January 08, 2020 Article

Government-Funded Discrimination in the Child Welfare System

The Trump administration is effectively removing existing nondiscrimination protection for beneficiaries and participants in scores of federal programs and explicitly allowing discrimination by providers.

By Cathy Krebs and Currey Cook

On November 19, 2019, the Trump administration released a Notice of Proposed Rule Making proposing to immediately cease enforcement of nondiscrimination rules based on sexual orientation, gender identity, and in some cases, sex or religion in Health and Human Services (HHS) grant programs. HHS administers around $500 billion in grant funding for programs that include foster care, Head Start, HIV prevention, substance abuse treatment, community health care centers, trafficking prevention, and financial services and support for low-income families. 

With this change, the administration is affirmatively removing existing nondiscrimination protection for beneficiaries and participants in scores of federal programs and explicitly allowing discrimination by providers, unless already prohibited by statute. Since religion, sexual orientation, and gender identity are not protected classes in federal child welfare statutes, the effect on the foster care system would be that children in state custody could be denied services they need based on factors such as religious beliefs, sexual identity, or an adoptive placement with a single parent.

Policies that permit discrimination violate child welfare professional standards set by the American Bar Association and others.

Policies that permit discrimination violate child welfare professional standards set by the American Bar Association and others.

Credit: Pexels, Sharon McCutcheon

Additionally, the proposed rule sows confusion where state and federal protections differ. Additionally, the move to strip protections contradicts prior policy guidance from HHS regarding the importance of supporting lesbian, gay, bisexual, transgender, queer, or questioning (LGBTQ) youth, as well as a trove of training and technical assistance information on the topic from HHS’s Children’s Bureau.  

When a child is alleged to have been neglected or abused by a parent, the state social services agency investigates and, in some cases, removes the child from their home and places them in state custody (foster care) to protect the child. A court must review the decision to place a child into state custody. Some state social services agencies contract with private non-profits to provide some of the government functions once a child is placed into state custody. Those responsibilities can vary; for example, some private organizations manage the entire case after a child is removed and some recruit and license foster parents and mentors. The contract agencies are paid for this work through both state and federal funding, and they must comply with applicable federal and state law as well as constitutional requirements. However, this recent rule change would allow them to discriminate based on the factors outlined above. Faith-based government-funded contractors may turn away or refuse to provide service to LGBTQ people or those who do not align with the agency’s religious beliefs or morals.

There are currently 440,000 children in the foster care system in the United States, 117,000 of whom cannot safely return home and are waiting to be adopted. Approximately 20,000 of these youth will become adults without finding an adoptive or permanent home. Children in foster care are disproportionately LGBTQ, with one study finding that 30.4 percent of youth in foster care identify as LGBTQ and 5 percent as transgender, compared to 11.2 and 1.17 percent of youth not in foster care. LGBTQ children in care have worse outcomes than their non-LGBTQ peers: more total placements and higher rates of placement in group homes, juvenile justice involvement, psychiatric hospitalization, and homelessness. 

Simultaneously, LGBTQ people are an underutilized resource for foster and adoptive placements. LGBT individuals are significantly more likely to be raising adopted or foster children. One in five same-sex couples (21.4 percent) are raising adopted children compared to just 3 percent of different-sex couples, and 2.9 percent of same-sex couples have foster children compared to 0.4 percent of different-sex couples. This data reveals that LGBT parents are approximately seven times more likely to be raising adopted or foster children. Limiting the number of homes and families for youth in state custody as a result of discrimination, particularly when there are many LGBTQ youth in foster care and LGBTQ parents are more likely to foster and adopt children, makes little sense.

There have been two recent final court decisions addressing this issue—Dumont v. Lyon and Fulton v. City of Philadelphia. In both cases, decided in 2018, federal district courts recognized that allowing government-funded child welfare agencies to use religious criteria in the provision of public child welfare services would run afoul of the First Amendment. The Fulton decision was affirmed by the Third Circuit Court of Appeals. Five more cases that address this issue—Marouf v. Azar, Rogers v. U.S. Dept of Health & Human Services, Maddonna v. U.S. Dept of Health & Human Services, Buck v. Gordon, and Texas v. Azar—are pending in federal court.

Major child welfare organizations such as Child Welfare League of America, the National Association of Social Workers, Voices for Adoption, and the North American Council on Adoptable Children, along with many religious groups and leaders of diverse faiths, have strongly opposed this rule change (and state laws or policies that permit discrimination) because access to affirming and supportive services is essential to the well-being of children, and factors such as religion, sexual orientation, or gender identity are not relevant to an individual’s ability to parent. Policies that permit discrimination violate child welfare professional standards set by these organizations and others.  

The American Bar Association has long supported all individuals’ rights to be free from discrimination through a variety of Association policies and resolutions. ABA Resolution 204B (2007) supports laws that promote the safety, well-being and permanent placement of LGBTQ youth who are homeless or involved with the foster care system; ABA Resolution 102 (2006) opposes legislation and policies that restrict children’s placement into foster care on the basis of a parent’s sexual orientation; ABA Resolution 112 (2003) supports the establishment of legal parent-child relationships through joint adoptions and second-parent adoptions by unmarried persons who are functioning as a child's parents when such adoptions are in the best interests of the child; and ABA Resolution 109B (1999) supports laws that provide sexual orientation shall not be a bar to adoption when the adoption is determined to be in the best interest of the child). Most recently, ABA Midyear Resolution 113 (2019) opposed “laws, regulations and rules that discriminate against LGBT individuals  in the exercise of the fundamental right to parent.”

On December 16, 2019 the ABA submitted comments to HHS expressing concern with the agency’s decision to eliminate anti-discrimination rules designed to support children and families in the context of foster care and adoption. The ABA urged HHS to withdraw the proposed rule changes because they will cause harm to children and families and are inconsistent with child welfare law and the Administrative Procedure Act. That comment can be found here.

There are many ways you can help: contact your Senator and Congressperson and let them know you oppose permitting discrimination with HHS funds, volunteer to be a foster parent or Court Appointed Special Advocate (CASA) for an LGBTQ youth in foster care, reach out to local LGBTQ-youth serving organizations to offer pro bono assistance, speak about this issue within your community of faith or at local civic organizations, write a letter to the editor, or ask your local child welfare officials if they have nondiscrimination policies in place.  

Cathy Krebs is the director of the Children’s Rights Litigation Committee, and Currey Cook is the director of the Youth in Out-of-Home Care Project and counsel at Lambda Legal in New York, New York.


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