Same-Sex Foster Parents Face Discrimination from U.S. State Court Judge

by | Nov 21, 2015

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About Rachel Wechsler

Dr Rachel J Wechsler is an incoming Associate Professor at the University of Missouri School of Law.


Rachel J. Wechsler ‘Same-Sex Foster Parents Face Discrimination from U.S. State Court Judge’ (OxHRH Blog, 21 November 2015) <> [Date of Access]

In the wake of the Obergefell decision, it can be easy to forget that the fight for LGBT rights is far from over in many parts of the U.S. Just last week, Utah Seventh District Juvenile Court Judge Scott Johansen ordered an infant to be removed from her foster parents’ care wholly based upon the fact that the foster parents are a same-sex couple.

Judge Johansen ruled that the Utah Division of Child and Family Services (the “Division”) must remove the child from the foster parents’ home and place her with “a duly married, heterosexual foster-adoptive couple within one week,”[1] contrary to the recommendations of the Division, the guardian ad litem, and the biological mother. Though the judge later reversed the order, very likely due to widespread backlash across the country, including from Utah Governor Gary Herbert, a hearing to determine the child’s “best interests” remains set for 4th December. However, Judge Johansen will not preside over this hearing, as he recused himself from the case on 16th November amid the controversy surrounding his ruling.

In the original order, Judge Johansen stated that “[t]he Court believes that it is not in the best interest of children to be raised by same-sex couples.” In support of his assertion, he claimed research has shown that “same-sex marriages have double the rate of instability as heterosexual marriages have” and that the incidence of emotional problems among children raised by same-sex couples is four times that of those raised by heterosexual couples. Notably, the original order explicitly stated the Court’s refusal “to identify or provide the research upon which its opinion is based to the parties despite several requests by counsel to do so.” Presumably, if such research does, in fact, exist, then Judge Johansen should be willing to provide it in response to the requests. Indeed, one would expect him to be eager to do so as a way of protecting himself against allegations that he improperly based the ruling on his personal religious and moral beliefs.

While Judge Johansen’s ruling has sparked outrage, it should not be all that surprising, considering the current state of the law in Utah. State law requires priority be given “to a foster placement with a man and a woman who are married to each other, unless it is in the best interests of the child to place the child with a single foster parent” (in cases where placement with a parent, relative, friend of a parent or former foster parent is not an option). Furthermore, judges enjoy wide discretion with respect to children’s foster home placements: they may consider any factor they deem “relevant to a particular placement of a child.” In addition, Utah’s anti-discrimination law, amended to include LGBT protections earlier this year, does not address foster placements or child custody matters.

While significant progress has been made with respect to LGBT rights in the U.S. in recent years, there is still a great need for additional legal protections to root out lingering discrimination. Hopefully, the U.S. Supreme Court will continue to invalidate discriminatory state laws and practices, as it did in Obergefell, until LGBT individuals are able to fully and equally participate in U.S. society.

[1]The Permanency Order, including revisions, is on file with the OxHRH Blog and available by request.

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