Child welfare agencies could be allowed to discriminate under a recent amendment to legislation pending before Congress that would threaten the rights of children in care.

(New York) – Child welfare agencies in the United States could be allowed to discriminate under a recent amendment to legislation pending before Congress. The amendment would also threaten the rights of children in care, Human Rights Watch said in a video released today.

The amendment would ban the federal government from withholding support from child welfare providers that refuse to provide services because of their religious or moral beliefs. The amendment would also apply to state and local governments that receive federal funding for child welfare services. It would make it much harder to stop agencies that receive federal funding from refusing to place children for adoption or foster care with lesbian, gay, bisexual, or transgender (LGBT) people, single or divorced people, people of a different faith, or anyone else they deem unacceptable based on the agency’s beliefs.

“The amendment is bad for prospective parents and bad for vulnerable children who need homes,” said Ryan Thoreson, an LGBT rights researcher at Human Rights Watch. “Congress should make it easier, not harder, for children to find loving, qualified families ready to take them in.”

The Department of Health and Human Services would withhold 15 percent of the federal funds allocated for a child welfare services program from state and local governments that do not comply.

The amendment is a federal version of “license to discriminate” laws in adoption and foster care that have been enacted in 10 US states. The debates around these bills indicate that they were enacted primarily as a response to marriage equality in the United States. In 2018 alone, Kansas, Oklahoma, and South Carolina have all enacted “license to discriminate” laws in adoption and foster care. Alabama, Michigan, Mississippi, North Dakota, Texas, South Dakota, and Virginia have similar laws in place.

Rep. Robert Aderholt (R-AL) proposed the amendment as part of a US$177.1 billion funding package for the federal Departments of Labor, Health and Human Services, and Education. The committee adopted the amendment on a 29-23 vote largely along party lines, with Rep. Scott Taylor (R-VA) breaking with fellow Republicans to vote against it.

On July 11, 2018, the House Appropriations Committee approved the draft funding bill on a 30-22 vote. It will now proceed to the House for a floor vote.

The “license to discriminate” laws are often referred to as religious exemptions, but the term “exemption” is misleading. The laws do not exempt religious providers from nondiscrimination laws that are already in place. In fact, none of the states that have enacted these “exemptions” have banned discrimination based on sexual orientation and gender identity. In the US, only three states and the District of Columbia prohibit discrimination based on sexual orientation and gender identity in adoption and foster care. Another five states prohibit discrimination based on sexual orientation in adoption and foster care but are silent on discrimination based on gender identity.

Human Rights Watch has documented the harm that so-called religious exemption laws can inflict on parents and children alike. In some cases, parents trying to adopt children were refused service because of their sexual orientation. Dana Dumont, who unsuccessfully tried to adopt from an agency in Michigan in 2016, said: “It was really hard. It hurt… We like to think we’ll be good moms, but it really hurt that they wouldn’t even get to know who we were. It’s this little piece – because we’re two women, they said no.”

Refusing to place children with LGBT people restricts the pool of prospective parents for vulnerable children. Currently, 23,000 children age out of foster care each year when they turn 18 without having been matched with an adoptive family. Those children face high levels of homelessness and unemployment.

In the US, LGBT people are six times more likely than heterosexual couples to provide foster care and four times more likely to adopt. In some instances, LGBT people said that refusals made them less likely to continue with the adoption and foster care process, either because they did not have alternative providers in their area or because they feared similar treatment at other agencies.

“It’s really about the kids who are trapped at these agencies, or trapped at these agencies and likely to age out of the system,” said Erin Busk-Sutton, a woman who was rejected by an agency in Michigan because of her sexual orientation. “They did ask what age group we were looking for and we said we were flexible, which should be a hallelujah moment for any agency.”

The amendment is virtually identical to the Child Welfare Provider Inclusion Act, a bill introduced in Congress in 2017. Lawmakers opposed to the idea of a “license to discriminate” introduced the Every Child Deserves a Family Act, also in 2017, which would prohibit adoption and foster care agencies that receive federal support from discriminating based on sexual orientation, gender identity, or marital status. Neither of these bills have been enacted into law.

Lawmakers in the House of Representatives should amend the appropriations bill to remove the discriminatory amendment when it reaches the floor. The Senate’s funding package passed through committee without a similar provision, and the Senate should reject any efforts to add a similar provision to their bill. Lawmakers from both chambers should reject a license to discriminate in any final appropriations package.

“By slipping this amendment into a massive spending bill, Congress is putting bigotry ahead of the needs of vulnerable children who need loving families,” Thoreson said. “At the first opportunity, Congress should strip this provision out and affirm that the best interest of the child is always paramount.”