Sarah Prager

LGBTQ+ parents have existed for as long as LGBTQ+ people have been around. That is to say, forever. 

We haven’t been visible until recent decades and haven’t had any rights until recent years, but we have been here. We have been able to have biological children as bisexual and transgender parents, as well as lesbian and gay parents (from various situations, including relationships before coming out). Before there were any legal rights, we’ve had step-children and children in different configurations of chosen family. And now, we can legally adopt and foster in every state. 

But it’s been a long road to get here, and we still don’t have equality.

A brief history of queer parenthood

We know that queer people have existed all through history, so it’s not a stretch to imagine we’ve parented from ancient times, though the records don’t exist. In recent centuries, Oscar Wilde (1854-1900)’s wife forced him to give up parental rights to their two sons after the indecency trials for his queerness. Audre Lorde(1934-1992) was proudly lesbian, but before she was with her female life partner for over 20 years, she had two children with an out gay husband. Bisexual icon Josephine Baker (1906-1975) adopted twelve children from nine countries and cited being too busy with motherhood as her reason for turning down Coretta Scott King’s offer to become a new figurehead of the Civil Rights Movement after Dr. Martin Luther King’s assassination. 

Other queer historical figures had children within their straight-passing marriages, like Eleanor Roosevelt (1884-1962) and Abraham Lincoln (1809-1865). In one story of a documented transgender parent, American jazz musician Billy Tipton (1914-1989) adopted three children with one of his wives. The adoptions and the marriage weren’t legally recognized, and according to all five women who married him at different times and all three children, none of them knew of his trans identity until he passed away.

Wilde’s loss of custody and the lack of legal recognition over Tipton’s adopted children are indicative of the landscape of LGBTQ+ parentage rights in the 19th and 20th centuries. In cases documented as early as the 1950s in the U.S, a parent’s homosexuality was routinely used to take away custody of their children in a divorce because it was considered a mental illness to be gay or transgender. One mother lost custody because she “associated with female homosexuals and refused to change her ways.” In another, a wife’s “strange passions” made her an “unfit mother.” In another, a judge decided that a heterosexual environment was in “the best interests of the child.”

In the mid-1950s, the nation’s first lesbian rights organization, the Daughters of Bilitis, held the first known official discussion groups about lesbian motherhood. Group co-founder Del Martin (1921-2008) was divorced from a husband before her 50-year partnership with Phyllis Lyon (1924-2020), which was foundational to the lesbian rights movement. 

Martin’s ex-husband retained primary custody of their daughter, Kendra. Martin went on to co-found another group, the Lesbian Mothers Union, with Pat Norman and others in 1971 in California. Chapters popped up around the country throughout the 1970s. The group helped lesbian mothers in their custody battles by raising legal fees, putting them in touch with sympathetic witnesses, and trying to change the perception of lesbians as deviants who could not provide a moral home for children.

The movement for queer women to start inseminations from sperm donors grew in the 1970s. Because clinics only served married women, they had to find sperm donors outside of fertility clinics by using friends, helpful queer men, or strangers (the Sperm Bank of California became the first in the country in 1982 to serve single people and queer women). On top of that, there were no legal protections against the donors claiming parental rights, and the co-parents who didn’t give birth had no legal claim to their child.

Adoption also started to become an option in a few areas around that time. In 1978, New York became the first state not to reject applications for adoption based on sexual orientation. One year later, a gay couple in California became the first same-sex couple to jointly adopt a child. A single gay man had already adopted a child in California in 1968. 

The 1970s began a positive turning point in custody cases, with openly LGBTQ+ parents winning for the first time. In 1973, a transgender parent won his right to retain custody of his child in Colorado, the first known court opinion involving a trans parent. In 1974, a New Jersey court affirmed that a gay father’s sexual orientation was not a reason to deny him child visitation. It was the first time a U.S. court acknowledged the constitutional rights of LGBTQ+ parents. In 1976, Washington, D.C. became the first jurisdiction in the country to prohibit judges from making custody decisions based solely on sexual orientation.

With self-inseminations and the growth of visibility of the LGBTQ+ rights movement, the “gayby boom” began. The term appeared in print in a story in Newsweek in 1990. It noted that the AIDS epidemic was the top issue for the LGBTQ+ community, but that family issues like child custody and marriage equality were starting to be added to the agenda. 

It goes on: “Many are already living the settled-down life of their ‘breeder’ peers. That includes children–either through adoption, artificial insemination or arrangements between lesbians and gay ‘uncles.’ There are an estimated 3 million to 5 million lesbian and gay parents who have had children in the context of a heterosexual relationship. But in the San Francisco area alone, at least 1,000 children have been born to gay or lesbian couples in the last five years.”

The children’s books Heather Has Two Mommies and Daddy’s Roommate came out in 1989 and 1990, adding to the visibility of LGBTQ+ families. 

Transgender men’s pregnancies started to make the news as sensationalist headlines in the 2000s, but today the field of trans fertility is growing with studies, trainings, and resources. 

When marriage equality isn’t enough

Around the turn of the century, civil unions began popping up, then marriage state by state until there was federal recognition of these marriages in 2013. And finally, the Supreme Court granted national same-sex marriage rights in 2015. These relationship protections helped couples with children achieve legal rights for both parents. But it wasn’t automatic. National LGBTQ+ legal organizations still advise that a birth certificate is not enough to prove parentage or custody and recommend that non-biological parents go through a second-parent adoption as they did before marriage legalization. 

Earlier this year, for example, an Oklahoma judge ruled that a nongestational mother who was on her child’s birth certificate, married to the child’s other mother, co-created the child, co-raised the child from birth, and had given the child her last name had no parental rights to the child — but the sperm donor did as the biological father. 

“LGBTQ+ parents and our children are most definitely under attack, both as part of the general attacks on LGBTQ+ people right now and in terms of specific attacks on our families,” says Dana Rudolph, founder and publisher of the two-time GLAAD Media Award-winning site, Mombian and creator of LGBTQ Families Day. 

She doesn’t see this as a moment of losing rights, but rather as ongoing inequality, since full equality for LGBTQ+ parents has never been reached. 

“LGBTQ+ parents and our children have more visibility than ever, in our communities and workplaces, in the news, and in books and other media for children,” Rudolph says. “Despite current attacks on our families in many places, I think that broadly speaking, we have achieved greater acceptance over the past decades, making it easier to be visible.”

Nevertheless, bans of books showing LGBTQ+ families, state laws allowing discrimination against LGBTQ+ people in adoption and foster care, anti-trans laws, and outdated state parentage laws, all leave LGBTQ+ parents at risk. 

But LGBTQ+ parents’ numbers are growing. One in three LGBTQ+ people has had a child at some point in their life and as many as six million Americans have an LGBTQ+ parent. Half of LGBTQ+ millennials are actively planning on having a first or additional child. And there are many famous LGBTQ+ parents today – including Lance Bass, Karamo Brown, Andy Cohen, Anderson Cooper, Elton John, Melissa Etheridge, Tan France, Miss Major Griffin-Gracy, Patrick Harris & David Burtka, Jesse Tyler Ferguson & Justin Mikita, Ricky Martin, and Wanda Sykes – who are doing wonders for visibility. 

They all stand on the shoulders of the parents who came before and fought for the rights we have today to be able to adopt, appear on birth certificates, partner with surrogates, get married, and more. Today, we’re more visible and protected than ever today, even if we still have further to go. 

Laws banning drag performances have been introduced in legislative sessions in at least 14 states this year, and their potential effects are much more far-reaching than entertaining shows. 

An alarming number of anti-LGBTQ+ (particularly anti-transgender) bills continue to be introduced; the ACLU is tracking 278 of them across 33 states. While many target bathrooms, IDs, books, healthcare, education, and sports, a newer trend this year is attempting to ban drag. 

Republican state legislators in Arizona, Arkansas, Idaho, Kansas, Minnesota, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, and West Virginia have all introduced various bills on this theme.

Sybastian Smith, Director of Organizing for the National Center for Transgender Equality, says there are about 32 bills that seek to ban drag shows currently in state legislatures. 

“Five of these bills have specified that exposure to the LGBTQ+ community is child abuse, most of these bills ban minors and ban drag performers from public spaces,” Smith told LGBTQ Nation. “In fact, about six of these bills have defined drag performers as people who dressed and expressed differently from their ‘biological sex’ or ‘gender identity,’ and we have concerns that this also applies to everyday transgender people.”

Like other anti-transgender bills that seek to ban gender-affirming health care or access to public accommodations, these bills are part of a nationwide effort to legislate trans people out of existence, transgender rights advocates say. 

“These bills are framed as an attack against drag performers, but it actually seeks to criminalize the very existence of transgender people by labeling gender expression and gender-affirming clothing as ‘drag,’” Smith says.

Zooey Zephyr, who took office last month as the first and only transgender woman in the Montana House of Representatives, agrees. 

“These bills are designed both to ostracize and shun LGBTQ people and trans people specifically from the public and also to embolden the people who harbor anger and hatred towards trans people,” she told LGBTQ Nation. “It is clear based on the similar bills we’re seeing across the country, based on the comments of Republican presidential hopefuls for 2024 that anti-trans rhetoric is becoming a core part of the far right.”

House Bill 359 in Montana would ban minors from attending drag shows, ban drag performances from public libraries and schools, and ban minors from entering any business that provides a drag show (labeling any such business a “sexually oriented business”). A drag performance is defined in the bill as “a performance in which a performer exhibits a gender identity that is different than the performer’s gender assigned at birth using clothing, makeup, or other physical markers and sings, lip syncs, dances, or otherwise performs for entertainment to appeal to a prurient interest.”

Zephyr is concerned that this wording could apply broadly not only to drag performers but to any transgender person in certain situations, such as a transgender parent singing to their child, a transgender actor in a local theater troupe, or even a transgender child dancing. The broad potential interpretations leave many hypotheticals to the imagination, such as if high school productions of Hairspray or As You Like It would ever be allowed again. 

The Montana bill targets minors’ access to drag specifically, as do many other states’ bills that classify drag as an adult-only activity. 

Drag queen story hours have become a popular way to share children’s books with LGBTQ+ content outside a school setting, where such books have become increasingly banned. After books with life-saving representation have been pulled from library and school shelves, it has been dangerous to even attend drag storytimes to access them. GLAAD reported at least 141 anti-drag protests, attacks, or significant threats in 2022, including drag story hours, brunches, and bingo events. The attacks included multiple incidents of armed Neo-Nazis disrupting or protesting drag events, including those with children present.

Now several states want to criminalize those events altogether, but this isn’t the first time in U.S. history this has happened. 

“These attacks are not new,” Smith says. “Historically, we have seen extremists use harmful rhetoric like this for decades.” He points to anti-crossdressing laws in the 19th and 20th centuries that were one element of anti-LGBTQ+ persecution that protestors at the Stonewall Inn fought back against. Police routinely used these laws as excuses to harass and arrest LGBTQ+ people when they had no other charges they could use, such as catching someone in the act of sodomy. 

Today, Smith, Zephyr, and others are concerned that anti-drag laws will be used to target transgender people who are not drag performers, just like the laws repealed decades ago. 

The most broadly written bills, like Tennessee’s House Bill 9 and North Dakota’s House Bill 1333, ban drag from being performed on any public property, which would mean drag would not be permitted at Pride events. It could also theoretically mean that a transgender person dressing in clothing matching their gender identity but not their sex assigned at birth could be arrested if they did anything constituting a performance, such as lip-syncing to a song they were listening to. 

In Tennessee and North Dakota, a first offense carries a penalty of up to nearly one year in prison, a fine of $2,500 to $3,000, or both. A second offense would be a felony and could carry a penalty of up to five to six years in prison and additional fines.

Drag performers, transgender people, loved ones of transgender people, activists, and others have been speaking out in opposition to these bills at hearings across the country. Zephyr urges others to raise their voices against these bills, a task that falls to the grassroots since there are no federal protections.

“These attacks are going to continue to escalate until we as a community—as trans people, as legislators, our friends, families, and neighbors who love and care about us—stand up and say that these policies need to stop, that trans people belong.”