UNCONSTITUTIONAL: State AG Explains How the Biden Admin Twists the Law in New Transgender Foster Care Rule

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Jonathan Skrmetti, the Republican attorney general of Tennessee, has pledged that he will sue the Department of Health and Human Services under President Joe Biden if it finalizes a rule forcing gender ideology on foster parents.

Skrmetti laid out the legal arguments against the rule in a conversation Wednesday with “The Daily Signal Podcast.”

“This is a federal agency making law, treading on both the prerogatives of Congress and really the prerogatives of the state legislatures,” Skrmetti said.

“Family law has always been a state issue,” he explained. “The states have developed a rich body of family law dealing with issues like foster care. This is a really heavy-handed intrusion by the federal government in pursuit of a political end but at the expense of kids. So constitutionally, there’s a structural problem with a federal agency making law in an area where the states should be making the law and where the states have been making the law.”

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HHS’ Administration for Children and Families proposed a new rule Sept. 28 on “Safe and Appropriate Foster Care Placement Requirements” and allowed Americans to submit public comments by Nov. 27. Skrmetti submitted a comment as Tennessee’s attorney general, and 16 other state attorneys general signed on to it.

The HHS rule applies the idea that any lack of “affirmation” of a child’s self-declared gender identity constitutes a form of child abuse in foster care placements.

Skrmetti’s written comment outlines three major legal difficulties with the rule. He argues that the rule exceeds HHS’ legal authority as established by Congress, trampling on states’ broad authority in family law. He also argues that the rule is “arbitrary and capricious,” in violation of the Administrative Procedure Act. Finally, he notes various constitutional problems with the rule, such as violating the First Amendment’s free speech and free exercise clauses.

“A lot of people who participate in foster care do so because it’s a way of living out their faith,” Skrmetti told The Daily Signal. By asking people to “adopt the language and affirm the commitments of gender ideology,” he said, “the federal government’s asking them to turn away from their religious beliefs.”

Skrmetti’s formal comment on the rule notes that Tennessee contracts with or maintains relationships with faith-based agencies that serve over 400 foster children in the state.

“The commitments that people need to make in terms of pronouns, in terms of acknowledging that this is an ontological change and that people are their subjective belief and that there’s no objective grounding, is inconsistent with the idea of—in the Christian tradition—biblical creation,” the state’s attorney general noted.

Skrmetti’s public comment on the rule lays out a road map for a potential lawsuit challenging it, a lawsuit that the attorney general told The Daily Signal he “absolutely” would file should HHS finalize the rule.

The attorney general also noted that Tennessee, among other states, has banned experimental medical interventions that transgender activists refer to as “gender-affirming care.”

The Tennessee Legislature, he said, “considered the potential risks and the potential benefits, and—as a number of European countries have done—they determined that the risks of allowing kids to have access to these treatments, even puberty blockers, create the potential for long-term, lifelong negative effects, and the evidence just isn’t there to support the medical benefit of making these treatments broadly available.”

Skrmetti noted that many who formerly identified as transgender now desist from that identity, becoming “detransitioners.”

Although pro-transgender activist groups have filed a lawsuit challenging Tennessee’s ban of such treatments for minors, the attorney general noted that the U.S. Court of Appeals for the 6th Circuit upheld the law.

“The Constitution doesn’t require an experimental medical exception,” Skrmetti quipped.

The attorney general also noted that his agency is opposing federal overreach when it comes to burdensome regulations on appliances such as dishwashers.

The full interview with Skrmetti is available on today’s edition of “The Daily Signal Podcast.” Click below to listen and subscribe here.

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