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Missouri Attorney General Andrew Bailey this week joined with 18 other states to oppose a proposed federal rule that aims to protect LGBTQ youth in foster care and provide them with necessary services.

The attorneys general argue in a聽聽to the U.S. Department of Health and Human Services that the proposed rule 鈥� which requires states to provide safe and appropriate placements with providers who are appropriately trained about the child鈥檚 sexual orientation or gender identity 鈥� amounts to religion-based discrimination and violates freedom of speech.

鈥淎s a foster parent myself,鈥� , 鈥淚 am deeply invested in protecting children and putting their best interests first. Biden鈥檚 proposed rule does exactly the opposite by enacting policies meant to exclude people with deeply held religious beliefs from being foster parents.鈥�

The rule is part of a package of federal proposals on foster care and is an extension of the Biden administration鈥檚 broader聽聽to protect LGBTQ kids in foster care.

鈥淏ecause of family rejection and abuse,鈥� the Biden administration聽聽LGBTQ children are 鈥渙verrepresented in foster care where they face poor outcomes, including mistreatment and discrimination because of who they are.鈥�

State agencies would be required under the rule to provide safe and appropriate foster care placements for those who are 鈥渓esbian, gay, bisexual, transgender, queer or questioning, intersex,鈥� along with children who are 鈥渘on-binary or have non-conforming gender identity or expression.鈥�

A qualifying foster parent would need to be educated on the needs of the child鈥檚 sexuality or gender identity and, if the child wishes, 鈥渇acilitate the child鈥檚 access to age-appropriate resources, services, and activities that support their health and well-being.鈥�

An example of a safe and appropriate placement is one where a provider is 鈥渆xpected to utilize the child鈥檚 identified pronouns, chosen name, and allow the child to dress in an age-appropriate manner,鈥� according to the proposal, 鈥渢hat the child believes reflects their self-identified gender identity and expression.鈥�

The attorneys general characterize that as 鈥渇orcing an individual to use another鈥檚 preferred pronouns by government fiat,鈥� in violation of the First Amendment.

Robert Fischer, director of communications for Missouri LGBTQ advocacy organization PROMO, said the freedom of religion 鈥渄oesn鈥檛 give any person the right to impose those beliefs on others, particularly to discriminate.鈥澛�

鈥淎ny state official who claims to put 鈥榗hildren鈥檚 interests first鈥� and in the same breath is willing to risk their well-being and opportunity to thrive in the name of religion 鈥� I think that speaks for itself,鈥� Fischer told The Independent.聽

The rule prohibits retaliation against children who identify as LGBTQ or are perceived as LGBTQ.

Public agencies would need to notify children about the option to request foster homes identified as 鈥渟afe and appropriate鈥� and tell them how to report concerns about their placement.

Agencies would also have to go through extra steps before placing transgender, intersex and gender non-conforming children in group care settings that are divided by sex.

The 鈥渕ajority鈥� of states, according to the proposed rule, would have to 鈥渆xpand their efforts鈥� to recruit and identify providers who could meet the needs of LGBTQ children.

Missouri guidelines

Laws and policies for protecting LGBTQ youth in foster care 鈥� relating to kids鈥� rights, supports, placement considerations, caregiver qualifications and definitions 鈥� currently vary by state.聽

According to a federal report published in January, which reviewed states鈥� laws and policies, Missouri聽聽explicitly addressing any of those five categories.

Most states 鈥� 39 states and Washington, D.C. 鈥� have 鈥渆xplicit protections from harassment or discrimination based on sexual orientation or gender identity or expression,鈥� according to a federal聽, as of January. Missouri is not one of them.聽

Twenty-two states and D.C. as of January, require agencies to provide tailored services and supports to LGBTQ youth, and eight states and D.C. offer case management and facilitate access to 鈥済ender-affirming medical, mental health and social services.鈥�

Children鈥檚 Division, the agency within the Missouri Department of Social Services that oversees foster care, offers guidance on their website for聽聽and child welfare聽聽in 鈥渟upporting LGBTQ youth in foster care,鈥� but still does not appear to have official policy on the issue.

A spokesperson for the Missouri Department of Social Services did not respond to a request for comment.聽

Those guidelines include using the child鈥檚 鈥減referred name and pronouns,鈥� along with establishing a supportive environment and providing 鈥減hysically and emotionally safe and supportive care and resources regardless of one鈥檚 personal attitudes and beliefs.鈥�

The Department of Social Services is part of the administration of Missouri Gov. Mike Parson, and the guidelines were in place the entire time Bailey was serving as Parson鈥檚 general counsel 鈥� the second highest ranking job in the governor鈥檚 office.聽聽

Bailey鈥檚 spokesperson did not immediately respond when asked whether he raised any objections to the guidelines during his tenure with Parson.

AG arguments

The 19 attorneys general contend the federal rule would 鈥渞emove faith-based providers from the foster care system鈥� because of their 鈥渞eligious beliefs on sexual orientation and gender identity.鈥�

They cite Fulton v. City of Philadelphia, a U.S. Supreme Court case that ruled a public agency couldn鈥檛 force private, religious foster agencies to allow same-sex foster parents.

The proposed rule itself also acknowledges the Supreme Court case and alleges that by not requiring religious foster-care providers to welcome LGBTQ children, it is complying with the court鈥檚 precedent.

But the attorneys general do not believe this is enough. Their letter argues the proposal violates freedom of religion because those unwilling to support LGBTQ foster children 鈥渨ould be excluded from providing care to as many as one-third of foster children ages 12-21.鈥�

鈥淚n addition to discriminating against religion, the proposed rule will harm children by limiting the number of available foster homes, harm families by risking kinship placements, and harm states by increasing costs and decreasing care options,鈥� the letter says.

The rule would 鈥渄iscourage individuals and organizations of faith from joining or continuing in foster care,鈥� the attorneys general argue, and 鈥渞educe family setting options.鈥� Without faith-based foster parents, the attorneys general say, children would be more likely to be placed in congregate settings.

They also say the rule could disqualify family members who volunteer as placement, or kinship care, if the family member does not agree to support the child鈥檚 sexuality or gender identity with age-appropriate resources, as the rule entails.