Photo: Caitlin Childs
Texas is in the national news yet again for attempting discriminatory legislation, this time in the form of a controversial “bathroom bill” that would limit access to public bathrooms for transgender people. Governor Greg Abbott and the Republican state legislators pushing this bill – along with many other discriminatory policies – have a long history of embarrassing the more liberal portions of the Texas electorate. One of their more egregious efforts, Senate Bill 3859, has unfortunately dropped out of the news cycle since Gov. Abbott signed it into law in June of 2017. The new law, which takes effect September 1, prevents the state or courts from taking “adverse action” against faith-based foster care, adoption, and other child welfare services that refuse a placement or refer youths for services based on a “deeply held religious belief.” The bill’s sponsor, Charles Perry (R-Lubbock) claims that faith-based service providers might exit the industry if they fear litigation is possible and that the purpose of the bill is to prevent that outcome, rather than to discriminate against anyone. This concept of a “deeply held religious belief” has been a discrimination dog-whistle for years – a polite way to indicate to those in favor of such laws that they can discriminate against whoever they like as long as the discriminatory act is cloaked in the guise of religious freedom.
These laws are always odious, but especially so when they directly impact children’s well-being, as critics have insisted this bill will. It is no secret that the Texas child welfare system is fundamentally broken, yet the legislature has done nothing except uphold the status quo. There are roughly 30,000 children in the state’s care at any given time, almost all of whom have experienced some form of abuse or neglect in the past. Each caseworker is estimated to work 60 to 70 cases at any given time, far in excess of the 12 to 15 cases recommended by the Child Welfare League. The emotional demands of this work and the low pay it garners results in high turnover, with most caseworkers leaving the field after only a year or two. The predictable end result of this institutional under-staffing and under-funding is that thousands of Texas children have been placed in dangerous environments in which they are often exposed to further abuse and neglect – sometimes even death. A 2015 study revealed that in the previous 4 years, at least 144 children in foster care died while their foster family was already under CPS investigation. Later that same year, Texas Federal Judge Janis Graham Jack issued an over 250 page ruling declaring that the Texas foster care system was in violation of the Constitution’s 14th Amendment, which decrees that citizens have the inalienable right to be reasonably free from harm while in state custody. Judge Jack appointed Special Masters Kevin Ryan and Francis McGovern to investigate and present recommendations to reform the child welfare system. These efforts have been actively resisted by Attorney General Ken Paxton, who complained the recommendations were “over-broad” and argued that these measures were not proven to be effective.
While Gov. Abbott did sign a few reforms into law this summer, such as increased monthly stipends to families caring for abused and neglected children they are related to, and increasing funding (Texas still spends less than half of what other states spend on child welfare services), other reforms have child advocates deeply concerned. The Texas legislature’s proposed solution is not to overhaul the system of subcontracted agencies that experts point to as a key factor in these poor placements, but to double down on the policy. Senate Bill 11 is being called a “community care model” by supporters, but critics are calling it a further privatization of child welfare services. This bill extends the power of contracted non-profits to oversee children in foster care and adoptive homes. Combined with Senate Bill 3859, this legislation could be disastrous for Texas youths. The Republican solution was to sign a bill into law that permits foster and adoption subcontractors to discriminate against potential families, and then they voted to increase the power of these contractors. For decades, the majority of adoption and foster care service providers were trained by the Department of Family Services. Today, 95 percent work with and are trained by subcontractors. Of these contractors, 31 percent are explicitly faith-based Christian organizations, and most others elude to Christianity in their marketing materials. Only two of these contractors include support for LGBTQ families in their literature. The new child welfare law asks that services with a religious objection to a placement refer the family to another agency, but in the current system, an alternative, LGBTQ-friendly agency may be quite difficult to find.
The language of the law is so vague that an agency could refuse to place a child for essentially any reason. Defenders of the bill claim that it applies to all religious faiths. Opponents claim that in practice, the law will be primarily used by Christian organizations to subtly — or even brazenly — discriminate against families of other faiths and LGBTQ families. With so many young Texans in need of safe and loving permanent homes, refusing a potential home because of the family’s religious beliefs or sexuality makes no sense. Human Rights Watch posted a letter from several national adoption agencies in response to the law pointing out decades of social science research that indicates children raised by a same sex couples do just as well in life as those raised by opposite sex couples. It takes a special kind of willful ignorance of science and facts to believe that a same-sex couple is not as prepared or successful in parenting, or that placing a child with a same sex couple would adversely affect him or her.
Research has also shown that, sadly, LGBTQ children are over-represented in the foster care system. They also tend to be placed in more foster homes, are more likely to live in a group home than their heterosexual peers, and are more likely to report poor treatment in the system. A New York-based study found that “78 percent of LGBTQ youth were removed or ran away from foster placements as a result of hostility towards their sexual orientation or gender identity. 100 percent… in group homes reported verbal harassment, [and] 70 percent… reported physical violence in group homes.” Laws such as this not only increase the likelihood that these youth will end up in a home hostile to their sexuality or gender identity, they also award the agency or family significant control over the child’s education and health care. Children could also be forced to attend religious schools of a different faith, over their own objections. An amendment to the bill, put forth by Sen. Sylvia Garcia (D–Houston) that would allow children over the age of 12 to object to such education, was unsuccessful. An agency in custody of an LGBTQ child could also legally obligate the child to attend “conversion therapy,” a debunked pseudoscience that purports to “fix” LGBTQ kids. Similarly, other fraught topics such as vaccinations, sexual education, contraception, abortion, gender confirmation, invasive surgeries, blood transfusions, and mental illness all become fair game and open to new interpretations under the thin veneer of “religious belief.” Texas lawmakers have decided that the religious notions of faceless child welfare contractors uniformly override the religious freedom of the living, breathing Texas youths in the child welfare system, who are among the least able to protect themselves.
In addition to the risk we are subjecting Texas children to, there are also negative economic consequences to consider. California has already banned the use of its taxpayer dollars for travel to Texas because of the adoption law. Other states and corporations are likely to follow. In recent years, North Carolina, Georgia, and Missouri all attempted to pass legislation legalizing discrimination against the LGBTQ community and were met with boycotts or threats of boycotts by major businesses and even sports franchises. North Carolina ultimately amended its bill to prevent the NCAA from boycotting the state. Currently, as the Texas legislature considers its “bathroom bill,” business groups have estimated that Texas “has already lost $66 million in conventions just over the prospect of the bill becoming law.” An NFL spokesman implied that such discriminatory legislation may impact where the next NFL Draft will be held, as it is currently slated to occur in Dallas.
This law hurts families, it hurts the children that need us the most, and it hurts Texas. The only thing that this law protects is the status quo of the Texas foster care and adoption system – one that is fundamentally broken. Fortunately, this law has already attracted the attention of civil rights organizations such as the ACLU, Human Rights Campaign and Lambda Legal, who claim that the law is in violation of the First Amendment, as it will, in practice, violate the Establishment Clause by endorsing a de facto state religion to the direct detriment of others. These same organizations plan to sue after the law takes effect and a plaintiff can be found. Hopefully these discriminatory laws can be struck down, and the path towards meaningful child welfare reform can be opened. Until then, between the “bathroom bill,” this ghoulish adoption legislation, and other discriminatory actions by the Texas legislature, we can count on maintaining Texas’ current national reputation. Despite our national leadership, much of the rest of the nation is moving forward, leaving Texas and the other pro-discrimination states far behind. We should join them in looking to the future: our children, progress, and a world with less hate.