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The future of LGBTQ+ families is currently with the Supreme Court

The Supreme Court is still out on Fulton v. Philadelphia.
Elizabeth Brico November 24th, 2020
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On Nov. 4, while most of the country was focused on the election results, the Supreme Court heard opening arguments for a case that could begin the process of closing the doors to adoption for same-sex couples. LGBTQ+ activists have been fighting hard for adoption access for same-sex couples for years. As recently as 2010, Florida became the last state to end the ban on same-sex adoption. The current case, Fulton v. Philadelphia, will decide whether the city of Philadelphia had the right to end their foster and adoption licensing contract with Catholic Social Services (CSS) due to the religious agency’s refusal to license same-sex couples. If the appeal is granted, CSS—and other religious entities—would be legally entitled to discriminate against potential foster and adoptive parents, and that sphere could easily widen to any number of social services that are contracted to religious entities. 

While attention on this case has been largely overshadowed by election controversies, there’s another aspect of this matter that has received even less attention but is currently impacting LGBTQ+ families, regardless of case outcome. Although the city of Philadelphia declined to renew CSS’s contract to license foster and adoptive parents when they refused to stop discriminating against same-sex couples, CSS is still contracted to do case management for child services cases in Philadelphia.

“The case manager is in the position to really set up the factual framework for how well the parent is complying with all the requirements the case manager has set … so it means if the case manager does not think those children should go home, it is within that person’s power to set up a number of requirements that are very difficult for the parent to keep doing,” explained Nancy Polikoff, LGBTQ+ activist and professor emerita at American University Washington College of Law. “Any kind of bias on the part of the case manager can have real consequences for that parent, and it doesn’t even have to be explicit.”

Discrimination based on race, ethnicity, and class have been well documented in the foster system, but much less focus has been devoted to discrimination against queer families of origin. What evidence there is, however, points to a serious problem—and one which intersects with the notorious race and class issues. For example, one study looking at low-income Black mothers found that lesbian and bisexual women in this cohort were 4.19 times more likely to lose their children through the foster system than their heterosexual peers. This figure is particularly shocking when analyzed in the wider context of racial disproportionality in the system; between 2000 and 2011, one in nine Black children were removed from their families as opposed to one in 17 white children, and in 2014, 24.3% of children in foster placements were Black, despite representing only 13.8% of the total population.

“The system has the greatest impact on people with intersecting identities. Black LGBT parents, Native American LGBT parents, and parents with disabilities; these are the groups of parents who are most disproportionately impacted by removal or investigated for removal, and whose children remain in the system for longer,” said Cathy Sakimura, deputy director and family law director at the National Center for Lesbian Rights.  

The ways in which bias against LGBTQ+ families manifests in the foster system can vary immensely. During the course of her research, Polikoff has encountered several examples of discrimination, both implicit and explicit. Over the phone, she recalled a case out of Kansas, “in which a lesbian mother whose child was removed … claimed there had been discrimination against her, and that she was actually told by the case manager from the faith based agency that they would never send the child back to her home [because she was gay], and they didn’t ... The mother actually testified about what the social worker said to her and the court just dismissed it as not being an issue.”

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It’s not only queer parents who suffer as the result of child services discrimination. LGBTQ+ youth are overrepresented in the system, a reality that many attribute to rejection in the home. Parental rejection is a significant funnel for queer youth into foster care and homelessness. A paper released earlier this year reported that 68% of homeless queer youth experienced family rejection and that 74% of the same population had experienced foster system involvement. Data out of New York City found that as many as 78% of queer youth in out-of-home placements were removed or ran away from those placements because of negativity around their sexual or gender identity, and 70% reported experiencing physical violence in group home placements. 

But familial rejection is far from the only way LGBTQ+ youth become entangled with a foster system ill-equipped to handle their needs. Advocates have also seen cases where families are targeted for investigation and intervention because there are queer children in the home, particularly trans kids. 

“We represented a mother who had all her children removed, and she had one child who was extremely gender non-conforming …The reason why she ended up getting investigated was because her child would sometimes go to school wearing clothes that were pink and clothes that were stereotypically feminine and there was lots of discomfort around that,” recalled Sakimura. “[The mother] ended up on the child abuse registry. She was a child care provider, she couldn’t do that anymore [because she was now on the registry] and became homeless. All the collateral effects of being involved in the system prevented her from getting her children back … It had a really tremendous impact on the family that really stemmed from this discomfort with how she was supporting her gender non-conforming child.”

According to Lori Windham, senior counsel at Becket, “Catholic Social Services does not play any role in DHS investigations regarding the removal of children from their families of origin. As a private foster care provider, Catholic Social Services has been serving the Philadelphia community for over 200 years and serves all children in need regardless of race, religion, sex, or sexual orientation.”

The Supreme Court is still out on Fulton v. Philadelphia. A ruling in favor of the petitioners will set an alarming precedent for low-income LGBTQ+ families seeking social services from any number of faith-based agencies contracted by the government who choose to discriminate. But regardless of the outcome of this case, the most vulnerable families—those who are entangled with the system and are at risk of having their families torn apart—still lack solid protections while going up against the very same kind of discrimination being argued before the Supreme Court. 


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