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No, a Proposed House Amendment Wouldn’t Ban Same-Sex Couples From Adopting—It’s Even Worse Than That

This article originally appeared on July 16th, 2018 in Rewire.

On Wednesday, the U.S. House Appropriations Committee voted to add an amendment to an appropriations bill that included a provision permitting licensed child-welfare agencies to discriminate on the basis of religion. The amendment drew immediate ire from the LGBTQ community, as many organizations framed the legislation as “barring gay and lesbian couples from adopting.”

That’s not quite accurate: The amendment, in and of itself, does not ban adoption or fostering by same-sex couples. At the same time, the actual implications of this amendment are far more widespread than those headlines imply. It could affect millions of families, youth, and parents across the country—particularly low-income lesbian and bisexual mothers of color.

The amendment, proposed by Rep. Robert Aderholt (R-AL) would prohibit federal, state, or local agencies from taking any action against a child-welfare organization, agency, or staff member who “decline[s] to provide, facilitate, or refer for a child welfare services that conflicts with . . . the provider’s sincerely held religious beliefs or moral convictions.” The double negatives are confusing. More clearly: This bill would allow the federal Department of Health and Human Services to dock states up to 15 percent of their foster-care funding if they prevent discrimination in foster care or adoption services.

Under the proposed amendment, states would effectively be unable to prohibit religiously affiliated child-welfare agencies from denying services to: LGBTQ children, families headed by LGBTQ people, families headed by divorced parents, and interfaith families. The agencies could, as reflected by the headlines, also turn away potential adoptive and foster parents who are gay, lesbian, bisexual, transgender, queer, single, or myriad other configurations that do not conform to the agency’s religious or moral convictions. Proponents and opponents of these policies have highlighted those cases in particular, citing the expansion of marriage equality as impetus for the spread of religious exemptions to “protect” religiously affiliated child welfare agencies.”

When you look at the full range of services that child welfare organizations provide to youth and families, you can instantly see the overwhelming negative implications of this legislation at a federal level.

Child welfare encompasses the set of services provided to families who are in crisis: counseling, therapy, and other programs for parents who need assistance parenting, for instance, or counseling and residential services for youth while their parents are working on becoming safer. Of the 440,000 children currently in the “foster system” in the United States right now, only one-quarter are awaiting an adoption placement with a non-family member. The vast majority of youth in the “system” are waiting to be reunited with their families, are waiting for placement with a non-parental family member, or are living in a residential facility with no goal of placement with a family.

Each of these children and their families works with social workers and other resource professionals to provide them with the care they need. Many states contract with nonprofit or private agencies to take the cases of children and families who need assistance. The number of religiously affiliated agencies differs greatly among the states. In Michigan, for example, according to the Movement Advancement Project (MAP), nearly half of private agencies contracting with the state are religiously affiliated. But the state must license all child welfare workers and agencies before they can take cases and receive the combination of federal and state monies that fund child welfare services in our country.

Ten states currently have laws that permit licensed child welfare organizations and workers to discriminate in the provision of care. According to MAP, seven of those laws have been passed since the 2016 elections—and they are already having devastating effects.

As MAP illustrated in a report late last year, the potential for abuse abounds. An agency could decide to practice conversion therapy on LGBTQ youth in its care, decline to provide appropriate mental and physical health care to transgender youth, or place LGBTQ youth in homes that will not honor their gender identity or sexual orientation. Nearly 25 percent of youth in foster care identify as LGBTQ.

And LGBTQ youth who have experienced homelessness are far more likely to have escaped an abusive or discriminatory foster-care placement. Likewise, an agency could decide to keep a child in a residential facility rather than allowing reunification with a bisexual mom or adoption by the child’s lesbian aunt and her wife. Since reunification and placement decisions rely heavily on the discretion of the judge and child welfare workers, parents and family members have little recourse to successfully appeal these decisions.

Professor Nancy Polikoff has written extensively about the use of sexual orientation as grounds to prevent reunification after removal: “According to one study of Black mothers who had lost custody of their children to the state, those who identified as lesbian or bisexual were four times more likely than those who identified as heterosexual to experience such loss. Parents with higher rates of poverty, homelessness, food insecurity, and incarceration are more likely to face removal of their children, and LGBT individuals and same-sex couples fall into all those categories. Thus, it would be no surprise to find children of lesbian or bisexual mothers, particularly Black children, overrepresented in the foster care system.” Families have little choice over which agency is assigned their case—and under the Aderholt amendment, if that agency was religiously affiliated, they could be lawfully turned away at the door.

It’s unclear when the full House of Representatives will vote on this appropriations bill, but all eyes should be on it—and standalone legislation that mirrors the language in the Aberholt amendment, introduced last year by Sen. Michael Enzi (R-WY) and Rep. Mike Kelly (R-PA) and cosponsored by several senators who currently sit on the Senate Appropriations Committee.

The discriminatory impact of these laws and of the Alderholt amendment reaches far beyond “gay and lesbian couples adopting.” Like the impacts from many recently enacted laws and policies from the Trump administration, the brunt will be felt by LGBTQ youth and low-income families of color.

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