Texas fights federal rule that would outlaw LGBTQ discrimination in state adoptions and foster care

Sign up for The Brief, our daily newsletter that keeps readers up to speed on the most essential Texas news.

Attorney General Ken Paxton is suing the federal government to preserve Texas’ ability to include religious groups that won’t place kids with same-sex couples in the state’s adoption process without losing federal funding.

With his lawsuit filed Monday in federal court in Galveston, Paxton continued a yearslong, cross-country legal fight over anti-discrimination rules for adoption and foster programs drafted under the Obama administration that languished under former President Donald Trump and have never been enforced.

The rule on Sexual Orientation and Gender Identity Discrimination, known as the SOGI rule, prohibits recipients of federal funds for adoption and foster programs from discriminating on the basis of age, disability, sex, race, color, national origin, religion, gender identity, sexual orientation or same-sex marriage status.

A Texas law passed in 2017 allows religious organizations that contract with the state to refuse to work with LGBTQ couples who are seeking to foster or adopt. The law requires the state to ensure there are other providers to work with LBGTQ children or families who are refused help by a religious provider, although there is no specific process for ensuring that happens.

Losing federal funding would be a major blow for Texas’ foster care budget. Federal money accounts for nearly a quarter of the $550 million the state spends on residential care each year, and another $58 million supports case work for foster children who qualify for the funds, according to the attorney general’s complaint.

“There are so many vital religious institutions in Texas and around the country that can aid in making sure foster children are protected and able to find good homes,” Paxton said in a statement. “The SOGI Rule would force them either to adopt a radical woke agenda or surrender their mission of helping children.”

The anti-discrimination rule has been the subject of court battles. In 2019, Texas joined the Archdiocese of Galveston-Houston to sue the federal government over the rule, arguing it would prevent the religious group from becoming a provider of child welfare services. Shortly after the suit was filed, the Trump administration announced a rollback of the rule.

But Paxton is now seeking to have the rule thrown out preemptively as other groups are suing to compel its enforcement.

LGBTQ child welfare service providers have sued the government in two courts seeking to revive the SOGI rule. Earlier this year, a federal district judge in Washington, D.C., vacated the Trump-era guidelines that would rescind the anti-discrimination guidelines. In another case in New York’s Southern District, a judge ruled that LGBTQ service providers lacked standing to sue; that case is on appeal.

Legal advocacy group Democracy Forward represented LGBTQ service providers in both cases. Robin Thurston, the group’s deputy legal director, called the Trump administration’s rollback of the rule “attempts to allow government subsidized discrimination.”

“The bottom line is, all families should be a part of and feel safe in the foster care and adoption system, not just certain families,” Thurston said. “With this lawsuit, Attorney General Paxton is once again showing his true colors by advocating for discrimination.”

The Texas law also allows religious providers to refuse to take in LGBTQ foster children, and for religious organizations operating residential treatment centers for high-risk youth to provide “religious education” to the children they do take in. LGBTQ advocates have argued that this clause opens up LGBTQ children to “conversion therapy” tactics.

“The point isn’t about the political stuff,” state Rep. James Frank, the bill’s author, said at a committee hearing before the bill passed. “It’s about having as many quality homes as possible.”

In recent years, Texas has rolled back protections for LGBTQ children in the child welfare system, including a little-known change in the Foster Care Bill of Rights, a document that informs foster youth of their rights. In 2017, a line requiring fair treatment regardless of a child’s “gender, gender identity, race, ethnicity, religion, national origin, disability, medical problems or sexual orientation” was removed, and in its stead generic language around the right for foster youth to “be treated fairly” and “have their religious needs met” was added.

A Texas Department of Family and Protective Services spokesperson refused to comment, and when asked about policies around finding alternate accommodations for foster youth in nonaffirming placements, sent a link to that bill of rights, which has no specific language around LGBTQ children in care.

Bryan Mares, the government relations director at the National Association of Social Workers Texas, said the state law allowing religious providers to refuse services to LGBTQ couples creates a supply issue for the LGBTQ children in the foster system who need affirming homes.

“It makes it much more difficult to find families who might already identify as part of the LGBTQ community to bring children that are in the system into their home,” Mares said of the law. “It really just impedes our ability to prioritize LGBTQ youth placements into homes where they are being supported in a way that they need.”

A 2018 analysis of Texas licensed child-placing agencies by the Center for American Progress found that nearly half of them had statements of faith listed on their websites, but only 10% had expressed specific willingness to work with LGBTQ foster and adoptive parents. “Given this landscape, and the religious exemptions and lack of legal protections … prospective parents may understandably become discouraged about finding a welcoming agency and choose to abandon their efforts,” the report concluded.

Texas’s carveout for religious providers is part of a broader wave of such bills across the country. Nearly 50 similar bills have been introduced, and 10 have been passed, since 2010, according to the Family Research Council, an Evangelical lobbying group that’s a major supporter of such legislation.

Texas is one of 10 states without any explicit protection for foster youth against discrimination on account of sexual orientation or gender identity in any of its child-welfare statutes or policies, according to a 2017 Lambda Legal report. LGBTQ youth are overrepresented in foster care around the country, and research has shown that LGBTQ youth of color stay in foster care longer and are at higher risk of violence in the system than their peers.

Despite the increased risk of violence for LGBTQ children in the foster system, Texas continues to fight in court to make the state’s child protective services agency investigate the families of trans children receiving gender-affirming care for potential child abuse.

In a statement announcing the suit Monday, Paxton said, “It’s a disgrace that the Biden Administration is playing politics with our foster care and adoption services.”