TX HB 3859: Codifying Religious Discrimination?

Two days ago Texas passed HB 3859, “relating to protection of the rights of conscience for child welfare services providers.” This bill is being panned as “patently discriminatory” bu the Human Rights Campaign and otehr civil rights groups. Some of the relevant text includes:

Sec. 45.001.  LEGISLATIVE INTENT. It is the intent of the legislature to maintain a diverse network of service providers that offer a range of foster capacity options and that accommodate children from various cultural backgrounds.  To that end, the legislature expects reasonable accommodations to be made by the state to allow people of diverse backgrounds and beliefs to be a part of meeting the needs of children in the child welfare system. Decisions regarding the placement of children shall continue to be made in the best interest of the child, including which person is best able to provide for the child’s physical, psychological, and emotional needs and development.

As introductory language, this sounds benign. Additional clarification follows in section 45.002, “DEFINITIONS.”

(4)  “Child welfare services provider” means a person, other than a governmental entity, that provides, seeks to provide, or applies for or receives a contract, subcontract, grant, subgrant, or cooperative agreement to provide child welfare services.  The person is not required to be engaged exclusively in child welfare services to be a child welfare services provider.

We now know specifically who this bill means to protect from any adverse actions that might impact diversity. So what are the specific protections?

Sec. 45.004.  CHILD WELFARE SERVICES PROVIDERS PROTECTED.  A governmental entity or any person that contracts with this state or operates under governmental authority to refer or place children for child welfare services may not discriminate or take any adverse action against a child welfare services provider on the basis, wholly or partly, that the provider:

(1)  has declined or will decline to provide, facilitate, or refer a person for child welfare services that conflict with, or under circumstances that conflict with, the provider’s sincerely held religious beliefs;

(2)  provides or intends to provide children under the control, care, guardianship, or direction of the provider with a religious education, including through placing the children in a private or parochial school or otherwise providing a religious education in accordance with the laws of this state;

(3)  has declined or will decline to provide, facilitate, or refer a person for abortions, contraceptives, or drugs, devices, or services that are potentially abortion-inducing; or

(4)  refuses to enter into a contract that is inconsistent with or would in any way interfere with or force a provider to surrender the rights created by this chapter.

Providers’ religious beliefs may include not providing necessary treatment, or possibly providing unnecessary religious education, according to the Human Rights Campaign. They assert:

HB 3859 enshrines discrimination into Texas law by allowing discrimination in two directions: against prospective parents, and against children in their care. State contractors who provide child welfare services can discriminate against qualified same-sex couples seeking to care for a child in need — including LGBTQ couples, interfaith couples, single parents, married couples in which one prospective parent has previously been divorced, or other parents to whom the agency has a religious objection.

HB 3859 allows the agencies tasked by the state with caring for these children to put discrimination over the best interests of the child – they are allowed to refuse to provide services that children in care may desperately need, or subject children to care that is contrary to a child’s best interest. For example, this will allow an agency responsible for caring for LGBTQ youth to refer that child to a provider of the abusive, discredited practice of so-called “conversion therapy,” if that was consistent with the agency’s religious beliefs, without the state being able to intervene, cancel the contract, or withdraw support in other ways.

Research consistently shows that LGBTQ youth are overrepresented in the foster care system, as many have been rejected by their families of origin because of their LGBTQ status, and are especially vulnerable to discrimination and mistreatment while in foster care. HB 3859 will only exacerbate the challenges faced by LGBTQ young people.

These outcomes certainly seem plausible based on the language of the bill, and Texas is not well known historically for religious tolerance or acceptance of diversity in orientation. (Not saying there aren’t some places in Texas that are diverse and tolerant, just that those places are not the majority.) I would expect this legislation to be challenged at the first opportunity.