Undated photo of a pride flag, Oregon flag and U.S. flag resting on a desk in the Oregon Capitol.
Ron Cooper/Oregon Capital Chronicle
A high-ranking U.S. Department of Health and Human Services official issued a subtle warning last year when he challenged a longstanding Oregon policy mandating foster and adoptive parents affirm a child’s potential LGBTQ+ identity.
“These developments are deeply troubling, clearly contrary to the purpose of child welfare programs, and in direct violation of First Amendment protections,” wrote Andrew Gradison, then-acting assistant secretary for the Administration for Children and Families, in a September letter to Oregon child welfare officials. “As you know, I have the responsibility of monitoring how federal funds are used and ensuring that federal law is upheld.”
But more than six months later, the federal agency has yet to announce that it is withholding any funding because of Oregon’s policy. Oregon child welfare officials, meanwhile, have not directly responded to the federal government, but are tweaking the policy following a high-profile legal challenge brought by a conservative religious advocacy group.
Supporters say the affirmation model is designed to protect vulnerable youth within a foster care system, especially if they haven’t come out by the time of their initial adoption or placement in a foster home. Advocates for the LGBTQ+ community point to research showing the harm of conversion therapy and living in a non-supportive family.
But the requirement has long drawn the ire of conservatives who see the nation’s history of faith-based orphanages as a solution to providing homes for the hundreds of thousands of children in American foster care. The matter gained urgency in the wake of President Donald Trump’s November executive order targeting state and local policies that “inappropriately prohibit participation in federally-funded child-welfare programs by qualified individuals or organizations based upon their sincerely-held religious beliefs or moral convictions.”
Gradison’s letter followed a July decision from a panel on the 9th Circuit Court of Appeals striking down the policy’s application on First Amendment grounds for a Christian mother from Malheur County. Jessica Bates, a widowed mother of five from Vale, said she wanted her current children to have more siblings but would not take a child to a Pride parade or to receive hormone injections from a doctor. Her case was sent back to district court for further review, and the appeals court in February declined to revisit the case in front of a broader panel of judges.
State child welfare officials never responded to Gradison’s request to “provide information that can shed light on your current policies,” which did not come with a formal deadline for producing evidence or documentation. His agency told Capital Chronicle in late January that Oregon had not responded to the agency’s inquiry.
A spokesperson for the federal Administration for Children and Families didn’t elaborate on any investigatory measures or funding changes the agency would take in light of Oregon’s lack of a response, nor did they immediately respond to a follow-up inquiry on Wednesday. In March, the agency wrote to all 50 states to pressure them against removing children from homes where parents decline to support their gender identity.
Studies have shown that LGBTQ+ youth are overrepresented in the foster care system, making around one-third of cases. The federal appeals court, however, did not strike down anti-discrimination protections for LGBTQ+ youth or a Biden administration rule establishing LGBTQ-friendly care providers without mandating participation. The court and free speech advocates have suggested Oregon could take a less prescriptive approach to protecting vulnerable foster youth.
Jake Sunderland, a spokesperson for the state human services department, said that Oregon’s affirmation policy will be changing but wasn’t able to provide details by Wednesday afternoon. He said the agency still considers Bates’ case as ongoing litigation and confirmed that Oregon never responded to the letter from Gradison.
“ODHS also is reviewing its rules and policies for resource parents and prospective adoptive parents, continuing its commitment to ensuring that all children and young people in foster care, including those who are LGBTQIA2S+, have access to a safe and supportive environment provided by loving caregivers that are responsive to their individual needs,” Sunderland told the Capital Chronicle in September.
Few enforcement details as federal effort expands
Oregon in 2018 adopted a rule mandating prospective foster parents to respect, accept and support their child’s sexual orientation, gender identity, gender expression and spiritual beliefs, next to a list of other protected categories. It came amid concern that the child welfare system was not ensuring that foster families respected youths’ identities.
Asked for an update on its inquiry, the federal spokesperson pointed to the state of Massachusetts, which changed its policy from requiring support and respect for a child’s gender identity or sexual orientation to “individual identity and needs.” One Christian couple at the center of a legal challenge to Massachusetts’ policy, however, continues to maintain that they are subject to unfair barriers to becoming foster parents.
The spokesperson also noted that they had sent similar letters to several other states last year, including California, Washington, Rhode Island, Illinois, Minnesota, Maine and New Mexico. They said the agency has been seeking responses that suggest states will protect religious beliefs and “strongly held convictions” that are voiced “in any circumstance during the foster care licensure and placement process.”
“The letters are intended to have states review their policies from the lens that families of faith could be hypothetically hesitant to become licensed foster parents due to not having their religious beliefs protected,” the spokesperson said.
Mikki Gillette, a major gifts officer with Basic Rights Oregon, the state’s largest LGBTQ+ advocacy group, praised Oregon’s handling of the federal inquiry. She recalled her own experience seeing how a trans teenager at a queer youth center she worked at “blossomed like a flower” when he was taken in by a family who helped him access gender-affirming care.
“There’s the parents’ religious beliefs, but then there’s also the kind of mental and emotional welfare of the kids,” she told the Capital Chronicle. “I think if you’re talking about child welfare, then that would be the one that should be weighed most heavily.”
The Arizona-based Alliance Defending Freedom, a conservative Christian legal advocacy group that represented Bates, did not immediately respond to a request for comment on Wednesday.
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