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All LGBTQ Children in Foster Care Are Under Attack

LGBTQ foster care discrimination

Republicans are going after our most vulnerable.

This is a dangerous time for LGBTQ people, and children across the country are paying the price. Already this year, Oklahoma, Kansas, and South Carolina have passed legislation paving the way for child welfare providers to turn away prospective LGBTQ foster parents or others who do not pass a religious litmus test, in effect providing a "license to discriminate." At the federal level, an unprecedented new amendment now goes even further in authorizing discrimination against adults and children, permitting government-funded "conversion" therapy for LGBTQ youth and denial of lifesaving health care.

This latest attack comes from the House Appropriations Committee, which last week adopted the Aderholt amendment to a 2019 funding bill. The amendment defines child welfare services so broadly that it goes beyond existing state child welfare religious refusal laws targeting adults, and licenses discriminatory treatment of children themselves.

How does the Aderholt amendment specifically violate children's rights? Let us count the ways. Children in foster care are currently protected from mistreatment through a host of constitutional and statutory rights, including the Health and Human Services Grants Rule, which prohibits discrimination in HHS-funded programs on the basis of age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation.

But under the Aderholt amendment, state-contracted, government-funded "child welfare providers" would be allowed to provide any services to children that they deem consistent with their moral or religious beliefs, even if their actions harm children. Providers could deny essential services to children who do not conform to the provider's moral or religious beliefs, leaving those children with no recourse.

And, in the name of religion or morality, providers could condemn, disparage, or attempt to "change" a youth's identity through so-called conversion therapy with impunity, even though that practice is condemned by every mainstream child welfare and social science organization as ineffective and extraordinarily harmful, is forbidden in the practice of child welfare by 10 states, and is banned outright by 13 other states. Being condemned and pressured to change one's identity, particularly for gender-nonconforming youth, can be a matter of life and death, since those young people are extraordinarily vulnerable to self-harm and suicidal ideation when subjected to non-affirming treatment and services.

These specific dangers to children are, of course, in addition to the harms resulting from limiting the pool of available foster and adoptive parents, leading to unnecessary and harmful placement in institutions and group homes and a lack of forever homes when it is not safe to return a child to their family of origin. The amendment also conspicuously leaves out a reference to the Social Security Act's ban on race- and national origin-based discrimination against children (and parents) involved in the child welfare system, reopening the door to types of discrimination that have been outlawed in this country for decades.

Perhaps most egregiously, the amendment threatens to punish states that do not permit discriminatory providers to operate by withholding 15 percent of their much-needed federal funding for child welfare systems. If the amendment were to become law, all children in care (and their families) would be harmed by this loss of funding. Although the vast majority of states have provisions that protect children from discrimination, the Aderholt amendment effectively guts these state protections.

This kind of anti-LGBTQ legislation is part of a greater movement allowing discriminatory practices in the child welfare space. Ten states already have laws that allow foster and adoptive agencies to discriminate against prospective LGBTQ parents based on religious beliefs. According to HuffPost, each year these agencies receive millions of federal and state dollars in taxpayer funds nationwide, and because they operate in states like Michigan, Virginia, and Texas, they are legally allowed to deny services to prospective LGBTQ parents and others who do not conform to their moral strictures. The Aderholt amendment would make this type of discrimination legal everywhere.

The amendment sends a clear message to LGBTQ children in foster care: because of their gender identity or sexual orientation, they are somehow less deserving of equal protection under the law.

This will impact tens of thousands of LGBTQ children since LGBTQ youth are dramatically overrepresented in the child welfare system. Only 5 to 7 percent of youth are LGBTQ, but LGBTQ youth make up almost 25 percent of those in foster care, as we reported in Safe Havens, a joint report released by Children's Rights, Lambda Legal, and the Center for the Study of Social Policy. These young people have often been rejected by their families of origin and are especially vulnerable to ongoing maltreatment in care because of their LGBTQ identity. LGBTQ youth in care face more placement moves and higher rates of psychiatric hospitalization, homelessness, incarceration and trafficking. Codifying into federal law a license to discriminate exacerbates these conditions and harmful life outcomes for LGBTQ children and costs localities, states, and the federal government millions of dollars.

The rights of LGBTQ children are in peril nationwide. We need to remain vigilant and fight against everything the Aderholt amendment stands for. If we don't, our children -- our most vulnerable children -- will be forced to suffer the consequences.

CHRISTINA WILSON REMLIN is lead counsel at Children's Rights. CURREY COOK is youth director at Lambda Legal. To take action against the Aderholt amendment right now, visit the Every Child Deserves a Family Campaign website and get involved.

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Christina Wilson Remlin and Currey Cook