Texas sues Biden administration over requirement to provide LGBTQ+ youth foster placements

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Texas Attorney General Ken Paxton is suing the federal government over its requirement that states provide LGBTQ+ affirming placement for foster care youth.

The lawsuit, filed Tuesday, states 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 that comply with the rule 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 added that opposing the rule, which requires the state to implement changes by Oct. 1, 2026, is in the best interest of foster care children.

“The Biden Administration is attempting to hold the Texas foster care system hostage to force unscientific, fringe beliefs about gender upon the entire country,” Paxton said in the lawsuit. “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.”

Under the federal rule, Texas must ensure there is designated placement available for all LGBTQ+ children in foster care. It requires 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 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, said 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 that the outcome, if Paxton were to win this lawsuit, 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, adding that the lawsuit was appalling.

While Paxton fears losing federal funding by flouting the new rules, 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 can help 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.