Lesbian Couple Denied Request to Foster Migrant Children

Bryn Esplin and Fatma Marouf knew early into their marriage that they wanted a family. But when early attempts with in vitro fertilization were unsuccessful, the couple started exploring serving as foster parents, opening their home to child refugees held in increasingly draconian conditions by the Department of Health and Human Services (HHS).

“We were really open in terms of taking in a sibling set, in terms of age of the child—we didn’t really have any specific thing we were looking for,” Marouf told The Daily Beast. “We just felt like we could provide a good home, and there were hundreds of kids needing it in this area, so it just seemed like something we could do.”

When they approached a local child-welfare organization contracted by the federal government to help find homes for some of the thousands of migrant and refugee children in the department’s care, however, Esplin and Marouf were told that they didn’t qualify—not because they couldn’t provide a loving home for a child fleeing oppression abroad, but because, as a same-sex couple, their lifestyle doesn’t “mirror the Holy Family.”

Now, fresh off an early legal victory against HHS and the U.S. Conference of Catholic Bishops (USCCB), plaintiffs Esplin and Marouf hope that their case may help remove bureaucratic barriers to full equality for LGBT families, and for vulnerable children in need of a home.

“Even though this case is about sexual orientation, it certainly raises questions,” Marouf said. “Would we really allow the government to contract with an organization, say, that refuses to place children with African-American couples or Hispanic couples? I think that most people would think that shouldn’t be allowed.”

Esplin, a Utah native, and Marouf, born in California to parents who emigrated from Egypt and Turkey, met five years ago, and married after the 10th Circuit Court of Appeals upheld a ruling that struck down Utah’s ban on same-sex marriage. Shortly after moving to Fort Worth, Texas, where they are professors at Texas A&M University, they decided to start a family.

The couple tried assisted reproductive technology without success, and had begun looking into fostering when Marouf, through her role as director of the immigrant-rights clinic at the Texas A&M’s law school, heard about an HHS-funded Catholic Charities program that helps place child refugees and asylees in foster homes.

“They showed us where the kids were living in their offices, and it just looked very sad,” Marouf said. “I thought, this could be a good opportunity for us to try to foster a child, and it fit really well, it seemed, with my interests in immigration and refugee law, and my experience… I’m familiar with the culture and religion of some of those places, and we just thought it would be a good fit for us.”

But when Esplin and Marouf took an initial telephone meeting to discuss the program with Catholic Charities of Fort Worth, the local USCCB affiliate that helped place unaccompanied refugee children in homes, “We were told we didn’t qualify because we don’t ‘mirror the Holy Family,’” Marouf said.

In shock, Marouf asked about the lesbian, gay, bisexual and transgender children in the charity’s care. After all, LGBT minors can and do seek asylum and refugee status in the United States, she reasoned, so wouldn’t placing them with a family that mirrored their own identity make sense? The Catholic Charities official responded that of the roughly 700 children served by its foster program, none were LGBT, a statement that Esplin and Marouf’s attorney called “astounding.”

“They said, ‘There are no LGBT children in our care,’” Jamie Gliksberg, a senior attorney with LGBT nonprofit Lambda Legal, which is handling the case, told The Daily Beast. “Which, obviously, we know isn’t correct, and which means that the LGBT kids in the program are being discriminated against on a daily basis.”

Nearly one in five kids in foster care are LGBTQ, according to research funded by HHS’ Administration for Children and Families, a population that is more likely to have experienced hospitalization, homelessness, and involvement with the criminal-justice system than straight and cisgender kids in foster care. Under Secretary of Health and Human Services Alex Azar, who is named in the lawsuit, the department has proposed ending the collection of this data.

Catholic Charities of Fort Worth and the U.S. Conference of Catholic Bishops did not return requests for comment about the conversation with Esplin and Marouf, or about its policies regarding same-sex foster parents more generally. A page on USCCB’s website, entitled “Frequently Asked Questions About the Defense of Marriage,” states that while “placing a child in the care of two men or two women may be well-intentioned, it ultimately deprives the child of either a mother or a father.”

The Trump administration has moved to explicitly allow child-welfare organizations that receive federal taxpayer dollars to discriminate against potential parents along these lines. In January, HHS granted South Carolina Gov. Henry McMaster’s request that such agencies be exempted from federal rules barring discrimination, allowing one such agency to only work with potential parents who are “a born-again believer in the Lord Jesus Christ,” “an active participant in, and in good standing with, a Protestant church,” and “have a lifestyle that is free of sexual sin (to include pornographic materials, homosexuality, and extramarital relationships).”

Esplin and Marouf reached out to HHS to report that they had been discriminated against by Catholic Charities of Fort Worth, whose foster operations are financed by taxpayer funding through two programs run by HHS’s Office of Refugee Resettlement: the Unaccompanied Refugee Minor Program, which helps place underage refugees and asylees in foster homes; and the Unaccompanied Alien Children Program, which provides care for unaccompanied minors who lack lawful immigration status.

“I was actually surprised that this had happened in a federal program,” Marouf said, noting that if HHS were running its own foster program, it would be prohibited by its own rules from using the sexual orientation of prospective parents to disqualify them. “I found that hard to believe, and I didn’t know if they knew that their organization that they had contracted was actually doing this.”

After months of radio silence from the department, the couple filed suit against HHS and USCCB for funding a child-welfare program that “impermissibly discriminates against same-sex couples who are prospective foster and adoptive parents,” according to the complaint, which cites medical and psychological organizations that have ruled that “there is no valid basis for the government to prefer different-sex couples over same-sex couples when considering or approving would-be foster or adoptive parents.”

Late last week, U.S. District Judge Amit Mehta denied a motion by HHS and USCCB to dismiss the suit. In a memorandum, Mehta declared that Esplin and Marouf have standing to sue on due process, equal protection, and First Amendment grounds, a major procedural victory—and added that HHS’ attempt to absolve itself of responsibility for USCCB’s anti-gay policy was “an astonishing outcome.”

“Surely, the government would not take this position if, say, Plaintiffs here were excluded from fostering a child based on their gender… national origin… or religious faith,” Mehta wrote. “The Federal Defendants wish to avoid the responsibility that comes with being good stewards of federal funds. They cannot do so.”

The memorandum punctures a hole in a common defense for discrimination by government partners—namely, that because the government agency in question didn’t discriminate itself, it can’t be held responsible for taxpayer-funded organizations that do.

“The court stated that the federal government is responsible for—and can be held liable—when its grantees are determining participation in a program and are excluding people based on religious beliefs,” Gliksberg said. “People have a right to participate in a federal program without any stigma applied to them as a barrier to their participation. There needs to be equal access to federal programs, regardless of who you are, and certainly not on the basis of sexual orientation, as was done here.”

Reached for comment about Mehta’s decision, an HHS spokesperson told The Daily Beast that, “as a matter of policy, HHS does not comment on matters related to pending or ongoing litigation.”

Although HHS proposed redirecting Esplin and Marouf to organizations that would place foster children with a same-sex couple, the couple decided that bringing down a system that allowed discrimination against prospective parents was more important than fast-tracking their own ability to foster.

“When we brought this case, we very much wanted to create a fair system for everyone, and not just fix our own personal situation,” Marouf said, calling HHS’ proposal “a separate-but-equal-type setup.”

“I think if you have two different signs—‘Gay Couples Apply Here’ and ‘Straight Couples Apply There’—that doesn’t really project equality,” Marouf said. “We weren’t interested in a solution that would only fix our case more quickly, but any other same-sex couple would be treated differently. We really wanted a system that treats all applicants the same, regardless of sexual orientation.”