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A coalition of pro-LGBTQ and American Indian advocacy organizations has sued the Trump administration for rescinding requirements that child welfare agencies collect and report data about American Indian children and LGBTQ youth and families in the foster care system.
Congress currently requires the Administration for Children and Families, a division of the U.S. Department of Health and Human Services, to collect and maintain information about the demographics and status of youth in the nation’s child welfare systems. That data is collected and maintained in the Adoption and Foster Care Analysis and Reporting System, or AFCARS.
In 2016, under the Obama administration, ACF updated the AFCARS system with a new rule to capture the demographic characteristics of historically marginalized groups.
Specifically, the 2016 rule mandated how child welfare agencies track American Indian children in the foster care system, including data about their tribal membership and affiliation, in a way that complies with the Indian Child Welfare Act.
Under that act, American Indian foster children are supposed to be placed with relatives or fellow tribal members whenever possible — a requirement with which many child placement agencies have failed to comply.
The rule also mandated reporting of voluntarily-disclosed information of the sexual orientation of foster youth aged 14 and older, and of foster and adoptive parents and legal guardians, in an effort to track the outcomes of LGBTQ youth and youth raised in households headed by same-sex couples.
But in May, the Trump administration announced it would eliminate requirements that child welfare agencies report such data.
In response, a coalition of groups — including two federally recognized Indian tribes, a California-based coalition of tribes, a group representing foster youth and foster care alumni, and three pro-LGBTQ organizations that work with LGBTQ and two-spirit youth in foster care — filed a federal lawsuit challenging the administration’s rescission of the reporting rule.
Without the data, the groups argue, the government has compromised the well-being of American Indian and LGBTQ youth — who are over-represented in the foster care system — by making it harder to identify or track trends identify problems affecting youth in the system, and direct specific resources to help improve their lives and avoid negative outcomes, such as involvement in the criminal justice system, homelessness, addiction problems, or even abuse.
In their lawsuit, which was filed on Thursday in the U.S. District Court for the Northern District of California, the plaintiffs claim that HHS and ACF acted unlawfully when they eliminated the reporting requirements.
Specifically, the lawsuit alleges that the agencies violated the Administrative Procedure Act, which governs the process by which federal agencies are allowed to craft regulations, in multiple ways: ignoring the lost benefits of the collection of data on these marginalized groups; failing to provide a sufficient reason or explanation for rescinding the rule; ignoring congressionally-mandate requirements that they collect data on the foster care youth; and refusing to consider alternative arguments against rescinding the requirements.
“As current and former foster youth, we know all too well the hardships of being parented by government systems that often struggle to meet children’s most basic needs,” Angel Gonzales, the board president of Facing Foster Care in Alaska, one of the plaintiffs in the lawsuit, said in a statement.
“Alaska Native, American Indian, and LGBTQ+ youth are overrepresented in child welfare systems across the country,” Gonzales added. “Our brothers and sisters of foster care deserve to be counted so that the data can drive solutions and end the pipeline to homelessness, incarceration, and intergenerational trauma.”
“True Colors, Inc. works with LGBTQ+ children and youth navigating the foster system, and we see first-hand their experience with bullying, harassment, and a lack of adequate resources from those entrusted with their care. LGBTQ+ youth are overrepresented in the system and are often navigating structures that are ill-equipped to respond to them in culturally competent ways,” Patrick Comerford, the executive director of True Colors, said in a statement. “AFCARS data collection is vital in making sure these young people are not invisible and is a critical part of making sure they have a system that can meet their specific needs.”
The plaintiffs are represented by Democracy Forward, Lambda Legal, and the Michigan State University College of Law’s Indian Law Clinic.
“We’ve reached the tragic point where youth in foster care have to sue the agency tasked to protect them or fear erasure of their identities by the Trump Administration,” M. Currey Cook, counsel and director of the Youth-in-Home Care Project at Lambda Legal, said in a statement.
“Stripping away data for LGBTQ+ and American Indian and Alaska Native youth impacts two populations who are over-represented in foster care and face some of the worst outcomes, including high rates of homelessness and trafficking. If the government does not collect sexual orientation and gender identity data, it can’t improve outcomes for LGBTQ+ youth, including tracking and eliminating disparities by race and ethnicity. Instead of embracing an opportunity for positive change, HHS turned its back on children and families.”
The lawsuit comes on the heels of a congressional report issued last week finding that the Trump administration’s decision to grant a religious exemption waiver to South Carolina child placement agencies funneled money to organizations that refuse to place children with LGBTQ couples.
Catholic Social Services is currently suing the city of Philadelphia demanding a similar exemption in a case that is slated to be heard by the U.S. Supreme Court later this fall.
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