A few weeks back, Youth Services Insider reported on a proposal by the Biden administration that would collect dozens of new datapoints around state compliance with the Indian Child Welfare Act. They are mostly elements first added by the Obama administration in 2017 and then tossed out by Trump, at which point several tribes and advocacy groups went to court to fight for them to be reinstated.
There was another Obama-era requirement involved in that lawsuit over data in the Adoption and Foster Care Analysis and Reporting System, or AFCARS: the collection of data about the sexual orientation and gender identity of youth who enter foster care, and their parents. And it appears we could see that data re-added by the Biden administration in the near future.
Youth Services Insider has learned from a recent court filing that the Biden administration has written a notice of proposed rulemaking — the first step towards finalizing such things — is in the pipeline. According to the filing, which is part of the aforementioned lawsuit and is dated December of 2023, the proposed rule is awaiting internal clearance at the Department of Health and Human Services. Assuming it gets the green light there, the final stop before release would be a review by the Office of Management and Budget.
There is a great desire to gain a clearer picture, state by state, of how many youth in foster care identify as LGBTQ; recent research puts the estimate at around 30%. But when the Trump administration sought comment on collecting this information — which would really have to come from caseworkers asking people directly about their sexuality or identity — it rejected the data after hearing from states during the public comment period.
“It is clear that AFCARS is not the appropriate vehicle to collect this information,” Trump’s Administration for Children and Families said, in announcing its update in 2020. “It is not feasible for us to test the validity or accuracy of adding questions related to sexual orientation across all [child welfare] agencies. Additionally, it is impossible to ensure that a child’s response to a question on sexual orientation would be kept private, anonymous or confidential considering a caseworker would be gathering this information to enter into a child’s case electronic record.”
Being realistic, though, the Trump administration was not likely to include collection of data on orientation and gender even if every state said it was a terrific idea. But others expressed wariness about foster youth being asked if they are gay, perhaps for the first time in their lives, from a caseworker in a CPS proceeding.
“I would personally advise each and every youth to not answer the question, straight or not, as a protest of a lack of adherence to normalcy,” David Hall, a foster youth advocate, told Youth Services Insider at the time.
