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Proposed Rule Will Allow Taxpayer-Funded Discrimination within Child Welfare System

On November 1, the Department of Health and Human Services introduced a new rule that was entered into the Federal Register on November 19. The rule rescinds key aspects of federal grant regulations that barred any organizations receiving federal funds to discriminate based on non-merit factors. These regulations were put into place to clarify that taxpayer money should never be used to discriminate, but the Trump administration claims that the non-discrimination protections were unnecessarily burdensome for agencies, particularly religious agencies that license and place children in foster and adoptive homes.

With this new rule, agencies funded by HHS will only need to follow non-discrimination requirements that are explicitly written into federal law. In essence, we revert back to a patchwork of protections that leave many people, especially children, vulnerable to discrimination.

This law is likely to be most impactful in the child welfare system. In federal law there are no explicit non-discrimination protections for children or birth parents on the basis of sexual orientation or gender identity. Likewise, under this new rule, there will no longer be protections from discrimination for foster and adoptive parents on the basis of sexual orientation, gender identity or religion.

This means agencies can refuse to provide services to LGBTQ+ youth, who make up more than 20% of the child welfare population. They can refuse services to LGBTQ+ birth parents that are intended to help strengthen families so that children can avoid having to enter foster care and so that children in care can reunify with their families. It means that agencies can refuse to license foster or adoptive parents because they are Jewish or Catholic, as we have seen in South Carolina, where a waiver from these nondiscrimination regulations was granted in January.

Children’s Defense Fund strongly opposes this rule because of the detrimental impacts it will have on children who are in or are at risk of entering the child welfare system. This rule will deepen the foster parent shortage that forces children across the country to sleep in agency offices or hotels instead of being placed with families and it will mean that the more than 125,000 children who are currently waiting to be adopted could have to languish in the child welfare system unnecessarily. Discrimination will be extremely damaging to the mental and behavioral health of LGBTQ+ youth that the system is supposed to protect. It will mean that children who, with some support, could have remained safely in their homes will have to enter the child welfare system and that children in foster care will not be able to reunite with their families.

In short, this rule is a license to discriminate and is in direct opposition to the cardinal rule of child welfare, that the best interests of the child must always be paramount. Simply put, this rule threatens the safety, permanency and well-being of children.

CDF filed an official comment with the Federal Register expressing our strong opposition to this rule and the discrimination it allows. If you would like to submit your own comments, you can use the talking points created we created along with our partners at the Center for the Study of Social Policy, the Every Child Deserves a Family Campaign, Family Equality and the National Center on Adoption and Permanency. Comments are due December 19.

2019-12-18T15:48:50-05:00December 18th, 2019|