In most states, there are no laws or policies that specifically discuss the placement of children for adoption or in foster care with gay or transgender people. This is because standard child welfare policy calls for all applicants who are seeking to adopt or foster to be rigorously screened on an individualized basis for their suitability to care for a child. Categorical rules about particular groups of people are therefore extremely rare.

In a few states, there are laws or policies prohibiting discrimination against gay people or same-sex couples seeking to adopt or foster children. In a number of other states, courts have interpreted the state adoption law to permit the adoption of a child by the parent’s same-sex partner, thus, implicitly recognizing that gay people are eligible to be considered as adoptive parents.

On the other hand, in a very small handful of states, laws exist that explicitly disqualify gay individuals or couples from adopting or fostering. The ACLU believes such exclusions are unconstitutional, and some of these laws have been challenged in court, but the results have been mixed. We are not aware of any state laws or policies that specifically address placement of children for adoption or foster care with transgender parents.

Even where there is no law or policy excluding gay or transgender people from adopting or fostering children, child placement agencies will not necessarily be open to placing children with such applicants or treat them equally to other applicants. Placement decisions are generally left to the child placement agencies, whose directors and caseworkers may have a range of policies or attitudes regarding LGBT applicants.

Moreover, in some states and within some placement agencies, there are policies preferring placement of children with married couples. Where such policies exist, agencies and caseworkers might only consider other applicants (single heterosexuals, lesbian or gay singles or couples) only for hard to place children for whom they cannot find married couples (typically older children and children who have significant medical or emotional needs).

Even in jurisdictions where gay individuals face no barriers to adopting children, joint adoption by same-sex couples is not necessarily permitted. A few states have statutes or case law expressly providing for joint adoption by same-sex couples. Some states’ adoption laws have been interpreted by courts to preclude joint adoption by unmarried couples. And in other states, there are at least some judges who have interpreted the law to permit joint adoption. Where joint adoption is not available, in jurisdictions that permit second parent adoptions (see second parent adoption), lesbian and gay couples have been able to protect both parents’ parental rights by adopting consecutively (one member of the couple applies and goes through the process of adopting the child, and after the adoption is complete, the other partner procures a second parent adoption).