Comment on Notice of Proposed Rulemaking: “Designated Placements Requirements Under Titles IV-E and IV-B for LGBTQI+ Children
April 1, 2026
Robert F. Kennedy, Jr.
Department of Health and Human Services
Via regulations.gov
RE: Comment on Notice of Proposed Rulemaking: “Designated Placements Requirements Under Titles IV-E and IV-B for LGBTQI+ Children; Recission,” 45 CFR Part 1355; RIN 0970-AD19
Dear Secretary Kennedy,
The Pacific Justice Institute (PJI) supports the proposed rule published by the Department of Health and Human Services (HHS) on March 6, 2026, to rescind “Designated Placements Requirements Under Titles IV-E and IV-B for LGBTQI+ Children; Recission.” Specifically, PJI supports recission because this rule makes worse the shortage of foster parents and encourages policies that violate the First Amendment.
PJI is a legal organization that has handled numerous legal matters involving religious individuals’ conflicts with state foster care requirements, particularly conflicts involving the care of LGBTQI+ children. PJI contends such foster care requirements tend to violate the First Amendment’s Free Speech and Free Exercises Clauses and eliminates qualified religious individuals from the foster care pool.
The Rule’s Effect on State Foster Care Policies and Procedures
Under this rule, for states to receive Title IV-E funds for foster care, they must provide foster-care placements that guarantee affirmation of a child’s sexual orientation or gender identity. The rule further addresses “retaliation” against LGBTQI+ children to broadly and vaguely include: “harassment, mistreatment or abuse” or “attempts to undermine, suppress, change or stigmatize a child’s sexual orientation or gender identity or expression through conversion therapy.” 45 C.F.R. § 1355.22. To comply with the rule and ensure federal funding, state agencies must implement policies and procedures to ensure foster care providers comply with such requirements for children with real or perceived LGBTQI+ status. These mandates are particularly broad, and place strain on foster care systems that are already experiencing a shortfall of providers for many children in need.
The Effective Elimination of Foster Parents with Traditional Views of Human Sexuality
The rule requires additional training and screening of actual or potential foster parents and in some cases has led to states excluding individuals from the foster care pool because they have religious or philosophical objections to the required care methods of LGBTQI+ children. Specifically, potential foster parents with beliefs that there are only two genders, that gender is immutable, and marriage is meant for one man and one woman have conflicts with the requirements set forth for them related to the required messaging and care of LGBTQI+ children. Since many foster parents pursue this calling for faith-based reasons, the elimination of such a large group of foster parents exacerbates an existing problem and ultimately harms the children needing a loving home through the foster care system.
Conflicts with First Amendment Protections
Religious liberty is the foundation of our nation. PJI has represented individuals across the nation who have been denied foster care licensure because their religious beliefs will not allow them to affirm or encourage behaviors regarding human sexuality that are required by those licensing agencies. Denial of an otherwise available state benefit because an individual will not forego his or her religious convictions is widely held by federal courts to be a violation of the Free Exercise Clause. See e.g., Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017); Carson v. Makin, 596 U.S. 767 (2022); Bates v. Pakseresht, WL 3536094 (9th Cir. July 24, 2025). Similarly, forcing an individual to verbally affirm LGBTQI+ status via use of pronouns inconsistent with biological sex or accompanying a child to a gender transition medical appointment to avoid behavior being considered harassment or abuse has been considered compelled speech in violation of the Free Speech clause.
For the foregoing reasons, PJI encourages this rule’s recission as soon as possible.
Respectfully submitted,
Katherine I. Hartley
Pacific Justice Institute