In recent years, there has been progress in raising awareness of the struggles faced by the LGBTQ+ community; however, there is still much to be done with acceptance and legal protections. While some young people find it easier to come out as their true identities and can do so in more welcoming environments than in the past, this is not the case for the entire LGBTQ+ community.
Far too often, LGBTQ+ youth come out to hostile reactions from family members and are forced from their homes, run away, or enter the foster care system.1 This is part of the reason LGBTQ+ youth are drastically overrepresented in the child welfare system. Studies show that about 30% of youth in foster care identify as LGBTQ+, and 5% identify as transgender.2 In comparison, 11% of youth not in foster care identify as LGBTQ+, and 1% identify as transgender.3
This article provides an overview of the foster care system and, specifically, the issues LGBTQ+ youth can face so Michigan attorneys can better understand and better serve their clients.
FOSTER CARE
Michigan statute defines foster care as “a child’s placement outside the child’s parental home by and under the supervision of a child placing agency, the court, or the department [of health and human services].”4 LGBTQ+ youth enter the child welfare system and foster care for many of the same reasons as other youth — their families cannot or choose not to provide a safe and stable home.5 LGBTQ+ youth may also enter the system due to rejection by their families and neglect and abuse specifically due to identifying as LGBTQ+ or questioning their sexual orientation or gender identity.6
After facing the trauma and maltreatment that forced them into foster care, LGBTQ+ youth experience further bias and discrimination at the hands of a system often ill-equipped to competently meet their needs.7 Far too many LGBTQ+ youth face harassment, hostility, and rejection once placed in a foster home.8 As a result, LGBTQ+ youth are far more likely to experience multiple disrupted placements or homelessness once in the system, compounding the trauma they faced after having been removed from their families.9 LGBTQ+ youth also face bias and discrimination when interacting with child protection and foster care workers in addition to policy and structural barriers that prevent them from receiving the services they need.10
In one study, twice as many LGBTQ+ youth reported being treated poorly in the foster care system compared to the rate reported by non-LGBTQ+ youth.11 Misconceptions or lack of education regarding LGBTQ+ youth are often the cause of harmful interactions between the youth and workers. Even well-meaning child protection and foster care workers can be the source of negative interactions. The Human Rights Campaign has many resources to assist professionals working with LGBTQ+ youth.12
The unique challenges and barriers LGBTQ+ youth face in foster care must be considered and addressed to provide adequate and inclusive care.13 With proper guidelines, child protection workers, foster workers, and advocates for LGBTQ+ youth can provide a more affirming environment for and better relationship with their clients.
MEDICAL CARE
Transgender youth in foster care face additional struggles regarding medical care. Gender-affirming care is recommended or seen as evidence-based patient care for transgender youth by several major medical and mental health organizations, including the American Academy of Pediatricians, the Endocrine Society, the American Academy of Child and Adolescent Psychiatry, the American Psychiatric Association, and the American Medical Association.14
Despite that support, state legislatures and administrations have increasingly passed — or are trying to pass — legislation or policies eliminating or endangering access to gender-affirming care for transgender youth.15 As of 2023, transgender youth in 30 states had lost or are at risk of losing access to gender-affirming care due to passed or pending legislation.16 Michigan lawmakers have introduced several bills that would potentially criminalize providing gender-affirming care to transgender youth.17
Threats and bans to gender-affirming care make access especially difficult for transgender youth in foster care, and it’s even harder in states without a clear policy on supporting and providing necessary medical care to transgender youth. Notably, none of the Michigan Department of Health and Human Services (MDHHS) foster care manuals address gender-affirming care. At most, one manual references LGBTQ+ once in a list of specific life-skills assessments for youth in care.18 However, MDHHS policies do state that “[a]ll children in foster care are entitled to health care services.”19
Additionally, an MDHHS form, Rights and Responsibilities for Children and Youth in Foster Care, includes the right to receive medical and mental health care regularly or as needed.20 While MDHHS policies do not specifically support gender-affirming care for transgender youth, federal policies and funding sources support LGBTQ+ youth with appropriate support and services, including gender-affirming care.21 Michigan attorneys can use this to ensure the youth they represent receive the proper services and support.
Attorneys advocating for gender-affirming care can also cite the federal Department of Health and Human Services Administration on Children, Youth, and Families (DHHS) memorandum guiding child welfare agencies serving LGBTQ+ youth, which outlines how appropriately serving LGBTQ+ youth is required for federal funding.22 The memorandum states that DHHS “and all leading national medical and pediatric associations confirm that providing gender-affirming medical care is in the best interest of children and youth who need it.”23 It further states that services and support should be individually tailored to the youth in care, including those related to the youth’s sexual orientation, gender identity, or gender expression.24
HOW THE LEGAL COMMUNITY CAN HELP
What does this mean for the legal community working with LGBTQ+ youth? As advocates for youth in foster care (or any legal area), we can look closely at our own inherent biases and assess whether we provide a safe and affirming environment to all of our clients. We need to take time to educate ourselves and better understand the unique challenges LGBTQ+ youth face. If you work in a firm or at a court, this may include building the competency of your fellow judges, attorneys, and staff members.25
The Human Rights Campaign has resources specifically for advocates of youth in the foster care system.26 Building this competency can help can minimize negative impacts LGBTQ+ youth face in foster care as advocates become better at identifying issues and prepare to zealously advocate for the appropriate and necessary care and supports. Additionally, attorneys should be aware of legislation that could negatively impact their LGBTQ+ youth clients.
CONCLUSION
LGBTQ+ youth are greatly overrepresented in the foster care system. Not only do they experience the trauma associated with entering the foster care system, but that trauma often continues due to hostile foster placements or foster care agencies that have not developed and implemented policies to best support the LGBTQ+ youth in their care. As legal practitioners working with LGBTQ+ youth, we can educate ourselves on the issues they face and use that knowledge to ensure they receive the understanding and advocacy they deserve and need.
The issues faced by LGBTQ+ youth in foster care are vast and multifaceted, including details beyond the scope of this article. If you are interested in learning more, please use the resources cited in this article or reach out to the author for more information.