* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.The U.S. Supreme Court is due to decide if foster agencies can discriminate against same-sex couples
Currey Cook is a counsel at Lambda Legal and the director of its Youth in Out-of-Home Care Project
LGBT+ youth in the nation’s child welfare system face an overwhelming set of challenges – overrepresentation, inequitable treatment, and physical and emotional harm.
The data regarding overrepresentation is staggering – an estimated 129,000 of the 430,000 kids in foster care are LGBT+. And they are overwhelming young people of color and from low-income families because systemic racism and poverty disproportionately drive these children into the system and out of their homes and communities.
High rates of rejection of LGBT+ young people by their families further fuels this overrepresentation, and, once in care, they have worse outcomes than their non-LGBT+ peers in terms of denial of necessary healthcare, placement in group homes, lack of services designed to increase acceptance and promote safe reunification with parents, and juvenile justice involvement.
Moreover, and contributing to these bad outcomes, the law in a growing number of states allows government-funded contract child welfare agencies to turn away LGBT+ families or people of different faiths than their own, a practice endorsed by the Trump Administration. LGBT+ parents of color also have their children removed at higher rates than other parents.
Amid this sobering child welfare reality, on November 4, the day after the election, the U.S. Supreme Court, including a newly seated associate justice – Amy Coney Barrett – will hear a challenge to the City of Philadelphia decision requiring contractors to abide by a city ordinance prohibiting discrimination on the basis of sexual orientation, specifically in the recruitment and licensing of foster families.
The implications of the case are enormous.
Permitting discrimination and limiting placement options harms children. If children cannot safely return home, they need family home options that reflect their diversity of identity and faith tradition. Policies that exclude families limit the number of homes available.
The government has a compelling interest both in protecting LGBT+ youth in care from receiving a government-endorsed message that they are second-class citizens, and expanding placement options that are especially likely to accept and support them.
A broad ruling may permit agencies to discriminate against LGBT+ youth directly by denying services or subjecting them to so-called “conversion therapy,” not to mention that a broad ruling could have implications beyond foster care and affect families seeking food assistance, individuals seeking emergency shelter, or seniors dependent on a variety of support services.
A Supreme Court that now includes Judge Coney Barrett fills us with dread.
This court has already demonstrated a preference for extending and expanding religious freedom exemptions, including granting commercial businesses the “freedom” to deny contraceptive care to employees in employer-provided health plans without notice, and allowing religious schools to designate virtually anyone on staff as a “minister” in order to avoid employment nondiscrimination protections.
Add Judge Coney Barrett to the mix. As if her jurisprudence with its “originalist” tenets and embrace of religious exemptions weren’t concerning enough, during her testimony, Judge Coney Barrett used the term “sexual preference,” causing alarm for LGBT+ folks due to its association with the religious right and as a supposed justification for “conversion” therapy.
There was also her bizarre characterization of systemic racism as a “policy question” rather than acknowledging its existence. And, finally, it emerged that she served on the board of a school that does not “allow” gay students or children of same-sex couples or gay or lesbian teachers.
All of this should give us pause regarding whose rights Judge Coney Barrett will protect.
At risk are not only the rights of children who have no choice but to be at the mercy of government care, but for all of us who, at this trying time, to better understand how dependent we all are on the government and that discrimination is a matter of life and death.