BILL ANALYSIS Ó
SB 731
Page 1
Date of Hearing: July 14, 2015
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Kansen Chu, Chair
SB
731 (Leno) - As Introduced February 27, 2015
SENATE VOTE: 28-5
SUBJECT: Foster children: housing: gender identity.
SUMMARY: Requires the out-of-home placement of foster youth and
nonminor dependents to be based on an individual's gender
identity.
Specifically, this bill:
1)Requires foster children and nonminor dependents in
out-of-home care to be placed according to their gender
identity. Further requires the Department of Social Services'
Community Care Licensing Division (CCLD) to develop
regulations implementing this requirement.
2)Adds to the codified list of foster youth's and nonminor
dependents' rights the right to be placed in out-of-home care
according to one's gender identity, regardless of the gender
or sex listed in court or child welfare records.
SB 731
Page 2
EXISTING LAW:
1)States that the purpose of foster care law is to provide
maximum safety and protection for children who are being
physically, sexually or emotionally abused, neglected, or
exploited and to ensure the safety, protection, and physical
and emotional well-being of children at risk of such harm.
(WIC 300.2)
2)Declares the intent of the Legislature to, whenever possible:
preserve and strengthen a child's family ties, reunify a
foster child with his or her relatives, or when family
reunification is not possible or likely, to develop a
permanent alternative. Further states the intent of the
Legislature to reaffirm its commitment to children who are in
out-of-home placement to live in the least restrictive, most
family-like setting and as close to the child's family as
possible, as specified. (WIC 16000)
3)Requires out-of-home placement of a child in foster care to be
based upon selection of a safe setting that is the least
restrictive or most family-like and the most appropriate
setting available and in close proximity to the parent's home,
the child's school, and best suited to meet the child's
special needs and best interests. Further requires the
selection of placement to consider, in order of priority,
placement with relatives, nonrelated extended family members,
tribal members, and foster family homes, certified homes of
foster family agencies, intensive treatment or
multidimensional treatment foster care homes, group care
placements, such as group homes and community treatment
facilities, and residential treatment, as specified. (WIC
16501.1(c)(1))
SB 731
Page 3
4)Enumerates rights of minors and nonminors in foster care,
including but not limited to the right to: live in a safe,
healthy, and comfortable home where he or she is treated with
respect; be free from physical, sexual, emotional, or other
abuse, or corporal punishment; receive adequate and healthy
food, adequate clothing, and, for youth in group homes, an
allowance; receive medical, dental, vision, and mental health
services; be involved in the development of his or her own
case plan and plan for permanent placement; and review his or
her own case plan and plan for permanent placement, if he or
she is 12 years of age or older and in a permanent placement,
and receive information about his or her out-of-home placement
and case plan, including being told of changes to the plan.
(WIC 16001.9)
5)Establishes the California Community Care Facilities Act to
provide for the licensure and regulation of community care
facilities, including various foster care placement settings,
and requires CCLD to regulate community care licensees. (HSC
1500 et seq.)
FISCAL EFFECT: According to the May 11, 2015, Senate
Appropriations Committee analysis, this bill may result in the
following costs:
1)One-time minor costs (General Fund) for DSS to promulgate
regulations.
2)Likely minor caseload impact statewide. To the extent county
agencies incur increased workload associated with implementing
and adhering to the specified regulations, statewide costs
SB 731
Page 4
could exceed $50,000 (General Fund). (Proposition 30 exempts
the State from mandate reimbursement for realigned programs,
however, legislation that has an overall effect of increasing
the costs already borne by a local agency for realigned
programs including child welfare services, apply to local
agencies only to the extent that the State provides annual
funding for the cost increase.)
COMMENTS:
Child Welfare Services: The purpose of California's Child
Welfare Services (CWS) system is to protect children from abuse
and neglect and provide for their health and safety. When
children are identified as being at risk of abuse, neglect or
abandonment, county juvenile courts hold legal dependency
jurisdiction; these children are served by the CWS system
through the appointment of a social worker. Through this
juvenile dependency system, there are multiple opportunities for
the custody of the child, or his or her placement outside of the
home, to be evaluated, reviewed and determined by the judicial
system, in consultation with the child's social worker, to help
provide the best possible services to the child. The CWS system
seeks to help children who have been removed from their homes
reunify with their parents or guardians, whenever appropriate.
However, the court may determine that an alternate permanent
placement is more fitting; the court must give preference to
potential placements in this order: relatives, nonrelative
extended family members, or family foster homes. Placement in
group homes or other intensive treatment placement settings are
considered only in more challenging situations where a child may
need stabilization services in order to transition to a less
restrictive placement, such as with a relative or foster
caregiver.
There are currently close to 63,000 children and youth in
SB 731
Page 5
California's CWS system.
Foster Youth Bill of Rights: AB 899 (Liu), Chapter 683,
Statutes of 2001, adopted California's Foster Youth Bill of
Rights. Two previous bills - AB 2923 (Bates) in 1994 and SB
1974 (Watson) in 1996 - had sought to codify the rights of
children in foster care but were vetoed by then-Governor Pete
Wilson. Proponents of AB 899 acknowledged that regulations at
the time contained a number of rights of foster children, but
they argued that the lists of these rights tended to vary and
were not conveyed consistently to foster youth. Staff of the
Office of the State Foster Care Ombudsperson (Office) also
acknowledged at the time that most of the rights contained in AB
899 were consistent with those provided by the Office to youth,
but the Office still struggled with uniformly conveying this
information; the Office also pointed to the lack of a clear
process of accountability when youth were not provided with this
information.
AB 899, in making the Foster Youth Bill of Rights law,
consolidated and codified all of the rights of children into one
place in statute. It also required: social workers and
probation officers to periodically inform children of these
rights in an age-appropriate manner, the Office to disseminate
information on these rights, and any facility licensed to
provide foster care for six or more children to post a listing
of these rights.
The current list of rights for all minors and nonminors in
foster care includes 26 enumerated rights, such as the right to:
live in a safe, healthy, and comfortable home where he or she
is treated with respect; be free from physical, sexual,
emotional, or other abuse, or corporal punishment; receive
adequate and healthy food, adequate clothing, and, for youth in
group homes, an allowance; and receive medical, dental, vision,
SB 731
Page 6
and mental health services. Rights specific to transgender
youth include 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 gender identity, and 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 transgender youth in out-of-home
care.
Foster youth and gender identity: It is difficult to get an
exact estimate of the percentage of foster youth who identify as
transgender. A 2014 report released by the Williams Institute
at the UCLA School of Law found that, in Los Angeles County,
approximately 5.6% of youth ages 12 through 21 in out-of-home
care identified as transgender (19.1% overall identified as
lesbian, gay, bisexual, transgender, or questioning [LGBTQ]).
This estimate of 5.6% is higher than the 1.3% to 3.2% of the
overall youth population in the U.S. believed to identify as
transgender.
While some LGBTQ youth enter CWS for reasons unrelated to their
sexual orientation or gender identity, the Child Welfare League
of America reports that:
"A large proportion of LGBT youth enter these systems,
however, for reasons either directly or indirectly related to
their sexual orientation or gender identity. This includes
youth who, because of their sexual orientation or gender
identity, have been rejected, neglected, or abused by their
birth families; youth who have stopped attending school
because of anti-LGBT abuse or harassment; runaway,
'throwaway,' and homeless youth, some of whom engage in
survival crimes; and youth who have been mislabeled as sex
offenders simply because of their sexual orientation or gender
identity."
The Williams Institute study found that the LGBTQ youth in
foster care in Los Angeles County that they surveyed, when
SB 731
Page 7
compared to non-LGBTQ youth, had a higher average number of
foster care placements, reported that they were being treated
less well by the child welfare system, and were more likely to
have been homeless at some point in their lives.
Many professionals agree that it is harmful to prevent
transgender youth from expressing their gender identity.
According to the Child Welfare League of America:
"The integration of a positive gender identity is also a
critical aspect of healthy adolescent development. This task
is especially challenging for transgender youth, whose gender
identity does not correspond with their anatomical sex? Child
welfare and juvenile justice agencies should not require youth
to conform to traditional conceptions of gender or punish
youth who are transgender or gender nonconforming. The
agency's basic approach should be to validate a young person's
core gender identity, as defined by the youth."
Need for this bill: According to the author:
"Children in the child welfare system are protected by the
Foster Care Bill of Rights, which includes the right to fair
and equal access to all services. Though California law
intends to protect all children from discrimination, it does
not give specific guidance to caregivers when placing foster
children who are transgender.
Many transgender youth face rejection, bullying, and physical
abuse at the hands of their families, communities, and schools
due to bias against their gender identity or expression.
These children are at extremely high risk for poor health and
mental health. They are at much higher risk than other youth
for homelessness, abuse, depression, and suicide. It is
essential that we provide caregivers and environments that
affirm and respect these young people so that they can thrive.
SB 731
Page 8
Child welfare workers need guidance on how to place children
based on their gender identity. This bill accomplishes this
by giving foster children the right to be placed according to
gender identity and directing Community Care Licensing to
develop regulations to implement this right.
[This bill] will ensure that caregivers provide appropriate
supportive care, including respecting and affirming every
child's gender identity."
Staff comments: Many experts agree that it is important to
consider a youth's gender identity when placing him or her in
sex-segregated housing. However, some argue that best practices
for housing transgender foster youth include a consideration of
each individual's needs and sense of safety. For example,
Lambda Legal, a legal rights organization for LGBTQ individuals
and people with HIV advises that, in sex-segregated facilities,
assignments should not be based on a youth's sex assigned to
them at birth, but assignment decisions should instead be based
on individualized, case-by-case considerations, including a
youth's sense of comfort and safety. (This argument is also
made for individuals with a more fluid gender identity [possibly
more common among transgender youth, who may be more likely to
have gender non-conforming identities that are neither fully
female nor male] or who are in transition; a 2006 article in the
Journal of Poverty regarding homeless shelters for transgender
people stated that, "the best solution for situations where a
resident's gender is not consistently male or female is to have
a conversation with the person about his or her privacy and
safety needs, and ask whether it would be better for him or her
to be housed with men or women?The transgender resident should
be offered all of the options available, and the staff-person
should be able to explain the relative privacy and safety
considerations of each. After discussing these issues with the
resident, the staff-person should defer to the resident's
assessment of what will be safest and most comfortable.")
SB 731
Page 9
These considerations raise the question of whether the current
language contained in this bill should allow for youth choice
regarding their placements, irrespective of gender identity, to
ensure their sense of safety. Some supporters of this bill
contend that this shouldn't be necessary, that all youth
placements should be safe: youth should not be forced to make a
choice between living according to their gender identity on one
hand and their safety and comfort on the other.
Committee staff agrees that each and every placement for all
foster youth must ensure the health and safety of those youth.
However, staff would also argue that there must be room for the
experiences and voices of transgender youth to play a role in
decisions regarding their placements. While all placements
should offer an objective guarantee of basic safety, not all
placements may create the same subjective sense of security and
comfort for youth. Neither a transgender youth's biological sex
nor his or her gender identity should preclude him or her from
having input into his or her placement. For these reasons,
should this bill move forward, this Committee encourages DSS to
work with stakeholders, including transgender foster youth, to:
a) develop the required regulations in a manner that keeps the
safety, security, and comfort of youth at the forefront, and b)
address in a more systemic fashion the ways in which CWS can
more fully support transgender foster youth and nonminor
dependents by removing barriers to their success, ensuring their
safety and security, and fully realizing the intent of the
Foster Youth Bill of Rights.
PRIOR LEGISLATION:
AB 1266 (Ammiano), Chapter 85, Statutes of 2013, required
students to be permitted to participate in sex-segregated school
programs and activities and use facilities consistent with their
gender identity, regardless of the gender listed on the pupil's
records.
SB 731
Page 10
REGISTERED SUPPORT / OPPOSITION:
Support
National Center for Lesbian Rights (NCLR), co-sponsor
American Civil Liberties Union of California (ACLU)
American Federation of State, County and Municipal Employees
(AFSCME), AFL-CIO
California Alliance of Child and Family Services
California Coalition for Youth (CCY)
Family Builders
County Welfare Directors Association of California (CWDA)
East Bay Children's Law Offices
Equality California (EQCA), co-sponsor
Gender Health Center
SB 731
Page 11
Gender Spectrum
Juvenile Court Judges of California
Legal Services for Children (LSC)
National Association of Social Workers, California Chapter
(NASW-CA)
National Center for Youth Law
National Council on Crime & Delinquency
Santa Clara County Board of Supervisors
Youth Law Center
Opposition
None on file.
Analysis Prepared by:Daphne Hunt / HUM. S. / (916)
SB 731
Page 12
319-2089