A pair of Christian couples in Massachusetts are suing the state, saying their rights were violated when they lost their foster licenses over their views on gender and sexuality.
The couples — Audrey and Nick Jones, in Worcester County, and Greg and Marianelly Schrock, in Middlesex County — argue their First Amendment rights to freedom of religious exercise and freedom of speech are being violated in the lawsuit filed in federal court this month.
Their argument hinges on a state requirement that foster parents sign an agreement that they will “support, respect, and affirm the foster child’s sexual orientation, gender identity, and gender expression” — and that refusing to do so forced them out of the foster parent role.
The case comes as Massachusetts faces a dire shortage of families willing to serve as foster parents. The Joneses and Schrocks would provide a loving home for any child — including a gay or transgender child, their attorney told GBH News.
But, as Audrey Jones told their licensing agent, she and her husband “cannot support a child dating someone of the same sex or affirm a child who wanted to use different pronouns.” They argue the policy is unconstitutionally restrictive and ultimately harms foster children who have no place to go.
LGBTQ+ advocates told GBH News they were saddened and outraged by the case and worry it will test the strength of anti-discrimination laws. They specifically point to the vulnerability of LGBTQ+ youth in foster care: Nationally, 40% have run away or have been kicked out of their homes for being LGBTQ+, and LGBTQ+ youth who are in foster care are three times more likely to attempt suicide than LGBTQ+ youth who are not, according to the Trevor Project.
“These are already traumatized kids facing additional trauma because of their identity — and this isn’t about the foster parents,” said Tanya Neslusan, the executive director of MassEquality. “When you are parenting children, it is never about the parents — it is about the children and making sure that their needs are prioritized. And if you can’t in good conscience do that, then that’s really what it comes down to.”
This lawsuit follows a similar case filed two years ago by Mike and Kitty Burke, a Catholic couple from Southampton. They sued after being denied a foster care license because they would “not be affirming to a child who identified as LGBTQIA,” per court filings. Attorneys for the state recently asked the court to dismiss that case since the Burkes have since moved to Florida.
“Because it’s a state-run system, the state has to have some leeway to make some decisions about ... what it means to keep a child emotionally safe and healthy while that child is in state custody.”Josh Gupta-Kagan, Columbia Law School
Mallory Sleight, an attorney on the Jones-Schrock case who works for the Alliance Defending Freedom’s parental rights team, says her organization has been contacted by six Massachusetts families about this issue. The Joneses and Schrocks, she says, previously served as foster parents without issue and want their licenses back. But she said requiring them to sign the agreement violates their religious beliefs.
“DCF has said that these families are required to agree ahead of time that they would use any chosen pronouns,” she said. “And by using chosen pronouns, you are agreeing that a boy is in fact a girl, or a girl is in a fact a boy. And biblically, these families simply do not hold that belief. And by speaking that belief, especially to a child, they are violating their own religious convictions.”
Legal experts say this case follows more than a century of legal battles and legislation about the role religion can play in the foster care system — and, in the last few years, how that overlaps with LGBTQ+ foster children. Experts agreed that the U.S. Supreme Court’s recent openness to religious discrimination lawsuits could give the plaintiffs reason to hope.
In the lawsuit, the families suggested a less restrictive policy that would give the Department of Children and Families discretion about which children are placed with which parents. Department leadership could choose to not revoke foster parents’ licenses and instead just give social workers leeway to not place gender non-conforming children with such parents — a stance the Boston Globe Editorial board endorsed last week.
“If the department wants to, the department can specifically match them with children that they think would be good fits for their homes. So that could be religious children — because there are religious foster children who would love to be with religious foster parents who they could go to church with and be in Sunday school and read the Bible with,” Sleight told GBH News.
“By using chosen pronouns, you are agreeing that a boy is in fact a girl, or a girl is in a fact a boy. And biblically, these families simply do not hold that belief.”Mallory Sleight, an attorney representing the Joneses and Schrocks
Still, some experts doubt the merits of the case. They say the rights of the legal parent or guardian and the child’s right to health and safety will outweigh the rights of a foster parent acting as a temporary caretaker.
“This is not like going to speak in the town square,” said Josh Gupta-Kagan, a Columbia Law School professor who focuses on children and families issues. “Because it’s a state-run system, the state has to have some leeway to make some decisions about ... what it means to keep a child emotionally safe and healthy while that child is in state custody.”
And advocates say they want LGBTQ+ children to feel safe and comfortable in their foster homes.
“We would hope that the goal of every foster parent coming into the system to help ... we hope that everyone comes in thinking: ‘I will affirm every child no matter their race, their gender identity, their sexual and their sexual orientation,’” said Shaplaie Brooks, executive director of the Massachusetts Commission on LGBTQ Youth.
Brooks said the Department of Children and Families has been “moving the needle” on helping LGBTQ+ youth in the foster care system — but says that big steps still need to be taken. Her commission has been helping support couples fostering LGBTQ+ children, connecting them with gender-affirming care resources.
“Especially as of late ... DCF has tried to center the needs of each child as best as possible in their care,” she said.
In fact, Gupta-Kagan imagines a hypothetical lawsuit if the policy didn’t exist and the state allowed foster parents to not affirm or support LGBTQ+ youth — a lawsuit “that the state is not fulfilling its obligation to keep children in its custody safe.”
A spokesperson for DCF told GBH News it does not comment on pending litigation. State attorneys have not responded to the complaint in court, and an initial hearing hasn’t been set yet in the case.
