New rule designed to protect LGBTQ foster children draws GOP opposition 

A new rule requiring child welfare agencies to place LGBTQ children in “environments free of hostility, mistreatment, or abuse” based on the child’s sexual orientation, gender identity or expression is drawing opposition from Republicans.

The proposed rule, issued in September by the Department of Health and Human Services (HHS), also would require caregivers to undergo cultural competency training to ensure LGBTQ youths are placed in homes where their identities are affirmed.

In a statement, Health Department Secretary Xavier Becerra said the proposal puts “children’s well-being first.”

Studies have shown that LGBTQ young people are overrepresented in the child welfare system. Lesbian, gay and bisexual children are more than twice as likely to experience foster care placement compared with their heterosexual peers, a 2019 study found, and roughly 30 percent of foster youth identify as LGBTQ, according to the Children’s Bureau, the federal agency responsible for overseeing the child welfare system in the U.S.

About 5 percent of foster youth identify as transgender.

But the rule has met some opposition in the GOP. 

A bill introduced last month by Rep. Jim Banks (R-Ind.), who is currently running for an open Senate seat, would prevent foster and adoptive families from being required to affirm a transgender child’s gender identity. The measure, called the Sensible Adoption For Every Home Act, has four Republican co-sponsors.

Banks in a statement to Fox News said the bill was drafted in response to the HHS proposal, which he said discriminates against prospective caretakers that are “opposed to irreversible sex change procedures on kids.”

LGBTQ rights advocates have denounced the Indiana congressman’s bill and his justification for introducing it, which they say reflects misconceptions about gender-affirming health care for youth and misrepresents what the Health Department’s draft rule aims to achieve.

“No part of this says anything about changing the sex of a child,” said Allen Morris, policy director at the National LGBTQ Task Force. “It’s talking about making sure that [LGBTQ youths] are not in an abusive home or somewhere that’s going to mistreat them.”

Other Republicans have argued that the proposed rule would discriminate against faith-based providers.

A bill filed in the House and Senate in November by Rep. Mike Kelly (R-Pa.) and Sen. Tim Scott (R-S.C.), a former GOP presidential candidate, would prevent government agencies from penalizing child welfare service providers that are unwilling to “take action contrary to their sincerely held religious beliefs,” including affirming a child’s gender identity or sexual orientation. The duo introduced identical legislation in 2019 and 2021.

Sen. Marco Rubio (R-Fla.), one of the bill’s 17 Republican co-sponsors in the Senate, wrote in a December editorial that the measure would effectively overrule the Biden administration’s “new woke standards.” Rubio’s Lifting Local Communities Act, introduced last January, would similarly bolster the ability of religious organizations that receive federal funding to operate in accordance with their religious beliefs.

In a Dec. 8 letter to Becerra, however, 19 Democratic senators voiced their support for the Health Department’s proposed rule, writing that its stipulations are needed “to protect children in the foster care system more than ever.”

“As members of Congress we are committed to ensuring all children, including LGBTQIA+ children, thrive in safe and stable environments,” the senators, led by Sen. Ron Wyden (D-Ore.), wrote in the letter.

Compared with their cisgender and heterosexual peers, LGBTQ children and adolescents in the child welfare system are more likely to report poor treatment related to their sexual orientation or gender identity. In a 2014 study of LGBTQ foster youths in Los Angeles, nearly 38 percent reported poor treatment connected to their sexual orientation, gender identity or gender expression.

Twenty-eight states and Washington, D.C., have explicit laws or policies in place to protect LGBTQ youths in foster care from discrimination based on sexual orientation and gender identity, and another six have laws prohibiting discrimination based on sexual orientation only, according to the Movement Advancement Project, a nonprofit organization that tracks LGBTQ laws.

In 13 states, state-licensed child welfare agencies may legally refuse to place and provide services to children and families — including LGBTQ people and same-sex couples — if doing so conflicts with their religious beliefs. 

Republicans at the state level have also sought to push back on the rule.

In a November letter to the Children’s Bureau, more than a dozen Republican state attorneys general said the Health Department’s proposal discriminates against Christian caretakers and provides solutions to a problem that does not exist.

The letter, led by Alabama Attorney General Steve Marshall (R), references a 2021 Supreme Court ruling that sided with a Philadelphia Catholic social services agency that had refused to accept same-sex couples as foster parents.

“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,” the attorneys general wrote in the Nov. 27 letter.

A Health Department spokesperson declined to comment on the letter but said members of the public are encouraged to express their views on the draft rule. A 30-day public comment period ended Nov. 27.

Responses to the proposed rule from Christian organizations have been mixed, although most submitted to the Health Department center around concerns that the rule, if implemented, would discriminate against faith-based providers and hinder the recruitment and retention of foster families, many of whom are religious.

“Among the most concerning — and most likely — negative impacts of the proposed regulations would be a significant chilling effect on the involvement of people of religious faith in the foster system,” one group wrote in a Nov. 20 letter to Becerra. “This rule would push many of them away.”

Nonreligious service providers, meanwhile, have largely argued that the draft rule is needed to protect LGBTQ young people already vulnerable to abuse.

“With all of the pain, rejection, broken promises and separation that many youth in foster care experience, a targeted and specific plan for LGBTQI+ youth's health and wellbeing through safe and appropriate placements can ensure youth are acknowledged and affirmed when they express their needs,” wrote a coordinator for a Cleveland-based nonprofit that works with foster youth.

“Then, when this plan is followed through, youth will actually experience their needs being met, their voices mattering and a caring network of individuals,” they wrote. “This is vital for all youth, but especially youth who identify LGBTQI+ because we know that so often this is not the case.”

But some nonreligious and Democratic organizations have been critical of the proposal, which they say does not go far enough because it still allows for individuals who do not support LGBTQ identities to become foster parents.

Multiple groups in comments submitted to the Health Department referenced a 2021 survey of young people who concealed their LGBTQ identities prior to placement over fears of “how their social worker may react” and “concerns about losing their placement.”

“The flexibility allowed within the rule presumes that those who are LGBTQI+ and not yet out would be served well when placed with any family — including those who opt out of being ‘safe and appropriate,’” the executive director of one children’s rights organization wrote. “However, not requiring that every provider be a safe and appropriate placement for LGBTQI+ children will mean that LGBTQI+ youth are placed in inadequate placements.”