Non-Affirmation of Child’s “LGBTQI+” Identity Is Abuse Under Proposed Foster Care Rule

Published November 19, 2023

Federalist Society

On September 28, 2023, the U.S. Department of Health and Human Services Administration for Children and Families (ACF) proposed a rule titled, “Safe and Appropriate Foster Care Placement Requirements for Titles IV–E and IV–B.” ACF is accepting written public comments on its proposal until Monday, November 27, 2023, the Monday after Thanksgiving.

The Social Security Act requires that state and tribal title IV–E/IV–B agencies ensure that each child in foster care receives “safe and proper” care. This proposed rule establishes specific steps agencies must follow to fulfill that obligation for “LGBTQI+ children,” defined as children who “identify as lesbian, gay, bisexual, transgender, queer or questioning, intersex, as well as children who are non-binary, or have non-conforming gender identity or expression.”

Under the proposed rule, agencies would be required to “implement specific processes and requirements” to ensure LGBTQI+ children in foster care are provided with “placements the agency designates as safe and appropriate” and “services that are necessary to support their health and wellbeing.” Agencies would be required to ensure that “the totality of their child welfare system includes sufficient placements for LGBTQI+ children” that meet the proposed requirements (detailed below). But not every provider would be required to “become designated as a safe and appropriate placement for LGBTQI+ children.”

LGBTQI+ Children in Foster Care

ACF is proposing this rule to “address the extensively documented risk factors and adverse outcomes that children in foster care who identify as LGBTQI+ experience.” The proposed rule explains that LGBTQI+ children are overrepresented in the foster care population, claiming they face “mistreatment,” “poor treatment,” “rejection,” “stigma,” and “discrimination” because of their LGBTQI+ identities. In contrast, “supportive” treatment results in better outcomes. Such support includes “having been welcoming to their LGBTQ friends or partners, talking with them respectfully about their LGBTQ identity, using their name and pronouns correctly, supporting their gender expression, and educating themselves about LGBTQ people and issues.”

“Safe and Appropriate” Placements

ACF proposes three requirements that would qualify a provider as a “safe and appropriate” placement for LGBTQI+ children:

  1. The provider “will establish an environment free of hostility, mistreatment, or abuse based on the child’s LGBTQI+ status.”
  2. The provider “is trained to be prepared with the appropriate knowledge and skills to provide for the needs of the child related to the child’s self-identified sexual orientation, gender identity, and gender expression.”
  3. The provider “will facilitate the child’s access to age-appropriate resources, services, and activities that support their health and well-being.”

Regarding the first requirement, the proposed rule does not define “hostility,” “mistreatment,” or “abuse.” But it explains that such treatment would include “attempt[s] to undermine, suppress, or change” a child’s sexual orientation, gender identity, or gender expression, and “unreasonably limit[ing] or deny[ing] a child’s ability to express their sexual orientation, gender identity, or gender expression.” Providers are “expected to utilize the child’s identified pronouns, chosen name, and allow the child to dress in an age-appropriate manner that the child believes reflects their self-identified gender identity and expression.”

The proposal rule specifies that use of so-called “conversion therapy” and efforts that attempt to suppress or change a child’s sexual orientation or gender identity” are not safe and appropriate. It is unclear if “conversion therapy” includes talk therapy, which would raise concerns under the First Amendment.

Underlying ACF’s proposal is the assumption that only “affirmation” is “safe and appropriate.” If it is legally established that not affirming a child’s LGBTQI+ identity constitutes “mistreatment” or “abuse,” this standard could have massive ramifications for families seeking to adopt, biological parents of children both in and out of foster care, and individuals who work with children.

Under the second requirement, no specific training curriculum is proposed, but it “must reflect evidence, studies, and research about the impacts of rejection, discrimination, and stigma on the safety and wellbeing of LGBTQI+ children, and provide information for providers about practices that promote the safety and wellbeing of LGBTQI+ children.”

The third requirement would ensure that children have access to a “range of services,” which “may include, but are not limited to” (i) “facilitating access to behavioral health supports respectful of their LGBTQI+ identity”; (ii) “interacting with LGBTQI+ mentors and peers”; (iii) “joining and participating in affinity groups”; and (iv) “connecting the child to available LGBTQI+ supportive resources and events, either in person or virtually depending on local availability.” Further, providers “must not discourage or prevent the child who identifies as LGTBQI+ from receiving age-appropriate services and supports.”

It is unclear whether ACF considers puberty blockers, cross-sex hormones, or surgeries “appropriate” services that support a child’s health and wellbeing. But HHS’s Office of Population Affairs published a guidance document in 2022 titled “Gender-Affirming Care and Young People,” controversially promoting “gender affirming” medical interventions for children.

Notably, missing from the proposal is any discussion about biological parents and whether they have a say on which services and activities are provided to their child while in foster care.

Additional Requirements

ACF proposes imposing the following additional requirements on agencies:

  • Create a process for LGBTQI+ placements and reporting concerns about placements that are not safe or appropriate.
  • Notify children about the availability of these placements and the processes to request such a placement and report concerns.
  • Prohibit disclosure of sensitive information, such as a foster child’s LGBTQI+ identity.
  • Prohibit retaliation against a child who identifies as or is perceived to be LGBTQI+, including: (i) “unwarranted placement changes including unwarranted placements in congregate care facilities”; (ii) “restriction of access to LGBTQI+ peers”; (iii) “attempts to undermine, suppress, or change the sexual orientation or gender identity of a child”; and (iv) “other activities that stigmatize a child’s LGBTQI+ identity.”
  • Train agency staff on how to “appropriately serve LGBTQI+ youth” and implement the proposed procedural requirements.
  • Place children in sex-segregated child-care institutions “consistent with the child’s self-identified gender identity.”

Religious Liberty Concerns

The proposed rule explains that ACF “appreciates the vital role that religious providers play in providing care and services to children in the child welfare system” and “values the child welfare services that faith-based organizations provide.” ACF “takes seriously its obligations to comply with Constitution and Federal laws, including the First Amendment and the Religious Freedom Restoration Act.”

The rule acknowledges the Supreme Court’s 2021 decision in Fulton v. City of Philadelphia, where the Court made clear that “the First Amendment protects faith-based entities that provide foster care services.” “Consistent with this protection,” ACF’s proposal “would not require any faith-based provider to seek designation as a safe and appropriate provider for LGBTQI+ children as described in this proposed rule if the provider had sincerely held religious objections to doing so.” For any remaining conflict a religious provider may have with the rule’s obligations, ACF will consider religious accommodation requests on a “case-by-case basis.” No mention is made of religious accommodations for individual foster parents who partner with a non-religious provider.

Despite ACF placing most of the rule’s requirements on agencies, rather than on providers to avoid substantially burdening their religious exercise, the underlying premise of ACF’s proposal is that those who hold to certain religious views of marriage, sexuality, and gender, or who believe “affirmation” is harmful, are unable to provide safe homes for children who identify as LGBTQI+.

Benefits and Costs

ACF summarily claims the benefits of its proposal “will reduce the negative experiences of such children by allowing them to have access to needed care and services and to be placed in nurturing placement settings with caregivers who have received appropriate training.” Further, it “may also reduce LGBTQI+ foster children’s high rates of homelessness, housing instability and food insecurity,” and it “promotes a supportive environment for children in foster care who self-identify as LGBTQI+.” Considering ACF’s proposal would disqualify a large number of available foster homes, it seems more probable that the rule will decrease access to placements and housing for LGBTQI+ children.

ACF acknowledges that its proposal will have costs as it “anticipate that a majority of states would need to expand their efforts to recruit and identify providers and foster families that the state or tribe could designate as safe and appropriate placements for a LGBTQI+ child.” The proposed rule projects costs over $40 million.

Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she directs EPPC’s HHS Accountability Project. An attorney, her legal and policy work focuses on religious liberty, health care rights of conscience, the right to life, nondiscrimination, and civil rights.

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