LGBTQ adoption rights tested

Courtesy of Marie Holmes/The Washington PostOlive Holmes is the daughter of Marie Holmes and her wife, Sarah.

A recent Trump administration proposal that would affect tens of thousands of adoptable children and LGBTQ families will be challenged by New York state, Gov. Andrew Cuomo announced.

Cuomo’s office will take legal action against the Trump administration if it moves forward with a rule proposed by the Department of Health and Human Services that would allow foster care and adoption agencies to deny their services to LGBTQ families on faith-based grounds, the governor said in a press release.

“Trump’s proposal isn’t just discriminatory and repugnant to our values — it’s also heartless and dumb as it would deny countless children a loving family and a safe place to call home,” Cuomo said. “Our message to the Trump administration is simple: there is no place for hate in New York or in our nation, and we will not allow this noxious proposal to stop LGBTQ New Yorkers from becoming parents or providing care to children in need.”

In 2016, the Obama administration instituted a discrimination regulation that included sexual orientation and gender identity as protected classes. The newly proposed rule would reverse that regulation, and could take effect as early as Monday, prior to a 30-day comment period, which is expected to be followed by the new rule being finalized.

Opponents say this rule would not only be discriminatory, but would also hurt children.

“Our concern is regarding the reduced pool of safe and loving homes that foster children are going to have access to,” said Daniele Girard, staff attorney at Children’s Rights, a national watchdog organization advocating on behalf of abused and neglected children. “There’s already a severe shortage of foster homes.”

There are over 440,000 children in the foster care system across the country, and over 19,000 in New York, according to the New York-based nonprofit Family Equality Council. A recent survey published by the organization also found the rate of LGBTQ family formation has significantly increased over the past few years, and is expected to continue to rise. In addition, reports by the Williams Institute at UCLA School of Law have found that one in five LGBTQ couples are raising adopted children, compared to just 3 percent of different-sex couples.

To Denise Brogan-Kator, chief policy officer for Family Equality, these numbers clearly demonstrate that there would be severe consequences if LGBTQ families were to be closed out of foster care and adoption services.

“You can see there is a significant impact, that LGBTQ prospective families — qualified, loving families — are a significant number of prospective families in the adoption and foster care system,” she said.

Brogan-Kantor also criticized that the proposed rule would allow foster care and adoption agencies to say that taking care of children in their system “is subservient to our religious belief that same-sex couples shouldn’t be raising children.”

The White House has since refuted that argument, telling The New York Times in a statement Saturday that “the federal government should not be in the business of forcing child welfare providers to choose between helping children and their faith.”

The Family Research Council, a nonprofit that supports Christian and socially conservative issues, applauded the proposed rule.

“Under the proposed HHS rule, faith-based adoption providers will no longer have to choose between abandoning their faith or abandoning homeless children because the government disapproves of their views on marriage,” Council President Tony Perkins said in a statement.

While Perkins said reversing the rule would combat discrimination against people’s religious beliefs, others say that it would open the floodgates to discrimination on multiple grounds.

“This federal government is using taxpayer-funded dollars to promote a license to discriminate against LGBTQ couples, and in doing so they’re also drawing in other people like Jews and Catholics,” said Girard, who added such situations have already happened in the past. “Once you open Pandora’s Box it’s very difficult to control it.”

In addition to litigation brought forward by state governments, advocates are hoping to push back against the rule with comments during the 30-day window before it becomes final.

They are also looking to other proposed legislation that would trump barriers to adoption LGBTQ families face, such as the Every Child Deserves a Family Act sponsored by Sen. Kirsten Gillibrand, D-N.Y., in 2015.

The New York Office of Children and Family Services did not wish to comment on pending litigation.

Massarah Mikati covers the New York State Legislature and immigration for Johnson Newspaper Corp. Email her at, or find her on Twitter @massarahmikati.

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