Trump Signs Anti-LGBTQ Child Welfare Executive Order

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June 30, 2020

Last week, the Trump administration issued a child welfare executive order, which was largely a repackaging of long-called-for and already-underway child welfare reform measures. And, in a familiar move at odds with professional child welfare standards, directed HHS to issue guidance authorizing government-funded, faith-based agencies to turn away qualified prospective foster and adoptive parents because they are same-sex couples, LGBTQ, or don’t practice the agency’s faith.

Incredibly, the order touts the need for “Ensuring Equality of Treatment and Access for all Families,” while it sanctions discrimination and and ignores the alarming levels of harm LGBTQ families and youth face in in the system.

Notably, in a moment where the nation is finally confronting long-standing racism and inequality, the order makes no mention of the over-representation of youth and families of color. Its call for more funding and efforts at prevention also do not address advocates’ long-standing pleas to drastically reform or abolish the current system as we know it because of systemic racism and resulting racial disparities. With the COVID-19 pandemic raging — which has disproportionately impacted people of color and hit the child welfare system hard — the silence speaks volumes.

The sudden concern for equality and access in the child welfare system is cynical considering that Lambda Legal has been busy challenging actions taken by this administration that do the exact opposite.

Last year, Trump’s HHS announced it is not enforcing existing protections against discrimination on the basis of religion, sex, sexual orientation, and gender identity, a move we are challenging in court. Meanwhile, a proposed rule to gut those protections entirely is in process. In 2019, HHS granted a waiver to South Carolina permitting its faith-based agencies to discriminate on the basis of religion. We, along with the ACLU, South Carolina Equality Coalition, and Cravath represent Eden Rogers and Brandy Welch, who were turned away by the largest child placing agency in South Carolina because they are a married same-sex couple and not Evangelical Protestant Christian. Less than a month ago, a Federal District Court Judge found they have standing to challenge HHS’s and South Carolina’s discriminatory policy and have valid legal claims of discrimination.

The Supreme Court is set to hear the Fulton v. City of Philadelphia case next term, and the Trump administration filed an amicus brief supporting the agency seeking a license to turn away same-sex couples as foster parents in violation of nondiscrimination protections and their contract with the city. All of these moves not only sanction discrimination, but cut against the order’s call for more placement options for children who need homes. 

The order also calls for more data collection to measure permanency and increase placement. Yet, in a completely contradictory move just this past May, HHS announced a new rule eliminating collection of data about the sexual orientation of youth, as well as guardians and prospective adoptive parents — critical information that would help find safe and loving homes for a vulnerable group of children who are over-represented in the child welfare system. Additionally, HHS eliminated data elements for American Indian and Alaska Native children, who are also disproportionately over-represented in the system. Both populations also have worse outcomes in terms of safely returning home or securing another permanent home.

We know that LGBT families face discrimination by the child welfare system and are a vastly underutilized placement resource nationwide. The order’s new call for data reeks of discrimination as they eliminate collection of data for some of the most marginalized populations in the system. 

Lambda Legal wholeheartedly endorses the order’s call for children’s and parents’ right to counsel, the importance of keeping children safe with their families whenever possible, and the need to secure a permanent home if they can’t. Those efforts, however, cannot be fully realized if they exacerbate existing inequities and only benefit some youth and families and not all. If the Trump administration wants to take real action to protect children in the system and place them in safe and loving homes, it should start by supporting the Every Child Deserves a Family Act and the Equality Act and immediately rescinding its non-enforcement of the HHS Grants Rule protections, pull the proposed HHS Grants Rule, and revoke the South Carolina waiver. But we know the motives behind the order aren’t pure and genuinely rooted in concern for the wellbeing of all vulnerable children, youth, and families.