Public comment recently closed on a new Department of Health and Human Services rule requiring child welfare providers to undergo affirmation training for youths who identify as gay or transgender, which conservatives and religious liberty advocates say could threaten faith-based or religiously affiliated foster care and adoption organizations.
Under the proposed rule, agencies must provide "safe and appropriate placement" for LGBT youth, and foster parents or caregivers 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."
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LGBT children are overrepresented in the foster care system by a factor of 2.5, making up an estimated 32% of the entire foster care population, according to the Administration for Families and Children.
Faith-based nonprofits comprise 40% of government-contracted child placement agencies in the United States, and 65% of non-kin foster parents regularly attend religious services. Practicing Christians are also nearly three more likely to have seriously considered pursuing foster parenthood.
Jon Scruggs, senior counsel for the religious liberty group Alliance Defending Freedom, told the Washington Examiner that his organization worries the regulation will undermine the religious institutions on which state-level foster care systems heavily depend.
“Vulnerable children in America’s foster care system are urgently in need of loving families to care for them," Scruggs said. "Yet the Biden administration is threatening to put politics over parents, and gender ideology above children’s best interests. We are greatly concerned the administration’s proposed rule will deter capable, loving parents from fostering and adopting children."
Catholic Charities, for example, served over 3,400 children with foster home care, group home care, and residential treatment last year. The organization, however, said in its public comment opposing the rule that it fears that the rule as written will "threaten the ability for [it] to provide services without violating [its] faith" and will "potentially exacerbate issues of finding young people homes if fewer service providers are in the marketplace."
Florida Sen. Marco Rubio (R-FL) lambasted the regulations in an opinion editorial this week, highlighting the dire situation in many states with a shortage of housing options for children in state custody.
"This isn’t about compassion for kids struggling with their identity," Rubio said. "This is about demanding woke orthodoxy."
Although religious liberty advocates argue that the rule will hinder those with traditional views on gender and sexuality from serving foster youth, the ACF included a provision allowing for exemptions from LGBT training and certification under the federal Religious Freedom Restoration Act.
Supporters of the rule, however, say it does not go far enough, arguing that allowing religious freedom exemptions is tantamount to state-sanctioned discrimination with respect to gender and sexual diversity in youth.
"Stranger foster parent licensure is a privilege, not a right," the National Association for the Counsel for Children wrote in its public comment in favor of the rule except for the RFRA exemptions.
The NACC is a nonprofit legal organization that advances child and parent rights "by advocating for equitable, anti-racist solutions" in the justice system.
"Non-affirming, or 'exempt,' agencies and individuals would be serving LGBTQI+ young people who would experience credible
fear of rejection or harassment if they choose to disclose, or if the information is accidentally or inadvertently disclosed by a third party," the NACC wrote. "Both scenarios are psychologically and emotionally harmful.
"The right to practice one’s faith does not provide the right to discriminate against others," wrote the Family Focused Treatment Association, a foster care advocacy organization operating in the U.S. and Canada. "Any provider that is unwilling to provide safe and proper care for youth who are LGBTQI+ are unable to provide safe and proper care to any youth."
Over 10,000 organizations and individuals filed a public comment on the proposed rule. HHS has not announced a timeline for finalization of the rule and when it is expected to take effect.
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On Thursday, the Senate Judiciary Committee held a hearing regarding the numerous problems of the foster care system, including poor housing conditions and the pipeline of victimization from foster care to sexual exploitation and human trafficking.
"There is absolute urgency every day that we protect these children," Sen. Jon Ossoff (D-GA) said at the end of the hearing.