Kentucky attorney general sues over LGBTQ+ inclusive federal foster care rules
Kentucky’s top law enforcement officer has sued the federal government over Biden Administration-era rule changes requiring all foster and adoption agencies to provide greater supports for LGBTQ+ youth in their care, including by placing them in supportive and affirming environments.
Republican Attorney General Russell Coleman on Friday sued outgoing U.S. Department of Health and Human Services’ Secretary Xavier Becerra over the mandate that all state foster and adoption agencies ‘“ensure’ they have providers who will support a child’s purported ‘lesbian, gay, bisexual, transgender, queer or questioning, intersex . . . non-binary, two-spirit or non-conforming gender identity or expression.’”
The new standard also requires states to “offer to place children according to their asserted gender identity or status rather than sex.”
Coleman on Friday called passage of the new rules a move “completely untethered from congressional authorization and ignoring the constitutional restraints of federal power,” and asked for a judge with the U.S. District Court for the Eastern District of Kentucky to intervene.
In short, “HHS and the secretary have no authority to make gender identity or status dispositive for foster care placement,” he said.
The updated guidelines were set under former President Joe Biden, and it’s unclear if they will remain in place under President Donald Trump. Trump issued a flurry of executive orders on his first day in office Monday, including rolling back protections set by Biden that shield LGBTQ+ individuals from discrimination.
During his inaugural address Monday, Trump vowed to sign an executive order — which he did later that day — discounting the legitimacy of gender identity by declaring there are only “two sexes: male and female.”
“In November, the American people rejected then-President Biden’s assaults on people of faith,” Coleman’s office said in a statement Tuesday. “Now that he’s out of office, it’s time for his outrageous policies — including those that make it harder for religious-based organizations and families of faith to care for children in foster care — to go with him.”
Coleman added that his office is “eager to work with President Trump to overturn the previous administration’s rule and remove unnecessary strains from our foster care system.”
The U.S. Department for Health and Human Services’ “Safe and Appropriate Foster Care Requirements,” first proposed in September 2023, asks that LGBTQ+ youth be given the option to be placed with foster care providers “trained to meet their specific needs related to their sexual orientation and gender identity, and who would facilitate access to age-appropriate services to support their health and well-being,” according to the wording of the rules.
The action is the fruition of an informal rebuke Coleman issued in May 2024, soon after the new federal guidelines were proposed. At the time, Coleman said the new rules would “penalize” and “disfavor” religiously-affiliated foster care and adoption agencies, like the Kentucky Baptist-run Sunrise Children’s Services. Such rules are “burdensome,” he said, because they will make it “harder for religious-based organizations and families of faith to care for children.”
Sunrise is operated by Kentucky Baptist Convention and is contracted by the Kentucky Cabinet for Health and Family Services to provide foster and adoption care. The organization made waves in 2021 when it refused initially to sign its state contract because of language that prohibited discrimination against LGBTQ individuals.
Sunrise eventually signed the agreement after Kentucky agreed to slash “sexual orientation” and “gender identity” from the contract that also banned discrimination based on race, religion, sex, age or disability. The executive director of the Kentucky Baptist Convention at the time told the Courier Journal that it came down to a “deeply-held religious conviction” that homosexuality is a sin, which is why the organization doesn’t place youth with same-sex foster or adoptive parents.
When Coleman first signaled last year that his office may take legal action, Dale Suttles, CEO of Sunrise, called the Biden rule “big and bad government at its worst.”
Coleman agrees with this argument, saying HHS’ definition of retaliation — or to not be in compliance with the new rules — “induces, if not requires states to violate religious freedom.”
“This means that an individual foster care provider who, because of sincerely held religious beliefs, cannot affirm a child’s purported gender identity or status and therefore, for example, does not permit the child to attend a ‘Pride Parade,’ would be found to have retaliated against the child under the placement mandate,” Coleman said.
Under the new federal rules, not every foster care agency would need to meet these specific, tailored needs for LGBTQ youth, nor would an organization that can’t meet those needs be penalized. But supportive placements — and specially trained staff — must be made available to that population as an option, since that LGBTQ youth experiences “significant disparities in the child welfare system,” the rules say.
Additionally, they require a LGBTQ foster child’s placement be free from “harassment, mistreatment, abuse” and retaliation, “regardless of whether the child was in a specially designated ‘Safe and Appropriate’ placement.”
As Coleman notes in his legal filing, attempts to “undermine, suppress, change, or stigmatize a child’s sexual orientation or gender identity or expression through conversion therapy are defined in the final rule as prohibited retaliation.”
“HHS also explicitly notes that restricting access to ‘supportive peers,’ or peers who support the child’s asserted sexual orientation or gender identity or status” also constitutes as retaliation, he said.
In arguing on Friday the new rules be blocked in Kentucky, Coleman said the commonwealth “can easily show it will be harmed by the costs of the final rule.”
In each of the last five years across the state, more than 8,000 children have been under the care of a foster care agency, Coleman explained. “As of January 2024 there were 4,624 foster homes across the state, and of those, more than half — 2,638 — were homes utilizing private-child-placing strategies. PCP homes have made up more than 55% of Kentucky’s foster care homes over the last five years.”
PCP strategies are rules set by the General Assembly in state statute and followed by the Cabinet. Adherence to the new federal guidelines means Kentucky will have to “forgo implementation of its laws and regulations,” Coleman said. Violating the new rule risks a loss of federal funding, which in Kentucky amounts to “more than half of their budget for foster care.”
Nationally, to comply with the standards, states will incur an estimated $35 million in costs between 2027 and 2029, Coleman said. Part of that cost will come from the “likely need to increase the recruitment of providers who are qualified to provide safe and appropriate affirming care.”
All foster care and adoption agencies must meet the new placement mandates by Oct. 1, 2026.
Herald-Leader writer Taylor Six contributed to this report.
This story was originally published January 21, 2025 at 12:02 PM.
