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Strengthening Child Welfare Systems by Resisting LGBT Discrimination

Seven-year-old Amber Harland-Bennett listens as her adoptive parents, Richard and Anthony Harland-Bennett, speak with reporters during a rally in Frankfort, Kentucky, in February 2009.

On May 19, Sen. Kirsten Gillibrand (D-NY) introduced the Every Child Deserves a Family Act, a federal measure designed to maximize the number of qualified parents available to the hundreds of thousands of children who currently live in the American foster care system. The law would prevent child welfare organizations that receive federal funds from discriminating against potential parents on the basis of sexual orientation, gender identity, or marital status.

The proposed legislation came not only during National Foster Care Month but also amid an increasing number of state-led efforts to permit discrimination on religious grounds in adoption and foster care proceedings. Currently, only seven states explicitly prohibit discrimination against lesbian, gay, bisexual, and transgender, or LGBT, foster parents, leaving individuals in other states vulnerable to unfair treatment by child welfare agencies. Most recently, Texas lawmakers successfully fought back three attempts by conservative state legislators to enact special protections for child welfare organizations that refuse to provide services to prospective foster or adoptive parents for religious reasons.

Similar religious exemption laws were proposed this year in Michigan, Florida, and Alabama. For example, in April 2015, Florida state legislators repealed a 1977 Florida law that explicitly prohibited lesbian and gay people from adopting; but lawmakers quickly countered by introducing a religious-conscience protection bill. While the newly proposed Florida bill made no direct mention of potential LGBT parents, it would have allowed religious organizations that receive public funds to discriminate at will in the adoption process.

Laws allowing adoption agencies that receive federal or state funding to discriminate based on religious beliefs use religion as a political weapon at the expense of children and youth who need permanent, loving homes. This group includes very young children, as well as youth who are older than 18 but still in the foster care system. These religious exemption bills come at a time when the number of children and youth in foster care is increasing for the first time in nearly a decade. As of 2013, there were more than 400,000 children and youth in foster care. Approximately 102,000 of these children and youth were waiting for adoption; nearly one-third had been waiting for three or more years. Stability remains out of reach for too many youth, with 23,000 young people aging out of the foster care system or becoming otherwise emancipated in 2013 without having received a permanent home placement.

Research indicates that lesbian, gay, and bisexual individuals represent an untapped pool of foster and adoptive parents for children and youth in need of stable families. Nearly half of LGB people who are currently without children would like to adopt someday; 46 percent of lesbian and bisexual women have considered adoption at some point, compared with only 32 percent of heterosexual women. Estimates suggest that there are at least 2 million lesbian, gay, and bisexual individuals who have considered adopting a child and an estimated 65,000 adopted children living with a gay or lesbian parent. Studies overwhelmingly demonstrate that these individuals are capable of parenting as effectively as their non-LGB peers and that children of gay and lesbian parents experience outcomes similar to those of the children of heterosexual parents.

Same-sex couples may also be more likely to foster youth with disabilities, who are often harder to place. Legalizing discrimination against these potential parents denies homes to young people in need and unjustly prevents LGBT people from having the same opportunities to foster and adopt a child as their heterosexual peers. Furthermore, the challenges created by such discriminatory policies could discourage some from seeking to foster or adopt at all. With so many children in need of a stable home, child welfare agencies should not prevent any potential parents from adopting or fostering, much less those who are disproportionally willing to do so.

Popular acceptance of adoption by LGBT parents is high and continues to accelerate. More than two-thirds of Americans agree that same-sex couples and different-sex couples can be equally good parents. A majority of Americans—58 percent—support allowing gay and lesbian people to adopt. Moreover, even as lawmakers attempt to use religion to discriminate against LGBT parents, the majorities of many faith communities accept, nurture, and celebrate same-sex foster and adoptive parents. In the United States, 80 percent of Jews, 75 percent of religiously unaffiliated Americans, 68 percent of white mainline Protestants, and 61 percent of Catholics support adoption by same-sex parents.

The potential impact of state religious exemption laws could also extend further than anti-LGBT discrimination. For example, a 2007 analysis found that 8 percent of foster children living with non-kin foster families were in the care of different-sex unmarried couples, and 3 percent of adopted children were living with different-sex unmarried couples. Child welfare agencies could use religious justifications to refuse to place children in similar family situations: with unmarried parents, in homes led by a grandmother with a live-in companion, or with an unmarried or cohabitating relative of deceased parents. Anyone who practices a different faith from that of the child welfare agency or who is in an interfaith relationship could be deemed an unsuitable parent. This concern is not merely theoretical; the recently proposed Texas law could also have allowed discrimination on religious grounds against foster parents based on their attitudes toward contraception.

Foster children and youth and their potential parents need compassionate, empowering, and just policies to form permanent, loving homes. Discriminating against LGBT parents under the guise of religious freedom compromises these values while leaving already struggling young people even more vulnerable. So far this year, all efforts to enact LGBT discrimination policies against potential adoptive parents at the state level have failed. However, the push for religious exemptions can be expected to continue in state legislatures. The tactic subtly carves out room for discrimination without the need for explicit anti-LGBT language, increasing the likelihood that these bills can pass through the legislative process unnoticed by the public.

By rejecting these religious exemption laws, states can demonstrate renewed support for the freedom of LGBT parents to create families and parent with dignity while providing stable, permanent homes for the children and youth who most need them. At the same time, supporting federal laws such as the Every Child Deserves a Family Act can counter state-led efforts at discrimination—maximizing the chance that all children and youth can find loving, qualified parents and caregivers.

Carolyn Davis is a Policy Analyst for the Faith and Progressive Policy Initiative at the Center for American Progress. Hannah Hussey is a Research Associate for LGBT Progress at the Center.