Public Policy Issues

Policies Affecting Gay Fathers

This article, which examines policies which have an impact on the circumstances of gay fathers, is a chapter in FIRA's Inventory of Policies and Policy Areas Influencing Father Involvement.

Preface:

An area of increasing interest among researchers and policy makers in recent years is the changing role of fathers and the explicit desire to support father involvement as a way to enhance children's health and well-being. Although scholarly interest in fatherhood emerged in the early 1970s and 80s, the bulk of studies and policy work on fatherhood is very recent - much of it dating from the mid-1990s onwards.

This article is a chapter in the recently released Inventory of Policies and Policy Areas Influencing Father Involvement which is a collaborative document which has benefited from the ideas and suggestions of others. It is supported by funding from the Social Sciences and Humanities Research Council (SSHRC - CURA). For a full copy of this document see our home page.

 

Policies Affecting Gay Fathers by Denise L. Whitehead

Specific Issues and Policies

The day-to-day acts of fatherhood look remarkably similar whether one is gay or heterosexual. On closer examination, however, it becomes apparent that being a gay father in Canadian society still carries much stigma, resulting in a multitude of challenges and issues that heterosexual fathers do not face. It is the overt and covert assumptions, implied values and discrimination faced by gay fathers (Flax, 2004) that colour the choices they can make about becoming a father, remaining a father and being acknowledged and celebrated as fathers. Typically, the issues, strengths and adaptive strategies of gay and lesbian parents have been overlooked (Silverstein 2002), reflecting and perpetuating their invisibility in the literature until recently (Dunne, 2001). Furthermore, efforts to identify and tally the number of gay fathers has been difficult because many keep their sexual orientation concealed lest they lose custody and/or visitation rights (Lambert, 2005).
Significance and Potential Influence on Fathers

The presence of same-sex unions was first formally counted in the 2001 Census. Statistics Canada (2002) reported that same-sex couples comprise 0.5% of all couples: male couples (55%) outnumber female couples (45%). Same-sex female couples were more far likely to have children living with them compared with same-sex male couples (15.2% and 3%, respectively) for an estimated total of 3,000 same-sex parent households. Ambert (2003) suggests that the majority of children being raised in same-sex families are actually the product of heterosexual unions that have dissolved who and are now being raised in a same-sex union where there is probably contact with a heterosexual parent. Nevertheless, there is evidence that gay and lesbian parenting is increasing – in part due to the increased availability of artificial insemination procedures and greater opportunities to foster and adopt children - albeit not with equal ease in various jurisdictions within North America (Ambert, 2003; Lambert, 2005). But, just as research about heterosexual mothers has dominated the research landscape for some time, gay father research has often been overlooked while research on lesbian mothers has seen much attention (Lambert, 2005). Much of the research has tended to focus on comparing lesbian and gay parents and their children with heterosexual parents in an attempt to redress negative assumptions that have been expressed in judicial opinions, legislative initiatives or public policies relevant to lesbian and gay parents and their children (Patterson, 2000).

This defensive standpoint has started to subside, allowing for a wider range of research. Today there is greater recognition of the diversity that exists even within the category of “gay fathers”. One of the crucial understandings is that fathers who are gay do not always arrive at fatherhood along the same trajectory as heterosexual fathers. There are two distinct roads: (1) fathers who initially pursue heterosexual relationships, marry and have children, and then establish a gay identity later in life; and (2) fathers who establish a gay identity and lifestyle first, and who then actively seek out the means to become parents, whether singly or in partnership (Silverstein, 2002). There are some challenges that are common and some that are different for these two groups.

It has been reported that both groups of gay fathers have few social supports for integrating their gay identity and their fathering identity (Peterson, Butts, Deville, 2000). Fathers who have their children in a heterosexual relationship or marriage face a number of issues: coming to terms with their growing awareness of their sexuality, making choices about their heterosexual relationship – whether to continue it and hide their sexuality or openly acknowledge their sexuality and possibly invite their spouse’s negative reaction; being rejected by the gay community as not truly being gay because they had been married (Dunne, 2001); and disclosure of their gay identity to their children, employers and community. Should the father choose to leave the marital relationship, concerns about maintaining their relationship with their children and how their sexuality will be perceived by the courts, court mediators and assessors and the spouse are likely to be paramount -- especially if they fear that their sexuality and chosen lifestyle will be deemed not to be in the best interests of the child. Their involvement may be further thwarted by mothers who are dealing with the emotional issues of the divorce due to the emerging gay identity of her ex-husband, although research by Dunne has noted that very positive relationships with ex-wives are also possible.

Research on gay Canadian fathers is taking place at a time of realized and impending change: same-sex unions are recognized in many provinces and Bill C-38 to legalize marriage at the federal level was passed in 2005. Gay and lesbian individuals and couples may adopt and foster children and have increasing access to various means of reproductive technology to facilitate the procreation of children. Nevertheless, there are numerous issues faced by this group that warrant further attention. As Ambert (2003) summarizes, “research data would be very useful in terms of welfare and social policies as there is currently too little information that can guide policy makers, social workers, clinicians, as well as teachers and parents to understand the family strengths and weaknesses of same-sex couples and their children. These families are in many respects pioneering a ‘new’ way of life and may need more social support than others.”


Gaps, Critical Questions and Concerns

Same Sex Marriage: Same sex marriage is legally recognized in seven provinces and one territory (the exceptions being Alberta, New Brunswick, PEI, Nunavut and the Northwest Territories). While the provinces have jurisdiction over the issuing of marriage licenses and the performing and registering of marriages, the federal government has jurisdiction for defining marriage. Federal legislation entitled The Civil Marriage Act (full title: An Act Respecting Certain Aspects of Legal Capacity for Marriage for Civil Purposes) came into effect in July, 2005.

Parent Recognition: The legal presumption of recognizing only a biological mother or father ignores the social reality of gay and lesbian parentage. While a non-biological parent may be registered on the birth certificate, the fact that they must still formally adopt to ensure their legal connection to the child who knows them as their emotional, social and psychological parent creates additional uncertainty in the event of separation prior to the birth, failure to adopt, or untimely death. This situation leaves these parents in the precarious position of having no legal entitlement for the non-biological “papa” to access the child, and the child has no legal claim to formalized support, inheritance, care, and access from the socially acknowledged parent (Henderson, 2004). For gay fathers, the birth mother registers the birth and lists the biological father. She may then subsequently waive her parental rights allowing the second father to formally adopt the child with the consent of the biological father. Heterosexual couples who bear a child through donated ovum and/or sperm have no biological connection, but will have the right to be registered at birth as the parents. No similar arrangement exists for same-sex parents. The current gap in defining what constitutes a “parent” and on what basis that determination is made is important: Biological? Registration? Settled intention? Adoption? Also absent, as a result, is the means to tally numbers respecting those who classify themselves as gay parents. While gay or lesbian couples can be legally designated parents of a child, the law currently limits the number of parents to two – therefore acknowledging a biological mother and father and seeking to add a third legal parent was refused in the recent London, Ontario court decision of A.A. v. B.B. (2003, CanLII 2139 (ON S.C.)) ruled that it lacked authority to permit the application in accordance with the Children’s Law Reform Act of Ontario. This ignores the reality for many gay families that may involve multiple couples and individuals who are parenting the child (i.e., a lesbian couple and a gay couple jointly sharing parenting responsibilities for a child).

Reproductive Technology: Sperm donor contracts may not be legally binding. An exchange of money for sperm and ova is no longer legally permissible with the introduction of the AHRA. Concerns about the supply of genetic material are forefront. There is also a concern that in-home self-insemination contravenes current licensing regulations pursuant to the AHRA. Gay and lesbian couples who may come together to produce a child in this manner may fear sanctions, particularly if asked to explain their procedures in the context of a separation or custody cases.

Children: All children can suffer the consequences of being identified as different. Children are often exposed to homophobic language while at school and may be targeted for bullying when they have gay parents. There is a need for support from schools, teachers and school boards, and positive recognition in curriculum and texts with reference to gay and lesbian parenting. Children will experience different issues during different stages of development and there is need for on-going parental supports during all phases of child-rearing.

Divorce: Gay fathers are unlikely to win custody battles over their children after divorce. Recognition of this fact, in part, may explain why so few of these cases are pursued because of the bias implicated (Patterson, 2000). While the research has consistently found that gay fathers are good fathers, mother-bias is further exacerbated by the presence of a gay ex-spouse seeking full or joint custody.

Adoption and Foster Care: The continuing public resistance to gay adoptions may mean that some child welfare agencies do not openly develop policies for gay and lesbian adoption and/or that private or international adoption workers may discriminate against gay and lesbian couples. Child welfare agencies may lack formalized written policies or training for workers handling these adoptions. As Mallon (2000) suggests, agencies need to focus on the needs of the child and whether prospective parents (gay or otherwise) will meet those needs. No single factor, including sexual orientation, should dominate. Gay fathers may present unique situations, and further research to understand and identify these and articulate appropriate policies to understand individual strengths and weaknesses with respect to nurturing a nonbiological child may be needed.

Urban versus Rural Access to Information and Supports: Large metropolitan areas like Toronto and Vancouver, with significant gay populations, have greater access to resources to both facilitate becoming a father and for emotional support before, during and after becoming a father. Resources are extremely limited in smaller centres and non-existent in most. The internet has helped to overcome this barrier, but partaking in face-to-face support opportunities is far more limited for those in smaller communities or rural locations (Oswald & Culton, 2003).

Future Research: Given that past research has tended to reflect the need to address prejudices and negative stereotypes that have been influential in judicial decision making and in public policies relevant to lesbian and gay couples, parents and their children (Lambert, 2005; Patterson, 2000), future research should expand to consider a wider range of issues such as biological and non-biological parenthood, the amount of contact gay fathers have with their children and the influence of the broader gay culture on gay fathers’ self-concept and relationship with their children. Research should incorporate the experiences of a more economically and culturally diverse sampling of gay and lesbian parents, utilize a broader range of research methods (including qualitative and observational methods, and longitudinal research), and focus on family/parenting processes rather than the more narrow focus on structural differences.

Human Rights Protection: While the Supreme Court of Canada, in the case of Vriend v. Alberta (April 2, 1998) (see discussion in Flax, 2004) ruled that protection of gays and lesbians must be ‘read in’ as part of Alberta’s Individual Rights and Protection Act (IRPA), the lack of procedure and initiative to formally include this aspect into the IRPA may give pause for concern about the more subtle forms of treatment that gay and lesbian individuals may face. The Canadian Human Rights Act now provides protection for sexual orientation but is not explicit with reference to issues around transgendered individuals and their relationships. Currently gender identity and gender expression are not specifically recognized.


Key References

Ambert, AM. (2005). Contemporary family trends: Same-sex couples and same-sex-parent families: Relationships, parenting, and issues of marriage. Available at The Vanier Institute of the Family Web site: http://www.vifamily.ca
Dunne, G. A. (2001). The different dimensions of gay fatherhood: Exploding the myths. Gender Institute Discussion Paper, Issue 8. Retrieved March 28, 2006, from the London School of Economics Web site: http://www.lse.ac.uk/collections/genderInstitute/pdf/gayfatherhood.pdf
Flax, G. (2004). Issues and agenda: Producing homophobia in Alberta, Canada in the 1990s. Journal of Historical Sociology, 17(1): 87-120.
Henderson, J. (2004). Towards a legal definition of parent. Legal Works/Family/Canadian Family Law Guide/Canadian Family Law Matters – Newsletter (Number 288 – June).
Holland, W. H. (2004) Cohabitation. In Family Law Reference Materials, Bar Admission Course. Toronto, ON: Law Society of Upper Canada.
Lambert, S. (2005). Gay and lesbian families: What we know and where to go from here. The Family Journal: Counseling and Therapy for Couples and Families, 13(1): 43-51.
Mallon, G. P. (2000). Gay men and lesbians as adoptive parents. Journal of Gay & Lesbian Social Services, 11(4).
Oswald, R. F., & Culton, L. S. (2003). Under the rainbow: Rural gay life and its relevance for family providers. Family Relations, 52(1), 72-81.

Patterson, C. J. (2000). Family relationships of lesbians and gay men. Journal of Marriage and the Family, 62: 1052-1069.
Peterson, L. M., Butts, J. & Deville, D. M. (2000). Parenting experiences of three self-identified gay fathers. Smith College Studies in Social Work, 70(3): 513.
Silverstein, L. B. (2002). Fathers and Families. In J.P. McHale and W.S. Grolnick (Eds.). Retrospect and Prospect in the Psychological Study of Families, 35-64. Mahwah NJ: Lawrence Erlbaum Associates.
Statistics Canada. (2002). 2001 Census: Marital status, common-law status, families, dwellings and households. The Daily, October 22, 2002. Available at http://www.statcan.ca