Who is a parent? What makes a family? Are sexual orientation and gender identity relevant indicators of parental competence?
In The Right to Be Parents: LGBT Families and the Transformation of Parenthood (New York University Press, May 2012), Professor Carlos A. Ball provides the first detailed history of how LGBT litigants, in forcing the courts to address such questions, have shifted the decision-making in cases involving the well-being of children away from presumptions of care based on biology, marital status, gender identity and sexual orientation to individualized assessments about who can provide the most supportive home environment.
Recounting key cases over the past four decades, The Right to Be Parents tells the stories of lesbian, gay, bisexual, and transgender parents who bravely refused to lead closeted lives while seeking legal recognition of and protection for their relationships with their children. These parents have fundamentally changed the law of parenthood in the United States, writes Ball, “in ways that make it significantly more cognizant of the diversity and complexities of American families than it was just a generation ago.”
Judith Stacey, NYU Professor of Social and Cultural Analysis and Sociology and author of Unhitched: Love, Marriage and Family Values From West Hollywood to Western China, praises Ball for focusing “his keen, compassionate and judicious legal mind on heart-tugging, often precedent-setting cases that sought to divest parental custody, visitation and adoption decisions of centuries of gender and sexual bias in U.S. family jurisprudence.” The Right to Be Parents, she adds, is “an invaluable, engaging and eloquent contribution to family studies, legal thought and public knowledge.”
In the first two chapters, Ball explores how courts, in custody and visitation disputes between gay and straight parents, have determined whether openly gay and lesbian parents can be good parents. In recent cases, he reports, “when a court applies the nexus test correctly by requiring that the heterosexual parent demonstrate a link between the other parent’s homosexuality and harm to the children, the lesbian or gay parent is almost always able to persuade the court that sexual orientation should not be a factor in making custody and visitation decisions.”
The next three chapters present litigation involving “planned” lesbian and gay families, which typically are families created through assisted reproductive technology or through adoption. The primary legal issue in these cases is who is eligible or qualified to be a parent to begin with.
The final chapter deals with transsexual parenting cases, which fall into two broad categories: those in which transsexual litigants seek to maintain relationships with their children in the face of claims by former spouses that their new gender identification makes them unfit parents, and those in which transsexual individuals seek legal recognition for their relationships with their children despite the absence of biological links.
Some of the parents in the lawsuits recounted by Ball won their court battles, while others lost. Overall, he reports, LGBT parents are making progress in the courts, progress reflected in the growing number of LGBT individuals who are raising children. Ball concludes: “It is ultimately the success stories of the actual parenting – more than the litigation victories – that will lead the country to provide LGBT families with the legal recognition and social respect they deserve.”
Professor Ball is the author of several books on LGBT issues, including From the Closet to the Courtroom: Five LGBT Rights Cases That Have Changed Our Nation and The Morality of Gay Rights: An Exploration in Political Philosophy. A frequent speaker at conferences and symposia, in recent years he has delivered papers at the annual meetings of the Association of American Law Schools, Law and Society Association, American Philosophical Association, and American Political Science Association, and presented his scholarship at the Colorado, Columbia, Emory, Fordham, Harvard, Georgetown, Minnesota, NYU, UCLA, Virginia, and William & Mary law schools, among others.
Professor Ball received his B.A. from Tufts University, his J.D. from Columbia Law School, and his LL.M. from Cambridge University.