Court of Appeals upheld Florida’s gay adoption ban. But that defeat was temporary because a few years later, a state appellate court struck down the gay adoption ban. That court rejected the notion that there was any plausible justification for a law that prevented sexual minorities, and no others, from the opportunity to show that they could be suitable adoptive parents.  The court noted the extensive reports and studies from social scientists finding “that there are no differences in the parenting of homosexuals or the adjustment of their children. Based on the robust nature of the evidence available in the field, this court is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption.”

 

Before the end of the litigation, child welfare officials allowed Lofton and Croteau to move to Oregon with Frank, Tracy, and Bert. A few months later, social workers in Portland, having heard about the gay couple as a result of the publicity engendered by the lawsuit, asked them to take into their home two young HIV-positive boys (Wayne/Llweyen and Ernie) who had been through a long history of severe abuse and neglect. Less than a year later, Lofton and Croteau obtained permanent foster care guardianship of the boys with the support of Oregon, child welfare officials. Florida officials never found another adoptive family for Bert.

Lofton and Croteau are LGBTQ rights pioneers. Their love for each other and their children proved more robust and enduring than the homophobic law they challenged in the courts. Their lawsuit received immense national and political attention; there was extensive coverage in newspapers, television, and the Internet. That publicity helped show Americans that sexual orientation has nothing to do with good parenting and that LGBTQ families are as nurturing and caring as heterosexual ones. Steven Lofton and Roger Croteau built a family on the best of family values – love, encouragement, and mutual respect. The two men dedicated themselves to providing abandoned children with HIV/AIDS the right to be raised in a safe and secure home.

 

Currently, anti-LGBTQ rhetoric and legislation are fueled by misinformation and hysteria over so-called grooming. Right-wing lawmakers continue to ramp up the culture war and target the LBGTQ community, whether it is around marriage, trans rights, or adoption. Anti-LGBTQ laws desire to legislate the diversity of the human experience, so it conforms to religious-nationalist morality and disregards constitutional rights to protect human rights to “life, liberty, and the pursuit of happiness.”

 

Resources:

Carlos A. Ball, Distinguished Professor of Law at Rutgers University and the author of the books The Right to be Parents and Same-Sex Marriage and Children

https://journalofethics.ama-assn.org/article/testing-newborns-hiv/2009-12#:~:text=Under%20the%20New%20York%20public,for%20the%20test%20%5B11%5D.

https://www.aclu.org/press-releases/aclu-launches-special-web-site-fight-floridas-gay-adoption-ban-protect-families

https://casetext.com/case/lofton-v-butterworth

https://supreme.findlaw.com/legal-commentary/the-family-that-dare-not-speak-its-name.html