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This effort, combined with OMB’s new guidance on grant eligibility, is an attempt to skirt the Supreme Court’s landmark religious liberty ruling in Fulton v. Philadelphia and will do nothing but add to the critical shortage of foster parents currently plaguing the foster care system.
The public commenting period has ended for a proposed Department of Health and Human Services (HHS) rule that requires LGBT children to be placed in homes that affirm the child’s gender identity.
The rule, first proposed on September 28, is called “Safe and Appropriate Foster Care Placement Requirements for Titles IV-E and IV-B.” The rule claims that the only safe environment for an LGBT child is in a home in which foster parents embrace a child’s chosen sexual orientation or gender identity.
Providers “will establish an environment free of hostility, mistreatment, or abuse based on the child’s LGBTQI+ status.”
“[A]gencies must ensure that a safe and appropriate placement is available for and provided to any child in foster care who identifies as LGBTQI+ and requests such a placement. For example, under the proposed requirement, a provider who used derogatory language or slurs about a child’s LGBTQI+ identity would not be a safe and appropriate placement,” the rule states.
“Similarly, a provider who attempted to undermine, suppress, or change the sexual orientation, gender identity, or gender expression of a child, including through the use of so-called ‘conversion therapy’ would not be a safe and appropriate placement.”
The rule continues,
“…the agency must not place LGBTQI+ identifying children with a provider who unreasonably limits or denies a child’s ability to express their sexual orientation, gender identity, or gender expression. For example, to be considered a safe and appropriate placement, a provider is 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 rule also would mandate “agencies to ensure that the totality of their child welfare system includes sufficient placements for LGBTQI+ children that meet these standards, but would not require that every provider become designated as a safe and appropriate placement for LGBTQI+ children.”
In order to place LGBT children or to be a “safe” home, parents and providers must go through training and affirm a child’s gender identity and sexual orientation in every way, including using the child’s preferred name and pronouns, allowing them to use sex-segregated facilities according to their gender identity, and allowing them to dress according to their gender identity. Facilities that are sex segregated would be required to allow children to be housed with children according to their gender identity rather than sex.
These providers and parents must 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;” as well as “facilitate the child’s access to age-appropriate resources, services, and activities that support their health and well-being.”
Rachel Morrison at The Federalist Society wrote that “the proposed rule does not define ‘hostility,’ ‘mistreatment,’ or ‘abuse,’” explaining that underlying the 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.”
It is also unclear whether HHS would require foster providers or parents to allow children to use puberty blockers, cross-sex hormones, or sex change operations, but HHS has promoted “gender affirming” medical treatments for minors.
HHS claims that it “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.”
Moreover, it insists that it “takes seriously its obligations to comply with Constitution and Federal laws, including the First Amendment and the Religious Freedom Restoration Act.”
Recognizing that the Supreme Court ruled in Fulton v. Philadelphia that the First Amendment safeguards the liberty rights of religious adoption and foster care agencies, HHS “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.”
HHS will also consider religious accommodations on a case-by-case basis.
Some legislators have already filed a bill to stop the proposed rule. U.S. Reps. Josh Brecheen, R-Okla., and Mary Miller, R-Ill., introduced the “Protecting Religious Freedom for Foster Families Act” on November 1. The legislation would prevent the proposed rule change from being implemented.
“The federal government should not force foster families to violate their sincerely held religious or moral beliefs in order to house children,” Brecheen said.
They aren’t the only ones fighting the proposed rule. On November 27, the attorneys general of 19 states sent a letter to HHS urging it not to adopt the rule. They claim that it is unconstitutional and will harm children, writing,
“This proposed rule seeks to accomplish indirectly what the Supreme Court found unconstitutional just two years ago: remove faith-based providers from the foster care system if they will not conform their religious beliefs on sexual orientation and gender identity…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. These injuries will be suffered while HHS fails to solve a problem that the proposed rule does not even prove exists in foster care.”
This comes too at a time when the Office of Management and Budget (OMB) is proposing new guidance for grants and agreements that would require all beneficiaries to adhere to a non-discrimination policy on the basis of sexual orientation and gender identity. Alliance Defending Freedom (ADF) is protesting this rule on constitutional grounds, noting that it will result in the ejection of faith-based groups from foster care and adoption programs, among others. In a letter sent today, ADF attorneys wrote:
“The proposed guidance violates the U.S. Constitution and contradicts the rulings of several federal courts and the U.S. Supreme Court that held that government funding conditions cannot compel religious groups to act in violation of their sincerely held beliefs. Federal agencies can’t single out people of certain beliefs to punish, sideline, or discriminate against. We urge the administration to swiftly amend its proposed guidance to affirm every American’s First Amendment rights.”
HHS can claim that it respects the right of religious Americans and honors the Supreme Court’s decision in Fulton v. Philadelphia, but it is doing everything it can to not only skirt the ruling and the First Amendment but it also, by government fiat, is labeling those who oppose an unquestioning loyalty to gender ideology as abusive. This would then make it a very short step from saying that Christians or other religious foster parents can’t provide a safe environment for LGBT foster children to saying that they can’t provide a safe environment for any child — including their own. Add in the new OMB guidance governing federal grants and it’s not hard to imagine that religious agencies and parents will soon be banned entirely from helping needy children.
The foster care system in this country is a mess, and it’s not because foster parents refuse to use a child’s preferred pronouns. For starters, at a time when more children are entering foster care, there’s a critical shortage of foster parents. A recent report found that half of states “saw a significant decline in licensed foster homes in 2022; South Carolina lost 61 percent of its foster care homes last year. In Sacramento County, California, the shortage was so severe that foster children were being housed in jail cells and office buildings without beds, and in North Carolina, the number of foster homes dropped from 7,100 in 2020 to 5,500 in 2022, forcing some of the state’s 11,000 foster children to be housed in, among other places, hospital rooms.
And according to a national audit conducted earlier this year, thousands of foster children in dozens of states are missing from the foster care system. Sadly, many will end up in the hands of sex traffickers.
Against the backdrop of this crisis, the federal government is focused on pushing through a discriminatory and unconstitutional rule that will not only deny and discourage loving parents from opening their hearts and homes to foster children but will ensure that more children, not less, will end up abused. The crisis of neglected and abandoned children in this country demands serious policy prescriptions, not ideological preening. This rule, and OMB’s proposed guidance, will do nothing but further harm an already broken foster system, and more federal legislators and states should stand up and fight it.
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