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February 2019 will mark the 50th anniversary¹ of Bill Jones finalizing the adoption of his son, Aaron. In 1969, Jones became the first single man in California—and likely the United States—to adopt a child. He is also gay. The social worker who helped him adopt told him that outing himself as gay would destroy his chances of adopting, because the agency would have been “obliged” to deny him.² The intense scrutiny and lengthy process he faced just as a single man trying to adopt only confirmed this warning.

Sadly, half a century later, LGBTQ prospective parents interacting with the child welfare system still face discrimination because of their sexual orientation and/or gender identity. In a 2011 national survey of 158 gay and lesbian adoptive parents, nearly half of respondents reported experiencing bias or discrimination from a child welfare worker or birth family member during the adoption process.³

Despite this bias, the vast majority of U.S. states still lack laws or policies that explicitly protect LGBTQ prospective adoptive and foster parents from discrimination.⁴ It was not until 2003, 34 years after Jones adopted his son, that California passed its first law against discrimination toward qualified prospective foster and adoptive parents.⁵ The last statutory ban on allowing same-sex couples to adopt was not struck down until 2016,⁶ and the last statewide policy banning same-sex couples from being foster parents was not struck down until 2017.⁷ The absence of affirmative protections in the child welfare system for LGBTQ people and same-sex couples threatens the ability to place children in this system in safe homes.

Worse still, certain conservative religious groups are weaponizing their anti-LGBTQ viewpoint to advocate for religious exemptions that allow child placing agencies to discriminate. These laws allow state-funded child placing agencies to refuse to serve qualified prospective parents based on the religious beliefs of the agencies’ leaders. This would enable agencies to turn away loving prospective parents based on the parents’ sexual orientation or gender identity. As of October 2018, 10 states have passed laws allowing child placing agencies to turn away prospective parents for religious reasons.⁸ These laws deprive foster youth of potential families at a time when the child welfare system cannot afford to be turning away qualified parents.⁹

As of 2017, there were approximately 443,000 children in foster care nationwide.¹⁰ Each year, more than 50,000 children are adopted through the U.S. child welfare system, but about 20,000 age out of the system without ever finding a permanent family.¹¹ Turning qualified prospective parents away only stresses an already stressed system, and LGBTQ people represent an important subgroup of potential parents. In Massachusetts, for example, between 15 percent and 28 percent of adoptions from foster care have involved same-sex parents every year for the last decade.¹² Same-sex couples raising children are seven times more likely to be raising a foster child and seven times more likely to be raising an adopted child than their different-sex counterparts.¹³ They are also more likely to adopt older children and children with special needs, who are statistically less likely to be adopted—perhaps because many LGBTQ parents can empathize with the stigmatization such children may experience.¹⁴ Numerous studies have also shown that children of gay or lesbian parents fare as well as children of different-sex parents; they are also just as healthy, both emotionally and physically.¹⁵ The longest-running study on the children of lesbian parents specifically recently came to the same conclusions.¹⁶

Finding permanent families for children in the foster care system has positive benefits for those young people: Studies comparing children who remain in foster care with children who are adopted have shown that adopted children are 50 percent less likely to be arrested, 20 percent less likely to become teen parents, and 24 percent less likely to experience unemployment as adults.¹⁷ Given these data, it does not make sense for child welfare agencies to turn away LGBTQ prospective adoptive parents.

Fortunately, public opinion is on the side of equality and justice. Since 2008, a majority of Americans have consistently supported the legal right of same-sex couples to adopt.¹⁸ Today, more than two-thirds of Americans oppose allowing child placing agencies that receive federal funding to refuse to place children with a same-sex couple, and more than half of Americans oppose such refusals regardless of whether the agency receives government funding.¹⁹

This report reviews the child placing agency landscape in the United States, as well as some of the negative effects that religious exemptions are likely to have. First, it explores the current legal landscape of protections for LGBTQ foster and adoptive parents, including state and federal attempts to secure harmful religious exemptions through legislation and litigation. Next, the report considers the impacts of religious exemptions on overburdened child welfare systems, using data on federal funding for foster care and adoption to examine the economic costs of being unable to find permanent homes for children. The authors also use case studies of two states—Michigan and Texas—to assess the potential negative impact of these laws on LGBTQ people’s ability to become foster or adoptive parents. The report concludes with recommendations on how to best eliminate discrimination against LGBTQ prospective foster and adoptive parents.

Case study analyses revealed that secular agencies in Texas and Michigan were more likely to have posted sexual orientation- and/or gender identity-inclusive nondiscrimination policies on their websites, something that faith-based agencies were less likely to do. The analyses also highlighted how few agencies have posted nondiscrimination policies on their websites generally, much less ones inclusive of sexual orientation and gender identity. In addition, the locations and geographic concentrations of welcoming versus unwelcoming agencies indicates that accessing explicitly LGBTQ-inclusive child welfare services is likely to be challenging for families in these two states. For example, in three of the 10 most populous Texas cities, there is no agency that is explicitly affirming of LGBTQ people within the greater metropolitan region. Finally, available data analyzed for this report suggest that federal taxpayers could save hundreds of millions of dollars during the eight years it would otherwise take for a 10-year-old in care to age out of the system if child welfare agencies were able to increase their adoption rates by expanding their pool of prospective parents.

This report illuminates a confusing and difficult landscape for LGBTQ people who wish to foster or adopt. In states with religious exemption laws, taxpayers are shouldering costs that could be lessened were child welfare agencies to ensure that their pool of prospective parents included all qualified families, regardless of parents’ sexual orientation or gender identity. State governments must enact nondiscrimination laws for prospective foster and adoptive parents that are inclusive of sexual orientation and gender identity, and states with religious exemptions for child placing agencies must repeal them.

In a legal sense, many LGBTQ people interacting with child placing agencies are treated like second-class citizens. In too many states, LGBTQ prospective parents and LGBTQ youth in foster care lack nondiscrimination protections. Several states without nondiscrimination protections have even pre-emptively enacted religious exemptions in anticipation of having to comply with nonexistent nondiscrimination protections. These exemptions are even more damaging, as they give official governmental approval to discrimination. Meanwhile, the courts are debating if LGBTQ people can be refused service.²⁰ And the fact that the legal landscape of child welfare is unwelcoming to the LGBTQ community likely leads to decreased engagement in fostering and adoption than would otherwise occur.

Nondiscrimination protections are lacking in the child welfare system

Too few states have statutory or even regulatory nondiscrimination protections for LGBTQ prospective parents and/or youth interacting with the child welfare system.

Nondiscrimination protections for LGBTQ foster youth

Studies have found that between 19 percent and 23 percent of youth in the U.S. foster care system identify as LGBTQ, meaning that LGBTQ youth are overrepresented in the foster care system by at least a factor of two.²¹ Abuse, rejection by their families, and discrimination all contribute to this overrepresentation.²²

LGBTQ youth in foster care generally have more nondiscrimination protections than LGBTQ prospective parents. However, 13 states still lack explicit nondiscrimination protections for LGBTQ foster youth.²³ There are 37 states that provide protections for youth in the child welfare system through laws, regulations, or agency policies: 24 states and Washington, D.C., provide protections on the basis of both sexual orientation and gender identity, and 13 states provide protections on the basis of sexual orientation only.²⁴ Three states with nondiscrimination protections have issued explicit guidance to agencies to house transgender youth according to their gender identity.²⁵ Nine states with nondiscrimination protections require child welfare agency staff and/or foster parents to undergo LGBTQ-inclusive cultural competency training.²⁶

While these protections are crucial to ensuring that LGBTQ youth are treated fairly in the U.S. child welfare system, not all states offer them. LGBTQ foster youth continue to report mistreatment and discrimination at twice the rate of their non-LGBTQ peers.²⁷

Nondiscrimination protections for LGBTQ prospective parents

Although same-sex parents are no longer banned from fostering or adopting, they are still largely unprotected from discrimination as they seek to become foster or adoptive parents. The vast majority of states—42—lack laws or policies that explicitly protect LGBTQ people from discrimination in the foster system.²⁹ Among the eight states that have affirmative nondiscrimination protections for foster parents, five states protect prospective parents from discrimination based on sexual orientation, while three states and Washington, D.C., protect against discrimination on the basis of both sexual orientation and gender identity.³⁰ Forty-three states, meanwhile, lack explicit laws protecting LGBTQ prospective parents from discrimination in adoption. Seven states protect parents from such discrimination on the basis of sexual orientation, while only three states and Washington, D.C., protect parents on the basis of both sexual orientation and gender identity.

Admittedly, there is some complexity³¹ in how states are or are not counted as having protections. Some states not counted in the categories above, such as Connecticut, still protect prospective parents through a broad LGBTQ nondiscrimination law, even if it lacks a specific law that protects against discrimination in child welfare.³² The several states that have protections on the basis of sex could also offer some protection to LGBTQ prospective parents, and youth in care, as courts increasingly interpret sex to include gender identity and sexual orientation.³³ Yet, while these laws are undoubtedly a marker of progress, explicit nondiscrimination protections enumerating sexual orientation and gender identity as protected classes are still necessary in order to protect everyone and to instruct those enforcing the law on exactly how and when to do so.³⁴

Religious exemptions for child placing agencies provide license to discriminate 

In the courts, in state legislatures, and at the federal level, anti-equality activists are pushing for laws and policies that would allow child welfare providers to opt out of working with LGBTQ prospective parents—and even out of providing affirming care to LGBTQ youth—under the guise of religious liberty. As noted above, more than 40 states currently lack explicit nondiscrimination protections that cover sexual orientation and gender identity for prospective foster or adoptive parents; 10 of these states provide religiously affiliated child welfare agencies with a license to discriminate against LGBTQ prospective parents and, sometimes, children in their care. These states are: Alabama, Kansas, Michigan, Mississippi, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, and Virginia.³⁶ While the first of these laws was passed in North Dakota in 2003, they have been gaining momentum in recent years: Two were passed from 2015 through 2016, three in 2017, and three in 2018.³⁷

These laws vary in whether they cover discrimination on the basis of both moral beliefs and religious beliefs, as well as in how they define the burden for proving a sincerely held religious belief. They also vary in whether they explicitly allow agencies to refuse to refer LGBTQ prospective parents to another agency and in whether they allow discrimination against LGBTQ prospective parents or against both parents and LGBTQ youth in care. Laws that allow child welfare agencies to discriminate against children based on the agency’s religious views may enable a foster parent to force an LGBTQ youth to undergo conversion therapy, a widely discredited and harmful practice that seeks to change an individual’s sexual orientation or gender identity.³⁸

In South Carolina, the license to discriminate is also enshrined in an executive order. In March 2018, four months before the state passed a religious exemption law for child placing agencies, the governor signed an executive order that prohibits the state’s Department of Social Services from denying licenses to religiously affiliated child placing agencies that engage in discrimination on the basis of their religious beliefs. The state is also requesting that the U.S. Department of Health and Human Services (HHS) provide it an exemption from the federal HHS regulation governing the granting of federal funds, which forbids discrimination on the basis of, among other things, religion, sexual orientation, and gender identity.³⁹ With this request, South Carolina is not only seeking to allow discrimination against LGBTQ parents, but also to allow agencies, such as Miracle Hill, to discriminate against people who have different religious beliefs.⁴⁰ If the HHS grants this exemption, it would set a dangerous precedent—and would underscore that the true purpose of so-called religious exemptions is to protect certain religious beliefs, not the rights of people of all religions.

Miracle Hill, the largest provider of foster families in South Carolina, made headlines this year for turning away a Jewish couple. Beth Lesser and her husband have a decade of experience as foster parents, and yet Miracle Hill refused to work with them because they are not Christian. It instead referred them to a different agency. In an interview on her experience, Beth said, “To say we can go somewhere else is like saying you can’t use this state-funded hospital, but you can go to the one down the street.”⁴¹ Other states’ religious exemption laws could also be read as allowing religious discrimination,⁴² even though doing so runs afoul of federal law and likely the U.S. Constitution.⁴³

At the federal level, some members of Congress have introduced similarly broad licenses to discriminate against parents and children. The Child Welfare Provider Inclusion Act, introduced by U.S. Sen. Mike Enzi (R-WY) and U.S. Rep. Mike Kelly (R-PA) in April 2017 and still pending in the House Committee on Ways and Means Subcommittee on Human Resources, would prevent the federal government, as well as state and local governments that receive federal funding, from taking any adverse action against child welfare agencies that discriminate on the basis of their religious beliefs or moral convictions.⁴⁴ In July 2018, U.S. Rep. Robert Aderholt (R-AL) introduced the Aderholt amendment to the fiscal year 2019 appropriations bill for the departments of Labor, HHS, Education, and Defense.⁴⁵ The amendment, which was ultimately dropped from the final version of the law, would have cut federal child welfare funding by 15 percent for states that require their child placing agencies to not discriminate against prospective foster and adoptive parents or youth in foster care. Under this amendment, child placing agencies would have been explicitly allowed to decline to provide services based on their moral or religious beliefs.⁴⁶ This undoubtedly would have led to agencies turning away LGBTQ prospective parents—meaning fewer families for youth in care.⁴⁷

Given the significant number of children waiting for permanent homes, more, not fewer, prospective parents are needed. Religious exemptions for child placing agencies likely only exacerbate this gap by preventing qualified LGBTQ people from becoming parents, while providing government approval and taxpayer funding for discrimination.

The courts are reviewing religious exemptions for child placing agencies

Federal courts are currently considering whether government-contracted child placing agencies can discriminate against LGBTQ prospective parents. There are two main types of these cases: those that deal with nondiscrimination laws and those that deal with religious exemptions. The former type includes cases such as Fulton v. City of Philadelphia, in which an anti-LGBTQ child placing agency is suing to receive a city contract even though the agency refuses to approve same-sex couples as foster parents—a violation of Philadelphia’s nondiscrimination policy.⁴⁸ The latter type includes cases such as Dumont v. Lyon in Michigan, in which LGBTQ prospective parents argue that the state’s religious refusal law is unconstitutional.⁴⁹ This type also includes cases such as Marouf v. Azar, in which LGBTQ prospective parents argue that it is unconstitutional for the federal government to continue funding agencies it knows are engaging in discrimination.⁵⁰

LGBTQ nondiscrimination laws

Some child welfare agencies seeking a religious exemption for child placing allege that nondiscrimination laws protecting LGBTQ prospective parents are unconstitutional. These agencies claim that these protections target specific religious beliefs—those that oppose same-sex parents raising children—despite the fact that nondiscrimination requirements apply to all contractors and concern the contractors’ conduct, not their personal beliefs. Providers do not have a right to receive a government contract, and if they voluntarily enter into one, they must abide by its terms. Indeed, also contradicting the claim that nondiscrimination protections target certain religious beliefs is the willingness of the government to contract with religious providers who follow the law, as well as to re-enter a contract with a provider once that provider stops discriminating.

These agencies also argue that nondiscrimination protections constitute compelled speech and retaliation against free speech. However, providers do not have to make a public statement about their beliefs on same-sex marriage. Finally, these agencies claim that nondiscrimination protections do not further a compelling government interest, even though courts have found a compelling interest several times for enforcing nondiscrimination laws.⁵¹

Religious exemptions for child placing agencies

Challenged by prospective LGBTQ parents in the courts, conservatives, including some governments and discriminatory agencies, argue that religious exemptions pass constitutional muster. These groups allege that these laws do not violate the establishment clause, because they do not promote a particular religion—even though such religious exemptions appear to assert certain Evangelical Christian and Catholic beliefs.⁵² These groups also argue that religious exemption laws do not violate the Establishment Clause or the Equal Protection Clause, because the government itself is not engaging in any discrimination; it is contracting with the agencies to provide government services on its behalf.

Meanwhile, LGBTQ prospective parents counter that child welfare agencies’ refusal to serve same-sex couples violates their rights under the Equal Protection Clause, a claim at least one court has found plausible.⁵³ And even in cases where there is no official religious exemption for child placing agencies, such as Marouf v. Azar, plaintiff prospective parents argue that the government is responsible for knowingly contracting a public function to and funding a private agency while aware that the private agency is conducting its function in a discriminatory way.

Another claim discriminatory agencies make is that religious exemption laws allow the state to contract with a wider group of agencies, including faith-based agencies, which furthers the compelling government interest in serving more children. This is a questionable claim, however, since the agencies’ ability to turn away qualified families undermines the state’s interest in providing as many permanent, loving homes as possible for children in the system.

The status of litigation

As of October 2018, preliminary rulings in two of the three main cases pending on the issues of nondiscrimination and religious exemptions for child placing agencies have taken steps to protect LGBTQ people. In Dumont v. Lyon, the federal district court has held that Michigan may be in violation of the U.S. Constitution by “expressly acknowledging and accepting” that certain child placing contractors “may elect to discriminate on the basis of sexual orientation in carrying out those state-contracted services.”⁵⁴ In Fulton v. City of Philadelphia, t