By Arielle Del Turco

The Biden administration’s Health and Human Services (HHS) released a proposed rule at the end of last month that would act as a blanket ban on Christians from serving LGBT-identifying youth in foster care. In addition to posing serious religious freedom concerns, if enacted, the proposed rule could ultimately create further obstacles for children in foster care waiting to be placed in a loving home.

The policy seeks to “specify the steps agencies must take when implementing the case plan and case review requirements for children in foster care who identify as lesbian, gay, bisexual, transgender, queer or questioning, intersex, as well as children who are non-binary, or have non-conforming gender identity or expression.”

According to the proposed rule, agencies must make sure that “safe and appropriate placement is available for and provided to any child in foster care who identifies as LGBTQI+ and requests such a placement.” However, to be considered “safe and appropriate,” providers must establish “an environment free of hostility, mistreatment, or abuse based on the child’s LGBTQI+ status, the provider is trained to be prepared with the appropriate knowledge and skills to provide for the needs of the child related to the child’s self-identified sexual orientation, gender identity, and gender expression, and the provider will facilitate the child’s access to age-appropriate resources, services, and activities that support their health and well-being if the child wishes to access those resources, services, and activities.”

This requirement poses a serious problem for faith-based foster care providers and Christian families who believe that no child is born into the wrong body and that gender transition surgeries amount to needless mutilation of children’s bodies. The proposed rule acknowledges that First Amendment protections prevent the government from compelling faith-based providers to violate their conscience.

In a lengthy discussion on religious freedom, the text refers to faith-based agencies that do not affirm harmful gender ideology as “entit[ies] that will not provide a safe and appropriate placement” for “LGBTQI+ children.” The proposed rule explains that such “entit[ies] that will not provide a safe and appropriate placement” will transfer LGBT-identifying children to foster care providers that will “provide a safe and appropriate placement as described by the finalized rule.” It is greatly alarming that a federal rule would refer to faith-based organizations this way. It is beyond marginalizing towards Christians. In fact, Christians are inaccurately made to sound dangerous.

Progressive activists have a long history of targeting Christians’ ability to participate in the foster care system and adoption. Recently, multiple cases have sprung up at the state level in which prospective parents or guardians were denied the opportunity to foster or adopt a child based on their biblical beliefs about gender identity. The Oregon Department of Human Services denied Jessica Bates’s application to adopt siblings from foster care because the state of Oregon requires prospective parents to “respect, accept, and support … the sexual orientation, gender identity, [and] gender expression” of any child, which would have compelled Bates to say and do things that went against her religious beliefs.

In Massachusetts, Mike and Kitty Burke applied to be foster parents but were denied because the reviewer who interviewed them (and posed an inordinate amount of questions about the couple’s Catholic faith) stated, “their faith is not supportive and neither are they.”

The HHS’s proposed rule mainly applies to foster care providers, rather than foster parents. However, some experts believe that this rule, if enacted, would discourage Christian families from applying to be foster parents. Jedd Medefind of the Christian Alliance for Orphans is quoted in the New York Post, saying, “A rule like this would undoubtedly have a chilling effect on the willingness of people of earnest faith to serve through the child welfare system. In a time when we desperately need more caring families serving children in foster care, this rule would almost certainly lead to fewer.”

The Biden administration clarifies that it “proposes to require agencies to ensure that the totality of their child welfare system includes sufficient placements for LGBTQI+ children that meet these standards, but would not require that every provider become designated as a safe and appropriate placement for LGBTQI+ children.” Such a statement might sound like it will enable faith-based providers to operate unhindered, but that language is still troubling.

How many placements for LGBT-identifying children is needed to be considered “sufficient” under this rule? That’s not clear, but it implies that faith-based providers ought not to be the minority of providers. This is likely to cause problems in states with multiple thriving faith-based providers. Two lawsuits recently challenged South Carolina’s dependence on Miracle Hill Ministries, a faith-based child placement agency. Thankfully, the lawsuits were dismissed, but it is not clear how a rule like the one that HHS just proposed would affect court cases like this.

It’s almost as if the federal government is requiring faith-based organizations (and by extension religious families) to admit they are not “safe” for kids struggling with gender confusion. A country with a healthy respect for religious freedom does insinuate that faith-based organizations and religious families are unsafe. It is demeaning and marginalizing to Christians who simply want to serve children in the foster care system.

HHS’s proposed rule poses serious threats to religious freedom for faith-based foster care providers and religious families. Ultimately, it also harms children in foster care in need of loving homes by undermining their access to faith-based foster care providers. The public comment period during which U.S. citizens can register their opposition to this HHS proposal ends on November 27, 2023.

Arielle Del Turco is Director of the Center for Religious Liberty at Family Research Council, and co-author of “Heroic Faith: Hope Amid Global Persecution.”