I. Emergence of Lesbian and Gay Custody and Visitation Cases

Lesbian and gay parents did not begin asserting their custody rights solely because of the APA's declassification, but rather these cases were part of the same impulse to change the social status of homosexuals in America that led to the diagnostic change. The explosion of gay activism in the 1970s not only forced the mental health community to reconsider its position on homosexuality as a mental illness, but also empowered homosexual parents to come out, divorce their spouses, and assert their rights in court.Footnote ²⁴ Prior to the gay liberation movement, and the increasing acceptance of lesbians and gays in American society, heterosexual parents often blackmailed their homosexual ex-spouses into relinquishing custody by threatening to disclose the gay parent's sexual orientation to family, friends, and coworkers.Footnote ²⁵ Even as the gay rights movement gained traction, most Americans still viewed homosexuality as incompatible with childrearing, allowing non-gay parents to continue to manipulate their former spouses.Footnote ²⁶ The conservative movement's emphasis on “traditional family values,” a term that encompassed both the idealization of the heterosexual nuclear family and strict adherence to gender roles, served as an important rhetorical strategy to oppose gay rights, and demonstrates the strong social opposition to gay parents in many parts of the country.Footnote ²⁷

The gay liberation movement made these custody cases possible in other, more practical ways. Lesbian and gay rights organizations kept lists of sympathetic attorneys and expert witnesses, as well as helping to raise funds for the substantial costs associated with litigation. Lesbian mother groups also organized defense funds for particular cases, holding benefit auctions, rallies, movie screenings, and other fundraising events, responding to the financial struggles that single women faced.Footnote ²⁸ The rise of lesbian mother organizations and communications networks made it possible for mothers unable to bear the financial burden of litigation to obtain monetary support from supportive women around the country.Footnote ²⁹

It is important to note that many of the women fighting for custody were not active in lesbian rights organizations when they went to court, nor were they necessarily interested in promoting lesbian rights generally. They litigated custody cases to defend their families; their activism, more often than not, was incidental. These cases stressed their ability as mothers and the best interests of their children, and did not employ a rhetoric of rights, which would have been out of place in family court.Footnote ³⁰ Additionally, participating in gay liberation groups could be detrimental, as many judges saw this type of political activism as a basis for denying custody.Footnote ³¹ At the same time, lesbian feminist groups did not necessarily see custody rights as an important part of lesbian activism, creating the need for lesbian mother groups.Footnote ³²

To analyze the role of mental health theories in lesbian and gay custody and visitation disputes, this article draws on 212 cases litigated between 1973 and 1998, all of which involved women and men who had children while in a heterosexual marriage.Footnote ³³ These cases represent a fraction of the total number of custody and visitation contests, as evidenced by the fact that, in its first three years, the Lesbian Mother National Defense Fund (LMNDF), a Seattle-based organization founded in 1974, provided assistance to mothers in 200 cases.Footnote ³⁴ Dykes and Tykes, a New York City lesbian mother group, received twenty-five to thirty-five calls a week from lesbian mothers afraid of losing their children during the first six months of the organization's existence, leading the group to form the East Coast Lesbian Mother Defense Fund in 1976.Footnote ³⁵ The majority of the cases in the data set involved lesbian mothers, in part because the principle of “tender years” impacted judicial determinations even after the “best interests of the child” standard became the cornerstone of family law in the early 1970s.Footnote ³⁶ As a result of their sex and sexual orientation, gay fathers did not expect to succeed in custody suits, leading many gay fathers to focus instead on negotiating increased visitation with their ex-wives.Footnote ³⁷ Additionally, gay fathers did not escape the AIDS crisis of the early 1980s; San Francisco and Los Angeles gay father groups lost seventy to ninety percent of their members to AIDS.Footnote ³⁸

There are several reasons for the dearth of surviving case material, the primary being that family court decisions are typically unreported and sealed for the protection of the parties involved. Additionally, a significant number of disputes were settled prior to judicial adjudication, leaving no record. In 1979, Portland's Community Law Project, a public interest law firm, reported knowing of eighty to one hundred homosexual parent custody cases in the Portland metropolitan area that were settled out of court. The firm knew of only ten cases that went to trial.Footnote ³⁹ Movement lawyers recommended that homosexual parents settle their cases, believing that this would result in a better outcome.Footnote ⁴⁰ Rosalie Davies, founder of the Philadelphia organization Custody Action for Lesbian Mothers (CALM), reported: “Most often, our goal is to stay out of court. The fewer cases we have going into court, the more we feel we're being successful. So we often ask a client to bargain, or give the father a little more visitation than she would normally want to give him, or to put up with some harassment.”Footnote ⁴¹ The data set also does not take into account the number of lesbian mothers who never sought custody or visitation, afraid of having their sexual orientation revealed or convinced that it was futile to attempt a court battle. Lesbian mother groups helped a number of women who went underground, fleeing with their children rather than facing the possibility of losing custody in court.Footnote ⁴² The vast majority of the surviving case records involve white mothers, possibly because black lesbians were more likely to settle their disputes or go underground than take on court battles in which they would have to combat discrimination based on race, sexual orientation, and socioeconomic status.Footnote ⁴³ Additionally, the most publicized cases were those of white lesbian mothers battling their middle-class ex-husbands, leaving a dearth of newspaper accounts involving women of color.Footnote ⁴⁴

As the following tables indicate, what these cases reveal when aggregated is a mix of opinions ranging from discrimination to acceptance of lesbian and gay parents, not a steady progression in favor of lesbian mothers and gay fathers. Although lesbian mothers began winning cases more consistently after 1978, when research studies on lesbian mothers first emerged, these gains quickly faded. In the mid-to-late 1980s and early 1990s, courts began ruling against lesbian mothers in greater numbers. The first table includes lesbian mother custody cases identified through all of my sources, including Westlaw. The second is limited to lesbian mother custody cases with published opinions available on Westlaw, collected using the search terms custody and either homosexual or gay or lesbian. Both tables demonstrate the same trends, although the decline in lesbian mother victories is starker when the data set is limited to published opinions.

Table 1 Lesbian Mother Custody Cases – All Sources

Table 2 Lesbian Mother Custody Cases – Published Opinions

ⁱ The courts in these instances remanded the cases for lower court adjudication; the final outcome is not available.

These tables suggest a different trajectory than that of the statements from activists and movement lawyers, who emphasized that ninety-eight percent of lesbian mothers lost their custody cases through the late 1970s, and that only fifteen percent of lesbian mothers won their cases in the early 1980s.Footnote ⁴⁵ However, this is because the national data obscure the important regional differences in lesbian mother custody determinations, which coincide with the liberal and conservative political leanings of each state. As the following tables demonstrate, lesbian mothers in Eastern and Western states were more likely to be successful in their custody petitions, with lesbian mothers in Eastern states winning eighty-six percent of their cases between 1979 and 1985, when studies on lesbian mothers emerged. After 1985, the number of cases in Eastern states dropped dramatically, likely because the shift in judicial norms made fathers less likely to challenge the rights of lesbian mothers. In Southern states, by contrast, lesbian mothers consistently and overwhelmingly lost their petitions throughout the 1980s and 1990s. Midwestern states had a more mixed result, with lesbian mothers relatively successful prior to 1979, at which point their loss ratio increased substantially.

Table 3 Eastern States (All Sources)ⁱⁱ

ⁱⁱ Connecticut, Delaware, Massachusetts, Maine, Maryland, New Jersey, New York, Pennsylvania, Vermont.

Table 4 Southern States (All Sources)ⁱⁱⁱ

ⁱⁱⁱ Alabama, Arkansas, Florida, Georgia, Kansas, Kentucky, Louisiana, Missouri, North Carolina, Oklahoma, Tennessee, Texas, South Carolina, Virginia, West Virginia.

Table 5 Midwestern States (All Sources)^iv

^iv Illinois, Indiana, Iowa, Minnesota, Ohio, Nebraska, North Dakota, South Dakota, Wisconsin.

Table 6 Western States (All Sources)^v

^v Alaska, Arizona, California, Colorado, Nevada, Oregon, Utah, Washington, Wyoming.

These statistics demonstrate that only certain courts undertook normative shifts, and did so after liberal social science research emerged; this was especially true in the East. In courts resistant to lesbian mother custody demands, predominantly in the South and Midwest, other forms of authority, such as morality, were mentioned more frequently in their decisions.Footnote ⁴⁶ These courts expressed concerns about children's exposure to “immoral” behavior, as well as the problem of allowing “children to be placed in a home where the felony of sodomy is committed at least twice a week.”Footnote ⁴⁷ Given that only a small percentage of case records survived, the source base for these tables is limited in providing a quantitative account of change, but the data suggest trends that qualitative evidence also supports.

II. Central Role of Expert Testimony in Custody Cases

Expert testimony became central to custody cases when an increasing number of jurisdictions instituted a “nexus requirement” in the mid-1970s, which required evidence connecting the parent's homosexuality with harm to the children. This was a shift from a “per se” rule that homosexual parents were inherently unfit, which made it impossible for lesbian mothers or gay fathers to successfully petition for custody or visitation. The nexus requirement came about as a result of the fathers' rights movement, which challenged the presumption of maternal custody and demanded courts identify specific reasons for denying fathers equal custody rights.Footnote ⁴⁸ The nexus requirement rendered expert testimony essential for both sides; it placed the onus on the homosexual parent's ex-spouse to prove harm, thereby requiring ex-spouses to introduce expert psychological testimony to support their claims. At the same time, it forced lesbian mothers and gay fathers to present opposing experts, making expert testimony necessary for all parties. As Holly Lad, a member of the National Lawyers Guild, accurately predicted, requiring proof of harm to a child made it such that “‘judges will have to rely much more heavily on the testimony of child psychiatrists in determining whether the child is suffering any detrimental effects.’”Footnote ⁴⁹ Although the nexus requirement indicated that lesbian mothers and gay fathers were presumptively fit parents, many courts permitted speculation about potential future harm, as well as identification of wide-ranging and undefined harms, rendering the test meaningless.Footnote ⁵⁰ However, the nexus requirement did make it possible to introduce the social science evidence that would convince certain courts to grant homosexual parents custodial rights.

The requirement first appeared in the 1973 case of People v. Brown, in which a Michigan appellate court ruled that, although the probate court had heard evidence that Mae Brown and Arlene Smith were engaged in a lesbian relationship, this was insufficient to support the determination that the home was unfit for the children. The trial court's decision to deny the women custody had been based on their sexual orientation, even though the hearing testimony established that Brown had threatened Smith with a rifle and had tried to kill herself, Smith, and the children.Footnote ⁵¹ Upon remand, the court allowed the children to return from foster care to their mothers' home.Footnote ⁵² The nexus requirement quickly spread to other jurisdictions, largely because of the judicial shift from a presumption of maternal custody to the “best interests of the child” standard. The new standard required courts to conduct an intensive determination as to the preferable custodian, rejecting gender stereotypes in favor of fact-based adjudication.Footnote ⁵³ Because each trial turned on the facts of the case, experts needed to testify each time; judicial acceptance of an expert's opinion did not create a binding precedent for other families, although it could be persuasive authority.

Courts emphasized several possible types of problems that children reared by homosexual parents might have, often focusing on the possibility that children would be socially stigmatized or would grow up to be homosexual themselves. Although experts testified as to both issues, social science research focused on the future sexual orientation of the children, the question that came up most frequently and a topic to which scientists could provide special expertise through research studies.Footnote ⁵⁴ The idea that homosexuals actively recruited children to homosexuality was a pervasive notion that dated to the 1920s, and this concept had remarkable staying power despite shifts in scientific thought. As late as 1982, some ex-spouses and experts continued to allege that homosexual parents were “recruiting” the children through sexual abuse.Footnote ⁵⁵ Most of the custody and visitation cases, however, identified the threat of children becoming homosexual as being the result of living in a gay-friendly environment with gay role models. As Clifford Rosky has convincingly argued, conservative opponents of gay rights modernized the anti-gay rhetoric of the 1970s, moving away from seduction narratives to identifying indoctrination and role modeling as the threat gays and lesbians posed to children's sexual orientation. According to Rosky, “[b]y focusing on the impact of policies on children's sexual and gender development, opponents sought to bracket the legal and moral status of LGBT adults, while making more plausible empirical claims about the transmission of queerness.”Footnote ⁵⁶ This explains why, when the LMNDF sought nonprofit status in 1976, the IRS conditioned its tax exemption “on the understanding that none of your educational activities are designed to proselytize or influence any individual's sexual orientation.”Footnote ⁵⁷ Whereas earlier notions of recruitment turned on predatory behavior and child molestation, the ideas present in lesbian mother and gay father custody cases indicated a fear that homosexuality was taught by example. Although Daniel Rivers has argued that the visibility of the gay fathers movement “helped to refute the assertion that same-sex sexuality was pathological to children” by demonstrating that gay men were not antifamily, the conservative movement's shift toward emphasizing the dangers of gay role models rendered the profamily claims of gay fathers irrelevant to courts and the public more generally.Footnote ⁵⁸

Courts around the country were particularly concerned about a parent role modeling homosexuality when the child at issue was an adolescent. In 1974, California mother Carol Parrott lost custody of her daughters because the girls were nearing puberty. The trial judge emphasized that “the girls, who are 9 1/2 and almost 11 years of age, are approaching a particularly sensitive period in their lives with respect to their emotional and physical development, and the mother's unconventional sexual relationship becomes of particular significance at this point in their lives.”Footnote ⁵⁹ The girls were placed in foster care in Kelso, Washington, a seventeen hour bus ride away from their mother. Because of Parrott's limited income from her job at Nichols Turkey Breeding Farm, she could at most afford the fifty-four dollar round-trip ticket to visit her daughters twice a year.Footnote ⁶⁰ Parrott had lost custody of her two other daughters in 1971, with the court placing the children in foster care because “[t]he carrying on of a relationship in the home which is presently viewed by society as much more abnormal, involving conduct presently considered illegal, and with no potential for legitimization, would represent the ‘threshold level of deficiency.’”Footnote ⁶¹ That the trial court considered a foster placement a better option for the children than a home with their lesbian mother is indicative of the extreme disapproval with which some courts approached homosexual relationships. This is particularly true given that, by the mid-1970s, the number of children in foster care was at an all-time high, leading Congress to focus on expediting the adoption of children “languishing in unstable foster arrangements” in 1980.Footnote ⁶²

Before the emergence of the research studies, which identified sexual orientation as fixed in the first few years of a child's life, experts also expressed apprehension about the impact of parental homosexuality on adolescents, as in the 1974 case of Sandra Schuster and Madeleine Isaacson, which garnered nationwide publicity as one of the first lesbian mother victories before a state supreme court. Dr. S. Harvard Kaufman, a court-appointed Seattle psychiatrist, opined that, although there was no need to remove the children from their mothers' custody at this time, “the whole idea of a living situation may have to be reconsidered as the children go into adolescence.”Footnote ⁶³ Kaufman had told the court there was no danger prior to adolescence, and that the mothers' sexual orientation would only result in the children “grow[ing] up knowing more about homosexuality and human sexuality in general that most children,” but that “this knowledge need not predispose them to become homosexuals.”Footnote ⁶⁴ The trial court ignored Kaufman's conclusion, despite claiming to have been “particularly impressed” by the psychiatrist, and ordered the women, who had met at their Pentecostal church and lived together with their six children, to separate their households.Footnote ⁶⁵ The women complied by moving into adjacent apartments, but the financial burden of running two homes led them to move back in together; the Washington Supreme Court later ruled that the women could continue to live together as same-sex partners and raise their children together.Footnote ⁶⁶

Given judicial anxieties about the future sexual orientation of children raised in lesbian homes, social science evidence became crucial in custody contests. Throughout the 1970s and 1980s, courts in Eastern and Western states repeatedly cited expert testimony that a parent's homosexuality would not impact a child's sexual orientation as being a significant factor in their decisions to grant homosexual parents custody.Footnote ⁶⁷ In 1980, New Jersey Superior Court Judge William J. D'Annunzio granted Rosemary Dempsey custody of her ten and eleven-year-old daughters, relying on psychiatrist Richard Green's testimony and research study about the future sexual orientation of children with homosexual parents. Dempsey, who was active in the lesbian-feminist movement, had lived with her partner, Margaret Wales, and Wales' three daughters for five years. This was the first case in which a New Jersey Court awarded custody to a lesbian mother living with her partner, and marked a sharp divergence from Bruce Voeller's 1974 case, in which the New Jersey court cited Voeller's involvement in the gay liberation movement as a reason to deny his custody petition.Footnote ⁶⁸ Likewise, the Massachusetts Appeals Court ruled in favor of a lesbian mother in 1983, citing the testimony of four unidentified psychologists. The opinion focused primarily on one expert, whose study comparing the children of heterosexual and homosexual parents revealed “‘no difference in the minor children and no evidence of sexual dysfunction to a minor child reared by a single homosexual parent.’”Footnote ⁶⁹

Expert testimony also benefited gay fathers, who used evidence that their homosexuality would not impact their children's future sexual orientation to win custody petitions. In 1982, the Oklahoma Supreme Court granted a gay father custody of his twin eleven-year-old sons, relying on psychiatric expert testimony about the children's sexual orientation. In a testament to the heterosexual imperative in custody cases, the father told the court “he ‘has never encouraged the boys to adopt his own sexual preference and, indeed, prefers that they have the normal sexual orientation.’”Footnote ⁷⁰ This father's statement indicates the way in which social science research, which emphasized that gay parents would not raise children with aberrant sexual orientations, reified heterosexuality. This case was one of the few in which a gay father engaged in a protracted custody dispute, as most gay fathers did not appeal court decisions denying them custody, leading many to become estranged from their children.Footnote ⁷¹

Gay rights groups and movement lawyers recognized the key role of psychiatric testimony, repeatedly commenting on its crucial nature and disseminating information about experts and useful psychiatric studies to lesbian and gay parents. This continued the collaboration among gays, lesbians, and psychiatric researchers, which began prior to the 1973 declassification with Evelyn Hooker's studies and resulted in the APA's decision to declassify homosexuality from its Diagnostic and Statistical Manual of Mental Disorders (DSM). The National Gay Task Force (NGTF), one of the first organizations to take up the issue of homosexual parents, prepared a “Gay Parent Support Packet” that contained statements from ten nationally recognized experts, including Drs. Richard Green, Evelyn Hooker, John Money, Wardell Pomeroy, Judd Marmor, and Benjamin Spock.Footnote ⁷² With the exception of Spock, who has been described as “arguably the most influential pediatrician of all time” and whose book, Baby and Child Care, was the world's second-best-selling book (after the Bible) for five decades, all of the letters came from psychiatrists and psychologists.Footnote ⁷³ The packet also provided statements of support from leading mental health organizations, and listed relevant psychiatric studies that concluded that a parent's homosexuality would not negatively impact his or her children.Footnote ⁷⁴ First published in 1973, the NGTF reissued the packet in 1979 to provide more up-to-date information for homosexual parents. The NGTF learned the importance of expert testimony from the experience of one of its leaders, Bruce Voeller, as the testimony of Dr. Richard Gardner, a child psychiatrist at Columbia University, was central to the court imposing strict limitations on visitation.Footnote ⁷⁵

The NGTF's information on psychiatric studies proved useful not only for litigants, but also for experts. In a 1980 case in Arizona, involving a lesbian couple who met in prison and sought to recover custody of their children after their release, the court required the attorney general's office to provide expert testimony on homosexual lifestyles. The state presented Dr. Dean B. Mitchell, a Phoenix psychologist who testified for 2 ½ hours as to whether lesbian women were competent parents, the stability of lesbian relationships, whether lesbians abused children, the likelihood that being raised by a lesbian couple would prevent a child from being heterosexual, and the pressures that the children would face from their peers.Footnote ⁷⁶ Mitchell, who worked with homosexual clients, based his testimony on his clinical experience and the information contained in the NGTF Gay Parent Support Packet. As he wrote to the NGTF, the combination of these two sources of information allowed him “to present a cogent presentation before the Juvenile Court.”Footnote ⁷⁷ The court awarded the mothers custody.

Much like the NGTF, other leading lesbian and gay rights litigation groups emphasized the importance of psychological studies and expert testimony. Marilyn Haft, who founded the American Civil Liberties Union's (ACLU) Sexual Privacy Project in 1973, always introduced expert testimony in the cases she litigated, not only to benefit the men and women she represented, but also to create a record on which other homosexual parents could rely. She distributed copies of the experts' testimony to other lawyers and gay rights activists around the country to use in custody cases.Footnote ⁷⁸ Likewise, the LMNDF provided information to attorneys who contacted the organization, creating a litigation manual for lesbian mothers and identifying experts whom the mothers could retain. However, the costs of hiring experts were substantial; in highly contested cases, lesbian mothers might spend thousands of dollars on experts, and tens of thousands of dollars on lawyer and court fees.Footnote ⁷⁹ The Lesbian Rights Project, a program founded by Donna Hitchens under the auspices of the women's rights group Equal Rights Advocates, also published resources that underscored the crucial role of mental health theories to custody litigation.Footnote ⁸⁰ One of their first publications included a handbook entitled Lesbian Mothers and their Children: An Annotated Bibliography of Legal and Psychological Materials in 1980.Footnote ⁸¹ This was soon followed by the Lesbian Mother Litigation Manual, published in 1982, which devoted an entire chapter to expert testimony, and highlighted the importance of psychiatric studies in its sample trial brief and evidentiary motions.Footnote ⁸² Other organization leaders reinforced the central role of mental health theories when giving press interviews. Nan Hunter, Director of the ACLU Lesbian and Gay Rights Project, told the Atlanta Journal-Constitution that the legal position of lesbian and gay parents was improving “because there has now developed a body of psychological and other scientific literature that shows conclusively that the homosexuality of a parent has no harmful impact on the child.”Footnote ⁸³ Barbara Levy, Executive Director of Lambda Legal Defense & Education Fund, similarly emphasized to the gay press the importance of educating judges as to the fitness of lesbian and gay parents in successfully litigating custody cases.Footnote ⁸⁴

Gay rights lawyers and advocates stressed the need for custody litigants to introduce expert testimony and research studies, demonstrating the extent to which this material had become crucial to custody cases as courts increasingly instituted the nexus requirement. Forced to show a tangible harm that the children would suffer as a result of parental homosexuality, heterosexual ex-spouses often claimed that children raised by lesbian mothers or gay fathers would grow up to be homosexual themselves. To counter this claim, scientists focused their research on the future sexual orientation of children, creating a body of expert material that would help lesbian mothers and gay fathers in their custody suits.

III. Pro-Gay and Lesbian Parenting Studies

The researchers who undertook studies in the late 1970s and early 1980s to address judicial concerns about the effect of parental homosexuality on children uniformly demonstrated that children raised by gay and lesbian parents were not more likely to become homosexual than children raised by heterosexual parents.Footnote ⁸⁵ Although courts raised a number of other psychological questions, including the possibility that children would suffer from social stigma, researchers focused their studies on the sexual orientation of children raised by gay and lesbian parents, the question on which judicial fears centered. Until these research studies emerged, many in the mental health professions assumed that parental sexual orientation shaped children's psychosexual development, and, therefore, that homosexual parents were more likely to raise homosexual children. These studies thus challenged psychological conventions and changed the way in which practitioners understood lesbian mothers and gay fathers. The impact of the studies on mental health professionals was particularly important, as most custody cases involved local psychiatrists, psychologists, and social workers, whom lawyers selected as their experts because they were known to and respected by the family court judges.Footnote ⁸⁶ Most of the researchers were already interested in issues of gender and sexuality before undertaking the studies, but decided to focus on how parental homosexuality influenced children's sexual orientation specifically because of lesbian mother custody cases. Although these scientists were sympathetic to gay rights claims, they did not see themselves as activists, but rather identified as scientists conducting research that implicated a social movement.

Richard Green was the first scientist to undertake research on the impact of parents' homosexuality on their children. Green had focused his career on the study of sexuality and gender identity, prompted by his teenage fascination with Christine Jorgensen.Footnote ⁸⁷ Upon entering medical school, Green immediately began working with John Money, a scientist renowned for his work on intersex conditions and gender identity.Footnote ⁸⁸ Together, they conducted research that focused on the need for parents to model traditional gender roles to avoid “gender role anomalies,” which they concluded were ingrained “very early in life.”Footnote ⁸⁹ After graduating, Green studied psychoanalysis under Robert Stoller, a leader in gender identity research and a professor at UCLA's Gender Identity Research Clinic, and founded the Archives of Sexual Behavior and the International Academy of Sex Research. Green was one of the first psychiatrists to publish an article in a peer-reviewed journal arguing for the declassification of homosexuality from the DSM, and was active in the 1973 declassification debates.Footnote ⁹⁰

Green first testified in a lesbian mother custody case in 1974, when he concluded in Hall v. Hall that the mother's lesbianism would not impact the sexual orientation of her daughter because the child conformed to traditional gender roles. Green stressed that, in recounting role-playing games, the daughter played “the mommy and [the other child] plays the daddy. Her favorite toys are Barbie dolls, and the wedding gown which she wears.”Footnote ⁹¹ Green also made it clear that the mother and her partner encouraged the child to develop along gender normative lines, testifying that they primarily provided the girl with dresses and feminine toys such as Barbie dolls.Footnote ⁹² He predicted that the girl “will be a female feminine heterosexual lady.”Footnote ⁹³

Green's methodology, which tied gender roles and sexual orientation, satisfied both of the major psychological explanations for homosexuality at the time, one of which was rooted in psychoanalysis and the other in social learning theory. Despite their different theoretical origins, both emphasized the importance of early-age gender role development in determining sexual orientation. Psychoanalysts conceptualized sexual orientation as resulting from the resolution of the Oedipus and Electra complexes, whereas social learning theory understood gender identity as being based on “a perceived similarity between the child and the … parental role model.”Footnote ⁹⁴ Both linked “inappropriate” or “atypical” gender role behavior in childhood with homosexuality in adulthood, with social learning theorists describing preadolescent boys who exhibited “atypical gender-role behavior” as “prehomosexual” and recommending psychiatric treatment.Footnote ⁹⁵ According to these theories, the gender roles that children exhibited indicated what their adult sexual orientation would be, and therefore gender conformity served as a proxy for future heterosexuality.Footnote ⁹⁶ Because Green believed that gender roles and sexual orientation were fixed early in life, he did not believe that lesbian motherhood would have any effect on children after the first two to three years of their lives.Footnote ⁹⁷

Green's method of predicting sexual orientation based on conformity to gender roles also guided his landmark study on the sexual orientation of children raised by lesbian mothers, which he published in 1978. Over a period of two years, he studied thirty-seven children between the ages of three and twenty raised by lesbians or transsexuals; he found that that thirty-six of them “have conventional sexual preferences or are on their way to developing them.” All thirteen of the children who had reached adolescence were sexually attracted to members of the opposite sex. Green measured the sexual identity of the younger children by analyzing their toy, game, and clothing preferences; composition of friend groups; drawings; and career aspirations. Most of the girls favored playing with dolls and wanted to become nurses, whereas the boys generally identified cars as their favorite toys and selected the male-dominated professions of firefighters, police officers, and doctors. A third of the preadolescent children transgressed gender norms in identifying their ideal professions, including three girls who wanted to be doctors or scientists, and three boys who aspired to be artists and nurses, but Green nevertheless concluded that they had developed conventional gender identities. Green suggested that a parent's sexuality had little effect on that of their child, as children “are exposed through mass media and their peers to conventional family styles and conventional patterns of psychosexual development.”Footnote ⁹⁸ Green would later publish a book-length study of the factors influencing children's sexual identity and sexual orientation.Footnote ⁹⁹

Although Green's research had always focused on sexual orientation and gender roles, he undertook a study of lesbian mothers and their children because of the questions that courts had raised; Green was concerned that lawyers and other psychiatrists were using children's future sexual orientation as an argument against homosexual parents.Footnote ¹⁰⁰ In his study, he plainly asserted that he “hope[d] that this report may be of value” for “courts [that] are being forced to deal with this issue.”Footnote ¹⁰¹ Green chose to structure his 1978 study using predictors of future sexual orientation, rather than undertake a longitudinal project, “because of the lesbian mother [custody] trials,” which required immediate results. A study that tracked children over time would have come too late to help lesbian mothers who were seeking custody in the 1970s and 1980s. Green also hoped that his work would help other mental health professionals testifying in lesbian mother cases, who could cite his study as evidence about the future sexual orientation of children raised by homosexual parents.Footnote ¹⁰² Green had been aware of and concerned about lesbian mother and gay father cases for several years before undertaking the study, and had worked to improve the legal landscape for these parents. In an interview with historian Daniel Rivers, Green acknowledged that, for him, “the struggle to remove homosexuality from the APA's list of mental disorders was directly linked to the assertion that having lesbian or gay parents was not necessarily contrary to the ‘best interests of the child.’”Footnote ¹⁰³

After publishing the results of his first study in 1978, Green then undertook a second, controlled research study that compared the children of lesbian and heterosexual mothers. Similarly framing his research in terms of addressing judicial concerns and the “best interests of the child,” Green's second study also did not identify any difference in sexual identity between the two groups of children.Footnote ¹⁰⁴ This research applied similar testing procedures as his earlier work, analyzing toy and game preferences, drawings, and peer groups. Although the final conclusions of the study were not available until 1986, two of the postdoctoral psychiatrists who worked with Green published preliminary results in 1982. The introduction to their article emphasized the growing number of lesbian mother custody cases, and identified its purpose as “review[ing] literature pertinent to the issues of child custody concerns and to report in greater depth on research projects involving lesbian mothers and their prepubescent children.” Before discussing the results, the psychiatrists explained that “[t]he study was designed to test several of the specific issues brought up in lesbian mother custody cases.” The researchers concluded their article by stating “[o]ur research and that of others does not support the usual concerns raised in family courts, which typically regard the homosexual as an unfit parent” and emphasizing that the study revealed no evidence of gender identity conflict among the children of lesbian mothers.Footnote ¹⁰⁵

Lesbian mother custody cases inspired other researchers, and the immediacy of the legal battles led these scientists to undertake short-term studies that predicted sexual orientation.Footnote ¹⁰⁶ Psychiatrist Martha Kirkpatrick and her colleagues at the University of California at Los Angeles (UCLA) published their study of forty children between the ages of five and twelve in 1980, half raised by heterosexual women and the other half by lesbians. Like Green, Kirkpatrick's team cited lesbian custody cases as a primary motivator for undertaking their research.Footnote ¹⁰⁷ Kirkpatrick and her associates had all participated in Stoller's Saturday morning seminars at UCLA, diagnosing gender dysphoria and prescribing treatments. Because the patients were almost exclusively male, Kirkpatrick wanted to expand her work by studying women, and decided to undertake a study of lesbian mothers and their children after hearing press accounts of lesbian mother custody battles. Because “courts didn't know what to do about [these types of cases],” Kirkpatrick hoped a study would “make it possible to make a better judgment about how these cases should be handled.”Footnote ¹⁰⁸

Kirkpatrick's work “found no evidence of developmental difficulties, gender disorders or increased likelihood of homosexuality in these children.”Footnote ¹⁰⁹ As in Green's study, Kirkpatrick's team drew its conclusions based on the children's favorite toys, characters they chose when engaging in imaginative play, sex of their friends, drawings, and responses to interview questions about “sex, current interests, and future roles in life.”Footnote ¹¹⁰ In discussing specific participants, the Kirkpatrick study highlighted gender conformity and the lesbian mothers' emphasis on raising heterosexual children: “Mother states she hopes Sara is heterosexual in adult life. Sara enjoys dressing up as a princess in mother's high heels and negligee and plays the Mommie in imaginary games.”Footnote ¹¹¹ Relying on social learning theory, the researchers concluded that Sara's “good relationship with her mother appeared to make possible the gender-appropriate use of the male figures available.”Footnote ¹¹² These male influences would ensure that Sara would become heterosexual.

Whereas Kirkpatrick and Green were both psychiatrists, researchers in other disciplines also conducted studies on the impact of parental homosexuality on children's future sexual orientation, all also pointing to judicial questions as the impetus for their research. Although psychiatrists at this time were fighting to maintain their authority over psychologists, social workers, and other mental health professionals, the dearth of research on this subject rendered any studies useful and bridged the barriers between the professions.Footnote ¹¹³ In 1981, the same year that Kirkpatrick published her research, Beverly Hoeffer, a Registered Nurse and Doctor of Nursing Science, published a similar study. Like Kirkpatrick's team, Hoeffer compared the toy and activity preferences of the children of lesbian and heterosexual mothers to analyze the mothers' influence on children's gender roles and sexual identity, finding no difference. Hoeffer explained her study's focus by citing child custody litigation.Footnote ¹¹⁴ The next year, Ellen Lewin, an anthropologist at the University of California at Berkeley, published her comparison of eighty divorced lesbian and heterosexual mothers, concluding that both reflected “fairly traditional notions about family” and sought to provide male role models for their children, typically the children's fathers.Footnote ¹¹⁵ Lewin also cited “the questions that the judicial system has raised” in lesbian custody cases to explain her research agenda, entitling her preliminary report “Lesbianism and Motherhood: Implications for Child Custody.”Footnote ¹¹⁶ Lewin began her research in 1977, after hearing about Mary Jo Risher and Jeanette Jullion's custody battles, with the “fantasy that [she] would be called upon to be an expert witness in some of these cases.”Footnote ¹¹⁷ Working with Terrie Lyons, a licensed social worker and doctoral candidate, the pair presented their initial research findings at the annual meeting of the American Psychological Association in 1979.Footnote ¹¹⁸ Lewin's study did not directly examine the sexual orientation of children raised by lesbians, but did indicate that these children were raised with heterosexual male role models. Lewin's different focus indicates that the questions researchers were asking were expanding beyond the initial question of future sexual orientation. Also in 1982, social workers at the University of Southern California (USC) conducted a study of children between the ages of seven and twelve being raised by a lesbian mother and her female partner, finding that the children were well adjusted. The study also looked at gender roles, emphasizing that the boys did not identify with female role models, and concluding, like Green, that “‘[b]oys are exposed to men outside the family and through television and movies and a wide range of other sources.’”Footnote ¹¹⁹ Jessica Lehman, one of the USC researchers, emphasized the need for research into lesbian mothers, as “[l]egal precedents [were] being set with virtually no empirical basis.”Footnote ¹²⁰

Lesbian custody cases also spurred scientific research outside of the United States, producing studies that American lesbian mothers would rely upon in court. Susan Golombok, a leading researcher in the United Kingdom, began her career with a study of lesbian mothers after reading an article about lesbian custody disputes in the feminist magazine Spare Rib. The article detailed the difficulties that lesbian mothers faced in court, and stressed the need for social science research to support lesbian mothers' custody claims.Footnote ¹²¹ Golombok contacted Action for Lesbian Parents, the advocacy group mentioned in the article, which put Golombok in contact with lesbian mothers and their children. Golombok conducted the initial study as her master's thesis; when renown child psychiatrist Michael Rutter learned of Golombok's work, he offered to find funding so that she could expand her research as a doctoral dissertation project. Rutter had testified as an expert witness in a number of lesbian mother custody cases and recognized the need for social science research to support lesbian mother claims.Footnote ¹²² Golombok published her findings in 1983, which concluded there were no differences in the gender identity, sex role behavior, or sexual orientation of children raised in lesbian and heterosexual single mother households.Footnote ¹²³ This study provided additional support for lesbian mothers and their advocates, who drew upon Golombok's work in asserting custody rights.Footnote ¹²⁴

Whereas most of the research in the late 1970s and early 1980s focused on lesbian mothers, the primary litigants in homosexual parent cases, sociologist Brian Miller of the University of Alberta published a study of gay fathers and their children in 1979. His research openly addressed custody cases, analyzing the impact of custody trials on the children of gay men.Footnote ¹²⁵ Miller's study indicated that “‘[s]econd generation homosexuals are rare,’” and that neither gay fathers nor their homosexual friends molested children. Miller concluded that the father–child relationships he studied improved after the parents' divorce, as the fathers left unhappy marriages and began to live openly gay lives. Miller's study remained the sole investigation of gay fathers for almost a decade; Frederick Bozett's subsequent work in the late 1980s supported Miller's research and extended its conclusions, arguing that “gay parents are as effective and may be even more so in some ways than nongay parents.”Footnote ¹²⁶ Bozett also noted that courts and social welfare agencies were primarily concerned with the future sexual orientation of children with gay fathers, but derided this objection as “mask[ing] a deeper, more homophobic and hostile reaction about this type of alternative family rather than reflecting true concern for children.”Footnote ¹²⁷ Bozett's willingness to dismiss the question of children's future sexual orientation indicates the extent to which liberal researchers had accepted the “no difference” conclusion and were turning to other questions about gay and lesbian parenting.

All of these researchers explicitly recognized the importance of their work for custody cases, and a number of gay and lesbian parents successfully employed these studies in their custody disputes. However, their limited scope made some courts hesitant to rely upon them. In the 1980 case of Hulett v. Hulett, the Kansas court denied a lesbian mother custody after determining that the scientific evidence she had presented was inconclusive because of the studies' “preliminary nature.” The court focused on the lack of longitudinal studies, a problem that child development specialists readily conceded. Kirkpatrick herself stated that the lack of long-term research limited the conclusions that could be drawn from studies of homosexuals and their children.Footnote ¹²⁸ Lesbian rights activist Rosalie Davies, who went to law school after fighting her own custody case, criticized the research studies on the same basis, maintaining that “the samples were too small and the children had not been observed over a long enough period of time for the studies to withstand a strong challenge by antihomosexual groups.”Footnote ¹²⁹ Many courts nevertheless accepted these research studies, granting homosexual parents custody based on their conclusions.Footnote ¹³⁰ In Blew v. Varta, for example, a Pennsylvania appellate court relied on the Green and Kirkpatrick studies to grant Beth Blew and her partner partial custody of eight-year-old Nicholas. The court explained “that a variety of psychological studies indicate that lesbianism does not correlate negatively with the ability to raise a healthy, normal child.”Footnote ¹³¹ Likewise, in the 1987 case of Conkel v. Conkel, the Ohio Court of Appeals relied upon Green's work in granting a gay father overnight visitation with his seven- and ten-year-old boys.Footnote ¹³² Green's work, the court found, undermined the mother's claim that the father's sexual orientation would impact that of his children. Although Conkel was an Ohio case, courts relying on research studies were primarily in Eastern and Western states, where judges were more open to considering lesbian mother and gay father custody claims in the first instance; these courts could then stave off criticism by rooting their decisions in the emerging social science research.Footnote ¹³³

Although these pro-gay parenting studies, which emphasized the benign impact of a parent's homosexuality on children, were crucial for lesbian and gay men to obtain custody, they tacitly promoted the idea that homosexuality was undesirable. By emphasizing that children raised in gay and lesbian households were not more likely to grow up to be homosexual, researchers “implicitly accept[ed] a view of homosexuality as a negative outcome of development.”Footnote ¹³⁴ As one of sociologist Diane Richardson's interviewees perceptively noted, “in order to keep my children I've had to agree to bring them up to be heterosexual, whatever that means, and I ask myself what does that say about being gay, which I am.”Footnote ¹³⁵ Marc Stein has explained that litigants and lawyers are often constrained by a legal system that “encourages cautious and conservative argumentation,” such that success depends upon convincing courts that their decisions are “compatible with the tenets of heteronormative supremacy.”Footnote ¹³⁶ Researchers crafting studies that gay and lesbian litigants could use to bolster their custody suits by necessity also adopted a heteronormative approach, helping to perpetuate the view of homosexuality as an aberration that needed to be avoided.Footnote ¹³⁷

IV. Conservative Response

Whereas pro-gay and lesbian parenting studies proved useful for litigants in Eastern and Western states, and helped shift legal norms in those regions, this was not true in conservative states, where Christian ideology dominated politics. In the late 1980s and 1990s, when lesbian mothers and gay fathers in the South and Midwest began asserting their rights more frequently, judges often based their denials on the possibility that the children would become homosexual. By this time, conservative researchers had begun conducting their own studies of gay and lesbian parents, concluding that homosexual parents were more likely to raise gay children. The rise of conservative scientific research was part of a larger resurgence of the political right in the 1980s, which waged a “cultural war” that included anti-homosexuality as a central tenet and gained currency as the AIDS epidemic unfolded.Footnote ¹³⁸ As Didi Herman has documented, leading Christian Right organizations relied heavily on scientific evidence that homosexuality was a behavioral choice, using this work to argue that gays and lesbians were undeserving of legal protections.Footnote ¹³⁹

However, the court opinions denying lesbian and gay parents custody and visitation did not cite the conservative scientific research. The primary source of authority remained morality and common sense; courts ignored the scientific studies, even though they supported conservative positions, indicating they were unnecessary to justify the decisions. In the absence of changing judicial norms, social science research did not serve a vital function in explaining custody determinations. In Black v. Black, a 1988 case in Tennessee, the appellate court stated: “We feel it is unacceptable to subject children to any course of conduct that might influence them to develop homosexual traits, and the facts of this case indicate that there is a strong possibility, because of the living arrangements of Mother and her lover, the children would be subjected to such influences.”Footnote ¹⁴⁰ The court did not cite any studies or expert testimony in support of this statement. Similarly, when Jon Johnson moved to restrict the visitation rights of his lesbian ex-wife, Dianne Schlotman, because “he wouldn't allow Dianne to turn the children into homosexuals ‘by example and practice,’” the North Dakota trial court concurred. In 1991, the court rescinded Schlotman's visitation; by that point, her son Travis had come to believe “there is something wrong with him because his mother is a lesbian,” and daughter Holly asserted that “she hates her mother because she is a lesbian and said she doesn't want to see her again.”Footnote ¹⁴¹ The North Dakota Supreme Court upheld the lower court ruling two years later. More notoriously, a Florida trial court in 1996 removed an eleven-year-old girl from her lesbian mother's custody because it feared the child would “be led into [a lesbian] lifestyle … by virtue of the fact of her living accommodations.”Footnote ¹⁴² The judge placed the girl, who had lived with her mother all of her life, with her father, who had been convicted of murdering his first wife and had been accused of abusing another of his daughters. These cases appear to have been decided based on the assumptions of the judges, rather than scientific evidence.

The fear that a child would grow up to be homosexual was compounded when the homosexual parent was in a relationship, particularly if he or she lived with a same-sex partner. In a number of cases, heterosexual fathers who had been aware of their ex-wives' lesbianism only filed suit for custody after learning that their ex-wives had entered into serious relationships or were living with their partners.Footnote ¹⁴³ Some courts denied homosexual parents in romantic relationships custody or visitation, but more often judges imposed restrictions on the relationships.Footnote ¹⁴⁴ These limits ranged from prohibiting lesbian mothers and gay fathers from showing any physical affection to their partners while the children were in the home, to conditioning custody and visitation on the partner moving out.Footnote ¹⁴⁵ In the 1996 case of Pamela Hertzler, a Wyoming court took a particularly virulent stand towards a lesbian mother who allowed her children to “snuggle” in bed with her partner and participate in the couple's commitment ceremony, finding that “the children had been ‘eroticized’ during their visits with Pamela.”Footnote ¹⁴⁶ The court restricted visitation to six weekends per year, with no overnight visitation; it also forbade any contact between Pamela's partner and the children. The Wyoming Supreme Court, despite deriding the homophobic language of the trial court opinion, upheld the limitations.Footnote ¹⁴⁷

Although courts imposed restrictions in cases involving both lesbian mothers and gay fathers, they disproportionately applied conditions on visitation or custody in gay father suits.Footnote ¹⁴⁸ Gay fathers and their advocates understood this disparate treatment as a result of the historical association of gay men with pedophilia, despite scientific evidence to the contrary. Although courts throughout the country imposed restrictions on gay fathers in the 1970s and early 1980s, by the late 1980s this occurred primarily in Southern states and continued as late as 1998, the last year in the data set for this article.Footnote ¹⁴⁹ Courts also instituted conditions in cases in which they did not fear that the child would become homosexual, but were concerned about other psychological effects of the child's exposure to a same-sex relationship.Footnote ¹⁵⁰

V. Conclusion

The origins of scientific research analyzing the impact of parental homosexuality on children's future sexual orientation can be traced to the lesbian mother and gay father custody cases of the mid and late 1970s. As a result of courts' questions about the psychosexual development of children raised by lesbian mothers and gay fathers, researchers of sexuality focused their studies to provide the evidence that judges sought. The needs of gay and lesbian parents helped steer the direction of scientific research, continuing the dialectic relationship between the science of sexuality and gay rights. The presence of mental health theories and experts was constant, such that the relationship between mental health theories and gay rights continued throughout the 1980s and 1990s, decades after the declassification of homosexuality from the DSM. The declassification therefore did not sever the ties between mental health and gay rights, but rather led to a significant new body of research and expertise on homosexuality. The studies that came out of custody litigation would help advocates support other claims for gay rights, extending the impact of custody cases beyond individual families.

Scientists not only responded to judges' questions and the needs of gay and lesbian litigants, but also helped shape the development of family law. For courts willing to consider lesbian mother and gay father petitions, scientific research provided evidence that justified granting custody to homosexual parents. Scientific studies helped some courts embrace a new normative commitment that rendered homosexual and heterosexual parents equally fit. Not all courts responded to research developments by embracing gay parental rights, particularly in regions where judges invoked morality and common sense in making their determinations. However, as the number of research studies increased, professional mental health associations took stances in favor of gay parents, and the gay rights movement reshaped public perception of gays and lesbians, social scientific research became more prevalent in contests over gay rights, and led conservative scholars to conduct opposing studies.

By helping to transform judicial norms in favor of gay and lesbian parents, the research studies inaugurated a new era in queer legal history. For much of the twentieth century, gays and lesbians were excluded from judicial decisions that protected sexual freedom.Footnote ¹⁹² Although courts in gay and lesbian custody cases were not asserting litigants' right to sexual expression, by upholding the rights of gay fathers and lesbian mothers, the custody decisions made it clear that gay men and women did not have to choose between their sexual identity and their children. This was the beginning of a larger legal shift towards protecting the rights of gays and lesbians, which would include striking down sodomy laws and affirming the right to same-sex marriage. Although the custody awards were based on a heteronormative mindset that required gay parents to prove their sexual orientation would not result in their children growing up to be gay themselves, thereby characterizing homosexuality as an inherently negative trait, they nevertheless propelled a shift in legal norms.

This legal change would not have been possible without scientific studies, demonstrating the interrelationship between science and the law. Gay rights advocates were not the first to deploy social science research to change legal norms, but were rather drawing on a long history that had begun during the Progressive Era, a period that marked a judicial shift from formalism to realism.Footnote ¹⁹³ In the 1950s and 1960s, social science evidence became crucial to civil rights litigation, establishing patterns of discrimination on the basis of race. In relying upon scientific studies to support their claims, gay and lesbian parents were not developing a novel litigation strategy, but rather were applying a tested practice to a new claim. In doing so, however, gay fathers and lesbian mothers helped create a body of scientific evidence that reshaped judicial norms. The judicial acceptance of lesbian mothers and gay fathers as fit parents would have significant repercussions in later legal battles, particularly those over same-sex marriage, in which advocates argued that marriage equality was necessary to protect the children of gay and lesbian couples.Footnote ¹⁹⁴ Gay father and lesbian mother custody cases, and the scientific research they spurred, thus provided the foundation for a larger social movement and a transformation of family law.