In the three years since the Supreme Court legalized same-sex marriage nationwide, anti-LGBT groups have been desperately looking for state-level victories wherever they can get them.
And this year, they’re going after foster children. Yes, foster children.
Three states—Kansas, Oklahoma, and Colorado—will soon weigh anti-LGBT legislation that would allow religiously-affiliated child placement agencies to turn away same-sex couples looking to adopt or foster a child under the guise of “religious freedom.”
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In Kansas, HB 2481, which is currently in committee, would allow child placement agencies to refuse to “participate in any placement of a child for foster care or adoption” if that placement “would violate such agency’s sincerely held religious beliefs.”
In Oklahoma, SB 1140, would use similar language to give child placement agencies wide berth to discriminate against prospective foster and adoptive parents based on “the agency’s written religious or moral convictions or policies.” This bill could be heard in the state legislature as early as this week, LGBT advocates say.
In Colorado, SB 241–a standalone remnant of the recently-failed anti-LGBT “Live and Let Live” act—would allow adoption and foster care agencies to decline service “in a manner consistent with a sincerely held religious belief or moral conviction.”
The text of the bill compares the rights of child placement agencies to discriminate against LGBT people to “the right of Quakers and other pacifists to serve the nation as non combatants in times of war” and to “the right of Jews and other Sabbath observers to dedicate their time to God and family instead of work[ing] on their Sabbath.”
Colorado’s bill is called the “Colorado Children First Act”—but LGBT advocates are quick to point out that such prospective laws actually place children second to a debate that has nothing to do with the quality of parenting they would receive.
“What makes this flavor of anti-LGBT bill especially pernicious is that the people who bear the brunt of such laws are the children in the state foster care system who lose out on families that they desperately need,” said American Civil Liberties Union attorney Leslie Cooper on a Monday press call about this new wave of legislation, adding that there are currently over 100,000 children in the country waiting to be placed with adoptive and foster families.
Not only do these bills target children, they represent a sort of last resort for anti-LGBT lawmakers and groups, who have so far failed to pass any anti-LGBT state laws in 2018.
As the Washington Post recently observed, the LGBT community in the U.S. is about to survive an entire state legislative session without an anti-LGBT bill—like North Carolina’s HB 2 or Mississippi’s HB 1523—becoming law.
If any one of these three bills passes, as LGBT advocates on Monday’s press call pointed out, it would become the first anti-LGBT bill to become law in 2018.
Indeed, 2018 has mostly seen a string of state-level defeats for anti-LGBT lawmakers and groups: Voters in Anchorage, Alaska turned down an anti-transgender bathroom initiative. Conversion therapy bans are being passed left and right.
An anti-LGBT adoption bill in Georgia that was being considered earlier this year—a bill very similar to the currently-proposed legislation in Kansas, Oklahoma, and Colorado—died in late March at the end of the state legislative session.
“Now, all eyes are on the remaining states where there are bills targeting LGBTQ people and particularly targeting children who will be harmed by not having those parents in the pool of potential parents in the system,” said Cathryn Oakley, state legislative director for the Human Rights Campaign, calling the bills in Kansas, Oklahoma, and Colorado “especially egregious” in their content.
It’s important to note that, just as anti-transgender bathroom bills almost never use the word “transgender,” relying instead on language like “biological sex” or “original birth certificate,” none of these anti-LGBT adoption bills actually explicitly mention same-sex couples nor do they use words like “gay,” “lesbian,” or “bisexual.”
But the intent behind these carefully-worded bills is clear from their timing: They started cropping up in the aftermath of the 2015 Obergefell decision, as anti-LGBT groups began shifting their focus from marriage to secondary targets, like bathrooms and wedding cakes.
“These bills are part of a broader effort by opponents of LGBT equality, both in state legislatures and the courts, to use religious freedom arguments to establish a right to discriminate against LGBT people,” said Cooper.
Because the language in these anti-LGBT bills is so broad—full of sweeping appeals to “moral conviction” and “sincerely-held religious beliefs”—they could also allow religiously-affiliated child placement agencies to deny not just cisgender gay, lesbian, and bisexual parents, but transgender parents, too.
“The answer is essentially yes,” said Oakley, when asked by The Daily Beast whether or not these bills would allow denial of child placement to families with at least one parent is transgender. “There is no explicit language that talks about transgender people but for each of these bills, what they’re saying is an agency doesn’t need to work with anyone with whom they have a religious objection, anyone who doesn’t meet their religious test.”
“That could include any number of people—including but not limited to LGBTQ people and same-sex couples,” Oakley added.
In fact, there is precedent for a state to consider anti-transgender sentiment a “moral conviction.”
Mississippi’s HB 1523, which is still in effect pending legal challenges, specifically enumerates the idea that biological sex is “immutable” as a protected “belief or conviction”—even though transition-related medical care can demonstrably changes a person’s hormone levels and sex characteristics.
There are already substantial obstacles standing in the way of LGBT people who want to foster or adopt a child.
As Lambda Legal notes, only six states have explicit protections for prospective transgender foster and adoptive parents, which means that most transgender people are “vulnerable to extra scrutiny or denial simply for being transgender.” Only a handful of additional states like Oregon and New York have protections based on sexual orientation alone.
Meanwhile, as a recent USA Today report pointed out, seven states—Texas, North Dakota, South Dakota,Virginia, Michigan, Alabama, and Mississippi—have already carved out anti-LGBT religious exemptions for child placement agencies.
Bills like Kansas’ HB 2481, Oklahoma’s SB 1140, and Colorado’s SB 241 would only add to that number—and make it harder for LGBT people to care for children in need.
