Kentucky officials are fighting to protect LGBTQ kids in the adoption system

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A Christian conservative agency in the state is refusing to sign a contract that prohibits anti-LGBTQ discrimination.

Kentucky officials are trying to enforce LGBTQ nondiscrimination protections in foster care and the adoption system amid increasing opposition from the Christian right and Republican lawmakers in the state.

The governor and House Republicans are currently sparring over a contract for Sunrise Services for Children, which provides foster and adoption services to 120 counties and is owned by the Kentucky Baptist Convention, which is affiliated with the Southern Baptist Convention. The agency has a history of denying LGBTQ couples and firing openly LGBTQ employees.

According to the Courier Journal, Gov. Andy Beshear (D) has said the agency will not agree to the contract due to a clause prohibiting discrimination based on sexual orientation.

The specifics of that clause are unclear. However, the Courier Journal reported that the governor is requiring certain nondiscrimination protections related to the 2020 Supreme Court Bostock v. Clayton County decision, which established that LGBTQ people are protected from sex-based discrimination in employment under federal law.

"The contract contains provisions required by federal law that media reports indicate Sunrise cannot or is unwilling to sign. Federal law cannot be violated and a waiver is required for Sunrise to meet federal law," Susan Dunlap, executive director of the office of public affairs, told the American Independent Foundation.

She added, "Sunrise has the option to seek a waiver from those requirements from the federal government."

Dunlap appeared to be referring to waivers that past presidential administrations have afforded to some organizations, allowing them to ignore federal nondiscrimination rules.

She added that 71 children have already been placed in the facility's care since January.

Kentucky child welfare officials say Sunrise has until June 30 to sign the document agreeing to those provisions or the group will lose its contract with the state by July 1.

GOP lawmakers in the state, meanwhile, are pushing for the agency to get its way.

House Republicans said that a provision added to state law this year — which Beshear vetoed before GOP lamakers overrode his decision — mandates that a state contract cannot infringe on a contractor's religious freedom and that a subcontractor can carry out services the agency is unable to provide due to those religious beliefs.

Sunrise hasn't offered to use a substitute subcontractor thus far, but Dunlap said that the Kentucky Cabinet for Health and Family Services, which oversees adoptions and foster care in the state, would consider allowing it.

Chris Hartman, executive director of the Fairness Campaign, a Kentucky LGBTQ advocacy group, said the contract issue gained more attention after the Commonwealth Policy Center, a conservative anti-LGBTQ group based in Kentucky, began complaining about the enforcement of nondiscrimination protections in the contract. The center's website claims that such LGBTQ nondiscrimination laws are unnecessary and repeats false narratives that claim legal protections for transgender women and girls will endanger cisgender women and girls.

Sunrise has been in a legal battle over its anti-LGBTQ policies for years. More than 20 years ago, a worker at the organization, Alicia Pedreira, sued Sunrise after being fired by the agency, alleging she was let go because she's a lesbian. Pedreira also sued the state of Kentucky for contracting with Sunrise.

One of Pedreira's allegations against Sunrise was that it forced its views on children, and that children were punished for not attending religious services and were not allowed to practice their own religion.

The case wound its way through the courts for years before Kentucky officials, the American Civil Liberties Union, and Americans United for the Separation of Church and State, and Pedreira eventually reached an initial settlement agreement in 2007. Sunrise objected to the enforcement of that settlement agreement, however, which resulted in more legal action, before the parties reached another settlement agreement in January.

The January settlement agreement is focused broadly on stopping foster care and adoption agencies that contract with the state from proselytizing children, and includes protections against anti-LGBTQ discrimination, Shapiro said.

The Christian denomination to which the Sunrise is tied has a history of not welcoming LGBTQ people: Just this year, the Southern Baptist Convention kicked out churches that were supportive of the LGBTQ community.

Currey Cook, director of the youth in out-of-home care project and counsel at Lambda Legal, said it's harmful for vulnerable LGBTQ youth to be exposed to discriminatory messages at such a young age.

"You just can't really have a government-run system performing an in-government function that is having people involved in it who don't treat kids that they are caring for as full people," he said. "It's the nature of child development that they're sorting through questions of identities and they may be placed in say a group home run by a Baptist organization and are in an environment that is not affirming at all."

Although the Supreme Court ruled in 2020 that anti-LGBTQ discrimination is prohibited under federal law, Hartman, of the Fairness Campaign, said he's still concerned about the legal environment for protections of LGBTQ couples and LGBTQ kids in adoption or foster care because of a case pending at the Supreme Court on the issue.

The Supreme Court is expected to rule on that case, Fulton v. Philadelphia, in the coming weeks. The case worked its way up to the court after foster care parents and Catholic Social Services challenged Philadelphia's decision to stop referring children to the foster care agency after finding out that it would not accept queer couples as foster parents. The decision has major implications for LGBTQ people's ability to access services from private agencies that receive government funds.

"All of this is a little untested and that's the difficulty right now. The Philadelphia case at the Supreme Court is still pending and that will create some precedent nationwide when it comes to state contracts and LGBTQ protection," Hartman said.

He added, "I hope the court will rule in the correct direction. But at the very least right now, you know, I'm proud to see that Kentucky's governor and the executive branch is enforcing LGBTQ-inclusive discrimination protections in foster and adoptive care."

Published with permission of The American Independent Foundation.