BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015 - 2016 Regular Session
SB 731 (Leno)
Version: February 27, 2015
Hearing Date: April 28, 2015
Fiscal: Yes
Urgency: No
NR
SUBJECT
Foster children: housing: gender identity
DESCRIPTION
This bill would require that foster children and nonminor
dependents in out-of-home care be placed according to their
gender identity, regardless of the gender or sex listed in their
court or child welfare records. Additionally, this bill would
add the above requirement to the Foster Care Bill of Rights.
BACKGROUND
Lesbian, gay, bisexual, and transgender (LGBT) youth are
significantly over represented in the juvenile justice system.
Although LGBT youth only represent five to seven percent of the
nation's overall youth population, they compose nearly 15
percent of those currently in the juvenile justice system.
(Jerome Hunt and Aisha C. Moodie-Mills, The Unfair
Criminalization of Gay and Transgender Youth, June 29, 2012.)
Research shows that LGBT youth in the child welfare system are
twice as likely to have experienced family conflict, child
abuse, and homelessness as other youth. (Irvine, We've had three
of them: Addressing the invisibility of lesbian, gay, bisexual,
and gender non-conforming youths in the juvenile justice system,
(2010) 19 Colum. J. Gender & L. 675.) Many of these youth leave
their homes to escape conflict or emotional and physical abuse,
but often they are pushed out of the home by their own families.
Once in the child welfare system, LGBT youth are at risk of
biases and discrimination, and of being classified according to
their birth sex rather than by their gender identity.
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In recognition of some of the challenges faced by LGBT youth,
the Legislature has enacted numerous laws to protect them from
discriminatory practices and other harm. SB 1172 (Lieu, Ch. 835,
Stats. 2012) prohibited a mental health provider from engaging
in sexual orientation change efforts, defined as practices which
"seek to change an individual's sexual orientation," with a
patient under 18 years of age. That same year, AB 1856
(Ammiano, Ch. 639, Stats. 2012) was passed to address a systemic
lack of training with respect to the needs of LGBT youth in the
foster system, by requiring training for group home
administrators, foster parents, and relative caregivers on
cultural competency and sensitivity relating to, and best
practices for, providing adequate care to LGBT youth in
out-of-home care. This bill would additionally require that a
foster child or nonminor dependent in out-of-home care be placed
according to his or her gender identity, regardless of the sex
indicated on his or her court or child welfare records.
CHANGES TO EXISTING LAW
Existing law establishes the jurisdiction of the juvenile court,
which is authorized to adjudge children to be dependents of the
court under certain circumstances, including extreme abuse or
neglect. (Welf. & Inst. Code Sec. 300 et seq.)
Existing law, the Foster Care Bill of Rights, clearly enumerates
the rights of children placed in foster care, including:
the right to live in a safe, healthy, and comfortable home
where he or she is treated with respect;
the right 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; and
the right to have caregivers and child welfare personnel who
have received 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. (Welf. & Inst. Code Sec. 16001.9.)
Existing law requires group home administrator certification
programs, foster parent trainings, and relative and nonrelative
extended family member trainings to include instruction on
cultural competency and sensitivity relating to, and best
practices for, providing adequate care to lesbian, gay,
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bisexual, and transgender youth in out-of-home care. (Health &
Saf. Code Secs. 1522.41 and 1529.2, 1; Welf. & Inst. Code Sec.
6003.)
This bill would provide that foster 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.
This bill would also make a corresponding change to the Foster
Care Bill of Rights.
COMMENT
1.Stated need for the bill
According to the author:
Many transgender youth face rejection, harassment, and
physical abuse at the hands of their families, communities,
and schools due to a bias against their gender identity or
expression.
These children are at extremely high risk for poor health and
mental health outcomes. These risks are magnified for children
in foster care, many of whom have already experienced
significant trauma. When a foster child is improperly placed
without consideration of gender identity, the child may be at
risk for further bullying, harassment, and abuse.
2.Clarifies existing law
The Foster Care Bill of Rights, established in 2002, initially
provided that foster youth have the right to live in a safe,
healthy, and comfortable home, to be treated with respect, and
to be free from physical, sexual, emotional, or other abuse. (AB
899, Liu, Ch. 683 Stats. 2001.) The following year the
Legislature added to those protections the right to "fair and
equal access to all available services, placement, care,
treatment, and benefits, and to not be subjected to
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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." (AB 458, Chu, Ch.
331, Stats. 2003.)
More recently, as awareness of what constitutes discrimination
against transgender individuals has become more widely
understood, the Legislature has recognized that for transgender
individuals, being free from discrimination largely turns on the
ability to live an authentic life where society recognizes
individuals the way they see themselves and not by their
assigned sex at birth. (See e.g., AB 887 (Atkins, Ch. 719,
Stats. 2011); AJR 43 (Lara, Ch. 141, Stats. 2012); AB 868
(Ammiano, Ch. 300, Stats. 2013); and AB 1577 (Atkins, Ch. 631,
Stats. 2014).) Yet despite the Legislature's acknowledgment of
the rights of transgender individuals, supporters of this bill
argue that some youth are still being placed in foster homes
without regard to gender identity. Legal Services for Children,
in support, writes:
[M]any transgender children endure stigma, rejection,
harassment, and abuse in their homes, schools, and
communities. Such trauma can harm one's psychosocial
development and behavior, which means that consistently facing
such damaging interactions places transgender youth at
extremely high risk for depression, poor health, and even
suicide. Such interactions may also lead transgender youth to
react in ways that put into contact with the juvenile justice
system, which can in turn disrupt their education and
adversely impact their futures.
Transgender children who enter the child welfare system are
more likely to experience further trauma if they are
inappropriately placed in a foster care setting that does not
affirm their gender identity. [This bill] will protect
transgender children in the California foster care system by
ensuring that child welfare workers and caregivers place them
in settings that respect their gender identity. Such respect
is tantamount to the stability needed for healthy development,
and can significantly improve life outcomes for transgender
foster youth.
This bill, which would provide that foster youths have the right
to be placed according to their gender identity, regardless of
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the gender or sex listed in their court or child welfare
records, further articulates how to protect transgender youth
from discrimination in the foster system.
Support : AFSCME; American Civil Liberties Union of California;
California Alliance of Child and Family Services; California
Communities United Institute; County Welfare Directors
Association of California; East Bay Children's Law Offices;
Family Builders; Gender Health Center; Gender Spectrum; Juvenile
Court Judges of California; Legal Services for Children;
National Association of Social Workers; National Center for
Youth Law; National Council on Crime & Delinquency; Youth Law
Center
Opposition : None Known
HISTORY
Source : Equality California; National Center for Lesbian Rights
Related Pending Legislation : None Known
Prior Legislation :
AB 2001 (Ammiano, 2014) would have required the Department of
Social Services to establish a working group to develop policy
and practice recommendations to the Legislature to ensure that
homeless, unaccompanied minors have timely, reliable access to
appropriate placements and services through the state's child
welfare system, and would have required a social worker to
interview a minor who is in a runaway and homeless youth
shelter, and required the commencement of juvenile court
proceedings within five judicial days in specified cases. This
bill died on the Senate Appropriations Committee Suspense file.
AB 868 (Ammiano, Chapter 300, Statutes of 2013) required the
Judicial Council to establish training programs for judges on
the effects of gender identity and sexual orientation in family
law proceedings. This bill also requires the Judicial Council
to create training standards on cultural competency and
sensitivity relating to, and best practices for, providing
adequate care to LGBT youth for counsel in juvenile court and
appointed special advocates (CASAs).
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AB 1856 (Ammiano, Chapter 639, Statutes of 2012), required the
training for administrators of a group home facility, licensed
foster parents, and relative or nonrelative extended family
member caregivers to also include instruction on cultural
competency and sensitivity relating to, and best practices for,
providing adequate care to LGBT youth in out-of-home care.
Prior Vote : Senate Human Services Committee (Ayes 3, Noes 0)
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