Attorneys General from 19 states have penned a joint letter opposing a recent rule proposed by the Department of Health and Human Services (HHS) impacting foster care placements.
The contentious rule, officially titled “Safe and Appropriate Foster Care Placement Requirements for Titles IV-E and IV-B,” was published in the Federal Register on September 28, 2023, under the citation 88 Fed. Reg. 66752.
This proposed regulation aims to establish guidelines for foster care placements, with a specific focus on respecting and affirming the self-identified gender identities of children in the foster care system. Among its stipulations, the rule mandates that foster parents acknowledge and use a child’s chosen name and pronouns and permit them to dress in a manner consistent with their gender identity.
According to the American Family Association (AFA), a non-profit organization, “Those who do not “affirm” the LGBTQ rules because of their Christian faith will be deemed “unsafe” by the Biden administration and ultimately rejected as foster parent candidates.”
The legal challenge, led by Steve Marshall, Attorney General of Alabama, along with Alaska, Arkansas, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, South Carolina, Tennessee, Texas, Virginia, and West Virginia, argues that the rule entitled “Safe and Appropriate Foster Care Placement Requirements” threatens the fundamental rights safeguarded under the First Amendment, related to freedom of religion and speech.
The Attorneys General argue that historical precedence from the Supreme Court bars the government from disqualifying foster care providers based on their religious convictions. Furthermore, they assert the rule imposes an ideological stance that mandates certain speech from private citizens.
“Through this “retaliation” provision, the proposed rule directly endangers the religious freedom of individuals and organizations of faith. The “Free Exercise Clause provides an absolute right to hold religious beliefs,” according to the letter.
It added, “HHS’s attempt to force speech on individuals and organizations of faith thus violates the First Amendment’s protection of foster parents’ freedom of speech.”
The group also highlights concerns about the potential harm to foster children themselves. They assert that the rule could reduce family setting options for foster children, pushing more children into less supportive congregate settings.
The letter also raises concerns about the safety and appropriateness of placing transgender, gender non-conforming, or intersex children in sex-segregated child-care institutions based solely on their gender identity.
States, according to the group, could face additional financial burdens due to the proposed rule. It argues that the rule underestimates the costs of recruiting non-religious foster care providers and fails to account for the costs of replacing faith-based organizations that may exit the system as a result of the new requirements.
The Attorneys General question the very basis of the proposed rule, challenging the evidence used to justify it. It suggests that the rule is based on limited and potentially unrepresentative data, and it fails to demonstrate a systemic problem in the treatment of LGBTQI+ children in foster care that it aims to solve.
“The proposed rule infringes on the freedom of religion and the freedom of speech, fundamental rights preserved by the First Amendment. The Supreme Court has repeatedly rejected attempts by the government to exclude foster care providers based on religious beliefs or to mandate speech on private actors. The proposed rule also will harm children, harm families, and harm States, all to advance an ideology. HHS should reject the proposed rule,” the letter read.