Tuesday, October 20, 2009

Rep. Pete Stark (D-CA) introduces bill banning discrimination in adoption and foster care placement

I love the title! "Every Child Deserves a Family Act." That's the name of H.R. 3827, introduced last week by California Congressman Pete Stark, a 35+ year liberal stalwart in Congress. The bill bans discrimination in foster care placement and adoption on the basis of sexual orientation, marital status, and gender identity. (The bill uses the term "gender identification."). It would apply to all states receiving federal funds, and it would allow an individual claiming discrimination to file an action seeking relief in federal court. This latter provision is especially noteworthy; often Congress passes laws that CANNOT be enforced by individuals but only through loss of federal funding from the relevant federal agency.

The marital status provision is notable because of the number of states now banning or considering banning adoption or fostering by an individual living with a non-marital partner. This obviously has the effect of banning same-sex couples from adopting or fostering, but it also ban some heterosexuals and states defend it based on the desire for "optimal" placement of children in the homes of married couples. (For more on this, check out my post from the Lavender Law Conference.)

In his introduction of the proposed legislation, Rep. Stark likened the measure to the federal requirement that states not discriminate on the basis of race. "When considering a potential placement for a child," he said, "the only criteria should be what is in the child’s best interest and whether the prospective parents can provide a safe and nurturing home. Bigotry should play no part in this decision." The race analogy is not a perfect one, as the prohibition on race discrmination prohibits agencies from seeking a same-race placement for a child. The desire to find a same-race placement is not the same "bigotry" as a ban on adoption by gay men, lesbians, and transgender people.

The bill contains numerous findings about the suitability of gay parents and the shortage of foster and adoptives homes. It also presents the financial cost of the ban, an angle that has worked in some states to kill proposed state bans. (My post on a panel at the Lavender Law conference refers to this as well.)

The bill has no co-sponsors. I'm not expecting action on it anytime soon. But I am grateful to Rep. Stark for taking a stand, providing visibility on the issue at the federal level.