Introduction
On June 26, 2015, the U.S. Supreme Court, in Obergefell v. Hodges, declared unconstitutional all state laws barring gay and lesbian couples from marrying, crowning what many regard as the “swift shift” toward both judicial and public support for lesbian- and gay-headed families (Knickerbocker Reference Knickerbocker2015; Roeder Reference Roeder2015). Beginning in earnest in the mid-1980s, but gaining traction in 2004—when Massachusetts became the first state to offer marriage licenses to same-sex couples—the movement to legitimize same-sex couples and families has been characterized as “the fastest of all civil rights movements” (Barabak Reference Barabak2012).Footnote 1 Today, over fifty percent of the public supports marriage equality—a figure that seemed unattainable a decade ago (Pew Research Center 2015). However, these “swift shifts” in court and public support aside, gay and lesbian parents face significant ambivalence and hostility when performing their familial obligations.
Despite Obergefell's mandate barring state-imposed efforts that “harm and humiliate” the children of same-sex couples, lesbian and gay parents continue to encounter both legal and social skepticism about their familial claims. For instance, exactly two months after Obergefell, a Maryland Court of Special Appeals stripped Michelle Conover—a lesbian mother—of her parental status over her five-year-old son Jaxon (Gash Reference Gash2015c). The opinion rested not on Michelle's parenting capabilities but on her marital status (Conover v. Conover 2015). At the time of their son's birth, Michelle and Brittany (Jaxon's biological mother) had not yet married. According to the court, without a formal adoption or a biological connection, the six-month lag between Jaxon's birth and the couple's marriage rendered Michelle a “third party” with little leverage to claim visitation or custody rights. Although Michelle and Brittany did marry and had planned their co-parenthood—selecting, together, a sperm donor with Michelle's characteristics and giving to Jaxon Michelle's middle and last names—Michelle was deemed a legal stranger to her son. On July 7, 2016 Maryland's highest court ruled that de facto parents, like Michelle Conover, should be given parental standing in custody battles.
Michelle Conover's story, while disturbing, is not surprising. Lesbian and gay parents have become accustomed to wavering acceptance of their parenting claims. Despite a growing public interest in and support for the parenting capabilities of lesbian and gay parents (stimulated in great part by the marriage equality movement), their parenting status is fraught with ambiguity and is a site of ongoing legal and social contestation. As Michelle Conover's case suggests, even post-Obergefell, lesbian and gay parents face legal and social challenges to their claims of parenthood.
Parental status ambiguity emanates from several sources. First, although many have, not all judges have been willing to apply heterosexual family law precedent to gay and lesbian parenting cases. Often, determinations of parental status hinge on family court interpretations of state or common law doctrine. Where judges have extended heterosexual parenting precedent to gay and lesbian parenting cases,Footnote 2 they have relied on the “best interests of the child” standard to legitimize same-sex couples as legal co-parents to their children, regardless of marital status.Footnote 3 However, some judges have been reticent to grant lesbian or gay co-parental status where there is state legislative ambivalence on the topic. For these judges Obergefell may offer little guidance. Although the Court rests some of its decision to constitutionally protect marriage rights for same-sex couples on the rights of children raised in lesbian and gay-headed households, it leaves open the specific legal question of parental rights. Second, public attitudes are tenuous. Although most surveys report majority support for same-sex marriage and adoption rights (Jones, Cox, and Navarro-Rivera Reference Jones, Cox and Navarro‐Rivera2014), this support varies considerably among individuals and communities, and may come with caveats. For instance, a poll conducted shortly after Obergefell found that forty-nine percent of respondents supported the capacity for local officials with religious objections to be exempted from issuing marriage licenses. Fifty-six percent argued that religious liberties should prevail in a conflict between religious and LGBT rights (USA Today 2015).
In general, however, state laws, judicial precedent and aggregate measures of public support provide little insight into how lesbian and gay parents experience their legal and social options. Even in a state with progressive marriage and parenting laws, individuals with authority may challenge gay and lesbian parents as they attempt to access institutions that are fundamental to their parenting. Lesbian and gay parents require more than just public tolerance or passive acceptance in order to exercise their parenting rights.Footnote 4 Rather, in order for parents to carry out their responsibilities, individuals, particularly those who work with children, must acknowledge and authorize lesbian and gay parenting claims. Societal resistance to lesbian and gay parenthood—pronounced during the decades of marriage equality litigation but rampant long before and since—has stymied parents' efforts to gain recognition. Societal apprehension, buttressed by cumbersome legal narratives, makes it difficult for many lesbian and gay parents to perform their caregiving responsibilities without first adopting strategies that anticipate potential contestation.
This article asks how people, here gay and lesbian parents, exercise their rights and responsibilities within an environment marked by significant legal confusion and social apprehension. How do these parents understand their options and make decisions? We use the term “legal status ambiguity” to capture how uncertainties within the law combine with shifting attitudes, ignorance of the law, and long-lasting animosity among individuals to destabilize the capacity for lesbian and gay parents to assert and enact their legal status. Borrowing from legal consciousness scholars, we argue that individuals' lives are defined by the availability and absence of laws and social norms that define whether our choices and actions are permitted, accepted, or recognized as legitimate. Laws and norms determine our options and validate our choices. Our capacity to negotiate the everyday, then, rests on both our understanding of the legal markers that inhibit or support our actions and the degree to which institutional gatekeepers (e.g., teachers, doctors, employers, administrators) share a similar view of our legal standing. For example Kim Davis, a registrar in Kentucky, refused to issue wedding licenses to same-sex couples in the weeks that followed Obergefell, effectively nullifying (temporarily) lesbian and gay marital rights in her county. Similarly, six months after the Federal ruling Judge Roy Moore, Chief Justice of the Supreme Court of Alabama, ordered Alabama's probate judges to refuse applications for marriage licenses by same-sex couples. In response to a formal complaint by the state's Judicial Inquiry Commission Judge Moore argued that he was upholding the law according to his interpretation as a judge. The corollary in the parenting context is a clerk's refusal to include both lesbian parents on a child's birth or death certificate (as Iowa clerks did after the state's high court legalized same-sex marriage in 2009),Footnote 5 or a hospital's refusal to recognize both gay parents' legal authority to make medical decisions on behalf of their child (as one legally married Ohio couple experienced post-Obergefell) (Gash Reference Gash2015b). Our interviews highlight how lesbian and gay parents strategize ways to anticipate and address exactly this type of resistance or apprehension.
The case of same-sex parenting illustrates how our legal status is determined by the availability, interpretation, and acceptance of laws that protect our interests and delineate our obligations. This status influences the ease or difficultly of fulfilling our roles and accomplishing our goals. When the law is muddled or in flux, the perceptions of institutional gatekeepers hold more sway. Groups in good favor will receive the benefit of good will while those with tenuous support may encounter resistance. Of course, lesbian and gay families are among many vulnerable families who have faced challenges stemming from fluctuations in their legal standing. Any family that diverges from the two-parent-married-biological model may experience social approbation, legal discrimination, or misrecognition. Scholars have developed a rich literature on the family as an ideological construct and the ways the state legitimates or punishes pregnancy, marriage, and family cohesion (Collins Reference Collins, Glenn, Chang and Forcey1994, Reference Collins1998; Roberts Reference Roberts1997; Solinger Reference Solinger2005; Rivers Reference Rivers2015). Families negotiate kinship and strategize childrearing in the context of racial discrimination, immigration restrictions, and economic disenfranchisement (Stack Reference Stack1974; Lau Reference Lau2006; Fujiwara Reference Fujiwara2008; Polikoff Reference Polikoff2008; Moore Reference Moore2011; Abrego Reference Abrego2014). Carol Stack's early work on African American families describes the way legal definitions of parenthood often do not recognize the systems of kinship that communities use to raise children or to strengthen their families (Stack Reference Stack1974, 46). Welfare policies based on racist or nativist ideologies of family punish unmarried mothers and counteract functioning family formations (Mink Reference Mink1998; Fujiwara Reference Fujiwara2008; Gash and Yamin Reference Gash and Yamin2016). Similarly, both capricious and entrenched immigration laws and exploitative labor policies have long affected the parent–child connections of immigrant and transnational families and their strategies of survival (Zavella Reference Zavella2011; Abrego Reference Abrego2014). For many types of families, bureaucratic misrecognition of kinship ties can be delegitimizing at best and threatening to basic survival at worst.
The recent, dynamic, and continued legal battle over the legitimacy of gay and lesbian families permits us to explore how vulnerable families contend with legal change while their legal narrative unfolds. Lesbian and gay parenting provides an ideal lens through which to identify how shifting or incomplete legal supports coupled with tenuous social acceptance affects individuals in their roles as both the subject of policy debates and the consumers of legal instruments. The parents we interviewed are not passive observers of legal change. Instead, through the act of parenting, they are actively demanding that institutions and administrators accommodate, or at least acknowledge, an alternative to the heterosexual-married-two-parent model. The mere fact of same-sex parenting forces those who work directly with children and families to determine whether they will accept lesbians and gays as parents and how they will respond to their children. When they attempt to fulfill their parental obligations, lesbian and gay parents must first prove their parenthood—often in venues that are the most resistant—and they must do so repeatedly throughout the life of their child (Stein Reference Stein, Frank, Clough and Seidman2013). They interact with state actors when attempting to secure vital records.Footnote 6 They engage with teachers, doctors, administrators, and numerous other institutional actors to educate their children and keep them healthy. In short, lesbian and gay parents must be accepted as parents in order to perform the activities expected of parents; at the same time, those very performances claim the space and identities of parenthood. Because they are denied the presumptive parenthood accorded to heterosexual couples, lesbian and gay parents' parenting activities are at once unremarkable and generative of new definitions of family and parenthood.
Interview Participants
As part of a larger nationwide project in which we explore how uncertain legal and social environments challenge gay men and lesbians as they raise their children, we interviewed thirty-one gay and lesbian Oregon parents and their six adult children (see the Appendix for interview details). These parent participants are among the first generations of lesbians and gay men in Oregon to openly and intentionally have or raise children together. They embarked on parenthood during the period we refer to as the “transition to tolerance”—from 1985 (when a Multnomah County, Oregon judge issued one of the nation's first orders recognizing two lesbians as co-parents) through 2013 (moments before marriage equality arrived in the state). Throughout this period, gay men and lesbians fought for and received increasing state employment, relationship, and parenting protections. Yet, they were also the targets of increasingly virulent and public anti-gay campaigns. It is against this backdrop of political, legal and social turbulence that our interview participants raised their families. Our story engages that history and the weight of that history on LGBT parents who are still contending with legal and social resistance.
Our interview participants represent two generations of lesbian and gay parents—many of whom we contacted through two iterations of informal lesbian and gay parenting groups. The first embarked on parenthood in the early 1990s and had high school or college-aged children during our interview period. The second group formed and raised their families a decade later, from the early 2000s to 2013. These individuals ranged from “expectant parents” to parents of elementary or middle school age children during our interview period. By examining the experiences of two same-sex parenting generations we can determine whether overall progress towards greater acceptance of lesbians and gays in the state dramatically altered how lesbians and gays experience parenthood. This study contextualizes same-sex parenting historically to suggest how lesbian and gay parents respond to legal and social transitions, gaps, and impediments that they have faced in the past and that remain post-Obergefell in Oregon and elsewhere in the nation.Footnote 7
Despite generational differences, our cohorts share several important characteristics. First, none of the parents in our two cohorts could legally marry when their children were conceived or adopted—although most obtained state-recognized domestic partnerships. Second, each of the parents planned their families. While the context or method for family planning varied significantly, those differences were not generationally determined. For instance, in both groups we interviewed parents who used assisted reproductive technologies (ART) to conceive children; parents who adopted their children; and parents who conceived their children in heterosexual marriages, divorced, and later fought and won the right to raise their children with their partners.Footnote 8
The two cohorts also share similar demographic traits due to our recruitment from self-formed parenting groups in Oregon. The majority of the parents we interviewed are white and middle-class and those who are working class have college or advanced degrees. Additionally, many of the interviewees are social service professionals—doctors, lawyers, judges, therapists, social workers, and teachers—and understood how to navigate the bureaucratic terrain of parenthood. In many ways, then, the families featured in this article represent those with the greatest access to legal protection and social support for LGBT parenting during this period. They are educated, income-stable, reside within politically and ideologically liberal communities, and were able to create and prepare for their families. They had the knowledge, resources, and support to pursue parenthood even when the broader legal and social context did not fully legitimize their choices. This likely makes our participants, more than other lesbian or gay parents who face challenges beyond sexuality-based categorical exclusions, inclined to have a positive view of the capacity for law to protect their interests. Despite their unstable legal status regarding their families, our interviewees' desire for and trust in legal recognition reveals their otherwise privileged relationship to law.
Yet, our families did encounter significant legal and social contestation when forming their families and raising their children—and developed strategies to both anticipate and offset these challenges. This was true across the board. Regardless of generational and family formative differences, we find a remarkable parity of perspective among the parents we interviewed. Their interviews reveal a shared and consistent trepidation about the strength and stability of their legal protections that prompted their anxieties and creative uses of law and activism. To combat significant public contestation over their parenting roles, these parents had to simultaneously protect their familial privacy while making public assertions about their identity and skills as parents. To contend with insufficient legal protections and inconsistent legal recognition, gay and lesbian parents attempted to create a net of coverage from a cobbled-together set of discrete legal and social safeguards. Legal status ambiguity rendered our participants dually burdened by fluctuating legal protections and significant public skepticism, which left these parents vulnerable to misinterpretations regarding their authority to access critical parenting tools or execute fundamental caregiving responsibilities.
Our interviews reveal three distinct categories of motivations and reactions. First, the parents searched for and utilized any legal mechanism to prove their parenthood claims and address gaps stemming from their complicated legal status. Second, the parents we interviewed frequently referenced the law to legitimize their parenting narratives when presenting their families to the public. And, third, the parents became active advocates to showcase how (and at what cost) the law fails to fully acknowledge lesbian and gay parents and their children, and to advance broad-scale changes to fill these legal vacuums.
Oregon
We focus our investigation on the time period between 1985 and 2013 in Oregon because, in many ways, during this almost thirty-year period, the state served as a national trendsetter on both advocacy for parenting rights and opposition to gay families. The shifting political, legal, and social landscape of this state provides a useful backdrop for examining the experience of legal status ambiguity of lesbian and gay parents more generally.
Oregon is a legal pioneer in same-sex parenting. To be sure, litigation on behalf of lesbian and gay parents began well before 1985 and in courtrooms across the country. However, for the most part these earlier cases involved individual lesbian and gay parents struggling to maintain custody of their children from prior heterosexual marriages. Litigation waged on behalf of co-parenting same-sex couples was far less common and generally unsuccessful. Oregon's first (and among the nation's earliest) “second parent adoption”—issued by a Multnomah County family court judge in 1985—marked a shift in the legal possibilities for same-sex couples (Gay and Lesbian Advocates and Defenders [GLAD] 2005). Second-parent adoptions permit the biological or legally adoptive parent in a same-sex couple to extend parenting rights to their partner without relinquishing their own parental rights (as would be the case in a traditional adoption). Within twenty years, over half the states would offer this option—even as the vast majority of states barred same-sex couples from marrying. Second-parent adoptions provided our interviewees with a legal tool to help overcome the frequent and seemingly insurmountable obstacles they encountered when executing their parenting responsibilities. To be sure, as this article demonstrates, second-parent adoptions hardly appeased widespread resistance to lesbian and gay parenthood, but they empowered gays and lesbians to conceive of themselves as parents and provided them with powerful tools to assert their parenting rights and activities.
On the marriage front, too, despite the state's 2004 constitutional amendment barring same-sex marriage, Oregon was relatively early to grant same-sex couples significant marital protections. In 2008 state legislators began offering full marital benefits to same-sex couples through domestic partnerships. While other states had implemented domestic partnerships or civil unions, Oregon was among only a handful of states to fully load these “marriage alternatives” with the full range of marital benefits. From this vantage point, then, Oregon provided gays and lesbians with a welcoming legal landscape.
On the other hand, the landscape of opportunities for lesbian and gay couples was equally shaped by the call and response between the state actors who supported gay rights and voting majorities who feared them. While state officials legislatively and judicially fortified the rights of lesbian and gay Oregonians, right-wing activists in the state launched virulently anti-gay ballot measures. In fact, Oregon became an early target (along with six other states) for the growing anti-gay movement to test the popularity of both the language and the substance of its proposals (Stone Reference Stone2012).Footnote 9 In the mid-1980s, as gay men and lesbians gained traction in the Oregon courts and with political elites (both Republican and Democratic governors), the Oregon Citizens' Alliance (OCA), a group of conservative Republicans led by Lon Mabon, emerged. As with many of the religiously motivated conservative groups that established themselves during this time, the OCA was looking for an issue that would confirm their status as a major political force in state politics. When Governor Goldschmidt issued an executive order in 1988 barring all state agencies from discriminating on the basis of sexual orientation, the OCA jumped at the chance to showcase its conservative political influence and brought the Governor's order to the voters. Fifty-three percent of voters opted to overturn the order and to make such protections illegal for state government employees. A state appellate court later overturned the initiative, but the OCA's ballot box victory boosted its status from fringe group to major player in Oregon politics (Merrick v. Board of Higher Education 1992).
Between 1992 and 2000 the OCA used its clout to initiate a series of state measures designed to both limit gay rights and tie up LGBT advocacy resources that would have been deployed elsewhere. Among these was Measure 9, a 1992 initiative that asked voters to constitutionally enshrine “homosexuality, pedophilia, sadism, and masochism” as equally “abnormal, wrong, unnatural and perverse.” Voters were encouraged to believe that gays and lesbians were a sinister threat to children. All of the measures failed but only by slim margins provided by liberal majorities in Portland and Eugene. Similar campaigns waged in Oregon's more conservative communities between 1992 and 1994 successfully produced anti-gay policies in over twenty-five counties and cities (Stein Reference Stein2001). These initiatives barred cities and counties from enacting ordinances to protect gay men and lesbians from discrimination and prohibited spending public money to “promote homosexuality.” Oregon legislators and judges quickly outlawed antidiscrimination bans and expanded hate crimes legislation to include sexual orientation. Overall, though, the tenor and outcomes of these campaigns deeply threatened the safety of LGBT people living in Oregon, including the parents we interviewed. The social approbation against homosexuality, nurtured and promoted by recurrent OCA campaigns, raised a great deal of fear for these new parents, and some responded by defiantly and publicly asserting themselves as parents. Anti-OCA activism was one of the first venues where lesbian and gay families, many with young children, became visible as a growing segment of the LGBT community. One of our interviewees who grew up in a two-mother family at the time of these campaigns says, “I remember going to [No on 9] rallies and not really being sure what it was, and then asking my mom, ‘Why are we so against the number nine?’” (Interviews 27–32).
Gay and lesbian Oregonians continued to contend with volatile policies even after OCA lost its standing in Oregon politics. In 2004, gay rights opponents initiated Ballot Measure 36 to constitutionally deny marriage to gay couples after Multnomah and Lane county commissioners authorized their clerks to issue marriage licenses to same-sex couples. The measure passed and was upheld by the Oregon Supreme Court (Li et al v. State of Oregon 2005), retroactively annulling over 3,000 same-sex marriages that had been authorized in the two counties. The amendment remained active for 9 years. To offset this loss at the polls, the gay rights groups lobbied state legislators to pass domestic partnership legislation. Domestic partnerships went into effect in 2008 and provided same-sex couples with most of the state's marital benefits and protections.
In 2014, after U.S. v. Windsor (2013) terminated federal proscriptions against same-sex marriage, Oregon's Attorney General announced that, if challenged in court, the state would not defend its same-sex marriage ban. On May 19, 2014—in the midst of a sweep of similar federal decisions—a Ninth Circuit U.S. district court judge declared the ban unconstitutional. Same-sex couples could, officially, obtain marriage licenses under state law.Footnote 10
Oregon's “transition to tolerance” foreshadows national turbulence over same-sex family rights that began in earnest a decade after Oregon's first second-parent adoption—when Congress passed the Defense of Marriage Act and the nation became embroiled in a twenty-year fight over marriage equality. It is through Oregon's history of profound legal and social volatility that we can interrogate how lesbian and gay parents respond to or compensate for a social and legal environment that has at times championed and at others chastised gay and lesbian parenting efforts. The two generations of lesbian and gay parents we interviewed are among the first families who sought to conceive or adopt children within their same-sex relationships and rode the roller coaster of Oregon's changing laws and attitudes as they raised their children. As they planned their families they were well aware of the hostility against and legal losses of the lesbian and gay families that preceded them. And while they benefited from early legal efforts they were also haunted by this history and were anxious about their perceived and actual vulnerabilities to losing their children.Footnote 11 These two generations of parents continued to anticipate and account for any fault lines that could undermine their parental status and disrupt their children's care.
Legal Status Ambiguity and Gay Parenthood
To date, little has been written about the consequences and conditions of legal ambiguity—particularly how individuals cope with fluctuating legal environments. Research on legal ambiguity focuses primarily on organizational “sense-making” and compliance (Bumiller Reference Bumiller1987; Bybee Reference Bybee2000; Edelman et al. Reference Edelman, Patterson, Chambliss and Erlanger1991). By shifting the focus from organizational to individual responses to ambiguity, we join the growing number of scholars who recognize the influence that individuals have to shape and create their legal environment. These scholars are moving the study of law from “its traditional focus on formal legal institutions” to the individuals who are both the subjects and consumers of law (Hull Reference Hull2006). At the core of this scholarship is the belief that law does not merely constrain or regulate everyday actions but is created and reformed in the context of its everyday use (Whittington Reference Whittington1999; Sarat and Kearns Reference Sarat and Kearns2009).
In this tradition, scholars argue that individuals develop a “legal consciousness” and understand their environments in terms of legal constraints and possibilities. In their attempts to “experience and understand the law” and apply it to their circumstances, individuals animate and construct the law (Hull Reference Hull2003, 630). Even those who have been marginalized from mainstream legal protections may still view the law as a legitimate tool for managing their disenfranchisement. Individuals may use legal symbols and tools to frame their actions, even when legal structures negatively implicate them (as gay couples did when they held marriage ceremonies in the absence of marriage equality), or fight for new laws to formalize their extra-legal relationships (Ewick and Silbey Reference Ewick and Susan S1998; Hull Reference Hull2003). Scholars demonstrate that the law, even where it is clearly defined, “can never fully capture or organize the everyday” because the everyday “is a force in motion and a clash of forces that never fully reveal themselves” (Sarat and Kearns Reference Sarat and Kearns2009, 7). Because legal instruments and institutions cannot possibly account for every possible source or instance of conflict, individuals hold significant sway in whether and how laws are applied and followed.
Legal status ambiguity is especially pronounced for lesbian and gay parents whose demand for legal recognition has outpaced the availability of relevant protections. Despite significant and rapid changes in the laws that govern same-sex couples and families, the legal climate for gay and lesbian parents is incomplete. Nationwide marriage equality is new—and in many states, continued resistance poses challenges for gay and lesbian couples. Parental legitimacy remains at the mercy of judges who are still sorting through how new marriage laws for same-sex couples intersect with longstanding parentage laws to determine a lesbian or gay parent's legal status. For instance, many states rely on statutory definitions of motherhood and fatherhood that differ from each other. Motherhood hinges on a biological or adoptive relationship. Fathers, conversely, can rely on written documentation or provide evidence of caregiving. These gender differences complicate parentage claims for same-sex couples, especially when their marital status is unsettled and there is no second-parent adoption. For instance, in a case involving two legally married lesbian parents, a New York state court denied the nonbiological parent legal status because, like Michelle and Brittany Conover, the couple was not married at the time of their child's birth—a fact which rendered the nonbiological parent, like Michelle Conover, a legal stranger to her child. The court in this instance admitted that the decision may have been different had the issue concerned paternal rather than maternal status (Paczkowski v. Paczkowski 2014).
Advocates point to cases like these to encourage gay couples to seek out second-parent adoptions even if they are legally married. These, however, are not always an option. First, although they have been successfully litigated in a majority of states, in some states second-parent adoptions have been either explicitly rejected by courts or legislatures or are only available through specific judges in a small set of counties or districts (Richman Reference Richman2008). Second, the process is expensive—up to $5,000 when legal fees, court costs, and home visits are tallied—and incorrectly presumed redundant by couples who are married.Footnote 12 Finally, the portability of second-parent adoptions has recently been called into question by a post-Obergefell Alabama Supreme Court decision to overturn a second-parent adoption that was issued by a Georgia state court. Although the U.S. Supreme Court overturned the Alabama decision (arguing that the Constitution's full faith and credit guarantees required Alabama to uphold the Georgia adoption), the publicity of such cases reinforces a sense of precarity for some gay and lesbian parents even in a time when such rights should be clear.
Over the past three decades, interstate variation on parenting laws, as well as confusion about lesbian and gay parental rights within Oregon, rendered many of our interviewees both overanxious and underprepared. They had little confidence in the capacity for legal structures to safeguard their parenting rights or in their own understanding of their legal climate to protect their children. They therefore parented in a constant state of disaster-preparedness—thinking and planning for all the counterfactuals and negative outcomes. However, despite their “readiness,” they were unable to accurately anticipate the fault lines in their protections. For instance, one of the first-generation parents we interviewed recalled having to struggle with local Social Security office staff, after her partner's death, to properly transfer benefits to their children. Even though she had “second-parent adopted” her children, her partner's Social Security number had not been automatically linked to her children's, an issue that not even her attorney had foreseen (Interview 2). These kinds of legal complexities and never knowing if they had accessed all available protections had profound effects on the parents we interviewed; their parenting was deeply influenced by the historical legal struggles of gay and lesbian parents before them and their own experience of current legal status ambiguity.
Experiencing Status Ambiguity
At any given moment, gay or lesbian parents may be considered legal parents or legal strangers to their children depending on the regional, institutional, or policy setting within which their parental status is raised—a fact which is highlighted in a flurry of recent post–marriage equality court decisions (like Michelle Conover's) that have stripped lesbians of their parental status.Footnote 13 Our participants' experiences in Oregon are instructive in this regard; they exemplify exactly the kinds of struggles over status ambiguity that same-sex couples residing in Obergefell-resistant communities will likely experience as they continue to assert their legal rights.
The interviews provide insights into the ways in which status ambiguity can infiltrate all aspects of lesbian and gay familial life, leaving lesbian and gay parents in a state of “not knowing what they need to know” and not knowing who to ask or how laws and policies might affect them. As one first-generation mother described it, “It's very confusing. You have a sense that you are sort of a second-class citizen, but you never know for sure” (Interview 2). Even those parents who could afford to hire an attorney to secure second-parent adoptions or draw up legal documents such as wills, durable powers of attorney, or beneficiary contracts, often felt “unsettled,” as if they had neglected to plan for a critical and unanticipated contingency (Interview 13).
Travel was a source of significant anxiety. In light of varying state laws regarding second-parent adoption, many parents worried that their parental designations would not hold if they moved across state lines. When career constraints required one lesbian couple to leave Oregon shortly after the birth of their son, the nonbiological parent worried about the viability of her parenting status in other states (Interviews 11 and 12). The same held true for international travel. At least two couples encountered resistant border patrol guards while traveling to England and Canada. One couple in the first-generation cohort was repeatedly questioned by a customs official about their relationship with their son since she did not understand or believe that both women were his parents. Despite information on the boy's passport, the official then questioned their son's gender, asking him to turn around, show her his long hair and tell her his gender. As his mother recalls, “She just wanted to harass us. It was awful, really awful for him” (Interviews 4 and 5). Another couple, in our second-generation group, was accused of kidnapping their daughter. The guard, recollected the couple, asserted that they could be sisters, one of them fleeing from an abusive relationship and taking the child across the border. After the couple answered a barrage of questions about their relationship, the guard remained skeptical, and asked, in what they perceived as disbelief, “You are her mother [and] yet, she's her mother too?” (Interviews 14 and 15). This couple reported that they were both deeply insulted and disquieted by the guard's aggressive and lengthy questioning.
Intergovernmental variation also presented a substantial obstacle for same-sex parents. Explained one first-generation father of three with a second-parent adoption,
In Oregon, we were both considered parents. But there were still a lot of legal limitations. On our taxes I took two kids and he took one. But we were both single parents of our kids. Then Oregon changed and had domestic partnership, so we could co-parent as domestic partners. But on a national level we're still single parents… . So depending on who you're asking, we were sometimes allowed to and sometimes not allowed to be their parents. (Interview 18)
Without stable legal guidelines or acceptance of their status, gay and lesbian parents encountered a host of unexpected obstacles. Facially benign or neutral procedures like completing a home study for a second-parent adoption or talking to a social worker before receiving fertility treatments left couples vulnerable to assaults on their parenting capacity and legitimacy. A number of participants were required to submit to a pre- and post-“placement” home study as part of their second-parent adoption.Footnote 14 The home studies were costly ($500 each), but also substantively irrelevant. “Regardless of what the social worker wrote in her ‘pre-placement’ study,” explained one nonbiological mother of her then two-year-old's home study, “he would remain living in our house. There was no acknowledgment that he was already our son. The first visit was to determine ‘what kind of child’ we wanted to adopt. The second assessed how ‘he was adjusting’ to the adoption. They just didn't make any sense” (Interview 35). Another first-cohort mother recalled snapping under pressure during her home study when their social worker asked what she felt was a biased question regarding their plans to provide “good heterosexual models” for their child. The mother retorted: “Do you ask all the straight parents whether they are going to provide good homosexual models for their children? If you do, then I'll answer that” (Interviews 4 and 5). Some parents had to submit letters from neighbors, family members, and friends attesting to their parenting potential. These misapplied requirements ignored their de facto parenthood and the parental ties that already existed and exposed parents to inappropriate and intrusive interrogations of their personal lives, relationships, and plans for their children's upbringing.
These procedural obstacles imposed real stressors. One second-generation nonbirth mother recalled feeling anxious that any weakness in her home study,Footnote 15 no matter how insignificant, could diminish her chances of being legally tied to her children. “There could have been loopholes, like not having a proper fire extinguisher… . You do hear about this, like with TSA [Transportation Security Administration] agents, that if someone is slightly homophobic, [they] can interpret the rules however [they] want to.”Footnote 16 Like anyone who inhabits a minority or vulnerable social position, this mother knew that, beyond the legal power they wield, state agents or social workers likely bring to their evaluations and screenings their own prejudices and beliefs. Her anxiety highlights the confluence of legal and social power. Her metaphorical allusion to TSA screenings also reveal her fears of being misunderstood as a dangerous outsider or as an enemy of the state. Despite the apparent systematic application of procedure, she was wary of (at least) unconscious bias and (at most) purposeful bigotry that threatened her parental standing.
Most of the second-generation parents we interviewed were not subjected to home studies. The home study requirement for second-parent adoptions had disappeared by 2009, when Oregon legalized domestic partnerships. However, this cohort contended with similarly misapplied requirements when trying to conceive. State regulations required couples using assisted reproductive technologies (ART) to consult a social worker before receiving “treatment for infertility”—even though none of the couples had been diagnosed as infertile. One of the mothers recounted her frustration in having to educate the social worker while paying her for required counseling services for nonexistent infertility. Another couple bypassed their psychological assessment only by consulting an ART physician who was a “family friend” and therefore willing to waive the requirement.
Administrators, private agencies, and service providers varied in their willingness to view lesbian and gay parents as legitimate caregivers. Their skepticism, coupled with confusing (and often heterosexually modeled) parenting regulations, made it difficult for the interviewed parents to predict their standing among bureaucrats. For instance, those who attempted to explore traditional adoption faced categorical proscriptions on lesbian and gay adoption from a number of agencies and implicit bans from others. Although some staff members within adoption agencies were willing to work with lesbian and gay prospective parents, they counseled the parents to hide their sexuality in order to comply with explicit or informal agency-wide bans on gay adoption (Interview 2; Interview 13).
Status ambiguity also factored into custody battles. One second-generation nonbiological mother was accused of engaging in inappropriate behavior with her de facto stepdaughter during a custody battle between her partner and her partner's ex-husband. Recalls the biological mother,
Here she is teaching his daughter how to read and taking her to classes after school and he's accusing her of being a pedophile… . He went to a fundamentalist Christian organization to get someone to take the case pro bono to defeat the “gay agenda.” So they took his case and made the whole thing about the depravity of homosexuals. (Interview 9)
One father, another second-generation gay parent, fighting a custody battle with his estranged wife, feared that his recent “coming out” would be used against him, even though it was his wife who had violated their legally binding interim agreement by absconding with their child out of state (Interviews 21 and 22). He ultimately decided to keep his sexuality out of the custody proceedings (Interviews 21 and 22).
Securing legal evidence of their co-parenthood status, such as birth certificates, was also difficult for many of the parents we interviewed. Heterosexual couples carry the presumption of co-parenthood (even when the father has no biological tie to the child) and can immediately be co-listed on birth certificates. The nonbirth parents we interviewed, conversely, were denied the right to appear on their child's birth certificate without a lengthy and costly second-parent adoption, or a domestic partnership, leaving them with little proof of parentage. One second-generation couple refrained from ordering their first child's birth certificate until after their second-parent adoption was complete. Explained the nonbiological mother, “I just never wanted to see a birth certificate without my name on it” (Interviews 14 and 15).
These status downgrades occurred outside of bureaucratic contexts as well. When, like most heterosexual parents, the same-sex couples we interviewed attempted to publicize the arrival of their child they realized that traditional venues of celebration had become arenas of degradation for their parenting (and relationship) status.Footnote 17 One first-generation parent, a well-respected municipal judge who had been raised Catholic, felt like “a wayward mother” when her son's birth announcement excluded her partner and listed only her name. This was the first of many misrepresentations of her family (Interviews 6 and 7). When asked to add the second parent, the newspaper only consented to list the donor. One couple in our second-generation cohort ultimately led a boycott to change this practice, especially after learning that the paper was posting these “single mom” birth announcements without first notifying the parents (Interviews 16 and 17).
Against this backdrop of legal uncertainty, the lesbian and gay parents we interviewed carefully considered whether and how to form their families. In their efforts to anticipate and account for a wide range of challenges, they were uniformly anxious about the uncertainties they faced and intentional about their parenting; even the most routine activities were plotted and planned. In many ways heterosexual parents are unaware of the risks they would face if people doubted their parentage. The parents we interviewed were in a constant state of proving their parental status and preparing for disaster. “You can't be romantic,” exclaimed one mother in our first cohort. “There are many reasons for this intentionality. We can't assume we're going to be together and have this happy family forever. You have to imagine this horrible thing” (Interviews 4 and 5). Concurred a second-cohort mother, “Everyone starts out in love but then people behave badly” (Interviews 19 and 20). Overall the parents seemed, as this second-cohort father did, resigned to their vulnerability as gay parents. “I am pretty much just waiting for the day that something does happen,” he admitted, “because it seems inevitable” (Interviews 21 and 22). This awareness motivated our interviewees of both generations to pursue any legal and bureaucratic documentation available attesting to their parenting status.
Combatting Legal Ambiguity
Planned Parenthood
Both their imagined and experienced risks prompted the parents we interviewed to employ pro-active measures to protect their families against status-denying harms. A second-cohort mother recalled her attempts to secure her wife's standing during her first pregnancy. Although they were married in Canada their marriage was not legally recognized in Oregon—rendering her wife a legal stranger to their future child.
We had to gather paperwork before our daughter was born because my wife wasn't legally the parent yet and couldn't be until she was born. We had to have some paperwork that said if I died in childbirth she would have custody of our daughter because I didn't want my father's family to have her… . I didn't want them near our child. (Interviews 25 and 26).
Prospective lesbian and gay parents must choose one of several costly options (reproduction, adoption, fostering) and attend to the legal issues emanating from these decisions. Reproduction entails choosing the method of conception, the source of requisite genetic material, and who will carry the child. Adoptive parents must consider which agency to use and whether to mention their sexuality to social workers and agency staff. These decisions were not made lightly. The families that we interviewed each recalled having lengthy discussions with family and friends about which process to pursue, how to finance the significant costs involved, and how to identify any misinformation (and avoid any pitfalls) that could jeopardize their familial stability. Consequently, they spent considerable time, often years, setting the stage for family creation.
This planning required couples to speculate about future events—separation, death, custody battles—and consider how these crises, commingled with adoption or reproductive regulations, could weaken their parental status claims. Parents calculated and catalogued the myriad ways in which their chosen method of family development could leave them vulnerable to legal challenges and they devised strategies to address these risks. How much should they agree to in terms of the donor's desire for information or contact? What kind of legal forms should this agreement take? Which states or counties offered the most concrete protections? As they imagined their future families, they worked to both predict and prevent potential impediments by constructing parameters to protect their primary relationships with each other and with their children. Several families we interviewed moved to Oregon specifically because they could think of few other states where they would feel comfortable having and raising children (Interviews 11 and 12; Interview 18; Interviews 14 and 15).
In the course of these conversations, some ruled out entire modes of family formation because of the perceived risks or impediments. For instance, some of the interview participants did not pursue adoption because they were either told, or had a sense, that adoption agencies were unwilling to work with gay men or lesbians.Footnote 18 Others rejected ART (insemination, in vitro fertilization, surrogacy) because of the imbalances that could occur when only one parent shares a genetic or biological connection with the child (Interview 18). All of our interviewees weighed the financial requirements of becoming parents and accounted for the legal expenses they would have to incur in order to protect their parenting rights.
As prospective parents, the interviewees managed these uncertainties by creating or accessing information networks to identify sympathetic lawyers, judges, adoption agencies, and social workers. These networks helped prospective adoptive parents select agencies that were willing to work with gay parents, that could identify countries permitting lesbian or gay adoption (at least as single parents), and that contracted with social workers who would at minimum overlook their sexuality (Interviews 1 and 2; Interview 13).
Those choosing pregnancy relied on networks to help them sort through the benefits and risks of using known donors and to identify physicians who would acknowledge the couples' co-parenthood. Donor decisions were particularly vexing. Interviewees felt that their questionable legal standing vis-à-vis the donor—especially known donors—made them vulnerable if, later, the donor wanted to claim parental rights over the child.Footnote 19 One mother in our first cohort described her discomfort with prospective sperm donors who might desire various kinds of information or connections with the child such as receiving annual photos, meeting the child, or wanting regular information about the child. She imagined how one request (seeing a photo) might lead to another (attending a birthday party) and decided that any access provided an unwelcome opening for an intrusion into their own parenting: “I'm sure that we will have plenty of parenting issues without us taking on a third person who we don't know—even if he is a really nice person. It's not what we want to do” (Interviews 4 and 5). But sperm banks are costly, requiring some families to develop strategies that achieved their desire for autonomy within their financial constraints. One first-generation couple, for instance, bypassed sperm banks and instead asked a friend to help interview and collect sperm from potential “anonymous” donors in their community. They developed a strict protocol and circumscribed roles and terminology in order to safeguard their familial autonomy.
We had a friend be a mediator for us… . We called her a go-between and we told all of our friends that if they wanted to donate sperm to call her because we wanted an anonymous donor. And we had them check out medical stuff and answer questions. We had a questionnaire [for prospective donors]. We required AIDS testing, I think two AIDS tests, their family history, a little bit about them, and vital statistics about them. (Interviews 4 and 5)
Others accepted the risks of known-donor insemination and asked family members to donate sperm. These parents believed that, on balance, in the absence of a clear legal connection to their child, an indirect biological link would provide the best substitute.Footnote 20
These fears and obstacles (and the attendant strategizing) delayed parenthood for many of the interviewed parents. The process seemed so onerous that it took years for them to sort out the available options of conception or adoption and the concomitant legal considerations. As one older parent lamented, “I wish I had started younger but we all started a little bit later because it wasn't easy to figure it out then—and there were people who were five years older who totally missed it” (Interview 10). Same-sex couples who do not have significant financial assets have even fewer options for parenthood. The interviewed parents, particularly those with higher incomes, understood and appreciated how their financial stability and class status helped them contend with most obstacles to parenting brought on by their sexual orientation.Footnote 21
In all, these decisions, made before their children were conceived or adopted, reveal the challenging terrain of lesbian and gay parenting and the anxiety borne of legal instability. Early in the process of forming their families, the parents we interviewed sought out information on their legal standing during adoption or procreation and utilized family formation strategies that would mitigate future conflicts.
Proof of Parenthood
Our parent interviewees responded to status ambiguity by utilizing any available legal resource—such as second-parent adoption or other legal co-parenting arrangements—to solidify their parental standing and indemnify their status against challenges from skeptical institutional gatekeepers. The interviewees put these strategies into place throughout the duration of their lives as parents, often with the help of lesbian or gay attorneys who “understood the what-ifs better,” “raised things [the parents] hadn't considered” and “thought outside the box.”Footnote 22
Inconsistent marital laws during the study period, both in Oregon and across the country, made it difficult for gays or lesbians to explain their parental status to teachers, doctors, and others who could impede their parental duties. Heterosexual marriage implies a parent–child relationship in couples with children. There is no presumption of co-parenthood for same-sex couples (even those with marriage or marriage alternatives). They often must rely on documented proof (court orders, birth certificates, co-parenting contracts) as evidence of parentage. For some, though, even having documents on hand was not enough. One second-cohort mother doubted the utility of her child's birth certificate as proof of co-parenthood. “You can put whatever you want on the birth certificate,” she explained, “but it is not going to hold up if something ever happens. In divorces people are not rational” (Interviews 19 and 20). State-by-state variation compounded this uncertainty. For instance, Oregon's domestic partner legislation carried no legal weight outside of the state. One step outside of the state could unravel any parental status emanating from a domestic partnership.
Neither did “legal marriage” or its equivalent necessarily offer immediate protection within Oregon for the parents we interviewed. After domestic partnership legislation passed in Oregon one of the parents we interviewed contacted an Oregon gay rights advocacy group to ascertain whether the law would protect her parenting status. Although she was the sole financial provider for her family, she had no legal relationship with her partner's children, who were conceived in the context of her partner's prior heterosexual marriage. When they explained that they could not provide any concrete information at that time about her status, she became frustrated. “I told them, ‘You guys talk about the couples that give birth to a child together but you forget that there is a whole s#@%load of us who are stepparents—probably more than birth-parent couples'” (Interviews 21 and 22). The organization's focus on shoring up the legal status of lesbian and gay couples who planned their children together left gay and lesbian “step-parents” as uncertain as ever about their legal status in relation to the children, even after the success of domestic partner legislation.
On the whole, many of the parents we interviewed believed that using wedding licenses or other relationship-recognition devices to legalize their parenting status in the midst of massive fluctuations in marriage policies left them unprotected. “I didn't feel like that was going to do a whole lot,” recalled one mother about domestic partnerships. “I didn't think of that as the big legal thing. I thought of the second-parent adoption as the legal thing. Domestic partnership was just for benefits” (Interview 10). Explicit legal declarations of parenthood, therefore, figured prominently in these parents' lives as ways of both codifying their co-parenting roles and forestalling any questions or doubts about parental legitimacy. As this second-cohort mother explained,
Whatever someone wanted to do with marriage laws—if they were going to change them and if there was going to be a ballot initiative passed—adoption is pretty ironclad. That is one of the nice things about second-parent adoption. I mean our relationship wasn't recognized until our wedding in Massachusetts, but by that time I had already adopted our daughter. (Interviews 19 and 20)
As one first-cohort biological mother put it, the process of legalizing her partner's status as the “second” parent formalized both her and her partner's duties to protect their child's welfare:
If we were going to break up and have a custody battle, I still think they would favor the biological mom as long as she's not being abusive… . But, [through second parent adoption] we have equal rights. You understand this is your responsibility for the rest of his life. (Interviews 4 and 5)
Law also played an important role in delineating who was not the parent and preventing any unwelcomed third-party claims of parenthood or guardianship rights. This was particularly important for parents using assisted reproductive technologies. As one second-cohort mother explained of their process,
We got a contract with my cousin—a donor insemination contract. We hired our lawyer and then because [my cousin] doesn't have a lot of money we paid for him to have a lawyer. It felt very weird to draw up a legal document with someone I love and trust but our lawyer put the fear of God in us because she's seen so many things go the wrong way. So we basically said for consideration of ten dollars he gave us his sperm. (Interviews 16 and 17)
These interviewed parents formalized their co-parenting arrangements both long before and well after the arrival of their children. A number of the parents employed prenatal legal safeguards to declare co-parenthood in order to mitigate any conflict over parental rights and roles that could arise during pregnancy. As the second-cohort mother referenced above admitted,
We lawyered up as soon as we got pregnant. So before [our daughter] was born we drafted the guardianship and minor conservatorship. We actually came up with her name beforehand because we didn't have money to later amend the documents. (Interviews 16 and 17)
Similarly, the day they were scheduled to surgically resolve a miscarriage, a second-cohort mother and her partner, who were married in Canada, rushed to register as domestic partners in Oregon in order to have the requisite local paperwork to substantiate their claims of co-parenthood. The biological mother feared that uncooperative medical staff would prevent her partner from joining her as she recovered from the procedure.
So the day of the miscarriage my wife got the paperwork filed and brought it with us to the hospital so that, God forbid, we had it just in case something happened and they didn't recognize me as a parent… . She needed to know that we could go through this together as parents. The only thing that really made sure nothing would happen was that piece of paper. (Interviews 25 and 26)
Others legally shored up parental status as their relationships dissolved. Without either marriage or a second-parent adoption, the nonadoptive or nonbiological parent in a same-sex relationship can lose (or withdraw) contact with their children, depending on the judge who oversees the custody dispute and the mindset of the parents. One estranged co-parenting couple initiated a second-parent adoption in the midst of their tumultuous separation. As the birth mother, a second-cohort participant, recalled,
At the time that I decided to move out I said, “We need to do this second parent adoption.” I was concerned at that point. I didn't know if the judges needed to see that you lived together or if they would grant the second-parent adoption if we split up. I had no idea. So I just said, “Do you want to do this before I move out?” So then she agreed to do it. For me it was about [our son]. If anything should happen to me, I wanted to make sure that their relationship was legal. Regardless of the struggle that she and I had, I'd want him to be with his other mom. I never questioned that. (Interview 8)
On the whole, because lesbian and gay parenting protections had evolved without marital supports, court doctrine supporting lesbian and gay parenting rights has tended to decouple the romantic relationship between the two parents and instead focus almost exclusively on “the best interests of the child” (Richman Reference Richman2008; Gash Reference Gash2015a; Gash and Yamin Reference Gash and Yamin2016). Consequently, the parents we interviewed, likely more than heterosexual parents, felt free to designate co-parents based on caregiving functions, skills, or desires rather than on their relationship with their partner. Similarly, partners could conceive of parenthood as a choice rather than an expectation (Interviews 27–32). One single mother looked outside her relationship for a co-parent. She asked a friend, rather than her partner, to second-parent adopt her child because the friend had played a critical role in helping to care for her child from infancy. Her partner did not want to become a full-fledged parent (Interview 1). Before they conceived, one first-generation lesbian couple had discussions about who would play what role as parents raising their child together and in the event of separation. Each partner distinguished her parenting desires from her relationship commitments (Interviews 4 and 5). Two adult children we interviewed explained their distinctive family structure, which consisted of each of their two sets of mothers and their mutual father (the donor). Their biological relationship as siblings permitted each of the children to view the other's parents as family and their parents to access sibling priority for school enrollments despite the children residing in different households with different legally recognized parents (Interviews 27–32).
However, these nontraditional arrangements take work. They are not just logistical; they require parents to balance their fears about legal authority with the desire for legal protection. And, of course, moving closer to these risks—as they aged or faced health issues—only amplified their fears. As the first-cohort single mother mentioned above explained,
I was forty-three when I started the adoption process and I had a dear friend (an ex) who I asked to spend the first month because, when I brought my daughter home when she was ten days old, I was in shock. I thought, “Oh, what have I done? I don't know what I am doing.” So my friend helped me and she said, “OK, I'll commit to a month. I'll stay with you. We'll take turns at night. I'll be there.” And so one month passed and I said, “Could you just stay one more month, please?” And so then that turned into more. And when I turned fifty, my daughter was four and I went, “Oh my god I'm fifty. What is going to happen to this child if something happens to me?” So I asked my friend if she would adopt her. (Interview 1)
It would be a very unusual heterosexual parent who would invite someone with whom they are not romantically (or legally) tied to become the legal parent of his or her child. In the face of legal status ambiguity, our interviewees often found creative ways to protect their children and enhance their opportunities.
Not surprisingly, wills figured prominently in these discussions. Anxieties among interviewees about who would best care for their children in the event of their death were heightened by the fact of uncertain support from family members—many of whom were lukewarm or hostile about our interviewees' sexuality and their decision to raise children. After reviewing and rejecting several options, for instance, one first-generation couple set up what they humorously called a “committee”:
The will says that they need to meet and decide what's best for [our son] at that time. They could share him. Or assign somebody else altogether. We went back and forth and [realized that] what he's going to need at two years old and what he's going to need at twelve would change. So we decided to create a committee to decide. (Interviews 4 and 5)
In short, without the expectation that child-rearing would occur within the confines of a family defined by marriage, the parents we interviewed felt empowered to craft legal arrangements that were truly “in the best interests” of their children.
Even where parents created more traditional families that conjoined their romantic and parenting relationships, as the majority of our interviewees did, they placed a premium on creating an extended family of other same-sex–headed families or heterosexual allies. As one second-cohort mother explained, “I want [my kids] surrounded by a community that loves them just like any other kid and doesn't make them feel like ‘Oh, something about me is different’” (Interviews 25 and 26). One second-cohort couple designated special roles for extended family members: “Our kids have something like five people who are identified as ‘grandparents' and who love being ‘grandparents' to these kids” (Interviews 16 and 17). One interview participant who was raised by two mothers recalls his family:
You know the saying “It takes a village”? We actually do have a village… . My definition of family extends to my half-brother and his moms and our family friends who come over every Thanksgiving. It's so big. (Interviews 27–32).
In the face of legal ambiguity, the parents and adult children we interviewed triangulated a range of legal or legalistic protections. What the parents lacked in state-legitimized family structures they made up for by carefully defining numerous familial roles and delineating their obligations. These legal, formal, or ceremonial safeguards were implemented to impose some degree of control over an uncertain parenting environment and to preserve their autonomy to define their families on their own terms.
Performing Parenting Narratives
Establishing legal security—be it through a second-parent adoption, birth certificate, or custody agreement—provided only one in a series of essential ingredients for resolving the insecure status of the parents we interviewed. Parent participants also vigilantly maintained their public personae as parents and families. While legal tools helped embolden their assertions of parenthood and familyhood (both to themselves and their community), interviewees understood that, in the absence of public acceptance of their legal connection to their children, their status as parents would continue to be questioned or disregarded. Even after Obergefell, uncertainty regarding parental status and acceptance will likely persist. Obergefell provides a legal resolution of the question of marriage equality. It does not require states to conform to specific standards regarding questions of lesbian or gay parental status. Neither does the decision foreclose on the capacity of individuals who work outside of the legal system to constrain lesbian or gay parental claims.
Each of the interview participants expressed some anxiety about how they presented their families or how their families were being perceived by the larger community. Public outings often felt risky—especially if they were entering unknown territory or traveling—and many carried reams of documents proving their parenthood (Interview 13; Interviews 16 and 17; Interview 18; Interviews 25 and 26). One first-cohort father of three remarked on his conscious work to avoid being “denied in front of our children” in public spaces (Interview 18). “You go through airports,” he described, “and they do this whole screening thing and give you the suspicious look that says ‘Oh, you're both their dad … okay’” (Interview 18). For these fathers, the idea of just leaving Oregon gave them pause—particularly because of hostility against gay fathers:
Sometimes I am afraid that I've gotten too comfortable here, and I've forgotten what the rest of the world is like. And, even flying back home, I have very little desire to go. I know that we would get there and we would walk down Main Street holding hands or carrying [our daughter], and I would forget and somebody would say something awful to us, or something would happen. If somebody said something, my head would spin. (Interviews 21 and 22)
This fear permeated many aspects of the parents' experiences, from meeting physicians or adoption agency staff while planning their families to engaging with other parents or neighbors or teachers once their children had arrived. For parents using ART, for instance, their child's delivery posed significant risks. Many used birth plans or compiled birth packets to “formally” stipulate their co-parentage. One second-generation nonbiological mother recalled frantically searching for her packet as her partner was wheeled off to an emergency C-section:
I was like, “Where is my packet?” So as the surgeon was wheeling her out I was scrambling for this packet. I was saying, “Just so you know I am her power of attorney. I have all the legal documents. I get to make all the legal decisions for her medical welfare!” (Interviews 16 and 17)
To a degree, second-parent adoptions helped with presentation. These legal fixtures showcased the commitment of parents and their backing from legal authorities. One first-generation mother described the process of securing legal protections as “an enactment.” “It's a performance of responsibility,” she continued. “Somehow showing what a good parent you are to be doing these really responsible things” (Interview 2). Legal tools also empowered parents who had lingering trepidation about their decision to start a family in the midst of abject public (and in some cases familial) opposition. As one mother mused about her finalized second-parent adoption, “Oh, this must be what it feels like to be straight in the world and be the norm” (Interviews 4 and 5). Added another mother, “I felt an affirmation of our relationship that I didn't think I'd feel from the world. It was like, ‘You really both are his parents and both have this relationship.’ It hit me in this very surprising way. I felt very moved by it in a way that I was totally not expecting” (Interviews 1 and 2).
For many, out-of-state marriage provided a similarly legitimizing frame (regardless of its flimsy legal significance in Oregon) in ways that their domestic partnership did not (Riggle, Rostosky, and Horne Reference Riggle, Rostosky and Horne2010). Explained this second-cohort mother of her and her partner's decision to travel out of state to get married, despite already having a legal domestic partnership in Oregon:
We registered [for the domestic partnership] mostly for just the legal protections… . I think as a family it is good for [our children] if we can get married. Now that we can, we want them to see us make that extra commitment. (Interview 13)
For some, marriage ceremonies that lacked legal backing provided sufficient respectability to offset any lingering misgivings they had about raising children outside of marriage. One couple's fear of being “unwed mothers” was assuaged by their Jewish wedding ceremony, which was officiated by a rabbi (Interviews 36 and 37). Even getting engaged in the context of advances in marriage equality helped some families feel more accepted and secure. One second-cohort father noticed how profoundly his engagement to his partner affected his daughter:
When we got engaged she came to live with us full time and she started opening up about all of the stress. It was safer. I think she finally felt like she had something here that was permanent. It speaks to the value of marriage… . It allows kids to have this kind of stability, openness, and safety. (Interviews 21 and 22)
Here, the value of marriage is to concretize parental and family status rather than simply celebrating or elevating the romantic relationship between the two parents. The institutional and cultural significance of marriage and the values that it embodies bolstered gay and lesbian parents' efforts to present themselves as serious, committed, and worthy caregivers.
These parents used the law artfully to create a narrative that showcased their parenting legitimacy and warded off any questions that compromised their parenting status. For instance, on the advice of their attorney, one second-cohort couple, who had adopted internationally, deliberately kept two versions of their daughter's birth certificate on file. The first version listed only the traditionally adoptive parent and could be used in subsequent international adoptions if the country retained prohibitions against same-sex adoption.Footnote 23 The second copy reflected their second-parent adoption (Interview 13). Name changes provided another useful legal mechanism for signaling or supporting their parenting narrative, and to minimize any confusion about “the real parent.” Many of the parents elected either to legally change their last names so that the family shared one surname or to give their children the nonbiological parent's last name or a hyphenated surname of both parents to minimize the likelihood that a parent would be questioned about their relationship to their child (Interviews 6 and 7; Interviews 16 and 17; Interviews 19 and 20; Interviews 25 and 26).
Existing laws and legal procedures, however, could not provide adequate family protection. Even having secured legal coverage of their children, the interviewed parents needed to consider how much risk they could assume. Some of the parents, for instance, felt they needed to remain closeted at work. Although Oregon is one of many states to prohibit employment discrimination on the basis of sexual orientation, this provided little solace to interviewed parents who feared unemployment. Having children, they believed, made being out at work much more difficult. Unemployment would affect their children's welfare, not just their own. However, these interviewees also believed that being gay parents increased the potential for hostility at work. Some implied that having job security and being out at work as parents were mutually exclusive goals that placed their professional life and their child's well-being at risk. As one second-cohort parent explained, “For me, being out at work as a lesbian was never a problem. It was being out at work as a lesbian parent that was the bigger issue” (Interviews 19 and 20). This parent's concerns reflected her experience that while colleagues may accept gay and lesbian relationships they may be more reticent to support gay and lesbian parents. Some parents feared even the most innocent collisions of their professional and personal lives. As one first-cohort father indicated while ruminating over whether or not to contact a colleague for professional advice about a recent issue pertaining to his son,
I thought, “This guy's going to find out that I'm gay, and it is going to affect a) his work with my son and b) any potential work for me in the future.” But I called him up and left him a voicemail. I said, “By the way, I just want you to know, [my son] has two dads, and I hope that's not an issue. If it is, please call me and let me know for whatever reason. I don't care, I'd be happy to find a different person, but if it's an issue let me know.” That's just sort of the approach I've taken. (Interview 18)
Concerns about being out as gay parents in certain public spaces led some parents to obfuscate rather than assert their parenting status. One first-cohort mother of two, who worked in the public schools in a conservative district, had developed a plan to deploy while out with her family if she ran into colleagues or parents from her school district.
We would be in the mall or run into someone from work… . If you are heterosexual, you just say “This is my husband.” But it's an immediate debate on my part as to how I will introduce them. Is this a person from work? Is this a parent that I work with? (Interview 10)
Gesturing with her arm as if pushing her family behind her, she describes the difficulty of having committed to being “out” in front of the children yet needing to remain closeted at work. “[When this happened, my partner] would take the kids and fade into the background. I know that was something different [I experienced] as a lesbian parent. I had to make that decision on the spot. This is not someone that I can introduce my family to as a family. There was a fear around this” (Interview 10).
Parents seemed especially willing to hide their status when their child's welfare was at stake. One nonbiological mother had created this strategy for dealing with medical emergencies:
I always knew that if I was by myself and I had to take one of [the children] to the hospital that I would just flat out lie and say I was their aunt … that I was [my partner's] sister. I would not go down the path and say I was the other parent or any of that stuff because I didn't want anything to get in the way of their care. (Interviews 23 and 24).
As with the lesbian parent referenced above, who kept her single-parent birth certificate on hand, fears led to a range of painful strategies of family “erasure” in the community.
Even when they were “out” about their sexuality, in order to fulfill their obligations as parents and caregivers the parents we interviewed faced a constant barrage of challenges to or dismissals of their parenting status that made them feel invisible and marginalized. For instance, despite receiving general acceptance about her sexuality from religious or other community institutions, one first-generation mother expressed disappointment that her specific struggles as a mother were not acknowledged with the same attention paid to heterosexual parents in her social network (Interview 3). For some, the most mundane tasks, such as seeking health care advice or paying taxes, served as a reminder of their lack of recognition as parents and families. One first-generation parent explained her ongoing resentment:
I have this anger that has been stored up somewhere. Every time I fill out a tax form. Every damn year as we sign up the kids and fill out paperwork and there's nothing in there for domestic partners or anything else. Every time we have to go somewhere and I have to explain who the hell I am. Calling the state [about my taxes] and saying, “What do you mean we are not a family?” Every time their father didn't do anything. Never paid child support. I am doing all of this and yet they aren't even seeing us as a family. We are invisible. (Interviews 23 and 24)
In communities or institutions where straight members participated in political campaigns around gay rights and marriage equality, gay and lesbian parents still felt their experience was inadequately acknowledged. Although supportive, liberal straight friends had little awareness of the consequences of marriage and parenting inequality and the effects of homophobia on our interviewees' communities. In an effort to “normalize” their gay and lesbian friends' families, heterosexual liberals glossed over glaring differences—which stemmed not from the character of the parents but the quality of their protections (Interviews 19 and 20; Interviews 25 and 26). The different legal geography gay men and lesbians occupy is shaped by a social world of prejudice, discrimination, and violence. As one mother in our first cohort explained, tragedies that affect those who identify as gay do not resonate the same way with their straight friends, creating a gulf that feels difficult to bridge:
I find a lot of liberal straight people don't understand. They feel in their world that we are the same so … we don't have anything to worry about. They don't care about the occasional kid who is coming out who hangs himself. Mostly they think we are all safe and good. I feel like that's a silencing thing. (Interviews 4 and 5)
This misfit of expectations, norms, and laws induced palpable anxieties in the parents we interviewed. They found it difficult to figure out how to present their family especially when their only recourse was to contextualize their families within a conceptual framework predicated on assumptions of opposite-sex parenting.
Championing Lesbian and Gay Parenthood
Despite the constraints, there was a sense among the interviewed parents—especially those in our first cohort of participants—and adult children that they were establishing innovative family structures. Consequently, and somewhat paradoxically, these parents were both liberated and burdened by the misapplication of heterosexual norms on their same-sex–headed households. The parents expressed pride in making parenting choices that reflected their steadfast commitment to their children and their ideals, rather than conforming to community standards that did not apply to their circumstances. As one first-cohort mother who adopted a child with special needs remarked, being an “outsider” allows gay and lesbian parents to make different choices about, and utilize different lenses to determine, how and whom to parent (Interview 3). Some felt that, through their assertions of family and parenthood, they could inform and advance a more progressive understanding of family. They also believed, most importantly, that their children benefitted from their painstaking attempts to preserve and protect their families. As one mother, another first-generation participant, phrased it, “there are clear benefits to having planful parents” (Interviews 25 and 26). Even if their attempts to anticipate threats fell prey to the web of incompatible (and heterosexual) family law provisions, these parents figured their children knew they were loved. Conceded one parent when talking about the difficulties she faced,
The flip side is that [our son] is really clear that he is wanted, that we did this on purpose, that there was all that intentionality, that we were really clear… . It is done with so much intent and desire. There is so much to do that doing it is a gift. (Interviews 4 and 5)
Through the course of establishing their own parental rights vis-à-vis their children, many of the parents found that they had become a voice for local communities of gay and lesbian parents, as did the second-cohort couple referenced above who took on the local newspaper that had refused to recognize the parental status of the nonbiological parent in their birth announcements. The mothers launched a boycott of the paper and took out a large ad in an alternative weekly paper retroactively announcing a number of births to lesbian couples and explaining that “these children had been born to these moms, just so you know” (Interviews 16 and 17). The mothers organized and funded this group birth announcement as an act of resistance to the ongoing and intentional erasure that lesbian and gay parents encountered when forming their families. The offending newspaper ultimately modified its policy and permitted both parents to be listed in birth announcements. Another mother, who had experienced workplace hostilities in another state before moving to Oregon, had led the charge in her Oregon workplace to create gay and lesbian tolerant policies. As her partner described it, her organization “did not have domestic partner insurance for a long time. But she sat on committees and really pushed it. [T]hey didn't want to say it was for lesbian and gays. But now it's changed because she forced that issue” (Interviews 36 and 37).
One mother who initially had fostered her child became the single lesbian exemplar of a “successful adoption” in a local campaign to encourage more foster care participation (Interview 3). One first-generation couple took on the federal government. During one of many frustrating tax seasons, in the midst of filling out single-filer tax returns, the couple decided to file an amended tax return asking for the tax refund they would have received if their domestic partnership in Oregon had been recognized as a marriage.
We had to fill out the “false” federal joint tax return to file as domestic partners in Oregon. I used Turbo Tax and saw that the two of us would get $3,500 back if we filed a joint federal return. So I filed our singles. After I sent them I filed a joint amended federal tax return and I sent it in with a letter asking that our refund be granted. We got it. They sent us the money. (Interviews 23 and 24)
In many ways, because they have had to earn their parenting privileges amidst significant legal ambiguity, these parents have set high expectations for themselves as pioneers and role models. “We've had to be better,” said one first-cohort mother. “It is about insisting on full participation in their communities as well as our own” (Interviews 6 and 7). Having always been a leader and participant in community work, she saw her active parenting as “a continuation of what I've been doing ever since I came out.” All of the interviewed parents were actively engaged in their children's classrooms, coached their athletic teams, or took on leadership roles in youth organizations. As the mother above put it, they were “super parents,” the ones “you could always count on.”
The compunction towards advocacy was particularly prevalent among adult children of same-sex parents. In contrast to the parents' anxieties or concerns about the security of their families, the young adult children seemed not only comfortable with their family structures, but proud of the decisions their parents had made. When asked if they thought their parents had had any specific worries about being gay or lesbian parents, their stories did not echo their parents' anxieties, but rather focused on their own outrage that others took issue with their families. One, for instance, whose mother struggled with having to be closeted in public to protect her job, articulated a passionate defense of same-sex marriage, not so much for the legal protections the parents wanted, but as a recognition of his parents' love for each other. Even though his mothers had separated many years earlier, he wanted the love they had shared and the family they had made to be recognized and celebrated (Interviews 29–35).
In many ways, the children of the interviewed parents became the most ardent or vocal advocates. Parents and adult children alike had countless stories of playground or class debates in which school-aged kids argued about the “impossibility” or “illegality” of two-mom or two-dad families (Interviews 1 and 2; Interviews 4–7; Interview 10; Interviews 14 and 15; Interviews 19 and 20; Interviews 25 and 26; Interviews 29–35). As other kids insisted in class or in the lunchroom that no child could have two moms or two dads, and looked to same-sex marriage bans and political rhetoric to back them up, those with gay or lesbian parents had to devise strategies for countering or at least deflecting these assertions. In addition to simply dismissing or chiding these claims, many of the adult children we interviewed proudly proclaimed their family status, in part to educate others about same-sex–headed families. One young man, for instance, has a full-color tattoo on his chest of an anatomical heart with “Moms” scripted below. When his friends think he left out a possessive apostrophe (“Mom's”), he points out that the tattoo is in honor of his two mothers. Another young woman donned a tattoo on her ankle of the Roman numeral II, in honor of her two mothers and their two daughters (Interviews 29–35).
Conclusion
Gay- and lesbian-headed families have made important gains in their push for full equality and acceptance. Two-mother or two-father families are no longer isolated occurrences in many American public schools. And though it would have been difficult to imagine twenty years ago, or even ten, we now live in a nation in which every state permits gay men and lesbians to marry, with national majority public acceptance. However, this vast change in public and legal institutional support of gay families is relatively recent and the LGBT community continues to be barraged with discriminatory measures. Mississippi and North Carolina, for instance, both passed legislation in 2016 that would significantly curtail the rights of LGBT individuals in public accommodations, employment, and housing.Footnote 24 Other states are considering similar restrictions on LGBT rights. Announcing the U.S. Justice Department's complaint against North Carolina and its opposition to these state-level anti-LGBT bills, Attorney General Loretta Lynch interpreted them as direct backlashes to the legal recognition of same-sex marriage and progress toward LGBT equal rights: “In the wake of that historic triumph, we have seen bill after bill in state after state taking aim at the LGBT community.”Footnote 25 Gay and lesbian parents operate in this crossfire.
Additionally, while Obergefell provides a national resolution to the question of same-sex marriage, lesbian and gay parenthood is still governed primarily by state and local statutes and doctrines, which vary considerably and are often subject to judicial discretion. Lesbian and gay parents have seen their status revoked, in some cases even when they were legally married. It is within this context of hostility and uncertainty that lesbian and gay individuals continue to contemplate parenthood and create and seek protections for the families they form. Finally, there is also lingering doubt about the relevance of national shifts in public and legal support to the experience of everyday parenthood. Aggregate measures of acceptance tell us little about how institutional gatekeepers will greet gay and lesbian parents when they act on their parenting responsibilities.
We use the concept of legal status ambiguity to capture how individuals may live in a state of flux despite the existence of legal reforms that appear (on paper) to validate their rights. Legal status ambiguity emanates from shifts in the legal landscape coupled with conflicting interpretations, misperceptions, or ignorance of these laws by those authorized with or subjected to their enforcement. This study of the influence of legal status ambiguity—here, on the outlooks and actions of lesbian and gay parents—highlights the importance of not only identifying how legal reforms are secured but also how (and whether) they are understood and tolerated. Legal status ambiguity compelled the parents we interviewed to accord monumental significance to the possibility of discrimination when making parenting decisions. The combination of imagining the possibility of “the worse case scenario” and possessing insufficient legal or social mechanisms to resolve such possibilities animated these parents' decisions about how and when to have children and how they presented their families to their communities and to the guardians of the institutions with which they engaged as parents. While the imagined threats to their families have changed over time as lesbian and gay families have become more visible and have achieved more legal protections, most lesbian and gay parents continue to negotiate a changing legal and social terrain with caution and uncertainty.
The parents we interviewed engaged in ongoing calculations about the costs and benefits of revealing their gay or lesbian identities—especially in the context of their parenting. Our interviewees understood and considered the risks of coming out as couples and co-parents. In some instances parents took great pains to assert their co-parenting status, indicating their roles in birth plans or birth announcements, and using marriage licenses or adoption decrees to signal their family ties. In other instances, parents recognized the need for subterfuge. Even those who had devoted significant resources to combatting discrimination or challenging their communities to accept their sexual identities and their relationships with partners or spouses developed and deployed strategies to hide their sexual orientation or their family status in order to adopt or protect their children. For instance, as they fought to have their co-parenting status concretized on birth certificates, some parents also retained their single-parent certificates to safeguard the growth of their families. As they demanded from government actors both the benefits and the status of marriage, they often hid their parental status when doing otherwise would hinder their children's care. In this way, then, having children and being parents complicated their commitment to being open about their sexuality. The fact of legal status ambiguity and the attendant risks to their children revealed drawbacks and limitations to being out as a gay parent. These struggles suggest that communities may be ready to tolerate or even welcome gay individuals or same-sex couples, but these legal advances fall short of producing an open or welcome parenting environment.
Our interview participants learned to anticipate and negotiate the effects of the sizable nexus between legislative or judicial support and individual acceptance. Even in a state like Oregon, where lawmakers have been relatively supportive of gay rights, individual perceptions carry significant weight and can impose serious harms. The parents we interviewed (even those with domestic partnerships or second-parent adoptions) had to devise strategies for asserting their parenthood in a variety of arenas. Some carried documented proof of parentage. Others created narratives that they and their children could deploy when their familial status was questioned. Still others attempted to preempt any challenge to their parenthood, presenting themselves as model parents by devoting significant time and resources to serving as coaches, participating in parent–teacher associations, and assisting in the classroom.
At the same time that the lesbian and gay parents we interviewed accorded great significance to being perceived as “mainstream” parents, they also worked to promote an understanding of family that existed beyond the context of marriage. In many ways, because gays and lesbians have been forced to view their parenting status as legally distinct from their relationship status, they were able to consider family structures that were child-centered rather than relationship-centered, while also being relationship-affirming. The interviewees went to great lengths to discuss the prospects of parenthood and to spell out roles and responsibilities early on in the family planning process. Some parents looked beyond their romantic relationships to select additional or alternate individuals to share their parenting privileges and responsibilities. Some focused on creating extended families—and designating titles—to supplement shortfalls in support among immediate relatives. In the same way, because of this legal fissure between marriage and parenting for same-sex families, many of the parents we interviewed felt more moved by judicial validation of their relationship with their children than state validation of their relationship with their partners. In many ways, by operating outside of the realm of marriage, gays and lesbians could more freely evaluate the merits of marriage for their family.
When analyzed through the lens of generational variation, the experiences outlined above also highlight how same-sex parents carry the memory of the legal and social experiences of the past generation into their own parenting. For instance, our first-generation parents created their families with the specter of the lost custody battles of the 1960s–80s years, and their legal trepidation and anxiety stem from this archive of loss and disempowerment. The second generation's worries were based on the legal vulnerabilities of those in the first who struggled to parent in isolation and without the benefits of domestic partnership when first forming their families. Each generation also encountered its own challenges. Where first-generation parents formed their families amidst political contestation over gay or lesbian personhood—and fought for the right to be out as gay or lesbian—the second-generation parents we interviewed created their families in the midst of significant public contestation over lesbian and gay parenthood, precipitated primarily by the push for marriage equality. Despite clear legal changes that benefited the second cohort of parents we interviewed (most prominently domestic partnerships), their attempts to perform their parenting responsibilities were often as anxiety-provoking or risky as for first-generation parents. They still encountered challenges to their parenting status and developed strategies to offset the risks.
Scholars of LGBT legal reforms should find these experiences instructive as they look to the post-Obergefell era. While marriage equality may now be on the books, parenting gay couples may not have captured the full support of those who have license to authorize parents to carry out their child care responsibilities. On legal fronts alone the significance of marriage for lesbian and gay parents is being tested. Despite a nationwide requirement that states permit gay and lesbian couples to marry, some states are issuing parenting decisions that seem to reveal judicial trepidation over assuming that (1) marriage resolves questions about parenthood and (2) heterosexual and lesbian or gay families can be evaluated according to the same legal rubric. This fact, coupled with an assumption on the part of lesbian and gay parents that marriage will resolve any questions about their parenting status, has rendered parents in some states vulnerable to challenges that will strip them of their parental rights. Even with marriage, gay- and lesbian-headed families will always require a slightly different legal calculus from that which is used to address legal questions arising in heterosexual families. For instance, gay men and lesbians form their families through different pathways than do heterosexual parents, often through assisted reproductive technology and/or second-parent adoption (Agigian, Reference Agigian2004). As the opportunities for marriage are beginning to unfold, courts are having to weigh the significance of these differences (and the capacity for marriage to address these differences) while attempting to carve out a set of transparent family rulings that are applicable in both the heterosexual and lesbian and gay parenting contexts.
Furthermore, while the hope is that with marriage equality we will see a new acceptance for a broad range of gay and lesbian rights, there has been little movement in arenas beyond marriage, leaving lesbian- and gay-headed families vulnerable to risk. Federal paralysis over the Employment Non-Discrimination Act (ENDA)—legislation that would prohibit employment discrimination against gays and lesbians (in much the same way that the Civil Rights Act does for gender, race, religion, and other protected classes)—means that gay men and lesbians are still susceptible to significant reprisals at work. This legislative vacuum is especially problematic in the context of marriage and parenthood, because insurance and other financial protections are often mediated through employers. In other words, some gay parents may have to choose between availing themselves of their rightful legal marital (or parental) benefits or remaining closeted to secure their employment status.
Generally, this study of legal status ambiguity in the context of gay and lesbian parenting examines the effect of legal and social change on individuals' understanding of their position as legal subjects and on their strategies for enacting, protecting, and maintaining their legal status. Our participants' stories highlight not only the difficulties that gay and lesbian parents still face, even in a climate that is supportive of gay rights, but also, more broadly, the ways that legal fluctuations and innovations may complicate the capacity for some groups to achieve social recognition and acceptance. The parents' anxieties and experiences suggest that laws on the books, while critical, may be insufficient to offset public ambivalence or animosity. These laws must be given meaning both by those who stand to benefit (in this case gay and lesbian parents) and those who are charged with their implementation (teachers, doctors, social workers, and the hosts of others who regulate parenthood.) We leverage the concept of legal status ambiguity to interrogate how law and society intersect to impede or encourage individuals in their efforts to claim their legal rights. Legal mechanisms provide individuals with powerful tools for asserting these rights. The significance of the law, however, is controlled as much by gatekeeper perspectives as by legal force—and hinges on the capacity of those who benefit from reforms to anticipate, navigate, and eradicate misapplications. To be sure, the Supreme Court's marriage equality ruling coupled with state-court parenting victories provide important legal coverage, but the struggle for full familial equality extends far beyond the courtroom—and is ongoing for many lesbian and gay parents.
Appendix
| Interview # | Cohort | Description | Date |
|---|---|---|---|
| Interview 1 | First | A single adoptive mother of a now high school student | March 2012 |
| Interview 2 | First | A mother in a lesbian couple who adopted two children | March 2012 |
| Interview 3 | First | A single adoptive mother of a now high school student | March 2012 |
| Interviews 4 and 5 | First | A lesbian couple of one child through ART | April 2012 |
| Interviews 6 and 7 | First | A lesbian couple with two children through ART | April 2012 |
| Interview 8 | First | A now “divorced” lesbian mother who had her child through ART with her partner | April 2012 |
| Interview 9 | First | A mother of two children, conceived during her heterosexual marriage, now in a lesbian relationship | March 2012 |
| Interview 10 | First | A now “divorced” mother of two children conceived through ART with her partner | May 2012 |
| Interviews 11 and 12 | Second | A lesbian couple expecting their first child | March 2013 |
| Interview 13 | Second | One mother in a lesbian couple with two adopted children in elementary school | February 2013 |
| Interviews 14 and 15 | Second | A lesbian couple who used ART to conceive their two now elementary school–aged children | April 2013 |
| Interviews 16 and 17 | Second | A lesbian couple who used ART to conceive their two now elementary school–aged children | May 2013 |
| Interview 18 | First | One father in a gay couple with three adopted children ranging from elementary to middle school–aged | April 2014 |
| Interviews 19 and 20 | Second | A lesbian couple who used ART to conceive their two now elementary school–aged children | May 2013 |
| Interviews 21 and 22 | Second | A gay couple who is raising the child born of one father's heterosexual marriage | June 2013 |
| Interviews 23 and 24 | First | A lesbian couple who is raising the children born of one mother's heterosexual marriage | June 2013 |
| Interviews 25 and 26 | Second | A lesbian couple who used ART to conceive their two now preschool–aged children | May 2013 |
| Interviews 27–32 | First | Group interview with six adult children raised by same-sex couples in Oregon | June 2013 |
| Interviews 33 and 34 | Second | A lesbian couple who used ART to conceive their child | June 2013 |
| Interview 35 | First | One mother in a lesbian couple who conceived their children through ART | May 2014 |
| Interviews 36 and 37 | Second | A lesbian couple with two children, one adopted and one conceived through ART | April 2014 |
