Attorneys general oppose proposed federal rule supporting LGBTQ foster kids

By: and - December 4, 2023 4:30 am

A qualifying foster parent under the proposed federal rule would need to be educated on the needs of the child’s sexuality or gender identity and, if the child wishes, “facilitate the child’s access to age-appropriate resources, services, and activities that support their health and well-being” (Photo illustration by Ross Williams/Georgia Recorder).

Nineteen states, including Nebraska, joined last week to oppose a proposed federal rule that aims to protect LGBTQ youth in foster care and provide them with necessary services.

The attorneys general, led by Alabama Attorney General Steve Marshall, argue in a letter to the U.S. Department of Health & Human Services that the proposed rule — which requires states to provide safe and appropriate placements with providers who are appropriately trained about the child’s sexual orientation or gender identity  — amounts to religion-based discrimination and violates freedom of speech.

Nebraska Attorney General Mike Hilgers said in a statement the proposed rule unlawfully conditions federal funding and “almost certainly will drive parents of faith out of the foster care system.”

“At a time when our foster care system needs more, not fewer, caring parents, the Biden Administration’s effort to push loving and caring parents out of the foster care system is as short sighted as it is unconstitutional,” Hilgers said.

Hilgers also joined a second letter challenging the rule among 17 states, that one led by Tennessee Attorney General Jonathan Skrmetti.

Regarding the letter led by the Alabama attorney general, Missouri Attorney General Andrew Bailey said in a news release last week, “As a foster parent myself, I am deeply invested in protecting children and putting their best interests first.”

“Biden’s proposed rule does exactly the opposite by enacting policies meant to exclude people with deeply held religious beliefs from being foster parents.”

‘Safe and appropriate’ placements

The rule is part of a package of federal proposals on foster care and is an extension of the Biden administration’s broader push to protect LGBTQ kids in foster care.

“Because of family rejection and abuse,” the Biden administration said in a September press release, LGBTQ children are “overrepresented in foster care where they face poor outcomes, including mistreatment and discrimination because of who they are.”

State agencies would be required under the rule to provide safe and appropriate foster care placements for those who are “lesbian, gay, bisexual, transgender, queer or questioning, intersex,” along with children who are “non-binary or have non-conforming gender identity or expression.”

A qualifying foster parent would need to be educated on the needs of the child’s sexuality or gender identity and, if the child wishes, “facilitate the child’s access to age-appropriate resources, services, and activities that support their health and well-being.”

An example of a safe and appropriate placement is one where a provider is “expected to utilize the child’s identified pronouns, chosen name, and allow the child to dress in an age-appropriate manner,” according to the proposal, “that the child believes reflects their self-identified gender identity and expression.”

The attorneys general characterize that as “forcing an individual to use another’s preferred pronouns by government fiat,” in violation of the First Amendment.

Retaliation prohibited

Robert Fischer, director of communications for Missouri LGBTQ advocacy organization PROMO, said the freedom of religion “doesn’t give any person the right to impose those beliefs on others, particularly to discriminate.”

“Any state official who claims to put ‘children’s interests first’ and in the same breath is willing to risk their well-being and opportunity to thrive in the name of religion — I think that speaks for itself,” Fischer told the Missouri Independent.

Abbi Swatsworth, executive director of OutNebraska, a leading LGBTQ organization in the state, told the Nebraska Examiner that  faith communities do not speak with one voice on the issue and that many faithful people support the LGBTQ community because their faith calls them to do so.

“Everyone is free to practice their religious beliefs, but that freedom does not, and should not, extend to discrimination, especially in a system where LGBTQ+ youth are at higher risk for abuse,” Swatsworth said in a statement. “Every young gay and transgender person within the foster care system deserves a foster family where they can thrive and grow to reach their full potential.”

The rule prohibits retaliation against children who identify as LGBTQ or are perceived as LGBTQ.

Public agencies would need to notify children about the option to request foster homes identified as “safe and appropriate” and tell them how to report concerns about their placement.

Agencies would also have to go through extra steps before placing transgender, intersex and gender non-conforming children in group care settings that are divided by sex.

The “majority” of states, according to the proposed rule, would have to “expand their efforts” to recruit and identify providers who could meet the needs of LGBTQ children.

Rules vary from state to state

Laws and policies for protecting LGBTQ youth in foster care — relating to kids’ rights, supports, placement considerations, caregiver qualifications and definitions — currently vary by state.

Most states — 39 states and Washington, D.C. — have “explicit protections from harassment or discrimination based on sexual orientation or gender identity or expression,” according to a federal report, as of January.

Twenty-two states and D.C. as of January, require agencies to provide tailored services and supports to LGBTQ youth, and eight states and D.C. offer case management and facilitate access to “gender-affirming medical, mental health and social services.”

The 19 attorneys general contend the federal rule would “remove faith-based providers from the foster care system” because of their “religious beliefs on sexual orientation and gender identity.”

They cite Fulton v. City of Philadelphia, a U.S. Supreme Court case that ruled a public agency couldn’t force private, religious foster agencies to allow same-sex foster parents.

The proposed rule itself also acknowledges the Supreme Court case and alleges that by not requiring religious foster-care providers to welcome LGBTQ children, it is complying with the court’s precedent.

But the attorneys general do not believe this is enough. Their letter argues the proposal violates freedom of religion because those unwilling to support LGBTQ foster children “would be excluded from providing care to as many as one-third of foster children ages 12-21.”

“In addition to discriminating against religion, the proposed rule will harm children by limiting the number of available foster homes, harm families by risking kinship placements, and harm states by increasing costs and decreasing care options,” the letter says.

The rule would “discourage individuals and organizations of faith from joining or continuing in foster care,” the attorneys general argue, and “reduce family setting options.” Without faith-based foster parents, the attorneys general say, children would be more likely to be placed in congregate settings.

They also say the rule could disqualify family members who volunteer as placement, or kinship care, if the family member does not agree to support the child’s sexuality or gender identity with age-appropriate resources, as the rule entails.

Nebraska Examiner reporter Zach Wendling contributed to this report.

This article first appeared in the Missouri Independent, a sister site of the Nebraska Examiner in the States Newsroom network.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site.

Clara Bates
Clara Bates

Clara Bates covers social services and poverty. She previously wrote for the Nevada Current, where she reported on labor violations in casinos, hurdles facing applicants for unemployment benefits and lax oversight of the funeral industry. She also wrote about vocational education for Democracy Journal. Bates is a graduate of Harvard College and a member of the Report for America Corps.

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Annelise Hanshaw
Annelise Hanshaw

Annelise Hanshaw writes about education — a beat she has covered on both the West and East Coast while working for daily newspapers in Santa Barbara, California, and Greenwich, Connecticut. A born-and-raised Missourian, she is proud to be back in her home state.

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