News Human Rights

Lawsuit Challenging Nebraska Ban on Gay Foster Parents Can Proceed

Jessica Mason Pieklo

The ruling sets the stage for a later trial challenging the constitutionality of one of three remaining bans in the nation on gay foster parents.

A Nebraska state trial court has ruled a lawsuit can proceed challenging a state agency policy banning gay and lesbian individuals and couples from serving as foster parents or adopting children.

The lawsuit, filed by the American Civil Liberties Union (ACLU), the ACLU Nebraska, and the law firm Sullivan & Cromwell, challenges a policy developed in 1995 that prohibits the Nebraska Department of Health and Human Services from placing foster children with “persons who identify themselves as homosexuals” or persons who are “unrelated, unmarried adults residing together.” The ban on gay foster parenting extends further, though, and prohibits these individuals from adopting children out of the foster care system as well. That’s because in Nebraska, individuals must first be licensed as foster parents before they can adopt children from state custody.

The ACLU brought the challenge on behalf of Greg and Stillman Stewart and two other couples who would like to serve as foster or adoptive parents in the state. According to the complaint, Nebraska’s policy prevents more than qualified couples like the Stewarts—model candidates who would easily qualify but for the ban—from becoming adoptive parents in the state. The Stewarts have been together for over 30 years, were married in California, and are parents to five children they adopted out of the California foster care system. In 2011, their entire family moved to Lincoln, Nebraska, when Greg, a minister, took a position with a church in the state. When they were settled from the move, the Stewarts inquired about being foster parents in Nebraska but were turned away because they are gay men.

The lawsuit claims Nebraska’s ban is unconstitutional and violates equal protection and due process rights of individuals and couples like the Stewarts. “The effect of the ban is to prohibit people from being considered as foster parents out of the gate,” Leslie Cooper, an attorney with the ACLU, explained to Rewire. “It’s not even about people not being qualified. Anyone who wants to be a foster parent has to still go through the screening process, including criminal background checks and home visits. It’s extensive.”

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Cooper added that Nebraska’s policy goes against social services industry standards and reinforces baseless stereotypes about gay parents. “Nebraska’s policy is not the norm,” Cooper said. “Individual case assessments of a person is the industry norm. The only thing this policy is doing is throwing away good parents.”

Attorneys for the state deny that the rule is unconstitutional and argue the case should be dismissed because, they claim, the plaintiffs had not fully completed the application process nor had the state formally denied their requests to be foster parents. But District Court Judge John Colborn denied the state’s request and said the case should proceed.

According to the ACLU, Nebraska is one of three states to still have some kind of ban on adoptions or foster parenting by gay and lesbian individuals; Utah and Mississippi have similar parenting restrictions, many of which Cooper noted are the result of backlash from advancing civil rights within the gay community. “Many of these policies like Nebraska’s came up during the 1990s with the marriage debate in Hawaii. Florida had something similar too,” said Cooper. In 2010, the ACLU successfully defeated that ban.

Judge Colborn’s ruling in the Nebraska case did not address the substance of the ACLU’s constitutional claims, but instead allows the case to continue on through the evidence-gathering phase, known as discovery, and ultimately to trial. Those deadlines have not yet been set.

News Law and Policy

Laws to Protect LGBTQ Students Fail to Gain Traction on Federal or State Levels

Teddy Wilson

Legislation that was intended to prevent discrimination and harassment of LGBTQ students in public schools failed to pass in the Senate last week, despite bipartisan support.

Legislation that was intended to prevent discrimination and harassment of LGBTQ students in public schools failed to pass in the Senate this month, despite bipartisan support. Similar legislation introduced in state legislatures in recent years has suffered the same fate.

The Student Non-Discrimination Act, originally introduced by Sen. Al Franken (D-MN) as a standalone bill, would have prohibited public school students from discrimination on basis of their “actual or perceived sexual orientation or gender identity or that of their associates.”

The bill, which was first introduced by Franken in 2011, is modeled after Title IX of the Education Amendments, which prohibits discrimination on the basis of sex.

LGBTQ youth experience bullying and harassment at much higher rates than non-LGBTQ youth and are twice as likely to experience verbal harassment, exclusion, and physical attacks at school, according to the Human Rights Campaign.

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Franken introduced the legislation as an amendment to the Gifted and Talented Students Education Act, which would reauthorize the Elementary and Secondary Education Act. During a speech on the Senate floor Franken said that the amendment was not simply about teasing or “playground behavior,” but that it was about preventing discrimination.

“If a gay child is relentlessly harassed by his classmates, if a principal tells a girl that she can’t go to her senior prom because she wants to bring another girl as her date, or if a school just stands by as teachers, students, and other administrators refer to a transgender child as not he or she but ‘it’—there is no law that was written to protect those children,” Franken said. “Our laws fail those children. And that is just wrong. But we can change that.”

The amendment did not receive the 60 votes necessary for adoption and failed in a 52-45 vote, with seven Republicans joining Democrats voting in favor of the legislation.

“The inability to put in place meaningful protections for some of our most vulnerable children is an enormous disservice to LGBT students all across the country who face terrible bullying every day,” Franken said, reported the Washington Blade. “Right now, there are federal laws on the books to protect kids against discrimination or harassment based on things like gender, race, national origin, and disability. My measure simply would have extended those protections to LGBT kids.”

Ian Thompson, the legislative representative of the American Civil Liberties Union, said in a statement that it was disappointing that lawmakers failed to protect LGBT students from discrimination, but the bipartisan support of the legislation was encouraging.

“The fight for explicit protection for LGBT students under federal law will continue,” Thompson said. “In the meantime, the Departments of Education and Justice must continue to use their existing legal authority to protect LGBT students from discrimination and harassment.”

Reducing the occurrence of bullying and harassment in public schools has been a priority over the past decade for state lawmakers. Since 2006, 49 states have enacted some type of legislation aimed at preventing bullying and protecting students, according to the National Conference of State Legislatures.

The legislation introduced and laws enacted have varied widely in scope and focus. A handful of other bills have been introduced this year in state legislatures that address bullying or harassment in schools, but most of these bills focus on cyberbullying and not on bullying or harassment of LGBTQ students.

Washington state Sen. Marko Liias (D-Lynnwood) introduced SB 5526, which would require public schools to incorporate a model transgender student policy and procedure created by the state school directors’ association and to share the policy with parents or guardians, students, volunteers, and school employees.

Since being appointed to the state senate last year, Liias has made legislation that focuses on bullying in the LGBTQ community one of his top priorities. SB 5526 did not pass during the state’s regular legislative session, but has been introduced during all three of the special legislative sessions and is currently pending.

In Hawaii, Rep. Roy Takumi (D-Pearl City) introduced HB 819, which would require state and county agencies that serve youth to adopt bullying prevention policies and establish a task force to assist the governor with bullying prevention policies in the state. Alison Gill, the senior legislative counsel for the Human Rights Campaign, said in written committee testimony that the bill would protect the safety and well being of all young people in Hawaii, including LGBTQ youth.

“Bullying and harassment has become a serious public health crisis in our nation’s schools,” Gill said. “Nationally, 65 percent of teens have been verbally or physically harassed or assaulted based on a characteristic that makes them different from some of their peers, like their race, religion, or gender, and 65 percent of junior high school teachers report that bullying and harassment is a serious problem in their school. In Hawaii in 2013, nearly 19 percent of students reported being bullied on school property and more than 15 percent reported experiencing cyberbullying.”

Versions of the bill were passed by both the state house and senate, but a conference committee was unable to reconcile differences in the bills before the legislature adjourned.

Iowa Sen. Rob Hogg (D-Cedar Rapids) introduced legislation to provide for training for school personnel, establish a bullying and violence prevention student mentoring pilot program, and provide for a school climate and bullying work group. SF 345 was part of Gov. Terry Branstad’s comprehensive anti-bullying agenda.

“Every child in Iowa deserves to go to school in a safe and respectful learning environment,” Branstad said, reported the Iowa Statesman. “The passage of SF 345 will give schools the tools they need to prevent bullying. I’m hopeful that the bill will receive support in the Iowa House and come to my desk for final approval.”

While the bill was passed by a wide margin in the Democratic-controlled senate, it failed to gain traction in the Republican-majority house.

News Law and Policy

Supreme Court Leaves California’s Ban on Gay ‘Conversion Therapy’ in Place

Jessica Mason Pieklo

Religious conservatives challenged the California law, arguing it violated their First Amendment rights.

On Monday, the Supreme Court turned away the legal challenge to a California law banning the use of gay “conversion therapy.” The denial leaves in place a federal appeals court decision that found the law constitutional.

California’s law, the first of its kind, bars licensed health professionals from “sexual orientation change efforts” to patients under 18. Under the law, those therapists and counselors who use treatments they say are designed to eliminate or reduce same-sex attractions in their patients would be engaging in unprofessional conduct and subject to discipline by state licensing boards. The law does not cover the actions of pastors and lay counselors who are unlicensed but provide such therapy through church programs.

Shortly after the law was passed, two separate groups filed legal challenges, arguing the ban violated their constitutional rights. The first legal challenge was brought by a group of therapists who support the practice and argued the ban violated their First Amendment rights to discuss “conversion” with young patients. A group of families filed a second lawsuit arguing the law violated their First Amendment religious freedoms to seek therapy that will “convert” their children from homosexuality.

The Christian conservative litigation group Liberty Counsel represented both the therapists and the families in those challenges.

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In August 2013, the U.S. Court of Appeals for the Ninth Circuit unanimously ruled the law neither violates the free speech of mental health practitioners or minors, nor does it violate parents fundamental rights to choose appropriate care for their children.

Monday’s decision by the Roberts Court means the California ban, which had been on hold pending resolution of the litigation, can begin to take effect.