Tennessee Attorney General Jonathan Skrmetti is leading a coalition of 17 states in fighting a proposed federal rule intended to give LGBTQ kids greater protections in foster care.
The proposed rule reflects misguided federal policy, illegally intrudes on state authority and risks violating the free speech and religion rights of foster parents and organizations that provide care to kids in state custody, a letter sent Monday U.S. Department of Health & Human Services from Skrmetti and 16 of his counterparts in other states said.
“It also hampers the ability of the states to protect kids by forcing children’s services agencies to police pronoun usage with the same urgency they address physical abuse,” Skrmetti said in a statement released Wednesday.
Announced in September by the Biden Administration, the proposed new rule would require state child welfare agencies to ensure LGBTQ+ kids in state custody are “protected from mistreatment related to their sexual orientation or gender identity, where their caregivers have received special training on how to meet their needs, and where they can access the services they need to thrive.”
LGBTQ kids are disproportionately represented in foster care across the nation, with some studies suggesting that up to a third of all foster youth identify as LBGTQ — often winding up in state custody as result of mistreatment or rejection based on their gender identity, according to DHHS.
The proposed “placement rule” would require child welfare agencies like the Tennessee Department of Children’s Services to place kids in foster homes, residential treatment centers or group homes that are “free of hostility, mistreatment, or abuse based on the child’s LGBTQI+ status” and with caregivers who have the appropriate knowledge and skills to provide for the needs of a child related to the child’s sexual orientation.
“For example, to be considered a safe and appropriate placement, a provider is expected to utilize the child’s identified pronouns, chosen name, and allow the child to dress in an age-appropriate manner that the child believes reflects their self-identified gender identity and expression,” the rules say.
It would also require caregivers to provide access to “clinically appropriate mental and behavioral health care supportive of their sexual orientation and gender identity and expression as needed.”
That requirement is “particularly problematic,” the letter from attorneys general said.
(A proposed federal rule) also hampers the ability of the states to protect kids by forcing children’s services agencies to police pronoun usage with the same urgency they address physical abuse.
– Tennessee Attorney General Jonathan Skrmetti in a statement
A recently enacted Tennessee law, currently facing a legal challenge in federal court, prohibits a variety of gender-affirming medical care for minors. The Sixth Circuit Court of Appeals refused to block the law during the legal challenge, issuing a ruling that expressed deep reservations about such medical treatments for youth.
“The Placement Rule nonetheless appears to condition … Tennessee’s continued funding on foster parents’ providing certain gender-affirming treatments that it and other States have permissibly banned. Or perhaps HHS would require foster parents to take children on costly out-of-state trips for medical visits and surgeries to avoid designation as “unsafe” foster providers,” the letter said.
The attorneys general also expressed concern the new rules, potentially holding foster parents and state agencies legally liable for failing to follow them, and required new training, could deter people from becoming foster parents, or prompt existing foster parents to leave, adding to an already acute shortage in foster homes. Ultimately, that would harm kids not help them, the letter said.
A Department of Children’s Services spokesperson did not respond to request for information, but published agency guidelines maintained by the federal government show that the agency is one of approximately 39 states that provide explicit protections from harassment and discrimination based on sexual orientation or gender identity. Tennessee’s guidelines, however, do not go as far as the proposed federal government’s rules.
“Flexibility is needed for youth participating in activities that would create safe spaces for LGBTQ in foster care,” Tennessee’s guidelines state. “Caregivers should seek assistance and information on resources and opportunities for these youth if not aware of them and seek consultation with the youth’s worker, when needed.”
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