LGBTQ+ ADOPTIONS & BERT'S ADOPTION
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Brothers and Sister
(Frank, Llweyen, Ernie, Bert, & Tracy)
2002
Frank, Wayne/Llweyen, Ernie, Bert, and Tracy defied their generation's initial expectations as they transitioned into young adults. Many of their peers sadly succumbed to unusual infections by their first or second birthdays, but these resilient individuals have proven themselves as a testament to the Millennial Generation. They have faced the daily battle of managing their health while aspiring to lead content and productive lives.
Bert stands out as one of the remarkable exceptions, experiencing significant success with early treatment that led to his HIV status seroreverting to negative by the age of eight. These young adults are part of the Millennial Generation, a generation marked by the challenges of the 9/11 era and the AIDS epidemic, yet they have demonstrated incredible resilience.
It's important to note that adoption by single LGBTQ+ individuals is now legal in every jurisdiction in the United States. Additionally, adoption by same-sex couples has been legal in all 50 states and the District of Columbia since June 26, 2015. Mississippi, the last state to prohibit adoption by same-sex couples, ceased enforcing its ban when a federal judge ruled it unconstitutional in March 2016.
However, as of 2024, there has been a concerning resurgence of anti-LGBTQ+ state legislation and lawsuits, with some attempts to obstruct LGBTQ+ couples from fostering or adopting children. In certain cases, states have created hurdles for same-sex parents seeking rights to children conceived through fertility treatments. These policies can pose challenges in finding loving homes for the more than 400,000 foster children across the United States.
For the latest updates on LGBTQ+ adoption laws, please visit: https://www.lgbtmap.org/equality-maps/foster_and_adoption_laws
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Historical Legal Ramifications: The Adoption of Bert
In 1991, Florida's child welfare agency reached out to Steven Lofton and Roger Croteau, inviting them to provide care for a three-month-old infant named Bert, who had tested positive for HIV antibodies at birth. At that time, Lofton and Croteau were already dedicated foster parents to three other children living with HIV: Frank, Ginger, and Tracy.
Fast forward to 1994, when they received a significant update: Bert no longer displayed detectable HIV antibodies and had tested HIV-negative. It's worth noting that newborns typically retain their mother's antibodies until around 18 months of age, and Bert's initial positive test indicated exposure to HIV rather than active infection. As Bert continued to test negative for HIV (sero-reverted), he became eligible for legal adoption according to Florida's regulations.
However, when Lofton applied for legal adoption of Bert, the government denied his application due to the state's law at that time, which prohibited lesbians, gay men, and bisexuals from adopting. Florida considered Lofton and Croteau fit to be foster parents but not suitable to become the legal parents of these children.
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After state officials began taking steps to find a heterosexual adoptive family for Bert, Lofton, with the assistance of the ACLU, filed a lawsuit (Lofton vs. Butterworth) in federal court, arguing that Florida’s adoption ban violated the Constitution. Specifically, Lofton’s case contended that the adoption ban violated his constitutional rights to due process and equal protection. The former claim implied that the state of Florida had encouraged Steven to establish a parent-child relationship with Bert. The latter claim was grounded in the idea that it was discriminatory for the state to render all lesbian, gay, and bisexual people—regardless of background, experience, and personality—ineligible to adopt. Bert lived with Lofton and Croteau for almost nine years when the lawsuit was filed. The relationship was now subject to constitutional protection.
Although Lofton's legal arguments did not initially persuade the federal courts, a state appellate court later overturned the gay adoption ban in 2004. This court rejected the notion that there was any valid justification for a law that singled out sexual minorities, and it highlighted extensive reports and studies from social scientists confirming that there were no differences in parenting or children's adjustment based on the sexual orientation of their parents.
Before the conclusion of the legal battle, child welfare officials allowed Lofton and Croteau to relocate to Oregon with Frank, Tracy, and Bert. In Portland, they were asked to care for two young HIV-positive boys, Wayne (Llweyen) and Ernie, who had suffered severe abuse and neglect. Less than a year later, Lofton and Croteau obtained permanent foster care guardianship of these boys with the support of Oregon child welfare authorities.
Throughout this journey, Lofton and Croteau emerged as pioneers for LGBTQ+ rights. Their love for each other and their children proved stronger than the discriminatory law they challenged. Their lawsuit received national and political attention, highlighting the fact that sexual orientation has no bearing on parenting abilities and that LGBTQ+ families are just as nurturing as heterosexual ones. Steven Lofton and Roger Croteau built a family founded on core family values – love, support, and mutual respect. They dedicated themselves to providing abandoned children with HIV/AIDS the right to grow up in a safe and loving home.
Despite significant progress, it is crucial to acknowledge that there are currently over 400 anti-LGBTQ+ state legislative laws being pursued, often fueled by conservative Christian groups, misinformation, and hysteria. These divisive actions target the LGBTQ+ community on various fronts, including marriage, transgender rights, and adoption. Such laws seek to impose a specific moral viewpoint and undermine constitutional rights, including the right to "life, liberty, and the pursuit of happiness."
Resources:
Carlos A. Ball, Distinguished Professor of Law at Rutgers University and the author of the books The Right to be Parents and Same-Sex Marriage and Children
https://casetext.com/case/lofton-v-butterworth
https://supreme.findlaw.com/legal-commentary/the-family-that-dare-not-speak-its-name.html