Texas doesn’t have to place LGBTQ foster youth in homes that affirm their identities, court rules

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A federal judge has blocked a Biden-era rule that required states to provide LGBTQ+ affirming placement for foster care youth, ruling in Texas’ favor in a lawsuit brought by Attorney General Ken Paxton.

The lawsuit filed in September, argued that the rule issued by the U.S. Health and Human Services would exacerbate the foster care provider shortage by compelling states to recruit new providers while costing Texas money. If it fails to implement the requirements, Texas could lose as much as $432 million in annual federal funding for its foster care program. Paxton also argued that the rule violated Texas law, which forbids minors from receiving certain gender-affirming health care treatments.

U.S. District Judge Jeremy Kernodle, appointed to the bench by President Donald Trump in 2018, agreed, ruling that the federal requirement that foster children receive “safe and proper care” can not be read as requiring gender-affirming care.

“Even today it is very much disputed that the ‘safe and proper care’ of a child would include affirming the child’s ‘gender identity’ when it’s inconsistent with the child’s biological sex,” Kernodle wrote, citing a journal article written by two conservative legal scholars who oppose trans rights. “At the very least, the new and experimental nature of ‘gender affirming care’ on children demonstrates that it was not part of the original understanding of ‘safe and proper care,’” Kernolde added.

Kernodle also agreed that the rule would likely clash with Texas’ ban on gender-affirming care for minors, and run afoul of the Major Questions Doctrine, a legal premise that says issues of significant importance should be left to Congress, not the courts. Kernodle stayed the rule not just for Texas, but for the whole country. The Trump administration is unlikely to appeal the ruling, meaning the rule will likely remain on ice.

“This is a tremendous victory for Texas families, parental rights, and the rule of law,” Paxton said. “The Biden Administration had no authority to force radical gender ideology onto vulnerable children and demand compliance from foster care providers under threat of lost funding.”

Under the federal rule, states would have had to ensure there is designated placement available for all LGBTQ+ children in foster care. It required foster care providers to give “substantial weight to the child’s expressed concerns or requests when determining the child’s best interest.” Additionally, foster care providers would have had to provide clinically appropriate mental and behavioral health support to LGBTQ+ youth.

Will Francis, executive director of the Texas and Louisiana chapters of the National Association of Social Workers, told The Texas Tribune in September that Paxton’s lawsuit is a long culmination of Texas moving away from the best interest of the child to the best interest of the provider.

“For the Attorney General to make such a political statement really runs counter to what we know is best for every kid,” said Francis. “We should be providing support, not erasure.”

While the Texas Department of Family and Protective Services, which oversees the foster care system, does not track such data, some advocates estimate about 30% of foster children identify as LGBTQ+.

Embroiled in a separate decade-long lawsuit, the Texas foster care system has been riddled with problems, such as findings of overmedication, neglect and abuse among children placed in the state’s care. Foster care children are already at increased risks of homelessness and human trafficking, with LGBTQ+ foster children facing these problems more severely. LGBTQ+ foster youth are more likely to live in group home settings; frequently move between placements; report being hospitalized for emotional and physical reasons, including suicidal ideations; and face mistreatment from peers and staff.

Jacky Varela, an attorney who is frequently appointed by Child Protective Services to represent foster youth, said the lawsuit was appalling and could lead to higher rates of behavioral issues and suicide.

“We are going to get into a situation where people are empowered to discriminate against these kids,” Varela said in September.

Advocates say not providing accepting environments for LGBTQ+ foster youth could also cost Texas taxpayers. Advocates say if such youth don’t have proper placements, the state could turn to unlicensed facilities, such as office buildings and hotels, to house them. Using such placements has cost the Texas Department of Family and Protective Services more than $250 million between 2021 and 2023.

“How much money is this lawsuit going to be costing the citizens of Texas?” Varela said.

Improper placements increase mental health costs for these youth, which implementing the federal rule could have helped curb, Catelyn Devlin, the chair of the Texas LGBTQ Foster Youth Workgroup, said.

Andrea Segovia, senior field and policy adviser for the Transgender Education Network of Texas, said Paxton is trying to make sure transgender Texans “don’t survive in their state,” noting other lawsuits such as one in August blocking federal protections for transgender workers in the state.

She urges people in the foster care system to keep helping LGBTQ+ youth.

“If you are someone who supports LGBTQ youth, keep supporting LGBTQ youth,” she said. “Don’t stop loving and protecting some of the most marginalized kids in our state.”

For mental health support for LGBTQ youth, call the Trevor Project’s 24/7 toll-free support line at 866-488-7386. For trans peer support, call the Trans Lifeline at 877-565-8860. You can also reach a trained crisis counselor through the Suicide and Crisis Lifeline by calling or texting 988.