Protecting the Rights and Providing Appropriate Services to LGBTQIA2S+ Youth in Out-of-Home Care - California

Rights of LGBTQIA2S+ Youth in Foster Care

Citation: Wel. & Inst. Code §€‰16001.9

The rights of a youth placed in foster care include the following:

• To not be subjected to discrimination or harassment that is based on sex, sexual orientation, or gender identity and expression
• To live in a safe, healthy, and comfortable home where they are treated with respect
• To be free from physical, sexual, emotional, or other abuse; corporal punishment; and exploitation
• To be referred to by their preferred names and gender pronouns
• To maintain privacy regarding sexual orientation and gender identity and expression, unless the child permits the information to be disclosed

Supports for LGBTQIA2S+ Youth in Care

Citation: Wel. & Inst. Code §§€‰16001.9; 16010.2; Bus. & Prof. Code §§ 865 to 865.2

The rights of a youth placed in foster care include the following:

• To receive adequate and healthy food; adequate clothing; grooming and hygiene products that respect the youth's culture, ethnicity, and gender identity and expression; and an age-appropriate allowance
• To be placed in the least restrictive setting possible, regardless of age, physical health, mental health, sexual orientation, and gender identity and expression
• To participate in extracurricular, cultural, racial, ethnic, personal enrichment, and social activities€”including, but not limited to, access to computer technology and the internet€”consistent with the youth's age, maturity, developmental level, sexual orientation, and gender identity and expression
• To have fair and equal access to all available services, placement, care, treatment, and benefits
• To be placed in out-of-home care according to their gender identity, regardless of the gender or sex listed in their court, child welfare, medical, or vital records; to be referred to by their preferred names and gender pronouns; and to maintain privacy regarding sexual orientation and gender identity and expression, unless the youth permits the information to be disclosed, disclosure is required to protect their health and safety, or disclosure is compelled by law or a court order
• To access and receive medical, dental, vision, mental health, and substance use disorder services, including gender-affirming health care and gender-affirming mental health care
• To be involved in the development of their own case plan, including, but not limited to, the development of case plan elements related to placement and gender-affirming health care, with consideration of the youth's gender identity

The right of youth in foster care to health care and mental health care includes covered gender-affirming health care and gender-affirming mental health care. This right is subject to existing laws governing consent to health care for minors and nonminors and does not limit, add, or otherwise affect applicable laws governing consent to health care.

The State Department of Social Services shall, in consultation with the State Department of Health Care Services, develop guidance and describe best practices to identify, coordinate, and support youth in foster care seeking access to gender-affirming health care and gender-affirming mental health care and shall incorporate current guidance on ensuring access to Medi-Cal services for transgender beneficiaries.

'Sexual orientation change efforts' means any practices by mental health providers that seek to change an individual's sexual orientation. This includes efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.

Under no circumstances shall a mental health provider engage in sexual orientation change efforts with a patient under age 18. Any sexual orientation change efforts attempted on a patient under age 18 years of age by a mental health provider shall be considered unprofessional conduct and shall subject a mental health provider to discipline by the licensing entity for that mental health provider.

Placement Considerations

Citation: Wel. & Inst. Code §§€‰16006; 16001.9

Children and nonminor dependents in out-of-home care shall be placed according to their gender identity, regardless of the gender or sex listed in their court or child welfare records.

A youth in foster care has the right to the following:

• To be placed in the least restrictive setting possible, regardless of sexual orientation and gender identity and expression
• To be placed in out-of-home care according to their gender identity, regardless of the gender or sex listed in their court, child welfare, medical, or vital records

Caregiver Qualifications

Citation: Wel. & Inst. Code §€‰16519.5; Code of Regs. Tit. 22, § 84065

County agencies shall be responsible for ensuring that a resource family applicant completes a minimum of 12 hours of preapproval caregiver training. The training shall include the following:

• The rights of a child in foster care and the resource family's responsibility to safeguard those rights, including the right to have fair and equal access to all available services, placement, care, treatment, and benefits and to not be subjected to discrimination or harassment on the basis of actual or perceived race, ethnic group identification, ancestry, national origin, color, religion, sex, sexual orientation, gender identity, mental or physical disability, or HIV status
• Cultural needs of children, including instruction on cultural competency and sensitivity and related best practices for providing adequate care for children or youth across diverse ethnic and racial backgrounds, as well as children or youth identifying as lesbian, gay, bisexual, or transgender
• Child and adolescent development, including sexual orientation, gender identity, and expression

In addition, a county agency may require a resource family to receive relevant specialized training to meet the needs of a particular child in care, which may include understanding best practices for providing care and supervision to lesbian, gay, bisexual, and transgender children.

In regulation: Training for group home staff shall include the following topics:

• A child's rights as specified in Welfare and Institutions Code § 16001.9, including a child's right to have fair and equal access to all available services, placement, care, treatment, and benefits and to not be subjected to discrimination or harassment on the basis of actual or perceived race, ethnic group identification, ancestry, national origin, color, religion, sex, sexual orientation, gender identity, mental or physical disability, or HIV status
• Instruction on cultural competency and sensitivity relating to, and best practices for, providing adequate care to lesbian, gay, bisexual, and transgender youth in out-of-home care

Definitions

Citation: Wel. & Inst. Code § 16010.2; Code of Reg. Tit. 22, § 89201

'Gender-affirming health care' means medically necessary health care that respects the gender identity of the patient, as experienced and defined by the patient, and may include, but is not limited to, the following:

• Interventions to suppress the development of endogenous secondary sex characteristics
• Interventions to align the patient's appearance or physical body with the patient's gender identity
• Interventions to alleviate symptoms of clinically significant distress resulting from gender dysphoria, as defined in the Diagnostic and Statistical Manual of Mental Disorders (fifth edition)

'Gender-affirming mental health care' means mental health care or behavioral health care that respects the gender identity of the patient, as experienced and defined by the patient, and may include, but is not limited to, developmentally appropriate exploration and integration of identity, reduction of distress, adaptive coping, and strategies to increase family acceptance.

In regulation: The terms used in this article are defined as follows:

• 'Gender expression' refers to the ways a person communicates their gender identity through clothing, haircut, behavior, and interaction with others.
• 'Gender identity' means a person's internal identification or self-image as male, female, or other.
• 'Sexual orientation" describes a person's emotional, romantic, and physical feelings of attraction to another person, whether a person is bisexual, gay, lesbian, straight, or other.