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Adoption

Transgender Parents Adopting In California

In 2019, Family Equality conducted a study that found that 63% of LGBTQ+ millennials are considering expanding their families, with 48% of LGBTQ+ millennials actively planning to grow their families, compared to 55% of non-LGBTQ+ millennials. On the other hand, among individuals over the age of 54, 28% of LGBTQ+ individuals already have children, while 68% of non-LGBTQ+ individuals have children.

It has become clear that the difference in parenting rates between LGBTQ+ and non-LGBTQ+ individuals will become much smaller in the future. As many people from the LGBTQ+ community plan to use adoption to expand their families, questions about whether they are legally allowed to adopt and what challenges they may have when trying to adopt will become increasingly important to address. Given the significant number of unadopted youths in California, clearing the pathway to adoption for LGBTQ+ parents could be a significant step towards reducing the number of adoptees and children in the foster care system.

How Does Adoption Work?

Adoption is a legal process that can permanently terminate a biological parent’s parental rights to their children and create a legal relationship between the child and the adoptive parent.  In California, there are several different options for adoption, including:

  • Agency adoptions: The California Department of Social Services (“CDSS”) or an adoption agency licensed by CDSS will place a child for adoption. The agency will file a Petition for Adoption to open a court case to ask the court for permission to allow the adoption to take place. The agency will have to conduct interviews and an investigation into all prospective parents, before writing a report that is submitted to the court. The agency will conduct studies before placing an adoptee into the home, then supervise the placement for at least 180 days before a court can approve of the adoption.
  • Independent adoptions: The birth parent will choose prospective parents to adopt their child and place their child with the prospective parent. If both the birth parent and prospective parent agree, the birth parents’ rights do not need to be terminated. The parents will work with an Adoption Service Provider to help the parents meet each other, fill out all the proper forms, and go over the procedure for adoption. Ten days after meeting with the Adoption Service Provider, the birth parents and the prospective adoptive parents can sign what is called an Adoption Placement Agreement. The birth parent has 30 days after signing the Agreement to change their minds about the adoption, but once the 30 days have passed, the Agreement is final. Once it is final, the adoptive parent can file a Petition for Adoption to ask the court for permission to adopt and will be investigated by a social worker, who will write a report for the court.
  • Step-parent/domestic partner adoption: The spouse or a domestic partner of the custodial parent can file a Petition for Adoption and ask the court for permission to adopt their spouse or partner’s child. The spouse or domestic partner will need the consent of the other biological parent giving up custody to adopt and if they do not, they will need to file a petition to terminate the other parent’s rights. They will also need to be investigated by a social worker, who will write a report for the court.

Challenges For Transgender Parents

Transphobia is deeply ingrained in our institutions and as such, transgender and genderqueer parents can face significant challenges and discrimination when it comes to adoption. Trans individuals were historically thought by the courts to be mentally ill and unfit to parent. Social workers and judges in charge of adoption could decide that a cisgender parent would be in the better interests of a child than a transgender parent. Transgender and genderqueer youth are also especially at risk of facing homelessness or abuse and neglect. While strides have been made to combat discrimination based on sexual orientation, not as many have been made to address the discrimination people face based on gender identity.

In 19 states, there is no prohibition of discrimination based on sexual orientation or gender identity during the adoption process. 11 states permit child welfare agencies to refuse placement and refuse to provide services to LGBTQ+ families if it conflicts with their religious beliefs. There are four states that have statutory or regularly protections against discrimination based on only sexual orientation. And there are 27 states that have statutory or regulatory protections against discrimination based on both sexual orientation and gender identity.

Fortunately, California is one of the states that prohibits discrimination based on both sexual orientation and gender identity. With the passing of Assembly Bill 2684 in 2018, which went into effect in 2020, California acknowledged that “there are still significant protections denied to same-sex parents, transgender parents, and their children” and updated the Uniform Parentage Act to ensure that all parents are treated equally and have access to the same protections. Transgender individuals cannot be prevented from becoming a parent based on the fact that they are transgender and transgender and genderqueer parents are expected to have the same rights when it comes to expanding their families as cis-gender parents. In California, gender diverse children are protected as well. Those who are charged with a child’s care must consider a child’s gender identity when making decisions about who they should be placed with so that they do not end up in the care of someone who will mistreat and abuse them.

However, even with statutory protections in place, families could still be vulnerable when met with agencies, child welfare workers, or family court judges, who could still hold biases against transgender people. Adoption agencies and child welfare workers evaluate prospective parents and determine whether they are fit to adopt. And family court judges determine what is in the best interests of the child. While California’s anti-discrimination laws prohibit them from explicitly denying adoption because they are transgender, they may have implicit biases that unknowingly impact their decisions. As such, it is important to consult an attorney who is informed about transgender parents’ unique needs and who understands the challenges that transgender parents will have to deal with when they are trying to adopt.

The hope is that with statutory protections in place, California is legitimizing and normalizing the expansion of LGBTQ+ families. Combined with continued education, advocacy, and the training of adoption agencies, social workers, judges, and lawyers, we will slowly begin to eliminate the bias and discrimination against transgender individuals that can inhibit them from having the family that they want.

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By: MFL Team

Posted February 02, 2022

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