The Lie We Love

E. J. Graff

We all know the story of international adoption: Millions of infants and toddlers have been abandoned or orphaned. If they are lucky, adoring new moms and dads from faraway lands whisk them away for a chance at a better life. Unfortunately, this story is largely fiction.

We all know the story of international
adoption: Millions of infants and toddlers have been abandoned or
orphaned—placed on the side of a road or on the doorstep of a church,
or left parentless due to AIDS, destitution, or war. These little ones
find themselves forgotten, living in crowded orphanages or ending up on
the streets, facing an uncertain future of misery and neglect. But, if
they are lucky, adoring new moms and dads from faraway lands whisk them
away for a chance at a better life.

Unfortunately, this story is largely fiction.

Westerners have been sold the myth of a world orphan crisis. We are
told that millions of children are waiting for their “forever families”
to rescue them from lives of abandonment and abuse. But many of the
infants and toddlers being adopted by Western parents today are not
orphans at all. Yes, hundreds of thousands of children around the world
do need loving homes. But more often than not, the neediest children
are sick, disabled, traumatized, or older than 5. They are not the
healthy babies that, quite understandably, most Westerners hope to
adopt. There are simply not enough healthy, adoptable infants to meet
Western demand—and there’s too much Western money in search of
children. As a result, many international adoption agencies work not to
find homes for needy children but to find children for Western homes.

Since
the mid-1990s, the number of international adoptions each year has
nearly doubled, from 22,200 in 1995 to just under 40,000 in 2006. At
its peak, in 2004, more than 45,000 children from developing countries
were adopted by foreigners. Americans bring home more of these children
than any other nationality—more than half the global total in recent
years.

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Where do these babies come from? As international
adoptions have flourished, so has evidence that babies in many
countries are being systematically bought, coerced, and stolen away
from their birth families. Nearly half the 40 countries listed by the
U.S. State Department as the top sources for international adoption
over the past 15 years—places such as Belarus, Brazil, Ethiopia,
Honduras, Peru, and Romania—have at least temporarily halted adoptions
or been prevented from sending children to the United States because of
serious concerns about corruption and kidnapping. And yet when a
country is closed due to corruption, many adoption agencies simply
transfer their clients’ hopes to the next “hot” country. That country
abruptly experiences a spike in infants and toddlers adopted
overseas—until it too is forced to shut its doors.

To complicate matters further, while international adoption has
become an industry driven by money, it is also charged with strong
emotions. Many adoption agencies and adoptive parents passionately
insist that crooked practices are not systemic, but tragic, isolated
cases. Arrest the bad guys, they say, but let the “good” adoptions
continue. However, remove cash from the adoption chain, and, outside of
China, the number of healthy babies needing Western homes all but
disappears. Nigel Cantwell, a Geneva-based consultant on child
protection policy, has seen the dangerous influence of money on
adoptions in Eastern Europe and Central Asia, where he has helped
reform corrupt adoption systems. In these regions, healthy children age
3 and younger can easily be adopted in their own countries, he says. I
asked him how many healthy babies in those regions would be available
for international adoption if money never exchanged hands. “I would
hazard a guess at zero,” he replied.

The Myth of Supply

International
adoption wasn’t always a demand-driven industry. Half a century ago, it
was primarily a humanitarian effort for children orphaned by conflict.
In 1955, news spread that Bertha and Henry Holt, an evangelical couple
from Oregon, had adopted eight Korean War orphans, and families across
the United States expressed interest in following their example. Since
then, international adoption has become increasingly popular in
Australia, Canada, Europe, and the United States. Americans adopted
more than 20,000 foreign children in 2006 alone, up from just 8,987 in
1995. Half a dozen European countries regularly bring home more
foreign-born children per capita than does the United States. Today,
Canada, France, Italy, Spain, and the United States account for 4 out
of every 5 international adoptions.

Changes in Western demography explain much of the growth. Thanks to
contraception, abortion, and delayed marriages, the number of unplanned
births in most developed countries has declined in recent decades. Some
women who delay having children discover they’ve outwaited their
fertility; others have difficulty conceiving from the beginning. Still
others adopt for religious reasons, explaining that they’ve been called
to care for children in need. In the United States, a motive beyond
demography is the notion that international adoption is somehow
“safer”—more predictable and more likely to end in success—than many
domestic adoptions, where there’s an outsized fear of a birth mother’s
last-minute change of heart. Add an ocean of distance, and the idea
that needy children abound in poor countries, and that risk seems to
disappear.

But international adoptions are no less risky;
they’re simply less regulated. Just as companies outsource industry to
countries with lax labor laws and low wages, adoptions have moved to
states with few laws about the process. Poor, illiterate birthparents
in the developing world simply have fewer protections than their
counterparts in the United States, especially in countries where human
trafficking and corruption are rampant. And too often, these imbalances
are overlooked on the adopting end. After all, one country after
another has continued to supply what adoptive parents want most.

In
reality, there are very few young, healthy orphans available for
adoption around the world. Orphans are rarely healthy babies; healthy
babies are rarely orphaned. “It’s not really true,” says Alexandra
Yuster, a senior advisor on child protection with UNICEF, “that there
are large numbers of infants with no homes who either will be in
institutions or who need intercountry adoption.”

That assertion runs counter to the story line that has long been marketed to Americans and other Westerners, who have been trained by images of destitution in developing countries and the seemingly endless flow of daughters from China to believe that millions of orphaned babies around the world desperately need homes. UNICEF itself is partly responsible for this erroneous assumption. The organization’s statistics on orphans and institutionalized children are widely quoted to justify the need for international adoption. In 2006, UNICEF reported an estimated 132 million orphans in sub-Saharan Africa, Asia, Latin America, and the Caribbean. But the organization’s definition of "orphan" includes children who have lost just one parent, either to desertion or death. Just 10 percent of the total-13 million children-have lost both parents, and most of these live with extended family. They are also older: By UNICEF’s own estimate, 95 percent of orphans are older than 5. In other words, UNICEF’s "millions of orphans" are not healthy babies doomed to institutional misery unless Westerners adopt and save them. Rather, they are mostly older children living with extended families who need financial support.

The exception is China, where the country’s three-decades-old one-child policy, now being loosened, has created an unprecedented number of girls available for adoption. But even this flow of daughters is finite; China has far more hopeful foreigners looking to adopt a child than it has orphans it is willing to send overseas. In 2005, foreign parents adopted nearly 14,500 Chinese children. That was far fewer than the number of Westerners who wanted to adopt; adoption agencies report many more clients waiting in line. And taking those children home has gotten harder; in 2007, China’s central adoption authority sharply reduced the number of children sent abroad, possibly because of the country’s growing sex imbalance, declining poverty, and scandals involving child trafficking for foreign adoption. Prospective foreign parents today are strictly judged by their age, marital history, family size, income, health, and even weight. That means that if you are single, gay, fat, old, less than well off, too often divorced, too recently married, taking antidepressants, or already have four children, China will turn you away. Even those allowed a spot in line are being told they might wait three to four years before they bring home a child. That has led many prospective parents to shop around for a country that puts fewer barriers between them and their children-as if every country were China, but with fewer onerous regulations.

One such country has been Guatemala, which in 2006 and 2007 was the No. 2 exporter of children to the United States. Between 1997 and 2006, the number of Guatemalan children adopted by Americans more than quadrupled, to more than 4,500 annually. Incredibly, in 2006, American parents adopted one of every 110 Guatemalan children born. In 2007, nearly 9 out of 10 children adopted were less than a year old; almost half were younger than 6 months old. "Guatemala is a perfect case study of how international adoption has become a demand-driven business," says Kelley McCreery Bunkers, a former consultant with UNICEF Guatemala. The country’s adoption process was "an industry developed to meet the needs of adoptive families in developed countries, specifically the United States."

Because the vast majority of the country’s institutionalized children are not healthy, adoptable babies, almost none has been adopted abroad. In the fall of 2007, a survey conducted by the Guatemalan government, UNICEF, and the international child welfare and adoption agency Holt International Children’s Services found approximately 5,600 children and adolescents in Guatemalan institutions. More than 4,600 of these children were age 4 or older. Fewer than 400 were under a year old. And yet in 2006, more than 270 Guatemalan babies, all younger than 12 months, were being sent to the United States each month. These adopted children were simply not coming from the country’s institutions. Last year, 98 percent of U.S. adoptions from Guatemala were "relinquishments": Babies who had never seen the inside of an institution were signed over directly to a private attorney who approved the international adoption-for a very considerable fee-without any review by a judge or social service agency.

So, where had some of these adopted babies come from? Consider the case of Ana Escobar, a young Guatemalan woman who in March 2007 reported to police that armed men had locked her in a closet in her family’s shoe store and stolen her infant. After a 14-month search, Escobar found her daughter in pre-adoption foster care, just weeks before the girl was to be adopted by a couple from Indiana. DNA testing showed the toddler to be Escobar’s child. In a similar case from 2006, Raquel Par, another Guatemalan woman, reported being drugged while waiting for a bus in Guatemala City, waking to find her year-old baby missing. Three months later, Par learned her daughter had been adopted by an American couple.

On Jan. 1, 2008, Guatemala closed its doors to American adoptions so that the government could reform the broken process. Britain, Canada, France, Germany, the Netherlands, and Spain all stopped accepting adoptions from the country several years earlier, citing trafficking concerns. But more than 2,280 American adoptions from the country are still being processed, albeit with additional safeguards. Stolen babies have already been found in that queue; Guatemalan authorities expect more.

Guatemala’s example is extreme; it is widely considered to have the world’s most notorious record of corruption in foreign adoption. But the same troubling trends have emerged, on smaller scales, in more than a dozen other countries, including Albania, Cambodia, Ethiopia, Liberia, Peru, and Vietnam. The pattern suggests that the supply of adoptable babies rises to meet foreign demand-and disappears when Western cash is no longer available. For instance, in December 2001, the U.S. immigration service stopped processing adoption visas from Cambodia, citing clear evidence that children were being acquired illicitly, often against their parents’ wishes. That year, Westerners adopted more than 700 Cambodian children; of the 400 adopted by Americans, more than half were less than 12 months old. But in 2005, a study of Cambodia’s orphanage population, commissioned by the U.S. Agency for International Development, found only a total of 132 children who were less than a year old-fewer babies than Westerners had been adopting every three months a few years before.

Even countries with large populations, such as India, rarely have healthy infants and toddlers who need foreign parents. India’s large and growing middle class, at home and in the diaspora, faces fertility issues like those of their developed-world counterparts. They too are looking for healthy babies to adopt; some experts think that these millions of middle-class families could easily absorb all available babies. The country’s pervasive poverty does leave many children fending for themselves on the street. But "kids are not on the street alone at the age of 2," Cantwell, the child protection consultant, says. "They are 5 or 6, and they aren’t going to be adopted." That’s partly because most of these children still have family ties and therefore are not legally available for adoption, and partly because they would have difficultly adjusting to a middle-class European or North American home. Many of these children are deeply marked by abuse, crime, and poverty, and few prospective parents are prepared to adopt them.

Surely, though, prospective parents can at least feel secure that their child is truly an orphan in need of a home if they receive all the appropriate legal papers? Unfortunately, no.

Nursery Crimes

 

In many countries, it can be
astonishingly easy to fabricate a history for a young child, and in the
process, manufacture an orphan. The birth mothers are often poor,
young, unmarried, divorced, or otherwise lacking family protection. The
children may be born into a locally despised minority group that is
afforded few rights. And for enough money, someone will separate these
little ones from their vulnerable families, turning them into “paper
orphans” for lucrative export.

Some manufactured orphans are indeed found in what Westerners call
“orphanages.” But these establishments often serve less as homes to
parentless children and more as boarding schools for poor youngsters.
Many children are there only temporarily, seeking food, shelter, and
education while their parents, because of poverty or illness, cannot
care for them. Many families visit their children, or even bring them
home on weekends, until they can return home permanently. In 2005, when
the Hannah B. Williams Orphanage in Monrovia, Liberia, was closed
because of shocking living conditions, 89 of the 102 “orphans” there
returned to their families. In Vietnam, “rural families in particular
will put their babies into these orphanages that are really extended
day-care centers during the harvest season,” says a U.S. Embassy
spokeswoman in Hanoi. In some cases, unscrupulous orphanage directors,
local officials, or other operators persuade illiterate birth families
to sign documents that relinquish those children, who are then sent
abroad for adoption, never to be seen again by their bereft families.

Other children are located through similarly nefarious means. Western adoption agencies often contract with in-country facilitators-sometimes orphanage directors, sometimes freelancers-and pay per-child fees for each healthy baby adopted. These facilitators, in turn, subcontract with child finders, often for sums in vast excess of local wages. These paydays give individuals a significant financial incentive to find adoptable babies at almost any cost. In Guatemala, where the GDP per capita is $4,700 a year, child finders often earned $6,000 to $8,000 for each healthy, adoptable infant. In many cases, child finders simply paid poor families for infants. A May 2007 report on adoption trafficking by the Hague Conference on Private International Law reported poor Guatemalan families being paid beween $300 and several thousand dollars per child.

Sometimes, medical professionals serve as child finders to obtain infants. In Vietnam, for instance, a finder’s fee for a single child can easily dwarf a nurse’s $50-a-month salary. Some nurses and doctors coerce birth mothers into giving up their children by offering them a choice: pay outrageously inflated hospital bills or relinquish their newborns. Illiterate new mothers are made to sign documents they can’t read. In August 2008, the U.S. State Department released a warning that birth certificates issued by Tu Du Hospital in Ho Chi Minh City-which in 2007 had reported 200 births a day, and an average of three abandoned babies per 100 births-were "unreliable." Most of the hospital’s "abandoned" babies were sent to the city’s Tam Binh orphanage, from which many Westerners have adopted. (Tu Du Hospital is where Angelina Jolie’s Vietnamese-born son was reportedly abandoned one month after his birth; he was at Tam Binh when she adopted him.) According to Linh Song, executive director of Ethica, an American nonprofit devoted to promoting ethical adoption, a provincial hospital’s chief obstetrician told her in 2007 "that he provided 10 ethnic minority infants to [an] orphanage [for adoption] in return for an incubator."

To smooth the adoption process, officials in the children’s home
countries may be bribed to create false identity documents. Consular
officials for the adopting countries generally accept whatever
documents they receive. But if a local U.S. Embassy has seen a series
of worrisome referrals—say, a sudden spike in healthy infants coming
from the same few orphanages, or a single province sending an unusually
high number of babies with suspiciously similar paperwork—officials may
investigate. But generally, they do not want to obstruct adoptions of
genuinely needy children or get in the way of people longing for a
child. However, many frequently doubt that the adoptions crossing their
desks are completely aboveboard. “I believe in intercountry adoption
very strongly,” says Katherine Monahan, a U.S. State Department
official who has overseen scores of U.S. adoptions from around the
world. “[But] I worry that there were many children that could have
stayed with their families if we could have provided them with even a
little economic assistance.” One U.S. official told me that when
embassy staff in a country that sent more than 1,000 children overseas
last year were asked which adoption visas they felt uneasy about, they
replied: almost all of them.

Most of the Westerners involved with foreign adoption agencies-like business people importing foreign sneakers-can plausibly deny knowledge of unethical or unseemly practices overseas. They don’t have to know. Willful ignorance allowed Lauryn Galindo, a former hula dancer from the United States, to collect more than $9 million in adoption fees over several years for Cambodian infants and toddlers. Between 1997 and 2001, Americans adopted 1,230 children from Cambodia; Galindo said she was involved in 800 of the adoptions. (Galindo reportedly delivered Angelina Jolie’s Cambodian child to her movie set in Africa.) But in a two-year probe beginning in 2002, U.S. investigators alleged that Galindo paid Cambodian child finders to purchase, defraud, coerce, or steal children from their families, and conspired to create false identity documents for the children. Galindo later served federal prison time on charges of visa fraud and money laundering, but not trafficking. "You can get away with buying babies around the world as a United States citizen," says Richard Cross, a senior special agent with U.S. Immigration and Customs Enforcement who investigated Galindo. "It’s not a crime."

Rocking the Cradle

Buying a child abroad is
something most prospective parents want no part of. So, how can it be
prevented? As international adoption has grown in the past decade, the
ad hoc approach of closing some corrupt countries to adoption and
shifting parents’ hopes (and money) to the next destination has failed.
The agencies that profit from adoption appear to willfully ignore how
their own payments and fees are causing both the corruption and the
closures.

Some countries that send children overseas for
adoption have kept the process lawful and transparent from nearly the
beginning and their model is instructive. Thailand, for instance, has a
central government authority that counsels birth mothers and offers
some families social and economic support so that poverty is never a
reason to give up a child. Other countries, such as Paraguay and
Romania, reformed their processes after sharp surges in shady adoptions
in the 1990s. But those reforms were essentially to stop international
adoptions almost entirely. In 1994, Paraguay sent 483 children to the
United States; last year, the country sent none.

For a more
comprehensive solution, the best hope may be the Hague Convention on
Intercountry Adoption, an international agreement designed to prevent
child trafficking for adoption. On April 1, 2008, the United States
formally entered the agreement, which has 75 other signatories. In
states that send children overseas and are party to the convention,
such as Albania, Bulgaria, Colombia, and the Philippines,
Hague-compatible reforms have included a central government authority
overseeing child welfare, efforts to place needy children with extended
families and local communities first, and limits on the number of
foreign adoption agencies authorized to work in the country. The
result, according to experts, has been a sharp decline in baby buying,
fraud, coercion, and kidnapping for adoption.

In adopting
countries, the convention requires a central authority—in the United
States’ case, the State Department—to oversee international adoption.
The State Department empowers two nonprofit organizations to certify
adoption agencies; if shady practices, fraud, financial improprieties,
or links with trafficking come to light, accreditation can be revoked.
Already, the rules appear to be having some effect: Several U.S.
agencies long dogged by rumors of bad practices have been denied
accreditation; some have shut their doors. But no international treaty
is perfect, and the Hague Convention is no exception. Many of the
countries sending their children to the West, including Ethiopia,
Russia, South Korea, Ukraine, and Vietnam, have yet to join the
agreement.

Perhaps most important, more effective regulations would strictly
limit the amount of money that changes hands. Per-child fees could be
outlawed. Payments could be capped to cover only legitimate costs such
as medical care, food, and clothing for the children. And crucially,
fees must be kept proportionate with the local economies. “Unless you
control the money, you won’t control the corruption,” says Thomas
DiFilipo, president of the Joint Council on International Children’s
Services, which represents more than 200 international adoption
organizations. “If we have the greatest laws and the greatest
regulations but are still sending $20,000 anywhere—well, you can bypass
any system with enough cash.”

Improved regulations will protect
not only the children being adopted and their birth families, but also
the consumers: hopeful parents. Adopting a child—like giving birth—is
an emotional experience; it can be made wrenching by the abhorrent
realization that a child believed to be an orphan simply isn’t. One
American who adopted a little girl from Cambodia in 2002 wept as she
spoke at an adoption ethics conference in October 2007 about such a
discovery. “I was told she was an orphan,” she said. “One year after
she came home, and she could speak English well enough, she told me
about her mommy and daddy and her brothers and her sisters.”

Unless
we recognize that behind the altruistic veneer, international adoption
has become an industry—one that is often highly lucrative and sometimes
corrupt—many more adoption stories will have unhappy endings. Unless
adoption agencies are held to account, more young children will be
wrongfully taken from their families. And unless those desperate to
become parents demand reform, they will continue—wittingly or not—to
pay for wrongdoing. “Credulous Westerners eager to believe that they
are saving children are easily fooled into accepting laundered
children,” writes David Smolin, a law professor and advocate for
international adoption reform. “For there is no fool like the one who
wants to be fooled.”

This article is republished from "The Lie We Love" in Foreign Policy. You can learn more about international adoption, and view an interactive map, at Brandeis University’s Schuster Institute for Investigative Journalism.

Analysis Economic Justice

New Pennsylvania Bill Is Just One Step Toward Helping Survivors of Economic Abuse

Annamarya Scaccia

The legislation would allow victims of domestic violence, sexual assault, and stalking to terminate their lease early or request locks be changed if they have "a reasonable fear" that they will continue to be harmed while living in their unit.

Domestic violence survivors often face a number of barriers that prevent them from leaving abusive situations. But a new bill awaiting action in the Pennsylvania legislature would let survivors in the state break their rental lease without financial repercussions—potentially allowing them to avoid penalties to their credit and rental history that could make getting back on their feet more challenging. Still, the bill is just one of several policy improvements necessary to help survivors escape abusive situations.

Right now in Pennsylvania, landlords can take action against survivors who break their lease as a means of escape. That could mean a lien against the survivor or an eviction on their credit report. The legislation, HB 1051, introduced by Rep. Madeleine Dean (D-Montgomery County), would allow victims of domestic violence, sexual assault, and stalking to terminate their lease early or request locks be changed if they have “a reasonable fear” that they will continue to be harmed while living in their unit. The bipartisan bill, which would amend the state’s Landlord and Tenant Act, requires survivors to give at least 30 days’ notice of their intent to be released from the lease.

Research shows survivors often return to or delay leaving abusive relationships because they either can’t afford to live independently or have little to no access to financial resources. In fact, a significant portion of homeless women have cited domestic violence as the leading cause of homelessness.

“As a society, we get mad at survivors when they don’t leave,” Kim Pentico, economic justice program director of the National Network to End Domestic Violence (NNEDV), told Rewire. “You know what, her name’s on this lease … That’s going to impact her ability to get and stay safe elsewhere.”

“This is one less thing that’s going to follow her in a negative way,” she added.

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Pennsylvania landlords have raised concerns about the law over liability and rights of other tenants, said Ellen Kramer, deputy director of program services at the Pennsylvania Coalition Against Domestic Violence, which submitted a letter in support of the bill to the state House of Representatives. Lawmakers have considered amendments to the bill—like requiring “proof of abuse” from the courts or a victim’s advocate—that would heed landlord demands while still attempting to protect survivors.

But when you ask a survivor to go to the police or hospital to obtain proof of abuse, “it may put her in a more dangerous position,” Kramer told Rewire, noting that concessions that benefit landlords shift the bill from being victim-centered.

“It’s a delicate balancing act,” she said.

The Urban Affairs Committee voted HB 1051 out of committee on May 17. The legislation was laid on the table on June 23, but has yet to come up for a floor vote. Whether the bill will move forward is uncertain, but proponents say that they have support at the highest levels of government in Pennsylvania.

“We have a strong advocate in Governor Wolf,” Kramer told Rewire.

Financial Abuse in Its Many Forms

Economic violence is a significant characteristic of domestic violence, advocates say. An abuser will often control finances in the home, forcing their victim to hand over their paycheck and not allow them access to bank accounts, credit cards, and other pecuniary resources. Many abusers will also forbid their partner from going to school or having a job. If the victim does work or is a student, the abuser may then harass them on campus or at their place of employment until they withdraw or quit—if they’re not fired.

Abusers may also rack up debt, ruin their partner’s credit score, and cancel lines of credit and insurance policies in order to exact power and control over their victim. Most offenders will also take money or property away from their partner without permission.

“Financial abuse is so multifaceted,” Pentico told Rewire.

Pentico relayed the story of one survivor whose abuser smashed her cell phone because it would put her in financial dire straits. As Pentico told it, the abuser stole her mobile phone, which was under a two-year contract, and broke it knowing that the victim could not afford a new handset. The survivor was then left with a choice of paying for a bill on a phone she could no longer use or not paying the bill at all and being turned into collections, which would jeopardize her ability to rent her own apartment or switch to a new carrier. “Things she can’t do because he smashed her smartphone,” Pentico said.

“Now the general public [could] see that as, ‘It’s a phone, get over it,'” she told Rewire. “Smashing that phone in a two-year contract has such ripple effects on her financial world and on her ability to get and stay safe.”

In fact, members of the public who have not experienced domestic abuse may overlook financial abuse or minimize it. A 2009 national poll from the Allstate Foundation—the philanthropic arm of the Illinois-based insurance company—revealed that nearly 70 percent of Americans do not associate financial abuse with domestic violence, even though it’s an all-too-common tactic among abusers: Economic violence happens in 98 percent of abusive relationships, according to the NNEDV.

Why people fail to make this connection can be attributed, in part, to the lack of legal remedy for financial abuse, said Carol Tracy, executive director of the Women’s Law Project, a public interest law center in Pennsylvania. A survivor can press criminal charges or seek a civil protection order when there’s physical abuse, but the country’s legal justice system has no equivalent for economic or emotional violence, whether the victim is married to their abuser or not, she said.

Some advocates, in lieu of recourse through the courts, have teamed up with foundations to give survivors individual tools to use in economically abusive situations. In 2005, the NNEDV partnered with the Allstate Foundation to develop a curriculum that would teach survivors about financial abuse and financial safety. Through the program, survivors are taught about financial safety planning including individual development accounts, IRA, microlending credit repair, and credit building services.

State coalitions can receive grant funding to develop or improve economic justice programs for survivors, as well as conduct economic empowerment and curriculum trainings with local domestic violence groups. In 2013—the most recent year for which data is available—the foundation awarded $1 million to state domestic violence coalitions in grants that ranged from $50,000 to $100,000 to help support their economic justice work.

So far, according to Pentico, the curriculum has performed “really great” among domestic violence coalitions and its clients. Survivors say they are better informed about economic justice and feel more empowered about their own skills and abilities, which has allowed them to make sounder financial decisions.

This, in turn, has allowed them to escape abuse and stay safe, she said.

“We for a long time chose to see money and finances as sort of this frivolous piece of the safety puzzle,” Pentico told Rewire. “It really is, for many, the piece of the puzzle.”

Public Policy as a Means of Economic Justice

Still, advocates say that public policy, particularly disparate workplace conditions, plays an enormous role in furthering financial abuse. The populations who are more likely to be victims of domestic violence—women, especially trans women and those of color—are also the groups more likely to be underemployed or unemployed. A 2015 LGBT Health & Human Services Network survey, for example, found that 28 percent of working-age transgender women were unemployed and out of school.

“That’s where [economic abuse] gets complicated,” Tracy told Rewire. “Some of it is the fault of the abuser, and some of it is the public policy failures that just don’t value women’s participation in the workforce.”

Victims working low-wage jobs often cannot save enough to leave an abusive situation, advocates say. What they do make goes toward paying bills, basic living needs, and their share of housing expenses—plus child-care costs if they have kids. In the end, they’re not left with much to live on—that is, if their abuser hasn’t taken away access to their own earnings.

“The ability to plan your future, the ability to get away from [abuse], that takes financial resources,” Tracy told Rewire. “It’s just so much harder when you don’t have them and when you’re frightened, and you’re frightened for yourself and your kids.”

Public labor policy can also inhibit a survivor’s ability to escape. This year, five states, Washington, D.C., and 24 jurisdictions will have passed or enacted paid sick leave legislation, according to A Better Balance, a family and work legal center in New York City. As of April, only one of those states—California—also passed a state paid family leave insurance law, which guarantees employees receive pay while on leave due to pregnancy, disability, or serious health issues. (New Jersey, Rhode Island, Washington, and New York have passed similar laws.) Without access to paid leave, Tracy said, survivors often cannot “exercise one’s rights” to file a civil protection order, attend court hearings, or access housing services or any other resource needed to escape violence.

Furthermore, only a handful of state laws protect workers from discrimination based on sex, sexual orientation, gender identity, and pregnancy or familial status (North Carolina, on the other hand, recently passed a draconian state law that permits wide-sweeping bias in public and the workplace). There is no specific federal law that protects LGBTQ workers, but the U.S. Employment Opportunity Commission has clarified that the Civil Rights Act of 1964 does prohibit discrimination based on gender identity and sexual orientation.

Still, that doesn’t necessarily translate into practice. For example, the National Center for Transgender Equality found that 26 percent of transgender people were let go or fired because of anti-trans bias, while 50 percent of transgender workers reported on-the-job harassment. Research shows transgender people are at a higher risk of being fired because of their trans identity, which would make it harder for them to leave an abusive relationship.

“When issues like that intersect with domestic violence, it’s devastating,” Tracy told Rewire. “Frequently it makes it harder, if not impossible, for [victims] to leave battering situations.”

For many survivors, their freedom from abuse also depends on access to public benefits. Programs like Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), the child and dependent care credit, and earned income tax credit give low-income survivors access to the money and resources needed to be on stable economic ground. One example: According to the Center on Budget and Policy Priorities, where a family of three has one full-time nonsalary worker earning $10 an hour, SNAP can increase their take-home income by up to 20 percent.

These programs are “hugely important” in helping lift survivors and their families out of poverty and offset the financial inequality they face, Pentico said.

“When we can put cash in their pocket, then they may have the ability to then put a deposit someplace or to buy a bus ticket to get to family,” she told Rewire.

But these programs are under constant attack by conservative lawmakers. In March, the House Republicans approved a 2017 budget plan that would all but gut SNAP by more than $150 million over the next ten years. (Steep cuts already imposed on the food assistance program have led to as many as one million unemployed adults losing their benefits over the course of this year.) The House GOP budget would also strip nearly $500 billion from other social safety net programs including TANF, child-care assistance, and the earned income tax credit.

By slashing spending and imposing severe restrictions on public benefits, politicians are guaranteeing domestic violence survivors will remain stuck in a cycle of poverty, advocates say. They will stay tethered to their abuser because they will be unable to have enough money to live independently.

“When women leave in the middle of the night with the clothes on their back, kids tucked under their arms, come into shelter, and have no access to finances or resources, I can almost guarantee you she’s going to return,” Pentico told Rewire. “She has to return because she can’t afford not to.”

By contrast, advocates say that improving a survivor’s economic security largely depends on a state’s willingness to remedy what they see as public policy failures. Raising the minimum wage, mandating equal pay, enacting paid leave laws, and prohibiting employment discrimination—laws that benefit the entire working class—will make it much less likely that a survivor will have to choose between homelessness and abuse.

States can also pass proactive policies like the bill proposed in Pennsylvania, to make it easier for survivors to leave abusive situations in the first place. Last year, California enacted a law that similarly allows abuse survivors to terminate their lease without getting a restraining order or filing a police report permanent. Virginia also put in place an early lease-termination law for domestic violence survivors in 2013.

A “more equitable distribution of wealth is what we need, what we’re talking about,” Tracy told Rewire.

As Pentico put it, “When we can give [a survivor] access to finances that help her get and stay safe for longer, her ability to protect herself and her children significantly increases.”

Analysis Law and Policy

Do Counselors-in-Training Have the Right to Discriminate Against LGBTQ People?

Greg Lipper

Doctors can't treat their patients with leeches; counselors can't impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.

Whether they’re bakers, florists, or government clerks, those claiming the right to discriminate against LGBTQ people have repeatedly sought to transform professional services into constitutionally protected religious speech. They have grabbed headlines for refusing, for example, to grant marriage licenses to same-sex couples or to make cakes for same-sex couples’ weddings-all in the name of “religious freedom.”

A bit more quietly, however, a handful of counseling students at public universities have challenged their schools’ nondiscrimination and treatment requirements governing clinical placements. In some cases, they have sought a constitutional right to withhold treatment from LGBTQ clients; in others, they have argued for the right to directly impose their religious and anti-gay views on their clients.

There has been some state legislative maneuvering on this front: Tennessee, for instance, recently enacted a thinly veiled anti-LGBTQ measure that would allow counselors to deny service on account of their “sincerely held principles.” But when it comes to the federal Constitution, providing medical treatment—whether bypass surgery, root canal, or mental-health counseling—isn’t advocacy (religious or otherwise) protected by the First Amendment. Counselors are medical professionals; they are hired to help their clients, no matter their race, religion, or sexual orientation, and no matter the counselors’ beliefs. The government, moreover, may lawfully prevent counselors from harming their clients, and universities in particular have an interest, recognized by the U.S. Supreme Court, in preventing discrimination in school activities and in training their students to work with diverse populations.

The plaintiffs in these cases have nonetheless argued that their schools are unfairly and unconstitutionally targeting them for their religious beliefs. But these students are not being targeted, any more than are business owners who must comply with civil rights laws. Instead, their universities, informed by the rules of the American Counseling Association (ACA)—the leading organization of American professional counselors—merely ask that all students learn to treat diverse populations and to do so in accordance with the standard of care. These plaintiffs, as a result, have yet to win a constitutional right to discriminate against or impose anti-LGBTQ views on actual or prospective clients. But cases persist, and the possibility of conflicting court decisions looms.

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Keeton v. Anderson-Wiley

The first major challenge to university counseling requirements came from Jennifer Keeton, who hoped to receive a master’s degree in school counseling from Augusta State University. As detailed in the 2011 11th Circuit Court of Appeals decision considering her case, Keeton entered her professional training believing that (1) “sexual behavior is the result of personal choice for which individuals are accountable, not inevitable deterministic forces”; (2) “gender is fixed and binary (i.e., male or female), not a social construct or personal choice subject to individual change”; and “homosexuality is a ‘lifestyle,’ not a ‘state of being.'”

It wasn’t those views alone, however, that sunk her educational plans. The problem, rather, was that Keeton wanted to impose her views on her patients. Keeton had told both her classmates and professors about her clinical approach at a university-run clinic, and it wasn’t pretty:

  • She would try to change the sexual orientation of gay clients;
  • If she were counseling a sophomore student in crisis questioning his sexual orientation, she would respond by telling the student that it was not OK to be gay.
  • If a client disclosed that he was gay, she would tell him that his behavior was wrong and try to change it; if she were unsuccessful, she would refer the client to someone who practices “conversion therapy.”

Unsurprisingly, Keeton also told school officials that it would be difficult for her to work with LGBTQ clients.

Keeton’s approach to counseling not only would have flouted the university’s curricular guidelines, but also would have violated the ACA’s Code of Ethics.

Her conduct would have harmed her patients as well. As a school counselor, Keeton would inevitably have to counsel LGBTQ clients: 57 percent of LGBTQ students have sought help from a school professional and 42 percent have sought help from a school counselor. Suicide is the leading cause of death for LGBTQ adolescents; that’s twice or three times the suicide rate afflicting their heterosexual counterparts. And Keeton’s preferred approach to counseling LGBTQ students would harm them: LGBTQ students rejected by trusted authority figures are even more likely to attempt suicide, and anti-gay “conversion therapy” at best doesn’t work and at worst harms patients too.

Seeking to protect the university’s clinical patients and train her to be a licensed mental health professional, university officials asked Keeton to complete a remediation plan before she counseled students in her required clinical practicum. She refused; the university expelled her. In response, the Christian legal group Alliance Defending Freedom sued on her behalf, claiming that the university violated her First Amendment rights to freedom of speech and the free exercise of religion.

The courts disagreed. The trial court ruled against Keeton, and a panel of the U.S. Court of Appeals for the 11th Circuit unanimously upheld the trial court’s ruling. The 11th Circuit explained that Keeton was expelled not because of her religious beliefs, but rather because of her “own statements that she intended to impose her personal religious beliefs on clients and refer clients to conversion therapy, and her own admissions that it would be difficult for her to work with the GLBTQ population and separate her own views from those of the client.” It was Keeton, not the university, who could not separate her personal beliefs from the professional counseling that she provided: “[F]ar from compelling Keeton to profess a belief or change her own beliefs about the morality of homosexuality, [the university] instructs her not to express her personal beliefs regarding the client’s moral values.”

Keeton, in other words, crossed the line between beliefs and conduct. She may believe whatever she likes, but she may not ignore academic and professional requirements designed to protect her clients—especially when serving clients at a university-run clinic.

As the court explained, the First Amendment would not prohibit a medical school from requiring students to perform blood transfusions in their clinical placements, nor would it prohibit a law school from requiring extra ethics training for a student who “expressed an intent to indiscriminately disclose her client’s secrets or violate another of the state bar’s rules.” Doctors can’t treat their patients with leeches; counselors can’t impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.

Ward v. Polite

The Alliance Defending Freedom’s follow-up case, Ward v. Polite, sought to give counseling students the right to withhold service from LGBTQ patients and also to practice anti-gay “conversion therapy” on those patients. The case’s facts were a bit murkier, and this led the appeals court to send it to trial; as a result, the student ultimately extracted only a modest settlement from the university. But as in Keeton’s case, the court rejected in a 2012 decision the attempt to give counseling students the right to impose their religious views on their clients.

Julea Ward studied counseling at Eastern Michigan University; like Keeton, she was training to be a school counselor. When she reviewed the file for her third client in the required clinical practicum, she realized that he was seeking counseling about a romantic relationship with someone of the same sex. As the Court of Appeals recounted, Ward did not want to counsel the client about this topic, and asked her faculty supervisor “(1) whether she should meet with the client and refer him [to a different counselor] only if it became necessary—only if the counseling session required Ward to affirm the client’s same-sex relationship—or (2) whether the school should reassign the client from the outset.” Although her supervisor reassigned the client, it was the first time in 20 years that one of her students had made such a request. So Ward’s supervisor scheduled a meeting with her.

Then things went off the rails. Ward, explained the court, “reiterated her religious objection to affirming same-sex relationships.” She told university officials that while she had “no problem counseling gay and lesbian clients,” she would counsel them only if “the university did not require her to affirm their sexual orientation.” She also refused to counsel “heterosexual clients about extra-marital sex and adultery in a values-affirming way.” As for the professional rules governing counselors, Ward said, “who’s the [American Counseling Association] to tell me what to do. I answer to a higher power and I’m not selling out God.”

All this led the university to expel Ward, and she sued. She claimed that the university violated her free speech and free exercise rights, and that she had a constitutional right to withhold affirming therapy relating to any same-sex relationships or different-sex relationships outside of marriage. Like Keeton, Ward also argued that the First Amendment prohibited the university from requiring “gay-affirmative therapy” while prohibiting “reparative therapy.” After factual discovery, the trial court dismissed her case.

On appeal before the U.S. Court of Appeals for the Sixth Circuit, Ward eked out a narrow and temporary win: The court held that the case should go to a jury. Because the university did not have a written policy prohibiting referrals, and based on a few troubling faculty statements during Ward’s review, the court ruled that a reasonable jury could potentially find that the university invoked a no-referrals policy “as a pretext for punishing Ward’s religious views and speech.” At the same time, the court recognized that a jury could view the facts less favorably to Ward and rule for the university.

And although the decision appeared to sympathize with Ward’s desire to withhold service from certain types of clients, the court flatly rejected Ward’s sweeping arguments that she had the right to stray from the school curriculum, refuse to counsel LGBTQ clients, or practice anti-gay “conversion therapy.” For one, it said, “Curriculum choices are a form of school speech, giving schools considerable flexibility in designing courses and policies and in enforcing them so long as they amount to reasonable means of furthering legitimate educational ends.” Thus, the problem was “not the adoption of this anti-discrimination policy, the existence of the practicum class or even the values-affirming message the school wants students to understand and practice.” On the contrary, the court emphasized “the [legal] latitude educational institutions—at any level—must have to further legitimate curricular objectives.”

Indeed, the university had good reason to require counseling students—especially those studying to be school counselors—to treat diverse populations. A school counselor who refuses to counsel anyone with regard to nonmarital, nonheterosexual relationships will struggle to find clients: Nearly four in five Americans have had sex by age 21; more than half have done so by the time they turn 18, while only 6 percent of women and 2 percent of men are married by that age.

In any event, withholding service from entire classes of people violates professional ethical rules even for nonschool counselors. Although the ACA permits client referrals in certain circumstances, the agency’s brief in Ward’s case emphasized that counselors may not refuse to treat entire groups. Ward, in sum, “violated the ACA Code of Ethics by refusing to counsel clients who may wish to discuss homosexual relationships, as well as others who fail to comport with her religious teachings, e.g., persons who engage in ‘fornication.'”

But Ward’s approach would have been unethical even if, in theory, she were permitted to withhold service from each and every client seeking counseling related to nonmarital sex (or even marital sex by same-sex couples). Because in many cases, the need for referral would arise well into the counseling relationship. And as the trial court explained, “a client may seek counseling for depression, or issues with their parents, and end up discussing a homosexual relationship.” No matter what the reason, mid-counseling referrals harm clients, and such referrals are even more harmful if they happen because the counselor disapproves of the client.

Fortunately, Ward did not win the sweeping right to harm her clients or otherwise upend professional counseling standards. Rather, the court explained that “the even-handed enforcement of a neutral policy”—such as the ACA’s ethical rules—”is likely to steer clear of the First Amendment’s free-speech and free-exercise protections.” (Full disclosure: I worked on an amicus brief in support of the university when at Americans United.)

Ward’s lawyers pretended that she won the case, but she ended up settling it for relatively little. She received only $75,000; and although the expulsion was removed from her record, she was not reinstated. Without a graduate counseling degree, she cannot become a licensed counselor.

Cash v. Hofherr

The latest anti-gay counseling salvo comes from Andrew Cash, whose April 2016 lawsuit against Missouri State University attempts to rely on yet murkier facts and could wind up, on appeal, in front of the more conservative U.S. Court of Appeals for the Eighth Circuit. In addition to his range of constitutional claims (freedom of speech, free exercise of religion, equal protection of law), he has added a claim under the Missouri Religious Freedom Restoration Act.

The complaint describes Cash as “a Christian with sincerely-held beliefs”—as opposed to insincere ones, apparently—”on issues of morality.” Cash started his graduate counseling program at Missouri State University in September 2007. The program requires a clinical internship, which includes 240 hours of in-person client contact. Cash decided to do his clinical internship at Springfield Marriage and Family Institute, which appeared on the counseling department’s list of approved sites. Far from holding anti-Christian bias, Cash’s instructor agreed that his proposed class presentation on “Christian counseling and its unique approach and value to the Counseling profession” was an “excellent” idea.

But the presentation itself revealed that Cash intended to discriminate against LGBTQ patients. In response to a question during the presentation, the head of the Marriage and Family Institute stated that “he would counsel gay persons as individuals, but not as couples, because of his religious beliefs,” and that he would “refer the couple for counseling to other counselors he knew who did not share his religious views.” Because discrimination on the basis of sexual orientation violates ACA guidelines, the university determined that Cash should not continue counseling at the Marriage and Family Institute and that it would be removed from the approved list of placements. Cash suggested, however, that he should be able to withhold treatment from same-sex couples.

All this took place in 2011. The complaint (both the original and amended versions) evades precisely what happened between 2012 and 2014, when Cash was finally expelled. You get the sense that Cash’s lawyers at the Thomas More Society are trying to yadda-yadda-yadda the most important facts of the case.

In any event, the complaint does acknowledge that when Cash applied for a new internship, he both ignored the university’s instructions that the previous hours were not supposed to count toward his requirement, and appeared to be “still very much defend[ing] his previous internship stating that there was nothing wrong with it”—thus suggesting that he would continue to refuse to counsel same-sex couples. He continued to defend his position in later meetings with school officials; by November 2014, the university removed him from the program.

Yet in challenging this expulsion, Cash’s complaint says that he was merely “expressing his Christian worldview regarding a hypothetical situation concerning whether he would provide counseling services to a gay/homosexual couple.”

That’s more than just a worldview, though. It also reflects his intent to discriminate against a class of people—in a manner that violates his program’s requirements and the ACA guidelines. Whether hypothetically or otherwise, Cash stated and reiterated that he would withhold treatment from same-sex couples. A law student who stated, as part of his clinic, that he would refuse to represent Christian clients would be announcing his intent to violate the rules of professional responsibility, and the law school could and would remove him from the school’s legal clinic. And they could and would do so even if a Christian client had yet to walk in the door.

But maybe this was just a big misunderstanding, and Cash would, in practice, be willing and able to counsel same-sex couples? Not so, said Cash’s lawyer from the Thomas More Society, speaking about the case to Christian news outlet WORLD: “I think Christians have to go on the offensive, or it’s going to be a situation like Sodom and Gomorrah in the Bible, where you aren’t safe to have a guest in your home, with the demands of the gay mob.” Yikes.

Although Cash seems to want a maximalist decision allowing counselors and counseling students to withhold service from LGBTQ couples, it remains to be seen how the case will turn out. The complaint appears to elide two years’ worth of key facts in order to present Cash’s claims as sympathetically as possible; even if the trial court were to rule in favor of the university after more factual development, Cash would have the opportunity to appeal to the U.S. Court of Appeals for the Eighth Circuit, one of the country’s most conservative federal appeals courts.

More generally, we’re still early in the legal battles over attempts to use religious freedom rights as grounds to discriminate; only a few courts across the country have weighed in. So no matter how extreme Cash or his lawyers may seem, it’s too early to count them out.

* * *

The cases brought by Keeton, Ward, and Cash not only attempt to undermine anti-discrimination policies. They also seek to change the nature of the counselor-client relationship. Current norms provide that a counselor is a professional who provides a service to a client. But the plaintiffs in these cases seem to think that counseling a patient is no different than lecturing a passerby in the town square, in that counseling a patient necessarily involves expressing the counselor’s personal and religious beliefs. Courts have thus far rejected these attempts to redefine the counselor-patient relationship, just as they have turned away attempts to challenge bans on “reparative therapy.”

The principles underlying the courts’ decisions protect more than just LGBTQ clients. As the 11th Circuit explained in Keeton, the university trains students to “be competent to work with all populations, and that all students not impose their personal religious values on their clients, whether, for instance, they believe that persons ought to be Christians rather than Muslims, Jews or atheists, or that homosexuality is moral or immoral.” Licensed professionals are supposed to help their clients, not treat them as prospective converts.