President Biden’s proclamation of May as National Foster Care Month returns to the inclusion begun by President Obama, with a mention of LGBTQ youth in foster care—and a reminder of the challenges that remain to bring equity and justice to our foster care system.
Biden’s proclamation stresses the unjust treatment of communities of color, especially Black and Native American communities, in the child welfare system, and also notes that children with disabilities are over-represented among youth in care and may not get the individualized support they need. It then says, “Children in foster care—particularly youth of color and LGBTQ+ children who are already subject to disproportionate rates of school discipline and criminalization—are also at an increased risk of becoming involved in the juvenile justice system. And for LGBTQ+ foster youth, foster care systems are not always equipped to safely meet their needs.”
Back in 2015, President Obama’s proclamation of the observance noted that “It is important to ensure all qualified caregivers have the opportunity to serve as foster or adoptive parents, regardless of race, religion, sexual orientation, gender identity, or marital status.” That was the first time LGBTQ people had been referenced in a presidential National Foster Care Month proclamation. The next year, Obama’s proclamation said much the same again, and added a point about LGBTQ youth as well: “When we create environments for all young people to grow and flourish and safely live as who they are—regardless of race, background, religion, sexual orientation or gender identity—our country is stronger.”
The guy in between Obama and Biden? Not so much with the inclusion.
Biden’s proclamation promises that:
My Administration is committed to addressing these entrenched problems in our Nation’s child welfare system, advancing equity and racial justice for every child and family who is touched by the foster care and child welfare system, and focusing on policies that improve child and family well-being. This is why my Administration’s discretionary funding request for 2022 includes $100 million in competitive grants for State and local child welfare systems to advance racial equity and prevent unnecessary child removals.
Let’s hope he (and Congress) can deliver. Additionally, protecting LGBTQ youth in care and LGBTQ prospective caregivers from discrimination will be helped by:
Passing federal legislation like the Equality Act;
A ruling by the U.S. Supreme Court in Fulton v. City of Philadelphia confirming that child service agencies cannot use their religious beliefs to discriminate against LGBTQ people and others. A decision is expected by the end of June.
Stay tuned this month for more resources and stories about foster care!
After a lawsuit brought by LGBTQ organizations and a foster youth and alumni group, the Biden administration’s Department of Health and Human Services (HHS) has agreed to delay implementing a Trump-era rule that would have allowed taxpayer-funded foster care and adoption agencies and other health and social service organizations to discriminate against LGBTQ people and others. This will allow the administration time to review the rule and potentially change or nullify it.
U.S. Department of Health & Human Services – Hubert Humphrey Building. Photo credit: Sarah Stierch. Licensed under CC BY 4.0.
The rule, first proposed by the Trump administration at the end of 2019 with a shorter-than-usual period for public comment, removes explicit protections against discrimination on the basis of sexual orientation, gender identity, sex, and religion in programs receiving grants from the Department of Health and Human Services (HHS). These programs include not only adoption and foster care services, but also ones dedicated to preventing youth homelessness, HIV, STI, and substance abuse, among others. The rule was filed in its final form January 7, 2021, just one day after the insurrection at the U.S. Capitol, as I previously discussed; and was officially published January 12th. It was set to go into effect on February 11.
A foster youth and alumni group, Facing Foster Care in Alaska, along with LGBTQ organizations Family Equality, True Colors United, and Services & Advocacy for GLBT Elders (SAGE), filed a lawsuit last Tuesday, however, challenging the Rule as unlawful under the Administrative Procedure Act (APA). “The new Rule reverts to a confusing patchwork of protections that vary between programs and leave many potential beneficiaries and participants, including some of the most vulnerable members of our society, exposed to unlawful discrimination,” their complaint says. It also “violates the APA’s prohibition against arbitrary and capricious agency actions. Its proffered justifications are unreasoned, undeveloped, incorrect, and conflict with many of HHS’s own program-specific regulations, findings, policies, and priorities.”
The plaintiffs said in a statement, “There was simply no excuse for the Trump administration’s unlawful policy sanctioning taxpayer-funded discrimination against people who receive services from HHS grant programs, including youth and families in the child welfare system, youth experiencing homelessness and older adults, among other vulnerable populations.” They added, “We commend the Biden-Harris administration for hitting pause on this harmful and unlawful Trump-era rule, and hope that it will move forward expeditiously to ensure that all persons receive equal treatment under the law.”
This is splendid news. Add to this today’s announcement by the U.S. Department of Housing and Urban Development, which said it will administer and enforce the Fair Housing Act to prohibit discrimination on the basis of sexual orientation and gender identity, and it’s turning out to be a very good day indeed.
Not letting a little thing like insurrection stop them, the Trump administration on Thursday finalized a rule that will allow foster care and adoption agencies, along with other public health and social service organizations receiving taxpayer funds, to discriminate against LGBTQ people and others.
U.S. Department of Health & Human Services – Hubert Humphrey Building. Photo credit: Sarah Stierch. Licensed under CC BY 4.0.
The rule, first proposed at the end of 2019 with a shorter-than-usual period for public comment, removes explicit protections against discrimination on the basis of sexual orientation, gender identity, sex, and religion in programs receiving grants from the Department of Health and Human Services (HHS). These programs include not only adoption and foster care services, but also ones dedicated to preventing youth homelessness, HIV, STI, and substance abuse, among others. The rule was filed in its final form last Thursday, while the capitol was still reeling from the insurrection, and will be officially published Monday. It is set to go into effect on February 11, 2021.
Even before this new rule made it explicit, HHS had said it would stop enforcing nondiscrimination protections among federal grantees. LGBTQ advocacy organizations have already been fighting this policy. Lambda Legal and Democracy Forward, in March sued HHS in the U.S. District Court for the Southern District of New York on behalf of Family Equality, True Colors United, and SAGE, claiming the policy was “arbitrary and capricious” and that there had been no opportunity for public comment.
Lambda Legal Senior Attorney Sasha Buchert said of the new rule, “Even as Trump administration officials abandon ship, HHS has announced yet another dangerous rule that invites discrimination against the very people federal grant programs are meant to help. We call on the Biden-Harris administration to address discriminatory policies such as these immediately, and commit to eliminating them root and branch. But in the meantime, Lambda Legal is prepared to take whatever action is necessary to protect the LGBTQ community from harm.”
M. Currey Cook, director of Lambda Legal’s Youth in Out-of-Home Care Project, added that the rule “puts at risk some of the most vulnerable members of our communities, including LGBT people who are poor or experiencing homelessness; LGBT seniors and LGBT youth in out-of-home care, including children in foster care, people living with HIV, and many others.”
Denise Brogan-Kator, interim CEO of Family Equality, also observed that “Removing nondiscrimination protections from health and human services programs could literally endanger the lives of vulnerable populations disproportionately impacted by the pandemic, including the LGBTQ+2S community.”
“We are particularly concerned that the 34% of foster youth who identify as LGBTQ+ and Two-Spirit, who are eligible for $400 million in direct relief under the most recent COVID-19 relief bill, will be excluded from services and supports under this new rule,” said Julie Kruse, Family Equality’s director of federal policy. “Turning away those in need of health and human services during a pandemic is unconscionable.”
“Family Equality will sue HHS over this unlawful action,” asserted Brogan-Kator.
We are a week away from the 2020 elections. President Trump’s nominee Amy Coney Barrett has just been seated on the U.S. Supreme Court. A case that the court will be hearing the day after the elections has me as concerned as the elections themselves, for it goes to the heart of how our country treats its children and to LGBTQ people’s right to be treated equally as prospective parents.
The case, Fulton v. City of Philadelphia, began in 2018, when the City of Philadelphia stopped referring foster children to Catholic Social Services (CSS) because the agency would not license qualified same-sex couples to be foster or adoptive parents. CSS then brought a lawsuit in federal district court.
The ACLU intervened on behalf of the Support Center for Child Advocates, which provides legal representation and services to children in the foster care system, and Philadelphia Family Pride, a nonprofit organization for LGBTQ parents and prospective parents. They argued that children and families would be harmed by CSS’ actions. CSS countered by arguing that they had a First Amendment right to deny service based on religious beliefs, and asked the court for a preliminary injunction requiring the city to continue referring children to them while the case proceeded. The U.S. District Court for the Eastern District of Pennsylvania denied that injunction in July 2018, and a three-judge panel of the 3rd U.S. Circuit Court of Appeals in April 2019 supported the district court’s position.
CSS had also tried in August 2018 to petition the Supreme Court to grant them an injunction, but this was denied, though Justices Clarence Thomas, Samuel A. Alito Jr., and Neil Gorsuch dissented. CSS appealed to the Supreme Court again after the appeals court ruling, and in February 2020, the Supreme Court took the case. In June, the Trump administration filed a brief siding with CSS.
Depending on how the Supreme Court rules and how broad or narrow its ruling is, Fulton could create a license to discriminate in Philadelphia or around the country, said the Movement Advancement Project (MAP) in an August report. Otherwise-qualified prospective parents could be turned away by child service agencies. LGBTQ children could be turned away or be placed with families that don’t support their identities.
Beyond child welfare, MAP said, a very broad ruling could even mean that other institutions receiving government funding, such as soup kitchens and job training programs, could claim religious exemptions and “serve only those who share their own beliefs or [refuse] to provide critical services to those who don’t.”
The outcome could also reduce the possibility of successfully challenging existing discriminatory laws. Eleven states now allow discrimination in child services by agencies citing religious beliefs, all but two allowing it even for taxpayer-funded agencies. And the amount of taxpayer money in child services is significant. An estimated $29.9 billion in federal, state, and local funds was spent on child welfare in 2016, according to the nonpartisan, nonprofit research center Child Trends. Beyond child services, the Trump administration last November issued a rule that allows not only child service agencies, but also other recipients of grants from the U.S. Department of Health and Human Services (HHS), to cite their religious beliefs as a reason to discriminate.
It’s important to understand the arguments made by those wishing to allow this discrimination. One is that faith-based child service agencies would otherwise be forced to close, limiting the number of homes available to the more than 400,000 children in the foster care system. As the ACLU notes on its website, however, most faith-based foster care agencies do accept all qualified families. Bethany Christian Services in Philadelphia, in fact, changed its policy after the city objected and now accepts same-sex couples wishing to foster children. When some agencies have chosen to stop offering taxpayer-funded services rather than comply with nondiscrimination laws, others, including faith-based ones, “have stepped in to provide those services,” says the ACLU. The shortage is thus of foster families, not of agencies—and turning away otherwise-qualified people would exacerbate this.
Another argument is that prospective foster parents who are turned away can just go to another agency. Even if there are other agencies nearby that will serve them, however (not always a given), the prospective parents may choose to stop trying and not to “risk further humiliation,” notes the ACLU.
Yes, freedom of religion is a founding principle of this country—but so is the separation of church and state. That means that any organization using public funds should not impose its beliefs on others or use them as a reason to discriminate. Many agree. In August, more than 1,000 experts and organizations—including LGBTQ, civil rights, and child welfare organizations, faith-based foster care agencies, faith leaders, legal scholars, and bipartisan elected officials—filed nearly 50 briefs with the U.S. Supreme Court in support of Philadelphia and its position.
Taking Action, Looking Ahead
A loss in this case would first and foremost be harmful to the many children in need of homes. It would also set back the family-building plans of many LGBTQ people and others and could have a far-reaching impact on other critical social services.
Family Equality is launching a storytelling project with the goal of changing “hearts, minds, and policies” around this case and these issues. If you have experience with the child welfare system in any context, visit their website to see if your story can help.
No matter what happens on November 3, our work fighting for equality—for our families and others—will continue on November 4 and far beyond.
(Originally published with slight modification as my Mombian newspaper column.)
Two men in Croatia have become the country’s first same-sex foster parents after a three-year struggle.
Mladena Kožica and Ive Šegote applied to become foster parents in 2017. Although they passed all the required tests, they were rejected because they were in a same-sex life partnership. Same-sex couples cannot marry in Croatia, but may enter into “life partnerships”—and the one area where same-sex partnerships were unequal to marriage was in fostering and adoption. The couple appealed to the Family Ministry, were again rejected, and then sued. In December 2019 they won their case to become foster parents, reported Deutsche Welle.
Daniel Martinovic, head of the country’s Rainbow Family Association, an advocacy and networking organization, told Barron’s, “This gives us hope that things in our country can still change.” He said he would continue to fight for “full marital and family equality” including the right to adopt children (which, as this article explains, is still an open question).
Šegote is also the author of the first picture book in Eastern Europe to depict a family with same-sex parents.