A Safe Place to Talk – New Law Requires Support Services for Transgender Youth in Foster Care
On September 14, 2018, Governor Jerry Brown signed Assembly Bill 2119 amending Welfare and Institutions Code sections 16010.0 and 16010.2 to provide gender affirming health care and mental health care to foster youth.
Gender identity, as defined by the American Psychological Association (APA), is a person’s deeply-felt, inherent sense of being a boy, a man, or male; a girl, a woman, or female; or an alternative gender, that may or may not correspond to a person’s sex assigned at birth. Since gender identity is internal, a person’s gender identity is not necessarily visible to others.
The APA defines the term transgender as an umbrella term to describe the full range of people whose gender identity or gender role do not conform to what is typically associated with their sex assigned at birth.
The vast majority of children and young adults in foster care receive medical and mental health services through Medi-Cal. Historically, there has been no legal requirement for Medi-Cal services to support foster youth who identify as transgender with any medical or mental health services.
In 2001, all the rights of foster youth were consolidated into one statute, commonly referred to as the “Foster Youth Bill of Rights.” Generally, foster youth must receive all necessary medical, dental, vision, and mental health services. In 2015, the Foster Youth Bill of Rights was amended to include the right for foster youth to be placed in out-of-home care according to their gender identity, regardless of the gender or sex listed in their court or child welfare records.
AB 2119 fills a gap in current law by specifically addressing services to foster youth related to gender identity. The new law requires a county child welfare agency to ensure that all children and young adults in foster care have access to gender affirming health care and gender affirming behavioral health services. A request for gender affirming health care or behavioral health services may be made by a nonminor dependent, a caregiver, an attorney for the minor, a Court Appointed Special Advocate (CASA), or a social worker.
“Gender affirming health care” is defined as health care that respects the gender identity of the foster youth, as experienced and defined by each person. This includes interventions to suppress the development of secondary sex characteristics with the onset of puberty, to align the minor’s physical body with the minor’s gender identity, and to alleviate mental and physical distress resulting from transitioning genders.
Gender affirming behavioral health services should be provided that respect the gender identity of the minor, including developmentally appropriate exploration and integration of identity, reduction of stress, coping skills, and strategies to increase family acceptance.
AB 2119 also prohibits a licensed professional, or any other individual, from subjecting a foster child or nonminor dependent to any treatment, intervention, or conduct that seeks to change a foster youth’s chosen gender identity.
Opposition to AB 2119 included Equipped to Love, Bethel Church, William Jessup University, American College of Pediatricians, and 936 individuals. William Jessup University issued a written opposition stating that in its opinion, AB 2119 prevents foster youth from engaging in services “to change their same sex desire or gender identity to their biological gender.”
Dr. Michael Laidlaw, an endocrinologist for Sutter Health, testified at California Senate proceedings in opposition to AB 2119. Laidlaw testified that children undergoing gender-transition treatment “don’t have the capacity at that young of an age to understand what’s going to happen to them.” In his opinion, AB 2119 “misses the mark… because doctors and psychologists have absolutely no way of diagnosing with certainty who is a true trans child and who has gender dysphoria (or confusion with underlying mental health and endocrine problems).” Further, the American Psychological Association indicates many children that experience gender dysphoria do not continue it into adulthood.
Studies show there is a higher percentage of lesbian, gay, bisexual, transgender, and queer (LGBTQ) youth in foster care than in the overall youth population. Approximately, 5.6 percent of youth ages 12 through 21 in out-of-home care identify as transgender. This estimate is higher than the 1.3 to 3.2 percent of the overall youth population in the U.S. believed to identify as transgender.
LGBTQ youth in foster care surveyed in Los Angeles were found to have higher than average numbers of foster care placements than their non-LGBTQ peers, reported feeling they were treated worse than other youth in the child welfare system, and were more likely to have been homeless at some point in their lives than non-LGBTQ peers.
AB 2119 aims to promote the safety, well-being, and permanency of all children in California’s child welfare system by providing services to transgender youth. Equality for California, a co-sponsor of AB 2119, writes, “Transgender youth and gender non-conforming youth are at extremely high risk for depression, poor health, and even suicide as a result of the rejection, harassment and abuse they experience in their homes, schools, and communities.”
At the very least, AB 2119 provides a starting point for dialogue between foster youth and the network supporting them – attorneys, CASAs, social workers, and caregivers – to provide them with services to discuss their needs, explore their gender identity, and develop self-acceptance with the aid of medical and mental health services. The overarching goal is for all youth in foster care to experience less trauma and achieve better overall outcomes.
The California Department of Social Services has until January 1, 2020 to adopt regulations to implement the specific provisions of AB 2119. Minor’s Counsel, CASAs, social workers, and caregivers should be aware of their duty to request services on behalf of foster youth who are questioning their gender identity or who identify as transgender.