Three Policies that could Support Human Rights in Gender and Sexual Minority Families

In the United States some (mostly white and heterosexual) people wax poetic about “the traditional family” of the 1950s, looking back on or imagining relationships of that period as iconic of “real” families with moms who worked at home for free (AKA “didn’t work”), married to dads who worked outside the home for pay, and their 2.5 children who went to school, had paper-routes, and played baseball. Even though this nostalgic 50s era family was possible for only a limited slice of the population at the time,[i] the rose-colored vision of how things used to be 65 years ago continues to shape policy decisions and implementation today.[ii] Families in the 1950s included gay people, those for whom gender conventions felt stifling, bi or multi-racial members, non-marital childbirth, and divorce – they were simply less common and far more covert. Today that familial diversity has only expanded, along with a host of other important social shifts like women’s increasing economic independence and increasing sexual, racial, ethnic, and religious diversity across the nation.

Real Families

 Unfortunately, laws and policies designed to serve those who already had race, class, and heterosexual privileges remain in place and continue to fail the many families that fall outside of that narrow definition. These antiquated regulations serve families that only existed for a short period of time, even then only for a limited section of the population, and today are in the minority. Certainly some people marry and maintain one paid worker and one stay-at-home parent who (at least for a time) steps out of the paid work force in order to take care of the children, but these families are no longer the majority. Even though families with a full-time earner and a full-time parent are the statistical minority, current policies are still designed to serve families as if everyone with children has a full time caretaker at home. Shifting policies to better serve families as they are, rather than how we imagine them to have been decades ago, will not undermine heterosexual, dyadic families – they will still be covered under health insurance policies, inheritance laws, and hospital regulations.

Family Rights are Human Rights

In this piece I focus on laws and policies regulating marriage, parenthood, and the distribution of social benefits. Not only are they are among the most important laws and policies impacting families of all types, they are also the most relevant to gender and sexual minority (GSM) families. By denying members of GSM families the access to full family status, these laws and regulations flout these rights identified as fundamental to human rights by the UN Declaration of Human Rights[iii] and the Yogyakarta Principles.[iv] UN article 25, section 2, states that: “Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.” Yogyakarta principle 24 states that: “Everyone has the right to found a family, regardless of sexual orientation or gender identity. Families exist in diverse forms. No family may be subjected to discrimination on the basis of the sexual orientation or gender identity of any of its members.” Clearly, marriage prohibition, limiting legal parents to two, and denying needy children benefits because their parent(s) have the wrong race, gender, or sexual orientation discriminates against SGM families. Three policy changes could redress these discriminatory practices.

Policy Recommendations

1.     Legalize marriage for all, and remove marriage as the gatekeeper to benefits

By limiting federal legal marriage to monogamous “opposite-sex”[v] relationships, the government denies people in same-sex, polyamorous/multiple-partner, or transgender families the myriad social, practical, legal, and financial benefits that legally married people often take for granted. This marriage prohibition makes life harder, more tenuous, and more expensive for GSM families. Because people in same-sex relationships are barred from legally marrying in most of the United States, they are not able to receive the basic insurance protections for their partners and children who are not biologically related to them on their health insurance. Even in states that have legalized same-sex marriage, people in same-sex relationships are excluded from 1,138 Federal rights related to things such as Social Security and associated programs (housing, food stamps, etc.), veteran’s benefits, taxation, inheritance, intellectual property, financial disclosure, conflict of interest, and immigration.  Rather than “special rights,” SGM families are denied regular rights that people in other-sex relationships have. Encoding second-class citizenship into marital laws only further alienates already disenfranchised sexual minorities and perpetuates institutionalized homophobia. Worse yet, it hurts the children from those families.

Not only should people in same-sex relationships be allowed to legally marry, but people in multiple-partner or other kinds of relationships with other consenting adults should be allowed to marry as well. What is consent and who counts as an adult – those are important questions we will need to answer as a society in order to establish effective family policies effectively

In addition to ending marriage prohibition, policies and laws should shift away from relying on the marital unit as the gateway to benefits, be they health insurance, Social Security benefits, or tax breaks. Will it be complicated to deal with individuals on a different basis than their marital status? Yes, without question. So will the continuing discussion around defining the social boundaries of marriage. In fact, it is already complicated – society is complicated and we have got to learn to deal with it. Simply pretending this wide variety of families does not exist is not working – we need to adjust policies and distribute benefits according to people’s needs, not their relationship, sexual, or gender statuses.

Policies and laws should expand to recognize multiple levels of relationships among adults. Currently, most regulations recognize a very limited scope of relationships among adults – primarily biological relatives or legally married couples. To more effectively support contemporary families, laws should recognize connections between and among significant others like siblings, co-husbands, or life-long friends who function as family members. By recognizing adults’ relationships, laws can support connections between and among adults who are attempting to care for children or each other. In a society with a crumbling social safety net, the more ways in which people can care for each other the better.

2.     Allow multiple legal parents

Currently, there can be only two legal parents of any child, and if someone else seeks to become a parent, then one of the other parents must relinquish parental rights prior to the new parent being legally recognized.[vi] Rather than making it more difficult for adults to attach to children, policies should allow multiple adults to be legal parents to the same child in order to distribute the extensive emotional, practical, and financial needs associated with raising a child among multiple adults. By officially recognizing multiple parents, policies can help to attach more adults more securely to children.

By limiting the number of parents children are legally allowed to two, the government discriminates against polyamorous/multiple partner, blended, and adoptive families. While in some rare cases courts have legally recognized three parents, the vast majority of children are only allowed two legal parents even if there are other loving adults in their lives who are willing to take on legal responsibility for the children. This is a mistake, because raising children is hard, demanding, and requires extensive resources of time, energy, and money. While terribly cliché, it really does take a village to raise a child in a way that is humane for the adults. Single people can be exceptional parents, but almost always at the expense of their own personal time, social lives, and sleep.

In my 15-year study of children in polyamorous families, I have found that children with many adults to give them attention, love, guidance, emotional care, and material support often have strong feelings of wellbeing and contentment.[vii] Most children whose needs are met can be content, and having access to adults who love them helps children get their needs met. Those adults are better able to plan their lives together, establish long-term support networks, and remain resilient through life’s challenges when their relationships are recognized as legitimate and afforded the same protections that other families enjoy.

Obviously multiple parents can introduce additional complexities, which would require courts and policy makers to create new ways to manage the complexity. I suggest assigning parents to specific portions of the child’s life that best fit the specific parent’s strengths: educators should be in charge of the children’s education, medical professionals should be the chief decision makers when it comes to medical issues, and the primary caretaking parent should have the most say in disciplinary situations. With rights come responsibilities, and these additional parents would be responsible for supporting the children financially as well as emotionally and physically.

3.     Give benefits directly to children in need, regardless of parental marital status, gender identity, sexual orientation, race, religion….

Obviously I don’t mean we should hand children wads of cash, but refocusing regulations on children — rather than the adults to whom they are related — would far better serve children in diverse families. If a child is in poverty, lacks health care, clothes, or food, that child should get assistance regardless of the status of the child’s parent(s) because those are human rights. Rather than concerning themselves with who lives in the home or if the child’s mother has a marital/sexual/any relationship with the child’s father, policies should be based on what is best for the child.

Conclusion

It is clear that the singular family model of the monogamous, heterosexual couple linked by romance alone, precariously perched on their unwavering emotional, sexual, and financial investment in each other does not work for everyone. As numerous divorce studies illustrate, for at the least 40% to 50% of all marriages that experience a “disruption,”[viii] one size no longer fits all, and blended, serial monogamous, same-sex, and polyamorous families are here to stay. Policies and laws should catch up to serve society as it actually is rather than punishing people who do not fit the white, middle-class, heterosexual, monogamous model of 65 years ago. For some people, family forms with broader foundations are more flexible and resilient, better able to meet the complex needs of diverse contemporary lives. Policies and laws should legally recognize and serve these families because they are humans too.


[i] That era also included — for far too many African American families — police attack dogs menacing school children and doing worse to protesters, blasting by water hoses, and church bombings that murdered children: not particularly idyllic for them.

[ii] See Stephanie Coontz’s excellent series of books on this topic The Way we Really Are (1997),  The Way we Never Were (2000), and Marriage: A History (2005) for a complete discussion of those ideas.

[v] While I realize that the term “opposite sex” is problematic because it implies that there are only two sexes and that they are polar opposites – ignoring genderqueer, intersexed, and transgendered people– I use it here because that same language is reflected in legislation and colloquial discussion.

[vi] In some cases, lesbian couples choose to have the egg of one partner extracted, fertilized, and implanted in the other partner, so both women and the man who provided the sperm are biologically related to the child. Specialized cases like that allow for multiple parentage, but the vast majority of localities allow only two legal parents at any point.

[vii] Sheff, Elisabeth. 2013. The Polyamorists Next Door: Inside Multiple-Partner Relationships and Families. Rowman and Littlefield.

[viii] (Cherlin 2010, 405),

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