Federal government probes Oregon in faith-based push against LGBTQ+ foster policy

The Trump administration on Tuesday opened an investigation into a contested Oregon policy of requiring prospective adoptive and foster parents to affirm their child’s gender identity, spelling uncertainty for hundreds of millions of dollars in federal funding for the state. 

The U.S Health and Human Services Department’s Administration for Children and Families notified the Oregon Department of Human Services of the move in a letter signed by Acting Assistant Secretary Andrew Gradison, who pledged in August that “federal funds will not be used to poison the minds of the next generation or advance dangerous ideological agendas.” The letter seeks from Oregon “information that can shed light on your current policies.”

The memo comes alongside an investigation into Massachusetts, which has a similar policy to a rule Oregon adopted in 2018 mandating prospective foster parents to respect, accept and support their child’s sexual orientation, gender identity, gender expression and spiritual beliefs, next to a list of other protected categories. 

Gradison on Tuesday wrote to the human services department that he had been made aware of a case in which a woman was denied the ability to provide a child a home because she would not affirm a “hypothetical child’s gender identity.” He also alleged that failure to comply with the policy has counted as evidence against families when it comes to the removal of children from their custody. 

“If true, these developments are deeply troubling, clearly contrary to the purpose of child welfare programs, and in direct violation of First Amendment protections,” Gradison wrote. “As you know, I have the responsibility of monitoring how federal funds are used and ensuring that federal law is upheld.”

LGBTQ+ advocates say such policies are necessary to protect children who are overrepresented in the foster care system, pointing to research showing the harm of conversion therapy and living in a family not accepting of one’s identity. But the requirement has long drawn the ire of conservatives who cite the nation’s history of faith-based orphanages as a solution to providing homes for the hundreds of thousands of children in American foster care. 

In Oregon, the number of foster children in the system has steadily declined from more than 7,000 in 2018 to around 4,000 currently. Since 2021, federal data shows Oregon’s human services department has received more than $200 million in annual funding from the Administration for Children and Families, which provides grants and support for efforts such as foster programs, child welfare and families needing temporary assistance. 

The state’s affirmation policy, however, came under fire in 2023 from a legal challenge by a Christian mother of five from Malheur County, Jessica Bates, backed by an Arizona-based conservative Christian legal advocacy group, the Alliance Defending Freedom. 

Bates wanted to adopt two more foster children, but was not willing to take a child to a Pride parade or to a medical appointment for hormone injections. The state and a district court agreed in denying Bates’ request to halt the policy’s application to her case, but the 9th Circuit Court of Appeals handed her a victory in late July on the grounds that the policy effectively violated the First Amendment and compelled parents to adopt a particular political viewpoint. 

Officials with the state Department of Justice have yet to announce further steps, such as an appeal of the ruling or modification of state policy. Lawyers for the state have argued in court filings that the policy is religion-neutral and seeks to justifiably regulate caregivers in their professional conduct. 

“We’re still disappointed and still thinking about the next steps,” wrote Jenny Hansson, a spokesperson from the Oregon Department of Justice, in a statement last week. 

‘All options are on the table’

Since the ruling, some pro-adoption Christian advocates have also criticized a Biden-era regulation aimed at providing an LGBTQ+ inclusive designation for foster providers who “facilitate the child’s access to age-appropriate resources, services, and activities that support their health and well-being.” The rule requires foster parents to notify children who identify as LGBTQ+ about the availability of such an option. 

In a brief interview, Gradison told the Capital Chronicle that “all options are on the table” when it comes to penalties and enforcement of the federal government’s investigation. He said the recent Oregon court case has “come up repeatedly” and that the agency will review any policy that limits faith-based participation in the child welfare system. 

“We want to roll out the red carpet and welcome faith-based families to participate in our child welfare system, to volunteer as foster parents and to adopt,” Gradison said. “Any policy that runs counter to those goals will be reexamined.”

Gradison’s request for further information from Massachusetts and Oregon coincided with another effort by his agency requiring more than 45 U.S. states and territories to remove references to “gender ideology” in materials with federally-funded sexual education programs. That in practice has included spelling out the acronym LGBTQ and defining terms like gender, gender expression and gender identity. 

Oregon Attorney General Dan Rayfield announced Friday that he would help lead a coalition of 16 states and the District of Columbia in a lawsuit challenging that directive. The suit calls the move “the latest attempt from the current administration to target and harm transgender and gender-diverse youth.”

In February, he joined Washington and Minnesota to file another federal lawsuit seeking to stop a Trump executive order restricting federal funding for medical institutions providing gender-affirming care for people under the age of 19. That month, a judge granted the states a temporary restraining order and a preliminary injunction, a move which the federal government has since appealed. 

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