The Massachusetts Department of Children & Families (DCF) adopted a new regulation “on an emergency basis” Tuesday, removing a requirement for all prospective foster parents to affirm the “sexual orientation and gender identity” of any children placed in their home. The regulation had already resulted in removing Christian families from the program, leading to a lawsuit by Alliance Defending Freedom (ADF) and a warning letter from the federal Administration for Children and Families.

“In order to be licensed as a foster/adoptive parent, a foster/pre-adoptive parent applicant must meet the following requirements,” Massachusetts regulations (110 CMR 7.104) stipulated prior to the change. “(1) A foster/pre-adoptive parent applicant must demonstrate, to the satisfaction of the Department the ability: … (d) to promote the physical, mental, and emotional well-being of a child placed in his or her care, including supporting and respecting a child’s sexual orientation or gender identity.”

The emergency regulation “Amends 110 CMR 7.104(1)(d) removing ‘sexual orientation and gender identity’ and replacing with ‘individual identity and needs,’” according to an ADF court filing. The new language thus requires parents to support and respect a child’s individual identity, without reference to the controversial categories of sexual orientation and gender identity.

The Massachusetts DCF attributed their decision to pressure brought by the U.S. Administration for Children and Families, a part of the Department of Health and Human Services (HHS).

“Recently, the Administration for Children and Families (ACF), DCF’s federal regulator, told DCF that, in its view, the current version of 110 CMR 7.104(1)(d) violates the constitutional rights of applicants,” read an explanatory note accompanying the regulatory amendment. “DCF is promulgating this amendment on an emergency basis in order to preempt any potential escalation by ACF. These amendments address ACF’s concerns, while continuing to meet DCF’s need for foster homes that support the identity and needs of the children in its custody.”

On September 30, the ACF sent its Massachusetts counterpart a letter expressing concern over its “LGBTQIA+ Nondiscrimination Policy,” which “den[ied] qualified adoptive parents the opportunity of providing children a loving home, solely because they cannot, in good conscience, commit to affirming a hypothetical child’s gender identity.”

“These policies and developments are deeply troubling, clearly contrary to the purpose of child welfare programs, and in direct violation of First Amendment protections,” warned the letter from then-Acting Assistant Secretary of ACF, Andrew Gradison. (Gradison is ACF’s principal deputy assistant secretary, but Assistant Secretary Alex Adams did not receive Senate confirmation until October 7.)

In November, the ACF followed up the scrutiny on states like Massachusetts by rolling out a nationwide initiative to provide “A Home for Every Child.” The agency cited the fact that there are only 57 licensed foster homes for every 100 children entering foster care, a “critical shortage” which “means children spending nights in office buildings, teenagers shuttled between hotels, and siblings separated not for safety, but for lack of space.”

In light of this shortage, the ACF seeks to welcome more foster families into the process. It opposes state regulations like the one adopted by Massachusetts that use LGBT ideology as a litmus test for foster care participation, as such policies only serve to exclude otherwise qualified families.

“No child is made safer when the state shuns willing, stable, and loving homes. No child is better off when hyper-partisan policies are placed above permanency and what is best for the child,” argued Gradison in the September 30 letter. “I urge Massachusetts to pursue policies that reflect the values we share: liberty, compassion, and the unwavering belief that every child deserves a family. Let us not allow ideology to stand in the way. Let us not allow bureaucracy to block loving homes.”

The ACF has reacted to the Massachusetts rule change, removing the controversial language, with cautious approval. “On the surface, Massachusetts’ action is a good first step, and we appreciate states undertaking efforts to increase their ratio of foster homes relative to the number of foster kids,” said Assistant Secretary Adams in a statement provided to The Washington Stand. “However, it remains to be seen if this language shift will actually change state practice around how foster families are licensed. ACF looks forward to diligent follow-up to ensure the red carpet is rolled out to all foster families.”

For its part, ADF also welcomed the change but isn’t ready to drop its lawsuit quite yet. “Massachusetts has told us that this new regulation will no longer exclude Christian and other religious families from foster care because of their commonly held beliefs that boys are boys and girls are girls,” said ADF senior counsel Johannes Widmalm-Delphonse. “Our clients — loving, caring foster families who have welcomed vulnerable children into their homes — as well as many other families affected by this policy, are eager to reapply for their licenses. This amendment is a step in the right direction and we commend Massachusetts officials for changing course.”

“But,” he added, “this case will not end until we are positive that Massachusetts is committed to respecting religious persons and ideological diversity among foster parents.”