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With Gov. Bill Lee’s signature, Tennessee last week became the first state in the nation to establish the right of adults who claim moral or religious objections to LGBTQ identity to foster and adopt LGBTQ kids.
In the days since the law became effective, the Department of Children’s Services (DCS) has shelved a 10-year-old policy that said children in state custody must receive care that “promotes dignity and respect for all children/youth and families inclusive of their gender identity, gender expression and sexual orientation.”
That policy is now “under review and will be updated on the web site once the review is complete,” DCS spokesperson Ashley Zarach said. New guidelines for how the state will navigate foster kids’ sexual orientation and gender identity in deciding where to place them are expected to be hashed out in the coming months.
The law’s passage has raised alarms among advocates for LGBTQ youth in Tennessee and elsewhere, who say it upends a central principle of child welfare systems: prioritizing the best interest of a child.
Instead, they say, the law gives gives greater weight to a prospective parent’s religious and moral beliefs over the need of a child for a loving, safe and supportive home.
“What’s really sad about this is there’s a really high volume of LGBTQ+ kids in the foster system whose needs aren’t being met now,” said Molly Quinn, executive director of OUTMemphis. Among the LGBTQ nonprofit’s programs is one that aids 18- to 24-year-old LGBTQ youth facing homelessness, many of whom are former foster kids who faced a tough time in the child welfare system.
“The fact that the state would accept a family that is willing to discriminate into this broken system with such vulnerable kids is difficult to understand,” she said.
Best interests of the child?
The law, formally called the Tennessee Foster and Adoptive Parent Protection Act, was backed overwhelmingly by Tennessee Republican lawmakers, who two years ago also approved a first-of-its-kind law allowing private adoption and foster care agencies that accept tax dollars to reject prospective parents for a variety of religious or moral reasons, including their faith or whether they are LGBTQ.
In advocating for this year’s bill, Dickson Republican Rep. Mary Littleton characterized it as a necessary safeguard for families who want to offer loving homes to foster and adoptive kids but worry that they would have to compromise their faith or moral beliefs. Littleton also cited an urgent need for more willing families to step forward. Tennessee currently has 4,948 fully approved foster homes, but needs 400 more.
At the end of the day the state should be acting in the best interest of the kids and this doesn’t do this. This puts emphasis on beliefs of foster and adoptive parents.
– Laura Brennan, Family Equity
Littleton stressed that the new law says DCS is not precluded from taking a child’s preferences into account before placing them in a home.
“This bill does not disregard the values and beliefs of the child,” Littleton said, noting state child welfare officials can still take into account “a comprehensive list of factors.” before placing any child in any home.
Advocates have pushed back to say that plain language of the law does not require the state to take into account the child’s own wishes.
They also criticized what they call a mischaracterization by the law’s supporters that prospective foster and adoptive parents in Tennessee have been rejected for holding anti-LGBTQ beliefs.
Parents in Tennessee have not been required to be gender- or sexual-orientation-affirming as a condition of becoming approved as a foster or adoptive parent. They have, however, been required to promote dignity and respect of a child’s identity if they take an LGBTQ kid in their home — until now.
DCS: parents preferences already taken into account
According to the Department of Children’s Services, prospective parents’ “preferences” have routinely been taken into account before a child is placed in a home, a spokesperson for the Department of Children’s Services said in a statement.
“Prior to this legislation, the DCS home study process included asking prospective foster and adoptive parents a series of questions to identify their placement preferences,” a statement from DCS said.
“Among those are questions regarding willingness to parent a child who identifies as LGBTQ+. Our goal always is to find the most appropriate placement to meet the unique needs of each child in our care,” the statement said.
Tennessee currently has 8,854 kids in state custody — 6,686 of them residing in foster homes. Up to a third of all foster youth nationwide identify as LBGTQ — often kicked out of home or winding up in state custody as a result of mistreatment or rejection based on their gender identity, according to the U.S. Department of Health and Human Services.
Jace Wilder, education manager Tennessee Equality Project, an LGBTQ+ advocacy organization that has vocally opposed the law, pointed to his own tough childhood as an example of the importance of supportive adults in a child’s life.
Wilder, who is transgender, was raised, in part, by a friend’s parents after suffering abuse at the hands of his father, he said. His mother was disabled and frequently hospitalized.
Wilder said the abuse wasn’t solely because of his gender identity, but “it kind of gave him more ammo to use against me, so that did not help.” He was also able to connect with LGBTQ people for support in his teens and college years, he said.
“Without finding people that accepted me and really helped me grow, I think I would have been stuck in the position of being too afraid to transition, too afraid of being out.” he said. “I think this puts kids at risk of being abused, neglected and harmed again.”
The nature of discourse over LGBTQ youth in Tennessee already exemplifies the need for safe and affirming homes, said Eli Givens, a college freshman from Tennessee who also serves as an advocate for the Tennessee Equality Project.
“It’s been just really unbelievable watching this session,” Givens said. “I’ve had adults telling me I need to go gas myself, that I was clearly molested when I was younger, just a wide array of threats,” they said.
“It’s bewildering that the same adults who told me to gas myself can adopt an LGBTQ child. That’s an extremely scary reality.”
Tennessee AG pushes back on proposed federal LGBTQ foster protections
The law was enacted on the heels of proposed new rules currently being considered by the U.S. The Department of Health and Human Services related to the placement of LGBTQI+ youth in foster care. Among the proposed rules for all foster homes is they “establish an environment free of hostility, mistreatment, or abuse based on the child’s LGBTQI+ status.”
In November, Tennessee Attorney General Jonathan Skrmetti led a 17-state coalition opposing the rules, saying in a letter to the federal government that they would shrink the pool of available foster families and “further divert resources away from protecting foster children from physical abuse and toward enforcing compliance with controversial gender ideology.”
Laura Brennan, associate director for child welfare policy for Family Equality, which advocates for LGBTQ families, said national advocates are keeping a close eye on what’s happening in Tennessee. The state’s 2022 law allowing publicly-funded private adoption and foster care agencies to exclude LGBTQ parents has seen been adopted by 13 other states, she said.
“At the end of the day the state should be acting in the best interest of the kids and this doesn’t do this,” she said. “This puts emphasis on beliefs of foster and adoptive parents.”