Mississippi’s Anti-LGBTQ Law to Take Effect Following Circuit Court Decision

Mississippi’s Anti-LGBTQ Law to Take Effect Following Circuit Court Decision

Mississippi HB 1523 grants a license to discriminate against LGBTQ residents and places already at-risk children in greater danger

In a disappointing setback to LGBTQ Mississippians and supporters of equality everywhere, the full court of the 5th Circuit Court of Appeals has declined to rehear a case challenging the wide-ranging anti-LGBTQ bill, known as HB 1523, in the state of Mississippi.

The bill was previously ruled unconstitutional by a lower court; a decision that was later overturned by a panel of the 5th Circuit Court of Appeals based on a technicality – the panel argued that because the plaintiffs had not actually been harmed by the bill they lacked the legal standing to challenge it – rather than an examination of the law’s constitutional merits.

On Sunday October 1, the full 5th Circuit Court declined to revisit this earlier panel decision, meaning that the law will now go into effect early next week.

Legal teams for the plaintiffs, including Lambda Legal and Mississippi Center for Justice, have announced that they will appeal the decision to the Supreme Court. Additionally, an October 3 motion to suspend the law from taking effect pending a petition to the Supreme Court was quickly denied by Circuit Judge Jerry E. Smith.

Mississippi HB 1523 includes protections for three religious beliefs:

  1. Marriage should be recognized as a union between one man and one woman;
  2. sexual relations are reserved for those marriages; and
  3. a person’s gender refers to his or her biological sex assigned at birth.

The sweeping bill authorizes Mississippi officials and service providers, such as doctors and store owners – and, unfortunately for children, child welfare agencies including foster and adoption service providers – to recuse themselves from serving LGBTQ individuals and families on the basis of these beliefs.

We know this law will have devastating, discriminatory impacts on LGBTQ Mississippians’ everyday lives, whether they are seeking benefits they are eligible for, services they deserve, or the basic dignity we should all be accorded.

We also know this law will have a harmful impact on vulnerable, at-risk children in Mississippi, whether they are LGBTQ or not.

In 2015, the most recent year for which data is available, 1,437 children in Mississippi’s foster care system were available for adoption.

And in Mississippi, 29% of same-sex couples are raising children – the highest percentage of any state in the country.  Across the U.S., same-sex couples are six times more likely to foster, and four times more likely to adopt, than their different sex counterparts.  Further, studies have shown that same-sex couples are more likely than different sex couples to adopt older children and children with special needs. These children have the most difficulty finding forever homes.

The consequences of discrimination against otherwise qualified LGBTQ potential parents for children receiving child welfare services are severe.  Just this week, I spoke to a young man who was in foster care until he was 17, when his two moms adopted him.  If his state had permitted discrimination, child welfare agencies could have denied, delayed, or otherwise prevented his adoption.  That delay would have meant him turning 18 and aging out of the foster care system – without the chance of having a permanent, forever family.

Imagine facing life at 18 without the support of a family.  Unsurprisingly, aging out of the foster care system without a family to fall back on comes with a heightened risk of a number of negative outcomes for youth in care, including failing to complete high school, increased involvement with the criminal justice system, unemployment, homelessness, and being trafficked.

Thus, Mississippi’s attack on LGBTQ-headed families on the basis of religious beliefs will hurt those most in need of help and perhaps least able to help themselves – children and youth seeking foster and adoptive families.

Insidiously, the law also allows discriminatory agencies to utilize tax dollars to serve LGBTQ children and youth – despite the fact that the agencies can explicitly discriminate against LGBTQ families.  We know that LGBTQ youth are disproportionately impacted by homelessness, and disproportionately represented in the child welfare system  – yet the state of Mississippi is explicitly allowing those who would discriminate against LGBTQ parents to serve these youth.

Imagine a transgender foster child who dreams of becoming a foster parent herself one day being told by the agency serving her that they will not place her with transgender parents because they don’t believe transgender people make good parents.  Or a gay child seeking an affirming home being served by an agency which believes in conversion therapy, a harmful practice opposed by the medical community and outlawed in several states.  Or an agency simply refusing to serve a bisexual youth at all because of her sexual orientation.  When HB 1523 takes effect next week, all of these scenarios become more likely.

Sadly, thirteen states have no protections against discrimination for LGBTQ youth receiving child welfare services; and twenty-four states do not protect transgender youth receiving these services.   Mississippi, ironically, is not one of those states; Mississippi regulations state that youth 14 and over in foster care have the right to “fair treatment, whatever my …gender identity … or sexual orientation.”  How Mississippi plans to protect LGBTQ youths’ right to fair treatment by agencies discriminating against the qualified LGBTQ adults who would adopt them – or other children – remains to be seen.

Mississippi HB 1523 flies in the face of American’s belief in fairness and support for at-risk kids.  Just this month, the Public Religion Research Institute released a survey showing that more than two-thirds (68%) of the public oppose allowing agencies that receive federal funding to refuse placing children with gay or lesbian people, compared to 28% of Americans who favor such a policy.  This opposition to discrimination by agencies is widespread, including among majorities of both Republicans and evangelical Christians.

Family Equality Council encourages Mississippians – and all Americans –  to be prepared to act as part of our #EveryChildDeservesaFamily campaign to fight the next wave of discriminatory bills in 2018, and to fight for passage of the federal Every Child Deserves a Family Act which would outlaw discrimination against qualified LGBTQ and unmarried potential parents or against LGBTQ children and youth served by adoption and foster agencies across the United States.