A lesbian who wants to become a foster parent for a child in a taxpayer-funded program for unaccompanied refugee children was unable to do so because the government is working through an agency that discriminates against LGBTQ people. Now she’s suing.
Each year, tens of thousands of refugee children who have no lawful immigration status in the U.S. are referred to the U.S. Department of Health and Human Services (HHS’) Office of Refugee Resettlement (ORR), which provides care and physical custody and seeks suitable sponsors (i.e., parents, guardians, relatives, or others designated by the parents) for the children, explains the case filing. In the interim, the federal government works with outside organizations to place these children with suitable foster parents, using taxpayer funds to do so.
Kelly Easter of East Nashville, Tenn., reached out to ORR in September 2020 about fostering a child. She was directed to Bethany Christian Services, the only foster care agency in her area working with ORR. After an encouraging initial conversation with them, she learned of their policy not to place children with LGBTQ parents and asked if there was an exception since she was working through a federally funded program. She was told that there was no exception and could not proceed to foster. Easter reported this discrimination to ORR.
Bethany’s national leadership then announced this past March that it would begin placing children with LGBTQ families. Easter tried to reapply. She was told, however, that she could not work with Bethany’s East Nashville office near her home, since it ran its program as a sub-grantee of the United States Conference of Catholic Bishops (USCCB), which continues to discriminate against LGBTQ people. Instead, she was told she could work with Bethany’s Smyrna office, which ran its program as a sub-grantee of Lutheran Immigration and Refugee Service (LIRS), which does not discriminate against LGBTQ people. The Smyrna office, however, was a half hour away from Easter’s home. A foster child living with Easter would need to go to the Smyrna office twice a day every weekday, however, which was impossible given Easter’s work schedule. This effectively blocked her from being able to foster.
Easter is therefore suing HHS with the help of Lambda Legal, Americans United for Separation of Church and State, and the law firm Orrick, Herrington & Sutcliffe LLP. “For years the federal government has known that USCCB discriminates and requires its sub-grantees to discriminate against LGBTQ foster parent applicants, reducing the number of available homes for children in need, and sending a damaging message to LGBTQ adults and children alike that there is something wrong with their families,” said Lambda Legal in a press release. “Yet HHS officials continue to enable and sanction this discrimination.”
Easter added:
I am qualified and can provide a safe, stable home for a child. How is it better for them to stay in a group setting instead of a home with someone who can care for and support them adequately?
I am heartbroken. It hurt to be turned away—twice—solely because of my identity. I’ve been a Christian since I was a little girl and my personal relationship with God is the most important thing to me. I also know that LGBTQ people can have thriving families and that they are as important and deserving as any other. How can the government tell me that my beliefs are wrong?
But I’m more concerned about the children. The federal government is supposed to be helping them, but by denying a loving home to a child or young person in need, they are not doing that; they are actually hurting them. I am qualified and can provide a safe, stable home for a child. How is it better for them to stay in a group setting instead of a home with someone who can care for and support them adequately?
By using USCCB’s religious beliefs to prevent children in their care from being placed in homes of LGBTQ people, the lawsuit says, HHS (through USCCB and its subgrantees) discriminates against LGBTQ people and “[disregards] the non-Catholic identities and beliefs of many of the
unaccompanied refugee children for whom they are responsible. This conduct potentially increases those children’s alienation and vulnerability, while denying them access to loving homes that could serve them best—all at federal taxpayers’ expense.”
Additionally, this “disserves and demeans LGBTQ children for whom they are responsible, stigmatizing them as less deserving and less worthy of respect than other children,” and sends the message that “when they grow up to form families of their own, they and their families are inferior to other families and will not have a right to equal treatment in the provision of government services.”
The government’s actions violate both the Establishment Clause of the First Amendment, which forbids the government from favoring one religion over another (or religion over nonreligion), and the Due Process Clause of the Fifth Amendment, which forbids the government from denying equal protection of the law, the lawsuit asserts.
HHS under the Trump administration made several deliberately anti-LGBTQ moves related to foster care. Most notably, it finalized a rule to allow taxpayer-funded foster care and adoption agencies to discriminate against LGBTQ people and others. Just weeks into the Biden administration, however, HHS said it would delay implementing the rule in order to review it. I’d like to think that means they will quickly see the error of their ways in the above case—but as with all things legal, nothing is certain until the decision is actually made. Here’s hoping they do the right thing.