New guidance from the Trump administration grants wider license than ever to discriminate against same-sex parents in South Carolina, but the repercussions could soon extend far beyond state borders.
Under Obama-era rules, publicly licensed and funded foster care agencies could not discriminate on a religious basis. But last month, the Department of Health and Human Services issued a decision ruling that South Carolina’s federally-funded adoption agencies may deny services to a wide range of families. Organizations collecting federal funds can now turn away parents for being queer, for being Jewish, or for being unmarried.
The Department of Health and Human Services issued the revised policy in response to a request from South Carolina Governor Henry McMaster, who sought wider permission to discriminate. McMaster previously expressed opposition to marriage equality for same-sex couples.
The HHS decision likely came from Steven Wagner, principal deputy assistant secretary at HHS’s Administration for Children and Families. Earlier in 2019, Wagner said in response to McMaster’s request that he was “pushing this hard.”
The HHS ruling leans heavily on the Supreme Court’s Hobby Lobby decision, expressing that nondiscrimination laws are a “substantial burden” on religious freedom. To many observers, this interpretation seems like a stretch; organizations are not required to accept federal funding, and if they wish to deny services to same-sex parents, they could simply decline to accept taxpayer money.
But with HHS siding with South Carolina’s homophobic leadership, other anti-LGBTQ+ state officials are rushing to follow suit. Ken Paxton, the Texas attorney general who has made a career out of antagonizing queer citizens, has already requested a similar waiver for adoption agencies in his state. Not long after the South Carolina decision, legislators in Tennessee, Colorado, and Kentucky introduced legislation that would allow adoption agencies to discriminate.
“In the last handful of years, we’re seeing more and more [bills like these],” said Leslie Cooper, deputy director for the LGBT & HIV Project at the ACLU. “It’s a very disturbing trend...a terrible child welfare practice, and goes against the standard that you accept all qualified families.”
“What’s ironic about this, and the travesty of it all, is that historically same-sex adoptive parents have done such a wonderful job opening their hearts and homes to kids that are the most special-need,” said South Carolina attorney James Thompson, who has been working in adoption-related law for nearly three decades. “They’re doing the most, and treated the worst.”
Opponents of equality argue that same-sex or Jewish parents can simply find separate agencies to work with. And while it’s true that more inclusive options are available, that ignores the obstacles erected by South Carolina’s new license to discriminate.
“It’s not true that you can go down the block to another agency,” said the ACLU’s Cooper, explaining that in many parts of the state, religious agencies are the only ones available. “And even if you can … for a family to know that taking that step comes with the risk of being subjected to discrimination, that is a strong deterrent. Not everybody is going to take that risk and try to navigate a system where discrimination is permissible.”
Thompson agreed that discrimination can establish onerous obstacles for some families. “It’s either going to delay things, or it’s going to cause more expenses,” he said.
Equality advocates in other states are watching the situation with great concern.
“This rears its ugly head every couple of years,” said Pamela Kelner, executive director of Jewish Family Service in Tennessee, where the legislature is considering a slate of anti-LGBTQ+ bills. Similar legislation was proposed in 2015, and JFS joined with a coalition that included the ACLU to successfully lobby against it. They’re preparing for a similar fight this year.
“We’re taking the threat very seriously,” said Chris Sanders, executive director of the Tennessee Equality Project. “There are a lot of people moving to Tennessee from other states because there’s so much job growth... who are accustomed to a far more open adoption system.” Transplants from more progressive areas may be in for an ugly surprise when they attempt to start a family, he said.
Ultimately, discriminatory measures harm both parents and children.
“The whole purpose of adoption is to benefit the welfare of the child,” said Kelner. “There are children in the foster system that would be waiting for homes, and if they’re not being served by the widest pool possible, they are definitely negatively affected.”
“We have hundreds of thousands of children waiting who need foster parents,” said Ryan Hanlon, vice president of the National Council for Adoption. “Our ability to find families in every state is absolutely critical.”
With discriminatory policies poised to expand at both the state and federal level, advocates for equality and child welfare are asking the public to speak out. There’s a particularly urgent need for people in faith communities to oppose anti-LGBTQ+ bills, said Sanders. The Tennessee Equality Project is currently preparing for a lobbying day on March 5, as well as email and phone campaigns when legislation nears a vote. TEP is currently gathering names of religious leaders who stand with them in opposing the discriminatory bills.
But outreach to elected officials can only do so much. When Kelner testified before lawmakers during previous legislative sessions, she encountered tight constraints. “We have, literally, not exaggerating, five minutes with them to talk about three or four different issues,” she said.
Under those circumstances, it’s crucial to maintain focus on the group whose wellbeing matters the most: kids.
“All it should be about is: Will you be a good parent to a child?” said Kelner. “Can you be a good parent, yes or no?”
Reflecting on his twenty-nine years of work with South Carolina families, James Thompson noted that the current efforts to prevent children from finding homes with same-sex parents are particularly ironic.
In past decades, he said, “the Department of Social Services knew that same-sex families accepted special-needs kids, and were successfully parenting. We went to them when we needed them, and now the state is agreeing to discrimination. It’s not just ironic, but tragic.”
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