NY State Clarifies that Sexual Orientation Never Legitimate Basis to Deny Adoption

On July 11, 2011, the New York State Office of Children and Family Services (OCFS) issued an informational letter to social service and adoption agencies clarifying that discrimination based on sexual orientation is strictly prohibited in the adoption application process and that a prospective parent’s sexual orientation is never a legitimate basis for denying an application to adopt.

The new guidance was issued in response to the New York Civil Liberties Union’s advocacy efforts urging OCFS to clarify the existing rules about sexual orientation discrimination in the adoption and foster parent process. The current regulation states that sexual orientation cannot be the “sole” reason for denying an application for adoption, which is confusing in that it suggests that some consideration of an applicant’s sexual orientation may be permissible.

The new guidance, however, clarifies that the regulation’s intent “is to prohibit discrimination based on sexual orientation in the adoption study assessment process.” Moreover, the new guidance makes clear that the sexual orientation of an individual or couple seeking to adopt is never a legitimate basis for denying an application. Specifically, the guidance states that OCFS “cannot contemplate any case where the issue of sexual orientation would be a legitimate basis, whether in whole or in part, to deny the application of a person to be an adoptive parent.”

The guidance reminds social service agencies and adoption placement agencies that “[i]t is important to recognize that all types of families are potential resources for children awaiting adoption and should be considered as adoptive parents.”

The guidance also clarifies that adoption applicants need not be married in order to adopt and that rules about considering length of a couple’s marriage during the adoption application process should not be applied rigidly in a manner that would disadvantage unmarried couples, whether different-sex or same-sex couples.

The NYCLU will continue its work with OCFS to protect the rights of all New Yorkers seeking to adopt or foster a child.