Paxton sues federal agency over protections for LGBTQI+ foster kids

AUSTIN (KXAN) — Texas Attorney General Ken Paxton filed a lawsuit against the U.S. Department of Health and Human Services on Tuesday, claiming a new policy enhancing protections for LGBTQI+ youth in foster care "holds hostage" the Texas' foster system.

The policy change by HHS would allow kids to request information about a potential foster family was published in September 2023, but became effective in July 2024. States have until October 2026 to implement the policy.

"Every child deserves a safe and loving home," HHS Secretary Xavier Becerra said in an April 29 press release. "When any child comes into government care, they should have supports and services that meet their specific needs. By addressing the needs of LGBTQI+ children, this rule brings us one step closer to ensuring that all children have the opportunity to thrive."

According to research cited in the HHS policy, LGBTQI+ youth are overrepresented in the foster care system and "face disproportionately worse outcomes and experiences."

The policy creates criteria for deeming foster care providers as "designated placement for LGBTQI+ children." These include:

• The provider must commit to establishing an environment that supports the child’s LGBTQI+ status or identity;
• The provider must be trained with the appropriate knowledge and skills to provide for the needs of the child related to the child's self-identified sexual orientation, gender identity and gender expression; and,
• The provider must facilitate the child's access to age- or developmentally appropriate resources, services and activities that support their health and well-being.

The rule applies solely to state foster care systems, and isn't a mandate for foster care providers. It also requires states to ensure LGBTQI+ youth aren't put into a dangerous placement.

Paxton, who called sexual orientation and gender identity "contested metaphysical concepts," noted his filing that Texas works with providers who "require foster and adoptive parents to share a religious faith or agree to the provider's statement of faith."

These views may include potentially discriminatory "views on marriage, gender identity, and sexual orientation"; however, this rule doesn't require those providers to become designated placements.

"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 Paxton in a Tuesday press release. "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."

Existing law involved in the case is the Social Security Act of 1935, specifically titles IV-E and IV-B. Those sections prohibit discrimination based on "race, color, or national origin." Paxton noted that "conspicuously absent [from that law] is a prohibition on sex-based discrimination, much less that based on sexual orientation or gender identity."

All of Paxton's arguments in the lawsuit were already directly addressed by HHS in its policy, as he was one of 20 attorneys general who co-signed a letter to HHS prior to the rule's publication. HHS and Paxton both cited several other cases to support their arguments, a likely indication the case will advance beyond the Eastern District of Texas, the lawsuit's initial venue.

Paxton's lawsuit can be read below: