Trump Administration Continues to Legislate Discrimination Against Children Involved in the Child Welfare System

WASHINGTON, DC (November 20, 2019)—Yesterday the Department of Health and Human Services (HHS) published a proposed rule that eliminates existing nondiscrimination protections on the basis of sex, religion, sexual orientation, and gender identity. The administration also issued a Notice of Nonenforcement—meaning that prior to this proposed rule becoming final, the administration refuses to enforce the existing nondiscrimination rule. Not only is this discriminatory on its face, it jeopardizes the health and well-being of all children and youth who are involved with any program that receives funding from HHS, including those who are involved with the child welfare system.

When families come into contact with the child welfare system, it is the responsibility of service providers—whether they are state, county, community-based, or faith-based—to provide children and youth with services and supports that promote their safety, permanency, and well-being. This includes placement in foster homes where children are and feel safe, their behavioral and physical health needs are met, and they have access to clothing that makes them feel comfortable.

The action taken yesterday has the potential to harm every child in foster care—by undermining the well-being and safety needs of children and by compromising the agency’s ability to find permanent homes. When foster care agencies refuse to license all willing and able foster parents, it jeopardizes the placement and permanency of every child and youth in the state’s care. While this rule would not ban any family explicitly from being a foster parent, it does create a significant barrier in many communities by removing non-discrimination protections and allowing agencies to discriminate against potential parents.

This rule would also disproportionately harm LGBTQ+ children and youth, who are overrepresented in foster care and experience disparate outcomes compared to their peers including an increased risk of placement instability and an overuse of congregate care. When LGBTQ+ children and youth are placed in non-affirming homes, or when they are not affirmed and supported in their healthy identity development, it jeopardizes their safety and well-being.

Refusing to serve children and families due to their sex, sexual orientation, gender identity, or privately held religious beliefs is unacceptable and is in direct conflict with child welfare’s mandate. States are provided with federal funding to carry out activities that promote child welfare’s central mission, and the immediate and long-term impact of this proposed rule directly violates their ability to do so. The administration has an obligation to require that federal tax dollars must only be provided to agencies that are capable of truly fulfilling the mandate of child welfare for all children and youth, which can only be guaranteed through explicit non-discrimination policy.

Attention to a child’s identity is core to promoting health and well-being, including supporting positive self-esteem and promoting resilience. Additionally, connections to caring adults and permanent connections to family are core elements of ensuring children and youth are healthy and happy. Through decades of work in public systems, and research on best practice we are clear on the elements that children and families need to thrive. Nondiscrimination policies ensure that every child and family is provided with the services and supports that advance their well-being—and that child welfare can truly fulfill its mandate. Advancing any agenda that is not intended to support the well-being of all children and families is dangerous. Our families deserve much better.