Suit Aims to Block Trump Halting Foster Care Data
Coalition opposes administration erasure of Native American, LGBTQ youth information
BY MATT TRACY
Several Native American tribes, foster
care groups, and a slate of organizations
that serve LGBTQ and two-spirit
Native American youth are fi ling a
lawsuit against the Trump administration in
response to the White House’s rule ending data
collection of several vulnerable groups in foster
care.
The rule, fi rst proposed last year and fi nalized
in May, was rolled out with the goal of
downsizing data collection efforts in foster care
by one-third overall. But it was revealed that
data pertaining to queer and Native American
youth would be wiped out entirely.
The rule specifi cally takes aim at an Obamaera
rule stemming from 2016 when the Administration
for Children and Families (ACF)
revised the Adoption and Foster Care Analysis
and Reporting System (AFCARS) system to require
the collection of demographic information
and experiences of individuals in Native American
tribes, including foster children, as well as
LGBTQ youth in foster care. That Obama-era
rule also called for reports on the voluntary disclosure
of sexual orientation data pertaining to
foster youth who are 14 or older and to foster
parents.
The new Trump administration’s rule immediately
sparked an intense wave of backlash
from advocates and members of Congress who
warned that stopping data collection would
leave folks in the dark about how to best care
➤ GAVIN GRIMM, from p.18
treated as a boy, regardless of his sex as identifi
ed at birth.
The panel majority accepted Grimm’s argument
that the school’s policy subjected him to
discriminatory stigma — long recognized by
federal courts as the basis for a constitutional
equal protection claim — as well as imposing
physical disadvantages. As a boy, he would
not be welcome in the girls’ bathroom, and the
nurse’s offi ce was too far from the classrooms
for a break between classes. As a result, he
avoided using the bathroom at school, leading
to urinary tract infections.
Floyd’s opinion did not rely on the Bostock
ruling for its constitutional analysis, instead
noting that many circuit courts of appeals have
accepted the argument that government policies
discriminating because of gender identity
are subject to heightened scrutiny — and so are
viewed as presumptively unconstitutional unless
they substantially advance an important
FFCALASKA.ORG
Angel Gonzales, president of the board of Facing Foster Care in
Alaska, warned that data collection for queer youth in Alaska is
already inadequate.
for marginalized youth in the foster care system.
The coalition’s lawsuit in the US District
Court for the Northern District of California alleges
that the rule pushed forward by the federal
Department of Health and Human Services
and ACF violates the law in rolling back the
data collection requirements.
The plaintiffs, which include the Cherokee
Nation, the Yurok Tribe, and the nonprofi t Facing
Foster Care in Alaska, are represented by
Lambda Legal, Democracy Forward, and the
Michigan State University College of Law’s Indian
Law Clinic.
“The Trump administration undid more than
state interest. The majority did not think that
excluding Grimm advanced an important state
interest, especially after the school board altered
the bathrooms to afford more privacy, an
obvious solution to the privacy issues the board
claimed to be addressing in barring him from
the boys’ bathrooms.
Turning to the statutory claim, Floyd pointed
out that judicial interpretation of Title IX has
always been informed by the Supreme Court’s
Title VII rulings on sex discrimination, so the
Bostock decision carried heavy weight. The
school board lacked a suffi cient justifi cation
under Title IX to impose unequal access to
school facilities on Grimm.
Gloucester County might do well to read the
writing on the wall and concede defeat. Or it
can petition the Fourth Circuit for en banc review
by its full 15-judge bench or seek Supreme
Court review a second time. The Fourth Circuit
is one of the few remaining in the nation with a
majority of Democratic appointees, so seeking
en bancreview, which requires that a majority
YOUTH
a decade of hard work when it unlawfully prevented
the collection of critical data about how
American Indian and Alaska Native children
and LGBTQ+ youth fare in the nation’s foster
care system,” the coalition of groups said in a
written statement. “The data is critical to improving
outcomes for American Indian and
Alaska Native children and LGBTQ+ youth.
The administration’s unlawful actions will keep
many of America’s most vulnerable foster children
and youth in the shadows.”
Statistics show that Native American youth
are vastly overrepresented in the foster care
system in certain parts of the country.
Alaskan natives, for example, represent
a whopping 60 percent of the children in the
state’s foster care system despite making up a
fraction of the state’s population, according to
Angel Gonzales, who was previously in Alaska’s
foster care system and is president of the board
of Facing Foster Care in Alaska.
“There is no good data for our LGBTQ community,
which is very unfortunate,” Gonzales
said during a Zoom call with reporters on August
27. “I have seen quite a few of our young
people becoming homeless because they come
out to their families…”
The other plaintiffs in the case are the California
Tribal Families Coalition, the Ark of
Freedom Alliance, which combats youth expoitation
and human traffi cking, the queer youth
advocacy group True Colors, Inc., and the Ruth
Ellis Center, which serves LGBTQ youth and
young adults in the Detroit area.
of the active judges vote to review, would be a
long shot.
On the other hand, Justice Neil Gorsuch’s
decision for the Supreme Court in Bostock refrained
from deciding — since it wasn’t an issue
in that case — whether excluding transgender
people from bathroom facilities violates sex discrimination
laws, and this case would provide
a vehicle for addressing that issue. It takes only
four votes on the Supreme Court to grant review,
so there may yet be another chapter in the
saga of Grimm’s legal battle.
It is also possible that the St. Johns County
School District in Florida, which lost in the 11th
Circuit in a virtually identical ruling, might also
seek Supreme Court review, so one way or another
this issue may get on to the high court’s
docket this term or next.
ACLU attorney Joshua Block has been representing
Grimm all along, but the case was
argued in May by cooperating attorney David
Patrick Corrigan from the Richmond fi rm of
Harman Claytor Corrigan & Wellman.
GayCityNews.com | September 10 - September 23, 2020 19
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