The Biden Administration has proposed new Federal regulations that would re-shape how states and counties must approach issues related to the sexuality and gender identity of children and youth in the foster system.
HHS Secretary Xavier Becerra described these and other regulatory changes as “game-changing,” and expressed, “This is going to change the complexion of how we view foster care treatment for our foster kids, but more importantly, how we look at the people who we rely on to care for foster kids.”
The proposed rule is titled, “Safe and Appropriate Foster Care Placement Requirements for Titles IV-E and IV-B.” As required by Federal law, the public may submit “comment” letters on these proposed regulations through November 27, 2023. The department that has proposed the regulations – HHS – must review and respond to all comments before issuing a final rule.
A deeper exploration of the implications of the proposed rule is provided below, written by Jedd Medefind, President of the Christian Alliance for Orphans. (This analysis will also be provided to HHS as an official Comment Letter regarding the proposed regulations)
Dear Friends at the U.S. Department of Health and Human Services,
We write to address the new proposed rule “Safe and Appropriate Foster Care Placement Requirements for Titles IV-E and IV-B.” The Christian Alliance for Orphans (CAFO) represents more than 250 member organizations that actively serve vulnerable children and families across the US and around the world — from foster care, adoption, and mentoring programs to family strengthening and reunification services.
While we wish to share our concerns with the current form of the proposed rule and to suggest an alternative approach, we also wish to express sincere appreciation for your work. We are truly grateful that you work every day on behalf of every child and family touched by the US foster system and that you desire the very best for them. We share this desire and — even in moments when we may not agree with you on every point — are grateful to be able to serve side-by-side with you in this work.
Major Shift in Approach with Large Costs and Significant Risks
As you know, these regulations would fundamentally re-shape how states and counties must approach issues related to the sexuality and gender identity of children and youth in the foster system.
Secretary Xavier Becerra was correct in describing these and other regulatory changes proposed by the Department as “game-changing.” If finalized in their current form, these regulations would indeed “change the complexion of how we view foster care treatment for our foster kids” and also in “how we look at the people who we rely on to care for foster kids.”
We would like to respectfully suggest that the intent of these regulations can be achieved in a much less invasive and costly way. It is possible to provide meaningful guidance to states that would add greater clarity and protections against risk of mistreatment for children who identify as LGBTQI+ without resorting to the highly-prescribed, Federally-directed approach currently being proposed.
Most importantly, this alternative approach would carry much less risk of harm to religious liberty and conscience rights, reductions in involvement in the foster system by communities of faith and communities of color, and — most importantly — of collateral damage to the nearly 400,000 children who today need caring foster, adoptive, and kinship families.
A New Two-Tier System of “Safe” and “Unsafe” Government Partners
At its essence, the proposed rule would redefine “safety” to mean that foster parents, group homes, and social workers must actively endorse and support the current inclinations a child expresses regarding their sexual preferences and gender identity. If an agency, staff, or foster family were to question or suggest alternate interpretations of a child’s present feelings, they would no longer meet the new regulation’s standard for “safety.”
On the one hand, we want to affirm our belief that the writers of this proposed rule sincerely desire to increase the sense of safety felt by LGBTQ+ children in the foster system. We also appreciate that the writers have sought to avoid Constitutional religious liberty problems. In seeking to avoid legal challenges similar to those addressed in the Supreme Court’s unanimous 2021 ruling in Fulton v. City of Philadelphia, these regulations place the burden of ensuring “safe” placements on state and local governments, not private agencies.
Under this new system, state and local governments would be required to establish a system that certifies placement agencies and their foster homes as “safe” by the rule’s new definition of safety. Faith-based nonprofits that hold to a different understanding of what safety entails would be “free” to not seek certification as being safe for LGBTQI+ children. Theoretically, state and county governments would still be able to place children that do not express LGBTQI+ identity in homes through these non-certified agencies.
Despite these attempts at religious accommodation, it is important to recognize the deeper consequences the proposed regulations would likely have over time. Almost certainly, they would create two distinct classes of partner nonprofit agencies: those certified as “safe” because they have embraced the regulation’s new definition of this term and those inevitably viewed as “less safe” or “unsafe” because they have not. While some governments may continue to place some children in families through these agencies, it seems likely that the new two-class system would promote both implicit and explicit bias against these agencies and increasing exclusion by government, foundations and other funders, fellow nonprofits, and others.
“Affirmation” Will Require the Absences of Alternative Perspectives
At a deeper level, the rule will place the force of law behind the idea that a child’s current inclinations and feelings are, and must be, the final word when it comes to questions of sexuality and gender. The proposed rule would lump together the most harsh and coercive efforts to alter a child’s sense of sexual identity with virtually any attempt to suggest to a child that they may want to question or rethink their current assumptions.
Under the new regulations, both abusive actions and loving and patient discussions could very conceivably render a home “unsafe.”
Will Unquestioning Affirmation Heal Children’s Deepest Needs?
The proposed rule argues that such an “affirming” approach is necessary by referencing an array of studies that show substantial correlations between LGBTQI+ identity and myriad tragic outcomes, from mental illness to social isolation to suicide.
Indeed, no caring individual can read these statistics without grieving for the children they describe and the degree to which such heartbreaking outcomes so often come side-by-side with LGBTQI+ identity. Coming to a full and accurate understanding of the reasons for such correlations should be a concern for all Americans, whatever their convictions about sexuality and gender.
Most Americans would agree with the claims expressed in the proposed rule that abuse, bullying, manipulation, or other mistreatment of a child based on their identifying as LGBTQI+ are unequivocally wrong and can indeed cause detrimental impacts upon a child, including the negative outcomes mentioned above.
However, the proposed rule goes much further, suggesting that a – or even the – primary problem faced by foster youth who identify as LGBTQI+ is a lack of full affirmation for their current sexual and/or gender identity. The proposed rule implies that if such total endorsement were to be provided, the tragic outcomes that are associated with the LGBTQI+ identity of children in the foster system would largely disappear.
Sadly, this unidimensional outlook fails to recognize the complex web of other challenges that most of these children have faced. This frequently includes early sexual and physical abuse, drug exposure, neglect and abandonment, serious mental health issues, and much more – often long before questions of sexuality and gender identity became an apparent factor in their lives.
This outlook also overlooks the high correlations between these other adversities and non-traditional gender and sexual expression, even for those who’ve not experienced foster care. For example, while 26% of straight adults report having experienced 3+ Adverse Childhood Experiences (ACEs), that number doubles to 52% for those identifying as lesbian, gay, bi-sexual or queer. (See “Adverse Childhood Experiences and Mental Distress Among US Adults by Sexual Orientation,” in JAMA Psychiatry, February 23, 2022.)
To imply that foster youth who identify as LGBTQ+ will flourish if any questions or caveats regarding their current sexual identity or feelings are removed represents a superficial and oversimplified analysis. Worst of all, it almost certainly will divert our focus away from the deepest needs that must be met if these children are to truly thrive.
Space for Both Common Ground and Differing Opinions
We wish to articulate strongly and clearly that no one who is truly guided by Christian commitments would ever want a child or any person to be exposed to abuse, mockery, or any other mistreatment because they are grappling with questions of sexuality or gender identity. On the contrary, earnest followers of Jesus Christ desire for every person to know, before anything else, that they are made in the image of God and infinitely valuable – regardless of the identity or desires they express, choices they’ve made, or any other factor.
Likewise, the Christian religion – when it faithfully reflects the example and instructions of Jesus Christ – uniquely affirms the liberty of each individual to make decisions of faith and conscience free from coercion, manipulation, or mistreatment of any kind. Jesus did not coerce belief or behavior, and neither should we.
But to say that a young person should never be encouraged to question or rethink their present feelings or inclinations is a very different matter. This is not only opposed to the way of Jesus – who always met people without judgment right where they were but never left them as they were – but also counter both to the American tradition and to the common sense of virtually every religion and culture across time.
Consider, for example, a 12-year-old who was born male but has concluded that his affinity for playing with dolls necessarily means that he must be a girl and thus must begin taking puberty blockers. Should this child never be encouraged by a caring foster parent to consider alternative interpretations or paths forward? Today, many of the nations that pioneered “affirming care” for children — including Finland, Sweden, France, Norway, and the UK — are voicing serious concerns regarding their prior policies and actively reversing them. Yet even as Europe is decidedly stepping back from dogmatism in questions of gender identity and transitions, this proposed rule would enshrine an unquestioning and dogmatic approach in Federal policy.
Certainly, there is a healthy tension to be kept here. On one hand, most every American would desire for children to possess freedom to make choices and decisions appropriate to their age and maturity, especially in matters of conscience. On the other, most Americans would also agree that no child is likely to thrive without some measure of adult guidance – which necessarily includes helping a child to question or rethink their current assumptions at many points in their journey to adulthood.
To define such efforts to questions or challenge a child as “safe” when it comes to helping them, for example, rethink their body image or feelings of need for plastic surgery, but as “unsafe” when it comes to their feelings of sexual desire or identity as a boy or a girl is both inconsistent and profoundly problematic.
Enshrining such an approach in America’s legal framework would amount to a Federal gag order, precluding the legitimate sharing of ideas and perspectives. This carries real hazards for children and young adults, preventing them from encountering ideas and outlooks beyond their own current assumptions. Meanwhile, it also raises substantive First Amendment concerns by constricting the free speech of citizens more than would be necessary to achieve legitimate government ends.
The Invaluable Contributions of Faith-Motivated Partners in the Foster System
Among the most concerning — and most likely — negative impacts of the proposed regulations would be a significant chilling effect on the involvement of people of religious faith in the foster system. Studies consistently show that people motivated by deep faith are among the most willing to welcome and serve children and families in the foster system. This rule would push many of them away. In a time when children in the foster system desperately need more caring families, this rule would almost certainly lead to fewer.
As the proposed rule acknowledges, faith-motivated individuals and organizations provide an outsized portion of America’s social safety net. For example, regular church-attenders donate to charity more than three times the percentage of personal income compared to that given by those who don’t attend church. These people give more not only to religious organizations, but to non-religious organizations as well. They also volunteer, give blood, and serve neighbors at notably higher rates. (See, for example, the expansive findings reported in the book Who Really Cares? by Dr. Arthur Brooks).
These contributions of faith-based actors are particularly vital in the US foster system. For example, in Arkansas, for many years a network of churches has recruited and supported roughly half of all non-kin foster placements in the state – a portion that has risen to 2/3rds in recent years. A private 2014 analysis of the contributions of a single faith-based organization in Florida found it contributed $4.5 million in savings annually to the foster system and other state programs via partnerships that were almost entirely privately funded. Similar agencies, church networks, and organizations make a difference across the country every day of the year, from Oklahoma to Oregon, Colorado to Arizona, Florida to Washington, DC.
What is true on an organizational level is true of families as well. For example, 2013 research by Barna Research reported in the book, Becoming Home, found that practicing Christians are twice as likely to foster and to adopt as the general population. They are also more likely to welcome sibling groups and children with special needs. Little wonder that while under 40% of Americans attend church services weekly, a full 65% of foster parents do.
People of faith contribute to the foster system in other ways as well. For example, faith-motivated individuals provide significant donations to supplement any funds faith-based agencies may receive from government, thus multiplying public funds and increasing the quality of services. Church communities also provide critical material, emotional, and spiritual support to adoptive, foster, and biological families. According to Barna Research, more than 40 percent of congregations offer some form of organized foster and/or adoption support, and most all provide at least some form of this help organically. This is likely part of why a 2002 study found that people who learn about fostering through a church or religious organization foster for 2.6 years longer than others.
Faith-based organizations offer other critical services also, from family reunification and preservation programs, to mentoring of aging-out youth, to foster family retention. For example, while it is estimated that 50% of foster families drop out within the first year, church-based support for foster families has been shown to result in more than 90% of supported families continuing beyond the one-year mark.
The point in this is not that faith-motivated organizations and foster parents are always “better,” but that they are invaluable partners in any serious effort to meet the needs of vulnerable children and families. It is to the benefit of our entire society that these individuals and organizations continue to be welcomed as full and equal partners in service. Unfortunately, the rule as currently written would have the opposite effect, marginalizing many faith-based organizations and families in both rhetorical and very tangible ways.
Disproportionate Impact on Communities of Color and Kinship Families
The Biden Administration and other actors at every level of the child welfare system have recognized a deep need to seek and welcome more foster and adoptive families from communities of color. Likewise, leaders in the field also recognize the tremendous importance of identifying and welcoming more kinship families willing to provide both foster care and adoption. There is good reason to believe that this rule would negatively impact both of these efforts.
It is well known that black, Latino, and other communities of color tend to have strong religious roots and generally conservative social values regarding sexuality and other topics. It would be received as an insult to many within these communities to hear that they will not be considered “safe” for youth who identify as LGBTQI+ (or even “questioning”) unless a person agrees with and actively supports a child’s current inclinations in this regard, even to the point of gender transition medications and surgeries.
This ethos within the system would almost certainly discourage many deeply-caring individuals, families, relatives, and churches from communities of color from involvement with the foster system. Likewise, it would also push away many otherwise-willing kinship families from all racial and ethnic backgrounds as well.
An Alternative Solution
If the Administration’s objective is to ensure that children in foster care are never disparaged or mistreated because of their present inclinations in regard to sexuality and gender identity, it can do so in a much simpler and direct way than the currently-proposed rule. Such actions can be clearly proscribed — and arguably already are — without requiring states to create a two-tiered systems of “safe” and “unsafe” agencies based on a new and highly questionable definition of safety.
Nor is it necessary to preclude reasonable, respectful efforts by caring foster parents and other adults to help children think through their current feelings and assumptions about these things. Actions that are truly harsh and hostile can be clearly established as entirely out of bounds. Meanwhile, caring foster parents can still be free to offer alternative viewpoints with respectful kindness. They could, for example, ask questions and even encourage caution, especially when it comes to emotionally-charged sexual experiences or chemical and surgical treatments that would alter a child for a lifetime. Most Americans would strongly affirm such a balanced approach.
There is no need to further divide Americans on this point nor to deprecate faith-motivated organizations and foster families. Doing so would certainly contribute to the growing polarization of our society. It would also bring much other unintended harm as well – not only to the conscience rights of many foster care organizations and foster parents, but also to an already-struggling foster system and the children it seeks to serve.
Even if the Administration continues to believe that some form of certification is necessary to provide trained and affirming homes for youth who identify as LGBTQI+, a much simpler, less costly strategy with fewer risks for collateral damage can be pursued.
Currently, individual foster homes can be certified as being well-equipped to provide specialized care for children — including therapeutic foster care and/or other elevated levels of service and expertise. This same approach can easily be applied to create a certification for homes that have undergone training to be particularly supportive and affirming for youth who identify as LGBTQI+. Rather than create a costly, complicated, and Constitutionally-suspect classification system that would inevitably categorize nonprofit agencies as safe and unsafe, this approach would use a proven certification model to allow certain foster parents to opt-in to special training and qualification.
Embracing a Better Way Forward
The proposed rule in its current form carries very significant costs, Constitutional concerns, and risks of harm to the foster system and the children and families it seeks to serve.
It would demean and marginalize many of the systems most devoted partners, establishing a two-tiered system that classifies many organizations and families of earnest faith as “unsafe” simply because they do not agree with all aspects of present orthodoxy regarding currently-contested issues of sexuality and gender.
In this, the rule would go far beyond protecting children who identify as LGBTQI+ from mistreatment, and instead would require a total absence of questions or caveats to their current feelings or assumptions as a condition of “safety.”
Perhaps worst of all, it would rob the foster system and the children it serves of dedicated and caring families, including those who are among the most ready to receive and love children coming from very difficult backgrounds. This would not be good for anyone, least of all the hundreds of thousands of children who need caring foster homes today.
Thankfully, the proposed rule can be re-written to achieve its stated ends without this immense risk of collateral damage. It can clearly and explicitly prohibit actual expressions of abuse, belittling, and coercion of children by foster parents, caregivers, and social workers for any reason, including LGBTQI+ identity.
It can do this without creating a two-tier system that devalues religious nonprofits and foster parents. This more targeted approach would save the projected $40 M cost for implementation of the regulations – allowing the funds to be devoted to many other critical needs.
This alternative approach would also preserve ample space for devoted agencies and foster families who may not agree with current sexual orthodoxy on every point – allowing youth to benefit from a variety of perspectives, including both unconditional endorsement of and respectful alternative viewpoints to their current inclinations.
In all of this, a re-written form of the proposed rule can serve to strengthen – not destroy – a truly diverse and pluralistic social safety net. This would reflect the best of the American tradition. Most importantly of all, it would serve well the hundreds of thousands of children who need caring foster homes today.
Thank you for your consideration of these concerns and, most of all, for your daily work to see every child safe, well cared for, and thriving!
Sincerely,
Jedd Medefind, President
Christian Alliance for Orphans