Note: An early draft of this column was originally posted, and has been updated here with the final version
In many facets of life, American society writ large is a more tolerant and welcoming place for gay and transgender people. They run corporate boardrooms, win gubernatorial and Congressional elections, and are featured as married main characters on network television.
But little is known about the experience of LGBTQ youth in the foster care system, where government agencies make major decisions that impact the future of vulnerable kids. It is widely suspected that these youth are overrepresented in foster care, but there is no state or national data on the subject.
When the Obama administration crafted last minute instructions to start tracking the sexual orientation of youth in foster care, it hoped to build a better base of knowledge about outcomes and opportunities for these youth.
“Collecting data and documenting experiences provides objective information that can drive change,” said Rafael López, a high-ranking child welfare official for Obama, in an email to Youth Services Insider. “We must now move from a harmful status quo to simultaneously ensuring safety and visibility.”
The Trump Administration might delay or even scrap the requirement to inquire about sexual orientation and other issues, a move that drew the ire of a key Senate democrat last week.
But in the wake of state legislation enabling some child welfare providers to discriminate based on religious beliefs, it is hard to see the upside for a youth to disclose that information to a child welfare caseworker. An answer, especially in the growing number of states that permit faith-based contractors to discriminate, could limit their access to quality services or foster homes.
“ACF is requiring the collection of sensitive information, and that can expose some kids to greater harm,” said Sandy Santana, executive director of nonprofit litigation firm Children’s Rights.
In December of 2016, the Administration for Children and Families (ACF) published a long-awaited update to the collection process for the Adoption and Foster Care Analysis and Reporting System (AFCARS), the primary source of national data on the child welfare system. According to ACF, those collection rules will take effect in 2020.
As is required in federal regulation, ACF circulated its proposed changes for public comment before the agency published the final rules, which included several new data points for states to collect.
Among the changes that generated the most comments, for and against, was whether AFCARS “should include information on whether a child identifies as lesbian, gay, bisexual, transgender or questioning.”
In the end, ACF decided to go further than that. It also included collection of information about the sexual orientation of birth parents, foster parents and adoptive parents.
Of course, nobody can be compelled to disclose their sexual orientation. So proffering an answer to the question of how they identify is entirely up to the youth or adult being asked.
“Our goal in including this information is that the data will assist Title IV-E agencies to help meet the needs of LGBTQ youth in foster care,” ACF said in the final instructions. It further instructs that this information “should be obtained and maintained in a manner that reflects respectful treatment, sensitivity and confidentiality.”
As one might suspect from the date on the rules, this is one of many regulatory actions taken by the Obama administration on its way out the door. Fully expecting a Hillary Clinton win in the presidential election, there was a mad dash to write policy before the inauguration of President Trump.
The inclusion of the orientation data points was part of a broader priority to help LGBTQ foster youth and LGBTQ couples willing to foster and adopt.
“We are working on comprehensive guidance to the country on making sure that we do not discriminate against LGBTQ youth who are in care,” said Rafael López , Obama’s commissioner of the Administration on Children, Youth and Families, a division of ACF, in a 2016 interview with The Imprint. “Specifically, how we make sure same-sex couples who want to foster and adopt are welcomed and are able to do so.”
This month, the Trump Administration announced a plan to delay the new AFCARS rules and listen to feedback from states about possibly rewriting them. It may take until 2022 before states are required to collect new AFCARS data.
But some child welfare advocates say the current cultural climate around child welfare makes them uneasy in regards to caseworkers asking about sexual orientation. The majority of states lack overall legal guards for LGBTQ youths in care, said Santana, the head of Children’s Rights.
“It’s only about 18 states and D.C. that have some protections,” he said. According to a study released in October by Children’s Rights and Lambda Legal, only ten states have LGBTQ-specific protections on the books.
Meanwhile, in the years since the AFCARS collection rules were published, several states have passed laws that enable faith-based child welfare service providers to discriminate based on sexual orientation, faith and unmarried status. These laws arose as a reaction to the U.S. Supreme Court’s Obergefell v. Hodges decision, making same-sex marriage legal in every state.
In the past three years, seven states have passed bills to enable discrimination by their faith-based child welfare contractors: Alabama, North Dakota, South Dakota, Virginia, Mississippi, Michigan and Texas.
Another three states – Georgia, Oklahoma, and Kansas – could soon join that list. Several other states do not have laws that expressly prohibit the state from contracting with providers that would be selective based on orientation. And the federal government itself is the defendant in a lawsuit that alleges it permitted a federal grantee to discriminate against a lesbian couple that sought to foster and potentially adopt a refugee child.
The intent of these state laws is really to keep faith-based contractors from recruiting and training same-sex adult couples to serve as foster and adoptive parents. But some are written in such a way that it’s an open question if the providers could actually decline to serve gay foster youth or gay birth parents.
“Some of the laws aren’t so clear on if the agency can discriminate against a youth,” Santana said.
While the sexual identity of a same-sex couple could be readily observable to a provider, this is not the case when it comes to an individual foster youth. To really know whether a foster youth identified as LGBTQ, someone would have to ask them and they would have to answer.
“Many of these caseworkers are going to ask these questions without real training,” Santana said. “Are they going to ask in way where the youth is comfortable? Are there protections in confidentiality?”
Other advocates generally supportive of better data on the LGBTQ population in foster care conceded that answering a caseworker on the subject could be dicey.
“While we wish youth in care weren’t faced with such decisions, we would always recommend that youth make a determination about whether it is safe and advisable for them to respond to this question given their individual circumstances,” said Rev. Stan Sloan, the CEO of the LGBTQ right organization Family Equality Council.
“I would personally advise each and every youth to not answer the question, straight or not, as a protest of a lack of adherence to normalcy,” said David Hall, a foster youth advocate and student at Oklahoma City University who is leading opposition to the state’s pending faith-based bill.
“There’s nothing that says to be served by child welfare you must answer a single question, and you do not need to worry that by maintaining your normalcy you will lose services or support,” Hall said.
The mission to develop better knowledge about LGBTQ youth in care is critical, said Santana, the head of Children’s Rights.
“It’s obviously really important data: two times as many report being treated poorly in foster care, they’re more likely to be homeless or hospitalized, and they are disproportionately placed in congregate care,” Santana said. “This is info that could help promote…better matching of these youth with affirming placements.”
But in a climate of cultural uncertainty for LGBTQ foster youths the federal collection could yield murky data.
“A child welfare worker should be able to say, ‘It’s not going to get out, and here’s our policy… if you tell this to me, here are all regulations” that protect you, Santana said. “Without that, you’re going to get underreporting.”
One might suggest that declaring LGBTQ status might be in the child’s best interest, since the caseworker would know not to refer the child to a faith-based provider that had asserted a choice not to serve gay people.
But that notion assumes that, just because a faith-based provider was discriminatory in what clients it works with, its services are somehow bad or hostile to LGBTQ kids. It is entirely possible that a faith-based provider in some region subcontracts with the best mental health counselors in the area. It might also recruit dozens of Christian foster homes that are completely welcoming and loving of an LGBTQ child.
By volunteering an answer, a child could jeopardize his or her access to quality services and families. It is hard to see a pathway to that skirmish coming up if a youth simply declines to answer the newly minted AFCARS question: What is your sexual orientation?