The Daily Signal - How Biden Admin Is Twisting the Law in New Transgender Foster Care Rule

Episode Date: December 1, 2023

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." 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. Enjoy the conversation with Skrmetti. Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

Make their holiday unforgettable with a gift that says it all from Pandora Jewelry, a gift that tells a story and shows you know theirs that doesn't just sparkle, but speaks. From new festive charms to forever rings and personal engravings, this season give a gift that's perfectly theirs. Whether you're shopping for a shiny surprise for your significant other, matching bracelets to celebrate your friendship or a heartfelt gift for a family member. Say more this holiday season with Pandora. Shop now atca.pandora.net or visit your closest Pandora store.

We are not shy about suing to stop federal overreach, and particularly where kids are going to be hurt as a result of it. I'll absolutely sue here if they go forward with this rule. And I suspect probably all or almost all of my colleagues who signed on to the letter will too. This is the Daily Signal podcast for Friday, December 1st. I'm Tyler O'Neill. And that was Tennessee Attorney General Jonathan Scermetti. He and I sat down to discuss the way his office. responded to President Biden's new rule in the Department of Health and Human Services.

This is a proposed rule not finalized yet, but the rule imposes gender ideology on foster parents. And Scrametti led a team of 16 other attorneys general in sending this official comment into the HHS, laying out the legal arguments why this rule does not pass muster, why it, violates longstanding law when it comes to the state's wide authority to issue rules on foster care, and why it violates the U.S. Constitution, specifically the First Amendment, guarantees of free speech and religious freedom. This is a very shocking rule. I mean, it's what we expect from the Biden administration, but it's pushing the envelope on this gender ideology, essentially forcing, forcing, anyone who wants to take in foster kids to follow the dictates of gender ideology, to embrace the idea that a child's self-declared gender identity overrides their biological sex. And during our discussion, Scrametti actually explained this in a very effective way.

He told me, and he used the term Gnostic. And you may or may not have heard this term. Gnosticism is an ancient Christian heresy. that viewed the human body as evil, that viewed all material, all matter as evil, and the spiritual realm and spirit as good. And so what Gnosticism did, it was about Gnostic comes from the term for hidden knowledge.

And it was this movement that claimed to have hidden knowledge about what Christianity really was and that rejected the good of the body and went with the soul over the body. So a lot of critics of transgenderism myself included, have compared the gender ideology to the ancient Christian heresy of Gnosticism because it echoes a lot of that same movement. And that's what Scrimetti means when he mentions Gnosticism.

So here is my discussion with him. He's leading here on this extremely important issue. We'll get to my interview with Jonathan Scrimetti right after this. Conservative women are problematic women. Why? Because we don't adhere to the agenda of the radical left. Every Thursday morning on the Problematic Women podcast, Kristen I, Cammer, Lauren Evans, and me, Virginia Allen, are joined by other conservative women to break down the big issues and news you care about. Whether you're interested in hot takes and conversations on pop culture or what Congress is up to, Problematic Women has you covered. We sort through the news to keep you up to date on the issues that are a particular interest to conservative leaning that is problematic women. Find problematic women wherever you like to listen to podcasts and follow the show on Instagram.

This is Tyler O'Neill, managing editor at The Daily Signal. I'm honored to be joined by Jonathan Scermetti, who is the Attorney General of Tennessee. It's a great pleasure to have you with us today. Thank you for having me. So the Attorney General wrote a really powerful comment in the notice and comment period for the HHS. They have a new rule requiring foster parents to follow the transgender ideology and say that they will facilitate kids to go on these long-term medical interventions, various things. Can you walk us through a little bit of the constitutional complaints that you have with this bill? Sorry, with this rule.

Absolutely. First of all, it's not a bill, and that's a big part of the problem. This is a federal agency making law, treading on both the prerogatives of Congress and really the prerogatives of the state legislatures. Family law has always been a state issue. You know, the states have developed a rich body of family law dealing with. 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 the federal agency making law in an area where the states should be making the law and where the states have been making the law. There's also a First Amendment issue here because the proposed rule requires the states

to in turn require foster parents, parents to adhere to affirming gender ideology in a full spectrum approach. So foster care providers have to adopt the preferred pronouns of kids. They have to provide access to purportedly age-appropriate materials, provide access to groups of like-minded LGBTQIA plus kids. And there's an opportunity for kids to litigate if they're not happy with what the foster care providers are doing, which of course creates a huge operational issue

and a huge disincentive. And then there's also the issue of the medical treatments, which in Tennessee are illegal. We fought to ensure that the courts recognize the state's right to regulate. these irreversible treatments for kids under 18. And so that's hormone treatments, that's puberty blockers, that's surgery. We had a big constitutional case go up to the Sixth Circuit.

The ACLU is now trying to get it in front of the U.S. Supreme Court. But as things stand, Tennessee is allowed to prohibit these treatments. Nevertheless, HHS wants to require foster care providers to give access to these illegal treatments to kids. So there are a host of reasons why there are problems with this proposed rule. And the proposed rule suggests that refusal to put kids on this medicalized path that would lead them, you know, to really require them to receive these hormone injections throughout the rest of their lives and would likely sterilize them have a lot of side effects. That refusal to do that constitutes a form of child abuse. And, you know, would you address that claim and then address, you know, the reasons why Tennessee has decided to ban these interventions?

Sure. And it's very explicit in the rule. They talk about how any failure to affirm gender identity should be treated with the same alacrity as allegations of physical abuse. And, of course, the natural outcome of that is you're diverting resources and the state's not going to be in. a position to provide as much of a response to actual physical abuse. It's steering the state away from protecting kids. The legislature looked at this and as is they're right, they 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. You know, you see England, you see the Scandinavian countries walking back from earlier provision of these treatments to kids and saying this needs to be really limited. You know, they allow in a very narrow research context treatment for a small number of kids, We don't do that here in Tennessee, but the Constitution doesn't require an experimental medical exception.

And we've seen the numbers just fly up. These are overprescribed. It's massive overdiagnosis. You see all these parallel mental health issues that appear to be channeled into gender issues. You're starting to see more detransitioners come out regretting these treatments. And so when you have countries like the UK and the Scandinavian countries, which are by no means, run by the Southern Baptist Convention. These are not countries that are socially conservative. They're countries that are looking at the evidence and care about kids. And that's what the Tennessee

government did as well. The legislature, the governor said, this is not good for our kids. And you said, sorry, I laughed because I thought it was so absurd that you had to say this, that the Constitution doesn't require an experimental medical exception. And I think that really hits the nail on the head because, you know, you're talking here about all the laws that this proposed rule appears to violate. Would you and the other attorneys general who signed on to this, signed on to this important comment, would you sue the HHS if they were to finalize this rule? I can't speak for the other AGs. I can speculate. But yeah, absolutely. I mean, we are not shy about suing to stop federal overreact.

and particularly where kids are going to be hurt as a result of it, I mean, I'll absolutely sue here if they go forward with this rule. And I suspect probably all or almost all of my colleagues who signed onto the letter will too. And I wanted to get into that First Amendment issue, too, that you briefly brought up. And this is something that Attorney General Andrew Bailey also addressed from Missouri and his own comment, which I believe you signed on to. But would you unpack, in your comment you mentioned that I believe it's about 40 foster care agencies are religiously based there in Tennessee. And then we have similar numbers in other states. How does this rule violate religious freedom? And what would it mean concretely on the ground for the kids who really need these foster homes?

I think it was Steve Marshall in Alabama that authored the letter that I signed on to. on the First Amendment issues. And it laid it out in a lot more detail than ours. Our letter touched on the First Amendment issues, but focused a lot on the structural and operational concerns, in part because they lean so much into the First Amendment. A lot of people who participate in foster care do so because it's a way of living out their faith.

And we see that with a number of denominations, with a number of religions where people want to care for kids because they believe that that's what God, calls them to do. That is the source of a lot of help for our foster care systems. And it is really hard to provide foster care to all the kids who need it. States are struggling to do that. There are so many challenges. This just compounds it. And one of the ways it compounds it is by creating these disincentives. So you have people who are doing this to live out their faith, but now the federal government is trying to impose conditions that are inconsistent

with their faith and trying to make them adopt this ideology that is just anathema to what they believe. Gender ideology is a very new development. People have been gender dysphoric forever. There's been a small number of people that have dealt with that, but society's reaction to these gender issues has radically shifted in the last few years. And the commitments that people need to make in terms of pronouns, you know, 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, I think every other world religion that I'm aware of has a similar understanding

that there is something essential about being a man or being a woman, and that that inheres to a person. And we've got this almost Gnostic approach now where whatever somebody believes overcomes the material. And by making people adopt the language and affirm the commitments of this gender ideology, the federal government's asking them to turn away from their religious beliefs. Would you say that this is almost creating a state religion, a state version of Gnosticism? I mean, that's a major claim.

but I certainly understand why we'd want to have that conversation. There are just some philosophically strange things going on these days that are very far removed from the traditions that have dominated this country and our culture going back a very long time. And again, one of the responses is always you're trying to erase trans people. No, people are people. Everybody is an individual with Constitution. rights, if you're a Christian as I am, you believe everybody is made in the image of God and is inherently beautiful, is inherently a worthy creation.

But that doesn't mean that we need to buy into all of the sweeping philosophical claims people are making, and we don't need to reinvent our understanding of the essence of human sexuality and what gender means. And that's really what this is pushing. It's trying to make people adhere to this very. complex and often shifting set of rules, right? I mean, this rule talks about LGBTQIA plus. And that made me wonder, does it mean that the people a couple of years ago who were talking about LGBT are irredeemable bigots because they didn't include the full spectrum?

You know, these rules are changing and they're changing in a way that's being leveraged very aggressively by the federal agencies. I don't know whether they think that they can make people knuckle under, but the outcome is going to be. fewer people willing to provide foster care, and that means kids are going to get hurt. Yeah, and I think that's where the rubber meets the road here. This rule will exclude so many, and I think your comment put it very well, and saying that due to the threat of litigation that these students may file against foster parents, you know, foster parents will almost be incentivized to either avoid foster care entirely or to make sure that they never engage

with the very foster kids that this rule is trying to support and help, which are those who identify as, you know, whatever the full spectrum acronym is now. Yeah. And I mean, these are kids that are really vulnerable. You know, transgender kids, kids dealing with sexuality issues, they are having. a really hard time. Being a kid is hard enough. Being a kid in foster care is hard enough. You're adding layer upon layer of challenge. And I think it's more important to make sure you have people that are going to keep kids safe and provide them with a supportive environment

that's taking care of their basic needs than making sure that you have somebody who's ideologically in step with everything that they want. You don't want people to bully kids. You don't want people to berate kids. A foster family should not try to reinvent a child and they can't solve every one of the kids' problems, what they can do is provide a loving environment that's safe. And by reducing the ability of the state to enlist help providing those safe environments, the net result of this is going to be very different than the stated intention. And you're going to be putting these kids at increased risk and limiting opportunities for

them to get the help they need. And what other areas of federal overreach is your office focused on, you know, responding to that are similar perhaps to this situation? So there are a number, day one of the administration, the president issued an executive order directing all agencies to incorporate gender identity and sexual orientation into their anti-discrimination rules. And there are constitutional issues with that, given the extent to which they've done so, you know, separate and apart from the Bostock decision.

So we've been pushing back against a lot. lot of that, particularly in the education context and various kid-aligned areas where the overreach is particularly egregious and particularly damaging. But there's been overreach all over the place. I've participated but not led some of the pushback against the regulatory move toward an electric vehicle fleet. In Tennessee, we produce and are going to produce more electric vehicles. It is a big part of our industrial base here, and it's important. And consumers want them, but they don't want to be mandated to buy them. And the numbers that the administration's looking at are just insane. I mean, they want to convert, I think, 67% roughly of the new fleet to electric within the

next seven years. We don't have the infrastructure for that, especially given what they're doing on the energy side, reducing our ability to produce power. So they're trying to electrify our our automotive fleet and at the same time make it impossible to have the power necessary to do what we already do separate and apart from that added burden. Another area where we've been pushing back and it's not glamorous and it's, you know, these are not the cases of the century, but appliances. Every appliance is being subjected to this really rigorous, unnecessarily overbroad regulation by the federal government, various agencies.

in ways that are going to hurt consumer choice. So if you want a dishwasher that gets your dishes clean and costs a reasonable amount of money, you're going to be out of look under this regime. And this is outside the statutory scope of agency authority. We've got real concerns about that and about the cost-benefit analysis that's being done to promote these rules.

Overreach abounds. And structurally, it is so important, that we push back. As someone who works for the state, we need to make sure that the states are allowed to engage in self-government. But we have a system of government that's designed to prohibit the concentration of power.

That is the ultimate evil that our structure of government is designed to avoid. It's very explicit at the founding, and we've forgotten that, and we're looking for efficiency. And so the concentration of power is an inherent evil, but separate and apart from that, that every time we let an agency make these decisions, it atrophies our ability to govern ourselves. And over time, we get worse and worse and worse at it. And you end up with a populist clamoring

for the man on horseback to show up and make everything right. That's not American. We need to solve our own problems. They are sometimes very stupid and tedious problems, but we can't turn to somebody else and expect them to fix it. We need to take responsibility as a people for ourselves. Yeah. When I think, you know, you say that it isn't glamorous, but responding to these regulations that are, you know, suggesting that Americans won't have their gas stoves and, you know, making it so that our dishwashers and washing machines actually do the good jobs that, you know,

when I was growing up, they were a lot more effective than they are now. And that's even, even, you know, before all of Biden's proposed rules can get through. and changed them to make them worse. And I'm like, you know, one of the things Trump said back when he was president was that he lamented the decrease in the efficiency of these machines that make our lives so much better. And, you know, this shouldn't be a political issue to me because we all want our clothes to be clean and our dishes to be clean and not to have to run the cycle twice and have to waste our time. I'm like, this is what we buy these things for.

And cracking down on the ability of our machines to work is a fundamental, you know, threat, a cost that regulation has for us that we often don't see. It doesn't show up on our pay stub. But there was a recent report that said that hidden regulatory costs, cost Americans more than anything, the average American family, more than anything besides how. housing, you know, rent or a mortgage. And that's something we struggle to identify always, but I think this, where your office is rightly pushing back is one of the prime examples of how it concretely affects us. And the cumulative effect is huge. I mean, you talk about a couple hundred dollars here, a couple hundred dollars there.

That's a lot of money at a time when people don't have a lot of margin. And so if you're talking about doing things that are going to get you a worse dishwasher that costs more, that will add up to make people miserable. You know, the government's job is to protect people not to micromanage their lives. And this is just busy body regulatory overreach that at the very abstract level is in furtherance of a good goal. But practically, you're just going to end up with people running the dishwasher. two or three times, running the washing machine two or three times. They're paying more for the privilege of doing so, and they're getting angrier and angrier about it.

I mean, it's not making anybody's life better, and it's going to create measurable problems, both economically and just in terms of quality of life. Yeah. Well, thank you so much for joining me. Is there anything else you don't think we touched on with the HHS Foster Care Rule or the other work that your office is doing? I mean, with the HHS rule, the one thing I want to say is, I understand the federal government wants to come in and fix things.

From their perspective, this is going to help. I think if you look at the way it will inevitably play out, it's going to hurt. But there's a broader problem there with federal overreach, and that is the federal government is supposed to do a few things constitutionally, the enumerated powers, relatively limited but important, but it's supposed to do these things well. And the more the federal government tries to involve itself in issues outside its purview, the broader it tries to exercise its authority, the worse it does at its core functions, like protecting the border, like providing for the national defense. So not only is this overreach that's hurting the states, infringing on

the state's ability to do their job, ultimately hurting kids, which is just terrible. Like nobody should be wanting to hurt kids. We need to protect them. But it's undermining the ability of the federal government to protect Americans in the way that it's supposed to. And so we really need to push back against this overreach, not just because it infringes on the state's abilities to do the state's job, but because it's hurting the federal government's ability to do its core functions that we desperately need it to do well. Right. Well, thank you, again, so much Attorney General Scermetti for speaking with me on these important issues. Where can our audience follow you and keep abreast of your work? TN.gov slash Attorney General, AG Tennessee on Twitter.

We keep that updated. So there are things that pop up here and there. We're trying to stay very busy here and there's a lot of work to do. Well, thanks again and have a great day. Thank you. And that was Jonathan Scrimetti, Attorney General of the Great State of Tennessee. If you appreciated what you heard here, maybe you learned something new, maybe you understand these issues better, thanks to the Attorney General's insights, please leave a five-star rating and review. We read all of your feedback. And remember to tune back in to this very podcast at 5 p.m. this evening when we bring you the top news of the day. This is a great resource for you to keep abreast of everything that's going on in Washington and across the country for your evening commute. So remember, leave us a review and tune in for our top news edition.

The Daily Signal podcast is brought to you by more than half a million members of the Heritage Foundation. Executive producers are Rob Louis and Kate Trinko. Producers are Virginia Allen and Samantha Asheras. Sound designed by Lauren Evans, Mark Geinney, and John Pop. To learn more, please visit DailySignal.com.