April 19, 2019 at 2:13 pm EDT | by Chris Johnson
LGBT groups, HHS clash over asking youth in foster care about sexual orientation
Youth Pride, gay news, Washington Blade
Youth Pride in 2010 (Washington Blade file photo by Joe Tresh)

LGBT rights groups and the Department of Health & Human Services are clashing over the proposed elimination of questions seeking to identify the sexual orientation of youth in foster care, which the Trump administration concluded could be “intrusive and worrisome.”

Julie Kruse, director of federal policy at the pro-LGBT Family Equality Council, said in a statement the planned removal from HHS is an “abdication of its statutory responsibilities to promote the safety, well-being, and permanency of foster youth, including those who are LGBTQ.”

“States, tribes and agencies cannot improve care and outcomes for youth if they do not have data to measure their efforts,” Kruse said.

The Family Equality Council statement was backed by 48 pro-LGBT groups, including Athlete Ally, GLBTQ Legal Advocates & Defenders, Lambda Legal, the Los Angeles LGBT Center and the National Center for Lesbian Rights.

David Stacy, government affairs director for the Human Rights Campaign, said in a separate statement the removal is the “Trump-Pence administration’s latest assault on the LGBTQ community.”

“LGBTQ youth are tragically overrepresented in foster care, and this attempt to erase them and important data on adoptive and foster parents undermines efforts to address the marginalization, harassment and discrimination that LGBTQ youth in foster care and families face,” Stacy added. “It’s crucial that fair-minded voices speak out now and demand that HHS reject this proposed rule change.”

The proposed rule — published Friday in the Federal Register — seeks to roll back data collection requirements for the Adoption and Foster Care Analysis & Reporting System, or AFCARS, which is charged with collecting case-level information from state and tribal agencies on all children in foster care. 

According to the HHS website, examples of data reported in AFCARS include “demographic information on the foster child as well as the foster and adoptive parents, the number of removal episodes a child has experienced, the number of placements in the current removal episode and the current placement setting.”

Federally funded child welfare agencies are required to submit the AFCARS data twice a year based on two 6-month reporting periods.

In 2016 during the final month of the Obama administration, HHS issued a rule that expanded the data collection requirements for children in foster care, including instituting a requirement for case workers to ask youths questions about their sexual orientation. (A question on gender identity wasn’t instituted as part of the 2016 rule.)

According to HHS, the questions on sexual orientation were instituted because they were thought to “yield important national information” not found in other national data collection initiatives.

But after soliciting states a year ago for follow-up input on the rule, the Trump administration has proposed streamlining that regulation by, among other things, cutting the sexual orientation questions. According to HHS, one-third of states “expressed concerns with the data elements around sexual orientation and recommended they be removed.” 

“States commented that if this information is important to decisions affecting the child, the information will be in the case file; however, when it is not pertinent, states said that asking for sexual orientation may be perceived as intrusive and worrisome to those who have experienced trauma and discrimination as a result of gender identity or sexual orientation,” the proposed rule says. “This would be a mandatory conversation a worker must have in order to complete the data elements. Mandating such a conversation may be contraindicated based on a child’s history of abuse or neglect.”

The HHS proposal cites a 2014 report from the Obama administration’s Office of Management & Budget on the inclusion of LGBT-related questions in federal surveys, citing concerns about the age of the individuals asked about the sexual orientation, adolescents using different terms to describe their sexual identity, potential bullying as well as regional and racial/ethnic considerations.

“As a result of our review of the OMB document, in particular, taking into consideration the need to validate questions related to sexual orientation and ensure responses about sexual orientation, especially with adolescents, are private, anonymous, and confidential, it is clear that AFCARS is not the appropriate vehicle to collect this information,” the proposed rule concludes.

The proposed rule also cites concerns about the confidentiality of the answers to the questions because a case worker would be required to enter that information into a child’s record, and that could be disclosed to courts and providers under certain circumstances.

Further, the rule notes there is no statutory requirement for case workers to ask youths about their sexual orientation as part of the national administrative data set.

A spokesperson for the Children’s Bureau at the HHS Administration for Children & Families expanded on those points in defense of the proposed rule change, emphasizing 36 states expressed concerns about the current rule.

“One year ago, ACF published an advance notice of proposed rulemaking to solicit comments on the more than 150 additional required data elements, costs to implement and burden hours to implement the final rule for child welfare agencies,” the spokesperson said. “In response, 36 states indicated that the burden the rule imposes will impede their ability to serve vulnerable children and families.”

The proposed rule change, the spokesperson said, would be beneficial to children in the child welfare system, not detrimental.

“The modifications in the proposed rule would allow state and tribal child welfare agencies to focus more of their time and resources on child welfare — from prevention to foster care services to adoption and guardianship — and less on unnecessary data collection and paperwork,” the spokesperson said.

LGBT rights groups, however, pushed back on the notion the questions on sexual orientation for foster youths were inappropriate, citing other instances in which federal agencies seek to obtain this information.

Kruse said the child welfare profession “has acknowledged the importance of collecting sexual orientation and gender identity (“SOGI”) information about children” in foster care and said “many public agencies already collect SOGI information on youth.”

“Sexual orientation questions have been included on school-based surveys of adolescents since the mid-1980s through versions of the Youth Risk Behavior Survey (as noted in Children’s Bureau comments to the Final Rule) and SOGI information is collected by many health care providers,” Kruse said. “Researchers have surveyed LGBTQ youth in the juvenile justice system, significantly increasing the profession’s understanding of the disproportionate numbers of LGBTQ youth in detention, as well as differences in offense and detention patterns.”

Ellen Kahn, the director of the Human Rights Campaign Foundation’s Children, Youth & Families Program, told the Washington Blade in an interview that case workers who collect data on children in foster care “have always collected information that is highly personal, private, confidential.”

“We’re talking about information like sexual abuse background, do they have mental health diagnoses, what medications do they take, things that are very sensitive things to be on a record,” Kahn said. “And so, folks in child welfare are used to and charged with collecting and holding and very appropriately utilizing data about children. Sexual orientation in that mix should not be handled any differently than the sort of sensitive information they, for decades, have been collecting and managing about children in care, so that, I think, is a stretch to say you’re asking them to do something different or new.”

Although the proposed rule seeks to eliminate the questions on sexual orientation in foster care as a whole, it does seek to keep in place that question for families on whether there was any conflict based on the sexual orientation of a child in the event of a removal.

“This means that agencies will report whether this was a circumstance surrounding the child at removal,” the rule says. “This is different than asking for someone’s sexual orientation because the information would be gathered during the course of the investigation that resulted in the child’s removal from the home and documented in the case record.”

Although Kahn said that component of data collection is “really important,” she added having a “full picture” of LGBT youth in foster care is also essential.

“For that particular data collection, if you are asking a parent or parents if the child’s gender expression or sexual attraction was a factor, whether you’re going to get an answer or correct answer, I think there’s a lot of concern about that,” Kahn said.

According to data from the Williams Institute at the University of California, Los Angeles, 12.9 percent of LGBTQ youth report being treated poorly by the foster care system compared to 5.8% of non-LGBTQ youth. LGBT foster youth also suffer worse outcomes in foster care than their non-LGBT kids, such as multiple placements, longer stays in residential care, and greater rates of hospitalization for emotional reasons, homelessness and criminal justice involvement.

The public has 60 days to comment on the proposal. If the administration deems the measure appropriate, the rule will then become final after an unspecified amount of time passes.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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