Don’t Give Child Placement Agencies a License to Discriminate

By Christina Wilson Remlin, Lead Counsel

Children’s Rights and our partners support Philadelphia in protecting the constitutional rights of children in the foster care system.

Earlier this month, Children’s Rights and a coalition of advocates filed an amicus brief asking a federal court of appeals to uphold a district court ruling that foster care agencies receiving public funding cannot discriminate against prospective LGBTQ foster parents or others on the basis of religious belief.

As the district court judge said in her ruling, Philadelphia has “a legitimate interest in ensuring that the pool of foster parents and resource caregivers is as diverse and broad as the children in need of foster parents and resource caregivers.”

We fully support the lower court decision, and applaud Philadelphia’s strict non-discrimination policy in foster care placements. That policy was challenged when Catholic Social Services (CSS), a foster-care placement agency, sued the City after it stopped referring children to the agency because CSS refused to place children with same-sex couples.

CSS’s insistence on the right to discriminate on the basis of sexual orientation violates not only the City’s contractual and regulatory requirements, but also the constitutional and statutory rights of children in the foster care system. At the same time, the agency is continuing to accept substantial taxpayer funds for providing those discriminatory services. This is not in the public interest. If CSS’s position were to prevail, it would create a risk of serious harm to children in Philadelphia’s foster care system.

As our amicus brief highlights, both the Supreme Court and scientific research have found that sexual orientation has no bearing on a parent’s ability to care for a foster or adopted child—gay and straight people make equally good parents. Refusing to place children with same-sex couples unnecessarily narrows the pool of prospective parents. There are 22,340 same-sex couples in the state of Pennsylvania and 4,784 in Philadelphia County alone. But in reality the impact is even more profound, because same-sex couples are nearly three times as likely as straight couples to be raising a foster or adopted child.

Federal law establishes specific priorities for child welfare systems to ensure they serve children’s best interests. One priority is to increase the number of available foster and adoptive homes to reduce reliance on group care. This recognizes that the least restrictive, most family-like setting is best for a child.

The refusal to certify same-sex couples flouts this priority by reducing the number of available foster family homes. Given the acknowledged shortage of foster families, this harms all foster children who so desperately need safe and loving families. It also dramatically limits the City’s ability to place LGBTQ kids – who are disproportionately represented in the child welfare system – with families that can love and value them.

Discriminating against same-sex couples not only is illegal and harmful to all children but also trickles down to LGBTQ youth and perpetuates a cycle of stigmatic harm. Rejecting LGBTQ prospective parents sends the message that LGBTQ people are not valued, which can make LGBTQ youth fearful of coming out, of recognizing their identity, and of being rejected by the very providers they depend on.

Child-placement agencies play a vital role as gatekeepers in the child welfare system between at-risk children and safe, loving families. Upholding Philadelphia’s nondiscrimination policy puts the best interests of the City’s most vulnerable children first. That is as it should be.