Tennessee AG promises legal action if Biden admin finalizes transgender foster care rule

(The Daily Signal) – Tennessee Attorney General Jonathan Skrmetti says he “absolutely” will sue President Joe Biden’s administration if the Department of Health and Human Services finalizes a rule imposing gender ideology on foster parents.

“I’ll absolutely sue here if they go forward with this rule,” Skrmetti, a Republican, told The Daily Signal in an interview Wednesday. “Absolutely. We are not shy about suing to stop federal overreach.”

HHS’ Administration for Children and Families proposed a new rule Sept. 28 on “Safe and Appropriate Foster Care Placement Requirements” and allowed Americans to submit public comments by Nov. 27. Skrmetti submitted a comment, and 16 other state attorneys general signed on to it.

The HHS rule applies the idea that any lack of “affirmation” of a child’s self-declared gender identity constitutes a form of child abuse in foster care placements.

Before agencies place a child with a foster parent, known as a “provider,” that person must “establish an environment free of hostility, mistreatment, or abuse based on the child’s LGBTQI+ status”; receive training “to be prepared with the appropriate knowledge and skills to provide for the needs of the child related to the child’s self-identified sexual orientation, gender identity, and gender expression”; and must be able to “facilitate the child’s access to age-appropriate resources, services, and activities that support their health and well-being.”

The rule requires foster care providers to grant children access to LGBTQ reading materials, opportunities to socialize with “LGBTQI+ peers,” an ability to dress according to “self-declared gender identity and expression,” and access to transgender medical interventions such as hormone therapy and surgeries.

As attorney general of Tennessee, Skrmetti flagged numerous problems with the rule in his interview with The Daily Signal.

“Any failure to affirm gender identity should be treated with the same alacrity as allegations of physical abuse,” Skrmetti said, explaining the rule. “The natural outcome of that is you’re diverting resources and the state’s not going to be in a position to provide as much of a response to actual physical abuse. It’s steering the state away from protecting kids.”

Skrmetti’s written comment outlines three major legal difficulties with the rule. He argues that the rule exceeds HHS’ legal authority as established by Congress, trampling on states’ broad authority in family law. He also argues that the rule is “arbitrary and capricious” in violation of the Administrative Procedure Act. Finally, he notes various constitutional problems with the rule, such as violating the First Amendment’s free speech and free exercise clauses.

“A lot of people who participate in foster care do so because it’s a way of living out their faith,” Skrmetti told The Daily Signal. By asking people to “adopt the language and affirm the commitments of gender ideology, the federal government’s asking them to turn away from their religious beliefs,” he said.

Skrmetti’s formal comment on the rule notes that Tennessee contracts with or maintains relationships with faith-based agencies that serve over 400 foster children in the state.

“The commitments that people need to make in terms of pronouns, in terms of acknowledging that this is an ontological change and that people are their subjective belief and that there’s no objective grounding, is inconsistent with the idea of—in the Christian tradition—biblical creation,” the state’s attorney general noted.

Skrmetti’s public comment lays out a road map for a potential lawsuit challenging the rule, a lawsuit that the attorney general told The Daily Signal he would “absolutely” file should HHS finalize it.

“Family law has always been a state issue,” he said. “The states have developed a rich body of family law dealing with issues like foster care. This is a really heavy-handed intrusion by the federal government in pursuit of a political end but at the expense of kids. So constitutionally, there’s a structural problem with a federal agency making law in an area where the states should be making the law, and where the states have been making the law.”

The attorney general also noted that Tennessee, among other states, has banned experimental medical interventions that transgender activists refer to as “gender-affirming care.”

The Tennessee Legislature, he said, “considered the potential risks and the potential benefits, and—as a number of European countries have done—they determined that the risks of allowing kids to have access to these treatments, even puberty blockers, create the potential for long-term, lifelong negative effects, and the evidence just isn’t there to support the medical benefit of making these treatments broadly available.”

Skrmetti noted that many who formerly identified as transgender now desist from that identity, becoming “detransitioners.”

Although pro-transgender activist groups have filed a lawsuit challenging Tennessee’s ban of such treatments for minors, the attorney general noted that the U.S. Court of Appeals for the 6th Circuit upheld the law.

“The Constitution doesn’t require an experimental medical exception,” Skrmetti quipped.