Equal Protection for Children of Gay and Lesbian Parents: Challenging the Three Pillars of Exclusion - Legitimacy, Dual-Gender Parenting, and Biology
Law and Inequality, Vol. 28, p. 307, 2010
27 Pages Posted: 13 Jun 2010 Last revised: 29 Sep 2014
Date Written: June 11, 2010
In this essay, Professor Smith contributes to an underdeveloped area of sexual orientation and gender identity scholarship by exploring the rights of children of same-sex couples who face discrimination because of their relation to or association with their gay and lesbian parents. Children of same-sex couples are rarely plaintiffs in same-sex marriage litigation, or in cases outside of the marriage context that challenge state actions denying them government benefits. This Essay takes the latter scenario and briefly evaluates common rationales against same-sex marriage in the context of a child litigant denied a wrongful death recovery of a non-biological gay or lesbian parent. Smith finds that common government rationales - based in legitimacy, dual-gender parenting and biology - are unlikely to prevail. Indeed, they fly in the face of existing equal protection jurisprudence designed to protect the rights and interests of children.
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