LGBTQ+ Youth in Foster Care & Their Legal Protections
LGBTQ+ youth in foster care should be aware that they have civil rights that are established under the United States Constitution, as well as state and federal statutes. Rights granted by an individual foster agency’s own policies may vary.
Right to Be Safe in a Placement
If you are in foster care, you have a right to be safe in your child welfare placement. This right to safety and to be free from unreasonable and unnecessary intrusion on your physical and emotional well-being is based on the special relationship between foster children and the state, and derived from the Due Process Clause of the Fourteenth Amendment.
Accordingly, social workers, foster parents, and other providers of care all owe you a legal responsibility to protect you from physical, emotional, and sexual abuse both within your placement and at school. A caseworker or agency that arranges for a placement can be held liable in instances where it knows or should have known (or deliberately avoids learning) that a particular placement put a youth at risk. In some cases, it may constitute a professional breach of duty.
Physical and Mental Health Care
Care providers and child welfare agencies are supposed to make sure that LGBTQ+ youth receive adequate physical and mental health care. This includes receiving health care that could be unique to LGBTQ+ youth, such as medical and psychological care for a transgender youth who wants to transition. Child welfare agencies are required to provide an appropriate treatment to transgender youth who have been diagnosed with gender identity disorder.
Equal Protection
LGBTQ+ youth in state custody are entitled to equal protection under the law under the Fourteenth Amendment’s Equal Protection Clause. In addition to federal constitutional protections, some states have enacted statutes prohibiting discrimination and harassment against LGBTQ+ youth by governmental agencies, which can include child welfare agencies or institutions. For example, California has a Foster Care Nondiscrimination Act that makes it illegal to harass or discriminate against LGBTQ+ youth in the foster care system as a result of their gender identity or sexual orientation.
Child welfare providers are required to treat youth equally when determining their placements, delivering services, and responding to abuse or harassment complaints. If a foster home allows its residents to participate in clubs or sports, it must likewise allow its LGBTQ+ residents to participate in such extracurricular activities. All youth have the right to the same equal assistance as their heterosexual counterparts to achieve a sense of permanency and the least restrictive placement.
Freedom of Expression and Speech
The First Amendment gives you the constitutional right to freedom of expression and speech as an LGBTQ+ youth in the foster care system. This means you have the right to be open about your sexual orientation if you so wish, as well as the right to express your gender through the choices you make about your appearance. Providers should not require you to hide either your orientation or your identity to receive services.
What to Do If Your Rights Are Violated
You should document any instance of your rights being violated. This can consist of taking down a narrative of what happened, who was involved, what was said, and the date it happened at the time it occurred. You should make this record directly after the incident in question. Violations should be reported to your social worker and your public defender or CASA if you have them, and the documentation about your experience should be provided to them. Some states also have an ombudsperson that you can call to report rights violations.
