Under the new rule, Title IV-E and Title IV-B agencies would be forced to ensure that foster-care placement “affirms” a child’s self-professed “LGBTQI+” identity. State agencies that do not comply risk losing federal funding. Further, the rule exacerbates the impact of a growing shortage of foster care providers by compelling States to find providers that support “gender identity” ideology.
Moreover, HHS attempted to force this upon the States without any statutory authority to do so. Title IV does not include any requirement for special accommodations for “sexual orientation” or “gender identity,” and, as such, the arbitrary and capricious rule violates the Administrative Procedure Act. The rule also violates the U.S. Constitution’s Spending Clause, as States such as Texas were not provided fair notice that federal funds for foster care programs might be withheld to compel compliance with experimental gender theory.
“The Biden Administration is attempting to hold the Texas foster care system hostage to force unscientific, fringe beliefs about gender upon the entire country,” said Attorney General Paxton. “The new rule directly violates federal law and threatens to undermine our vital foster care programs, putting children who need safe, loving homes at risk.”
