Alabama Attorney General Steve Marshall led a coalition of 19 states opposing President Joe Biden’s Department of Health and Human Services Administration for Children and Families’ proposed rule, Safe and Appropriate Foster Care Placement Requirements for Titles IV-E and IV-B.
Federal law requires that state and tribal Title IV–E/IV–B agencies ensure that each child in foster care receives “safe and proper” care and has a case plan that addresses the specific needs of the child while in foster care to support their health and well-being.
The proposed rule would require states to label certain foster care providers as “safe,” or by omission, “unsafe,” based on the degree to which LGBTQ children would be affirmed in their sexual orientation or gender identity.
Marshall and other AGs believe the proposed policy presents serious concerns for faith-based foster care providers and families with traditional viewpoints. Given the high correlation between persons of faith and foster care, the proposed rule could threaten to directly harm children in need by limiting the number of available foster homes, risk kinship placements, and increase costs for states.
“Since the first century, Christians across the globe have answered the call to provide a home and a family to children who had neither. Alabama boasts a particularly strong faith-based foster care and adoption community, and I will fight this Administration for them every step of the way,” said Attorney General Marshall. “Joe Biden continues to harass our State and others like it by implicitly threatening to withhold federal funding for children in need if we do not conform to his ideology, but our values are not for sale.”
According to the rule proposal, “LGBTQI+ children are overrepresented in the foster care population. One recent confidential survey revealed that 32 percent of foster children ages 12–21 surveyed report that they identify as having a diverse sexual orientation or gender identity. A recent study using nationally representative survey data found that youth with a minority sexual orientation, such as lesbian, gay, and bisexual youth, are nearly 2.5 times as likely as heterosexual youth to experience a foster care placement.”
The proposal stated, “A meaningful body of research demonstrates that LGBTQI+ children in foster care face disproportionately worse outcomes and experiences than other children in foster care due to their specific health and well-being needs are often unmet.”
The federal proposal, however, states, “Under this proposed rule, agencies 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. The NPRM proposes to require 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.”
Marshall believes that if enacted, the proposed rule would deter faith-based individuals and organizations from participating in the foster care system, further reducing the number of available foster homes.
According to the rule, in order for a foster home to be considered a “safe and appropriate placement,” the foster parents must use the child’s identified pronouns and chosen name, allow the child to dress in ways the child believes reflects his or her self-identified gender identity and expression, and facilitate access to “gender-affirming” medical care.
However, the proposal also states, “If a provider alleges that any obligation that this proposed rule as finalized requires a state or tribe to impose substantially burdens the provider’s religious exercise, the Administration for Children and Families (ACF) will apply the test set out by the Religious Freedom Restoration Act (RFRA) to determine whether an exemption is required. Under RFRA, when Federal action substantially burdens an individual or entity’s exercise of religion, the Federal government must afford that individual or entity an exemption to the rule unless the government can demonstrate that applying the burden in that particular instance furthers a compelling governmental interest and is the least restrictive means of doing so.”
The letter was led by Attorney General Marshall and signed by attorneys general in the following states: Alaska, Arkansas, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, South Carolina, Tennessee, Texas, Virginia, and West Virginia.
