The federal Department of Health and Human Services (HHS) has published proposed regulations, a Notice of Proposed Rulemaking (NPRM), intended to provide better care for LGBTQ youth in foster care. These young people are disproportionately represented in the foster care system and need appropriate care to thrive and be safe. Though imperfect, the proposals include strong accommodation for religious foster care agencies with morally conservative sexuality standards. The proposals, however, incorporate an understanding of LGBTQ youths’ experience that undermine the stated intent to ensure “safe and appropriate foster care” for all children and young persons who need it.
The NPRM sets out troubling data about the abusive or insensitive treatment that too many LGBTQ children endure at home, leading to foster care placement, and to inadequate and even abusive treatment they too often receive in unprepared or hostile foster care placements. HHS proposes that foster care agencies (state government agencies and their private foster care providers) receive specialized training, that children and young people involved with foster care be informed that they can request a provider with such specialized training, and that the monitoring of state agencies and their partners take special note of how well LGBTQ youth are protected and served. These are positive proposals, certainly in principle.
The NPRM includes an extensive section on how HHS proposes to accommodate faith-based providers of foster care services whose religious convictions would be violated if they were required to adhere to the proposed specialized training and services. The section acknowledges the “vital role” of faith-based providers in the child welfare system, the federal commitment to a level playing field for faith-based providers, the protections afforded to the religion-based practices of faith-based providers by the First Amendment and by federal laws, including the Religious Freedom Restoration Act (RFRA), and the Supreme Court’s 2012 Fulton decision that “made clear [that] the First Amendment protects faith-based entities that provide foster care services.”
RFRA, a 1993 law that applies to all other federal laws, disallows federal action that “substantially burdens” a faith-based organization’s exercise of religion, unless the action is required by a “compelling” government interest that cannot be achieved in a less burdensome way. In the NPRM, HHS not only notes that a faith-based provider might use RFRA to challenge a foster care regulation that is applied to it but proposes a way to design the new foster care regulations so that they will not impose a major burden on faith-based providers that do not affirm LGBTQ youth.
The NPRM proposes that the requirements about special training and care concerning LGBTQ foster youth will apply to each state’s foster care system and not to every private organization or family that partners with a state to offer foster care services. States must ensure that they have among the many private organizations they work with enough providers that meet the proposed new LGBTQ standards to be able to serve every LGBTQ child, and they will have to devise a way to transfer with minimal disruption a child or youth who decides that he or she needs a different foster environment. Providers will inform foster kids of their right to ask for a transfer, but faith-based providers can ask state officials to provide that information in their place. All providers have to commit to not retaliate against a child or youth who identifies as LGBTQ.
This is a creative accommodation proposal—modeled on the guaranteed alternative provision that has been part of the rules for equal faith-based participation in federal funding since Charitable Choice in the 1996 welfare reform law. In that original form, this was the right of a beneficiary to ask to attend a different provider if he or she had a religious objection to being served by the original faith-based provider. In this proposed new regulation, an LGBTQ child would have the right to ask to be transferred to a different provider considered to be more supportive of his or her LGBTQ identification.
Unfortunately, while the NPRM discusses this vital religious accommodation and the reasons for it extensively, the actual proposed regulatory language only requires the accommodation via indirect language. That is far from adequate. Some states are likely to be hostile to religious providers that decline to conform to all of the proposed new LGBTQ affirming requirements, notwithstanding the vital role they play within the foster care system, and may seek to discourage their participation. The final regulations should require states not to push such providers out, should explicitly state that the LGBTQ affirming requirements apply only to the state system overall and not to every individual provider or foster family, should require states to recruit a sufficient number of LGBTQ affirming providers, and should explicitly say that states are required to accommodate faith-based providers with religious or conscientious objections to following some or all of the new LGBTQ affirming requirements.
The NPRM and the language of the proposed regulations have another significant problem. In the conceptual framework the administration has adopted, a provider that does not conform fully to the new regulations by receiving specialized training, affirming without question a child’s declared LGBTQ identity, and so on, is a foster care organization that is not safe for such children. Providers that have not confirmed to the new standards are described as organizations that have chosen not to “become designated as a safe and appropriate placement for LGBTQI+ children.” Yet, surely there is another possibility between affirming and threatening—that is, respecting the child or youth and offering support, particularly if they express any uncertainty regarding their LGBTQ identity.
Comments on the NPRM are due by November 27, 2023, and can be submitted easily via www.regulations.gov (type RIN 0970-AD03 into the search box to find this NPRM).
Stanley Carlson-Thies is the Founder and Senior Director of the Institutional Religious Freedom Alliance (IRFA), a program of the Center for Public Justice.
