Tribes and advocacy groups are asking a federal judge to immediately order the federal government to once again begin collecting voluntarily disclosed data about sexual orientation so that compliance with kids’ rights under the Indian Child Welfare Act can be properly monitored — and nearly 30 members of Congress are formally backing them up.
Under the Trump administration, the Department of Health and Human Services reversed an Obama-era policy and stopped collecting certain data, including the sexual orientation and gender identity of children and caregivers.
Last month, the California Tribal Families Coalition and their allies asked a federal judge in Northern California to rule in their favor without going through a trial. The groups, which also include the Yurok Tribe, the Cherokee Nation, Facing Foster Care in Alaska, Ark of Freedom Alliance, Ruth Ellis Center and True Colors, last year sued the U.S. Secretary of Health and Human Services Alex Azar and his department, contending that it was illegal to “arbitrarily” stop gathering certain “irreplaceable” data.
Sexual orientation is just one category of information collected by adoption and foster care agencies and entered into a repository called the Adoption and Foster Care Analysis and Reporting System. The reporting system is used to inform policy and manage federal funding for foster care programs and services, but it can also help monitor whether children’s rights are being properly protected.
Commonly known as AFCARS, the database includes case-level information from state and tribal agencies on all adoptees and children in foster care. The reporting system contains demographic information on the child as well as the foster and adoptive parents, the number of removal episodes a child has experienced, the number of placements the child has gone through and the current placement setting.
The Republican Trump administration argued that it was too cumbersome, intrusive and expensive for states to collect some of the data and that streamlining the reporting requirements would save nearly $43 million a year, according to Fox News.
Currey Cook of Lambda Legal, counsel for the tribes and advocacy groups, however, told Law360 in a recent interview that it won’t be possible to solve problems in the foster care system without the necessary data, including whether LGBTQ kids are being placed safely.
“You can’t really have evidence-based practices for populations that you aren’t measuring anything about them,” Cook said.
The plaintiffs picked up some potentially important allies last week when five U.S. senators led by Ron Wyden of Oregon and 23 House members led by Rep. Karen Bass of California filed a friend-of-the-court brief supporting the call for summary judgment.
“The core mission of the child welfare system is to protect and care for vulnerable kids, yet the last administration actively worked to deny Congress critical data that would help inform policy to better serve LGBTQ+, American Indian and Alaska Native foster youth," Wyden wrote in a statement to the Law360 blog.
"Congress needs every tool in its toolbox to protect the safety and well-being of all youth in our nation's foster care system, and that includes a comprehensive AFCARS data system," he added.
The Biden administration hasn’t officially taken a position on the case, but it may not fight hard to defend the Trump position because it’s considered far more friendly to LGBTQ causes.