Coming out the Hard Way

COMING OUT THE HARD WAY:NONCONSENSUAL DISCLOSURE OF SEXUAL ORIENTATION DURING THE ADOPTION PROCESSNATHAN A. SCHACHTJ.D. CANDIDATE, MAY 2008UNIVERSITY OF CALIFORNIA, BERKELEYSCHOOL OF LAW IntroductionBobby Griffith was a 19 year old closeted gay teen fearful of coming out.1 Without family and peer support, Bobby felt as though the only path to take was ending his life.2 His story continues:A few days into his twentieth year, Bobby did a back flip over a highway overpass in the path of a semi-truck and trailer, and was killed instantly. Bobby too kept a diary. At age 16 he wrote: “I can’t let anyone find out that I’m not straight. It would be so humiliating. My friends would hate me, I just know it. They might even want to beat me up. And my family, I’ve overheard them lots of times talking about gay people. They’ve said they hate gays, and even God hates gays, too. It really scares me now, when I hear my family talk that way, because now, they are talking about me…. Sometimes I feel like disappearing from the face of the earth.”3Opal was a 19 year old young woman who dreamt of attending Harvard Law School and becoming a U.S. Attorney.4 Roughly a year before her death, Opal nearly overdosed on drugs.5 Worrying about her daughter’s health, Opal’s mom, Ruth, began questioning Opal about what lead to her actions.6 After several questions, Ruth asked if Opal was gay.7 Opal responded “yes” but refused to talk more openly about her sexual identity.8 Ruth responded with love, and encouraged Opal and told her she loved her no matter who she was.9 Even then, Opal was not ready to further disclose her sexual identity.10 She was not yet out at college, and was adamant that she did not need any of 1 See Warren J. Blumenfeld & Laurie Lindop, Gay, Lesbian, Bisexual, and Transgender Suicide, OUTPROUD, available at http://www.outproud.org/article_suicide.html (describing experiences of gay youth). 2 Id. 3 Id. 4 Id. 5 Id. 6 Id. 7 Id. 8 Id. 9 Id. 10 Id.2 the counseling or assistance that her mother tried to offer.11 Sadly, Opal declined further into depression after that first interaction with her mom.12 Roughly one year later, Opal shot herself in the head.13As these stories illustrate, understanding and coming to terms with one’s sexual identity is an extremely sensitive, private, and stressful matter for teens and adolescents. Disclosing one’s sexual orientation to family, friends, social workers, and the world is an even scarier matter. Young people faced with the prospect of being outed to potential adoptive parents they may have never met nor known understandably fear the potential consequences of such a disclosure. 14Statistics indicate that lesbian, gay, bisexual, and transgender (LGBT) youth are a disproportionate share of the roughly 500,000 youth living in foster care,15 many of whom are awaiting permanent placement.16 Because many of these young people are afraid to confide in case workers and disclose their sexual orientation, it has been nearly 11 Id. 12 Id. 13 Id. 14 According to the U.S. Department of Health and Human Services, in 2005, roughly 7,500 youth, or 15 percent of youth being adopted, were adopted out of foster care by adoptive parents who had no previous relationship with the child. It should be noted, however, that the majority (60 percent) of youth adopted out of foster care were adopted by their current foster parents. Children’s Bureau, U.S. Dept. of Health and Human Services, How Many Children Were in Foster Care on September 30, 2005?, AFCARS Report – Preliminary Estimates For FY 2005, (2005) http://www.acf.hhs.gov/programs/cb/stats_research/afcars/tar/report13.htm. 15 SHANNAN WILBER, CAITLIN RYNA & JODY MARKSAMER, CWLA BEST PRACTICE GUIDELINES: SERVING LGBT YOUTH IN OUT-OF-HOME CARE 1 (Julie Gwin ed., Child Welfare League of America, Inc. 2006) (citing CHILD WELFARE LEAGUE OF AMERICA & LAMBDA LEGAL DEFENSE & EDUCATION FUND, OUT OF THE MARGINS: A REPORT ON REGIONAL LISTENING FORUMS HIGHLIGHTING THE EXPERIENCES OF LESBIAN, GAY, BISEXUAL, TRANSGENDER, AND QUESTIONING YOUTH IN CARE (CWLA, Inc. & Lambda Legal, Inc. 2006)). 16 Children’s Bureau, U.S. Dept. of Health and Human Services, How Many Children Were in Foster Care on September 30, 2005?, AFCARS Report – Preliminary Estimates For FY 2005, (2005) http://www.acf.hhs.gov/programs/cb/stats_research/afcars/tar/report13.htm. This number includes children ages 1 to 20. However, the number of children in foster care between the ages of 11 and 18, the age at which children typically begin to identify with a particular sexual orientation, is approximately 237,000. Id.3 impossible to calculate the exact number of LGBT youth in foster care awaiting permanent placement.17 Many of the LGBT youth in the foster care system were forced from or left their homes because their parents or legal guardians did not approve of their sexual orientation.18 Others are placed in temporary situations and await more permanent placements for reasons not directly or indirectly associated with their sexual orientation.19Irrespective of why these youth are placed in the foster care system, once there, many are skeptical of outing themselves to those in foster care agencies.20 While an LGBT young person may disclose their sexual orientation to an agency employee, some LGBT youth may be fearful of disclosing their sexual orientation to others, including prospective adoptive parents or other caregivers. If this type of situation occurs, child welfare agency17 SHANNAN WILBER, CAITLIN RYNA & JODY MARKSAMER, CWLA BEST PRACTICE GUIDELINES: SERVING LGBT YOUTH IN OUT-OF-HOME CARE 1 (Julie Gwin ed., Child Welfare League of America, Inc. 2006). 18 Id. at 4. One young gay man, whom the author encountered through his work with the Urban Justice Center in New York City, had been kicked out and forced to leave his home because his family disapproved of him being gay. At the time of the interview, the young man, who was two months away from his eighteenth birthday, stated that before his family knew he was gay they had a great relationship. However, after his mother discovered text messages from a boyfriend, their relationship took a turn for the worse. After the young person’s family outed him, the young man faced daily verbal abuse because of his sexual orientation. His family constantly called him derogatory names and informed the young person that his lifestyle “embarrassed” the family. Not respecting the young person’s wishes to keep the matter private, the family spoke of their problems with neighbors and others in their community, making the young person feel in danger and more insecure than he already was. On at least one occasion, a physical altercation resulted in the young person being kicked out of the home because of his sexual orientation. In addition, after failed attempts to reunite with his family, the young person felt forced to leave his own house because of the verbal assaults he faced from his family daily because of his sexual orientation. After years of this abuse, the young man was living on the streets, looking for any help he could possibly get. Even in the interview, the young man was skeptical about openly discussing his sexual orientation. While “being outed” in this situation forced the young man to discuss his sexuality with his family and those closest to him, it is clear that this forced disclosure of the young man’s sexual orientation did not result in a good outcome. Interview with John Doe, in New York, Ny. (January 20, 2008). 19 WILBER, RYAN & MARKSAMER, supra note 15, at 3-4 (noting that government agencies place roughly one third of LGBT youth in foster care because of “behavioral disorders, drugs, or family violence,” and roughly fifteen percent of LGBT youth in temporary placements because of “parental dysfunction, abuse, and neglect” unrelated to the youth’s sexual identity). 20 COLLEEN SULLIVAN, SUSAN SOMMER & JASON MOFF, YOUTH IN THE MARGINS: A REPORT ON THE UNMET NEEDS OF LESBIAN, GAY, BISEXUAL, AND TRANSGENDER ADOLESCENTS IN FOSTER CARE 9 (Lambda Legal Defense & Education Fund 2005) (2001).4 case workers are placed in an awkward and potentially conflicting situation with regard to the disclosure of an LGBT young person’s sexual orientation.The majority of adoption experts and professionals believe that accurate information regarding the social and medical history of children being adopted should be disclosed to potential adoptive parents.21 For hard to place youth, also known as children with “special needs,” many professionals believe that accurate disclosure is imperative in order to achieve a successful placement.22 These hard to place youth include older children, children of minority racial or ethnic groups, LGBT youth, and children who have histories of physical or mental illness.23 Sadly, reports illustrate that when child welfare agencies fail to disclose pertinent medical and social information during the adoption process, the outcome may lead to tragic consequences.24 As a result, adoption professionals and child welfare agencies have taken a stronger stance for broad, accurate, and complete disclosure of the social and medical histories of these youth.25If an LGBT young person wants to keep their sexual orientation private, it is important that all who have been informed of that person’s sexual orientation, including child welfare agencies, do what they can to respect that decision. Not only can a nonconsensual disclosure of a LGBT young person’s sexual orientation result in significant psychological harm and place the young person in a potentially violent, 21 See D. Marianne Blair, Liability of Adoption Agencies and Attorneys for Misconduct in the Disclosure of Health Related Information, in 2-16 ADOPTION LAW AND PRACTICE § 16.01, n. 34 (Joan Heifetz Hollinger ed., Matthew Bender & Company, Inc. 2007) (2006). 22 Id. 23 Id. 24 Id. 25 Id.5 abusive situation,26 it may also violate the young person’s constitutional right to keep their sexual orientation private.27 A constitutional right to privacy in one’s sexual orientation is a relatively new court-acknowledged protection, and the case law surrounding this emerging right is relatively limited. However, at least two circuit courts have stated that a person’s sexual orientation is a constitutionally protected privacy interest.28 In addition, several other courts, while not fully committing to the idea that the right to keep one’s sexual orientation private is constitutionally protected, have noted that a person’s sexual orientation is an extremely private matter.29 Overall, this case law highlights the need for child welfare agencies to recognize and respect an LGBT young person’s desire to keep their sexual orientation private. Furthermore, disclosing a young person’s sexual orientation to others, including potential adoptive parents, before the young person is ready can cause severe stress and strain for that young person. Recognizing and understanding one’s sexual orientation is a difficult process, and premature disclosure of this information will interrupt the natural “coming out” process, potentially resulting in psychological and physical harm to the child.30 With LGBT youth already struggling with the psychological effects of being LGBT,31 nonconsensual disclosure of this information may increase the likelihood that 26WILBER, RYAN & MARKSAMER, supra note 15, at 35. 27 See Sterling v. Borough of Minersville, 232 F.3d 190 (3rd Cir. 2000) (holding that forcibly disclosing a person’s sexual orientation violates their federally protected constitutional right to privacy); Nguon v. Wolf, 517 F. Supp. 2d 1177 (C.D. Cal. 2007) (affirming lower court finding that a person has a Constitutionally protected privacy right with respect to disclosure of their sexual orientation). 28 Id. 29 Powell v. Schriver, 175 F.3d 107, 111 (2d Cir. 1999); Bloch v. Ribar, 156 F.3d 673, 685 (6th Cir. 1998); Eastwood v. Dept. Of Corrections, 846 F.2d 627, 631 (10th Cir. 1998); Thorne v. City of El Segundo, 726 F.2d 459, 468 (9th Cir. 1980). 30 WILBER, RYAN & MARKSAMER, supra note 15, at 37-38. 31 See Anne C. Hydorn, Note, Does the Constitutional Right to Privacy Protect Forced Disclosure of Sexual Orientation, 30 HASTINGS CONST. L.Q. 237, 253 (Winter 2003) (citing Suzanne M. Stronski Huwiler and Gary Remafedi, Adolescent Homosexuality, 33 REV. JUR. U.I.O.R. 151, 163 (1999)); see also WILBER, 6 LGBT youth suffer from mental illness, or face the anger of friends or family members who are homophobic.In direct conflict with an LGBT young person’s interest in keeping their sexual orientation private are child welfare agency’s interests in disclosing this information. For the purposes of this paper, the following three interests are the most relevant: fulfilling the agency’s obligation to disclose pertinent information to potential adoptive parents, avoiding costly litigation, and placing LGBT children in permanent placements so as to act in the best interest of the child. First, individuals and agencies working to place LGBT young people in permanent placements must consider their obligations to provide accurate information to potential adoptive parents and caregivers regarding the child they seek to adopt.32 Second, these agencies and their caseworkers must be aware of potential liability through so-called wrongful adoption lawsuits for not disclosing an LGBT young person’s sexual orientation to potential adoptive parents.33 These actions typically allege that the withholding of physical or medical information from adoptive parents prevented the parents from providing proper care to the child, thereby resulting in harm to the child, and sometimes the family. While a child’s sexual orientation is not necessarily “medical” or “physical” information, adoptive parents could argue that a failure to disclose an adopted child’s sexual orientation prevented the parents from properly caring for and providing for the child. Third, individuals and agencies placing LGBT young people in RYAN & MARKSAMER, supra note 15, at 35. 32 See, e.g., Haw. Rev. Stat. § 578-8 (stating that the non-identifying information contained in the report explaining child’s background history shall be released to prospective adoptive parents); N.Y. Dom. Rel. Law §§ 112, 115-a (stating that the detailed non-identifying background information, including the social history, of the child must be released to potential adoptive parents). 33 Roe v. Catholic Charities, 225 Ill. App. 3d 519, 588 N.E.2d 354, 167 Ill. Dec. 713, appeal denied, 146 Ill. 2d 651, 602 N.E.2d 475, 176 Ill. Dec. 821 (1992) (holding that adoptive parents may bring a wrongful adoption claim based on theories of fraud and negligence).7 permanent placements must consider the nature of the placement itself, and whether the placement will result in a permanent, loving, and safe environment for the LGBT young person.34 Ultimately, there is a conflict between respecting an LGBT young person’s desire to keep their sexual orientation private and a child welfare agency’s obligations to disclose this information to prospective adoptive parents. In deciding whether to disclose an LGBT young person’s sexual orientation without their consent, child welfare agencies should weigh and balance their own interests in disclosure with the LGBT young person’s interests in privacy. This conflict should be addressed for every LGBT young person in foster care awaiting permanent placement, and child welfare agencies should avoid a blanket policy of allowing this particular type of disclosure. This paper concludes that child welfare agencies should establish a policy and practice of analyzing, on a case by case basis, the potential costs and benefits of disclosing an LGBT young person’s sexual orientation without their consent in order to minimize the possibility of harm to the LGBT individual while still fulfilling their obligations to adoptive parents and the child.The first section discusses the prevailing attitude towards the disclosure of information in adoption proceedings, particularly disclosure related to hard to place LGBT youth, and how adoption professionals currently encourage more open and complete disclosure. The second section discusses the countervailing privacy interests ofLGBT youth, and how the nonconsensual disclosure of an LGBT young person’s sexual orientation during the placement process may result in harmful consequences for the 34 See Joan Heifetz Hollinger, Introduction: The Nature of Adoption and Adoption Laws, in 1-1 ADOPTION LAW AND PRACTICE § 1.01 (1) (Joan Heifetz Hollinger ed., Matthew Bender & Company, Inc. 2006); A Safe Permanent Home of One’s Own, TRUST MAGAZINE, Fall 2004, http://www.pewtrusts.org/our_work_ektid17430.aspx.8 LGBT young person as well as a violation of their constitutional right to privacy. The third section focuses on the various interests child welfare agencies have in disclosing this information. Finally, the fourth section suggests policies and practices that child welfare agencies should adopt so as to reduce the potential harmful effects a nonconsensual disclosure may have on an LGBT young person awaiting permanent placement.I. The Prevailing Approach to Disclosure During the early and mid nineteenth century, adoption professionals as well as many state legislatures believed that the adoption process should be one of secrecy, allowing the adopted child to enjoy his or her new life free of his or her past.35 State legislatures passed laws making adoption records and documents private and sealed, preventing the public and many involved in the process from accessing the adoption records or information.36 Furthermore, agencies charged with placing these youth were cautious to disclose much medical or social information to potential adoptive parents, and often failed to disclose this information altogether.37 These agencies cited their concerns that disclosing a child’s “negative” social or medical history would make it difficult to place that child with adoptive parents, that the information would stigmatize the youth in future relationships, and that the child would develop “image” problems because of the information as the reasons why full disclosure should not be required.38Today, however, the majority of experts and adoption professionals believe that the “complete and accurate medical and social history [of a child] should be 35 See D. Marianne Blair, supra note 21, at § 16.01. 36 Id. 37 Id. 38 Id.9 communicated to adoptive and prospective adoptive parents.”39 In fact, many adoption agencies have enacted such policies40 and many states have enacted laws that require or permit the disclosure of some medical and social information to adoptive parents.41 The reasoning behind this belief in increased disclosure lies, in part, in the belief that increased disclosure allows children with past medical problems the ability to be appropriately diagnosed and receive accurate treatment.42The following story about a six year old mentally ill adoptee is an excellent example of an adoption where more information may have prevented future problems. When Bob and Joan Gordon sought to adopt six year old Lisa, they were assured by the adoption agency that Lisa, while coming from a traumatic history of broken homes and problems with diabetes, was immature but ready to grow up in a loving family.43 Eager to move the child to a permanent home, the agency casework had Lisa living with the Gordons after just four visits.44 While the agency employee did disclose much of Lisa’s 39 Id. 40 Id. 41 See Ala. Code §§ 26-10A-19 to -31; Alaska Stat. § 18.50.510; Ariz. Rev. Stat. Ann. § 8-129; Ark. Code Ann. § 9-9-505; Cal. Fam. Code §§ 8608, 8706, 8801.3, 8817, 8818, 8819, 8909, 9202; Colo. Rev. Stat. §§ 19-5-207, -5-402; Conn. Gen. Stat. Ann.§§ 45a-746, 45a-749; Fla. Stat. Ann. § 63.162; Ga. Code Ann. § 19-8-23; Haw. Rev. Stat. § 578-14.5; Idaho Code § 16-1506; Ill. Rev. Stat. ch. 20, para. 505/22.3; ch. 750, paras. 50/18.4, 50/18.4a; Ind. Code Ann. §§ 31-19-2-7; 31-19-18-1 to 31-19-21-6; 31-19-23-1 to 31-19-24- 13; Iowa Code Ann. § 600.8; Kan. Stat. Ann. §§ 59-2122, -2130; Ky. Rev. Stat. Ann. § 199.520; La. Children's Code, arts. 1124-27; Me. Rev. Stat. Ann. tit. 18, §§ 9-304, 9-310, tit. 22, § 8205; Md. Fam. Law Code Ann. §§ 5-328 to 329.1; Mass. Gen. Laws Ann. ch. 210, § 5D; Mich. Comp. Laws Ann. §§ 710.27, 710.68; Minn. Stat. Ann. §§ 259.27, 259.43, 259.47; Miss. Code Ann. § 93-17-205; Mo. Ann. Stat. § 453.121; Mont. Code Ann. §§ 42-3-101, -3-102, -6-102, -6-105; Neb. Rev. Stat. § 43-107; Nev. Rev. Stat. § 127.152; N.H. Rev. Stat. Ann. § 170-B:19; N.J. Stat. Ann. § 9:3-41.1; N.M. Stat. Ann. § 32A-5-12, -5-14, -5-40; N.Y. Soc. Serv. L. § 373-a; N.Y. Dom. Rel. Law § 112, 114, 115a; N.Y. Pub. H.§ 2782; N.C. Gen. Stat.§ 48-3-205, -9-103; N.D. Cent. Code§ 14-15-16; Ohio Rev. Code Ann. § 3107.07. 3107.091, 3107.12, 3107.017, 3107.60, 3107.65, 5103.16; Okla. Stat. tit. 10 §§ 7504.-1.1, 7504-1.2; Or. Rev. Stat. § 109.342; 23 Pa. Cons. Stat. Ann. § 2101, 2503, 2504, 2511, 2533, 2905, 2909; S.D. Codified Laws Ann. §§ 25-6- 15.2, -6-22, -6-23; Tenn. Code Ann. § 36-1-133; Tex. Fam. Code §§ 162.005,.006,.007,.008,.018; Utah Code Ann. § 78-30-17; Vt. Stat. Ann. tit. 15A § 2-105; Va. Code Ann. § 63.2-1246, 63.2-1247; Wash. Rev. Code Ann. §§ 26.33.350,.33.380; W. Va. Code § 48-22-702; Wis. Stat. Ann. § 48.432; Wyo. Stat. § 1-22- 116. 42 See D. Marianne Blair, supra note 21, at § 16.01. 43 Daniel Golden, When Adoption Doesn’t Work, THE BOSTON GLOBE, June 11, 1989, at 16. 44 Id.10 health history and traumatic past, the employee failed to notify the Gordon’s that, while in state custody and after killing a cat, Lisa had received a psychological evaluation that recommended that she be admitted to a mental institution.45 After formalizing the adoption, the Gordon’s began experiencing some of Lisa’s psychological issues.46 On many occasions Lisa would lie and steal, and she even tried to set the house on fire and poison her father’s soup with Lysol.47 Finally, after Lisa filed an untrue child abuse claim against her father, the Gordon’s brought Lisa to the same hospital that had performed the original psychological evaluation.48 During this visit, the Gordon’s were shocked to learn that an evaluation had already been done while Lisa had previously been in state custody.49 Feeling as though the state had “suckered” them into adopting Lisa, the Gordon’s decided to seek reversal of the adoption, citing the state’s failure to notify the family of all of Lisa’s medical and social histories as the reason.50 In the end, Lisa was returned to state custody and the Gordon’s divorced.51 Sadly, this case illustrates the extremely harmful consequences lack of disclosure may have for both the adopted child and adoptive family.Adoption professionals also believe that increased disclosure benefits older children and other hard to place, or “special needs,” youth.52 Special needs youth have historically been a difficult population to place in permanent adoptive homes because they come from traditionally disadvantaged backgrounds. 5345 Id. 46 Id. 47 Id. 48 Id. 49 Id. 50 Id. 51 Id. 52 Id. 53 JUDITH K. MCKENZIE, ADOPTION OF CHILDREN WITH SPECIAL NEEDS 62 (Spring 1999) http://www.futureofchildren.org/usr_doc/vol3no1ART4.PDF. For the purposes of receiving adoption assistance funding, a child is considered having special needs when “the state has determined: (1) that the 11 Unfortunately, studies illustrate that these groups of youth, while difficult to place to begin with, will suffer even more if the families who adopt them are not given complete and accurate information regarding the youth’s medical and social history.54 Adoptive families who are not told the complete medical and social history of special needs children may not be able to financially support the child in the long run, or may not be emotionally capable of raising a child that needs extra attention or care.55 Both the adopted child and the adoptive family suffer tremendous trauma as a result of this lack of disclosure.Adopted children who have been placed with adoptive parents who did not receive complete disclosure of the child’s past medical or social history often face disruption in the placement, resulting in the child being taken out of the home and placed back in an institutional or foster care setting.56 This upheaval can be a very traumatic experience for these youth and can result in negative psychological effects and ruined placements.57 Furthermore, children with previous medical issues that were not communicated to adoptive parents do not get the psychological or medical help as child cannot or should not be returned to the home of his/her parents; and (2) that there exists with respect to the child a specific factor or condition (such as ethnic background, age, membership in a minority or sibling group, or the presence of factors such as medical conditions or physical, mental, or emotional handicaps) because of which it is reasonable to conclude that the child cannot be placed with adoptive parents without providing adoption assistance under 42 U.S.C. Section 673 or medical assistance under 42 U.S.C. Section 1396.” See Elizabeth Oppenheim, Alice Bussiere & Ellen C. Segal, Introduction: Definition of Special Needs and Their Effect on Adoption, in 2-9 ADOPTION LAW AND PRACTICE § 9.01 (Joan Heifetz Hollinger ed., Matthew Bender & Company, Inc. 2006). 54 D. Marianne Blair, supra note 21, at § 16.01. 55 Id. 56 Id. 57 Id.12 quickly as they need it. This has resulted in children suffering from irreversible brain damage,58 painful testing,59 years of mental anguish and turmoil,60 and sometimes death.61In the context of LGBT youth and adoption, not disclosing the young person’s sexual orientation to potential adoptive parents may result in similarly disastrous consequences. One eighteen year old gay man the author interviewed was adopted out of foster care at the age of fifteen.62 After living with his adoptive parents for roughly two years, the young man told his family he was gay.63 Immediately upon disclosing this information, the father, who was raised in a homophobic culture and who was himself homophobic, began verbally abusing the young person.64 Sadly, the adoptive mother did little to help, often siding with the father in believing that the young person’s homosexuality was immoral.65 Ultimately, the adoptive father threatened the young man so many times that the young man had no choice but to leave.66 At the time of the interview, almost one year had passed since he had left his adopted family.67 During that year, the young man had lived on the street and various homeless shelters across New York City.68 Because he was 18, he was no longer eligible for foster care, and felt as though he had no hope or future.69 Even though he was not out at the time he was placed 58 See Foster v. Bass, 575 So. 2d 976 (Miss. 1990) (alleging that adopted child’s brain damage caused by disease could have been prevented had the adoption agency disclosed all of the adopted child’s medical history to the adoptive parent thereby putting the adoptive parents on notice that the child should be tested). 59 See D. Marianne Blair, supra note 21, at § 16.01, n. 39. 60 Id. at n.42. 61 See Young v. Francis, 832 F. Supp 132 (motion for summary judgment) (E.D. Pa. 1993) (alleging that adopted child’s death may have been avoided if the adoption agency had properly disclosed all of the adopted child’s medical history and information to the adoptive parents). 62 Interview with John Doe, in New York, Ny. (February 20, 2008). 63 Id. 64 Id. 65 Id. 66 Id. 67 Id. 68 Id. 69 Id.13 with the family,70 the lack of disclosure coupled with the lack of screening for LGBT friendly adoptive families led to increased physical and emotional harm for this young person.As this story illustrates, the argument that complete and accurate disclosure is necessary in order to better place youth, including LGBT youth, in permanent placements is quite compelling. However, for LGBT youth who are struggling with their sexual identity, the idea of disclosing their sexual orientation to prospective adoptive parents may be very frightening. II. The Privacy Interests of LGBT Youth Seeking Permanent PlacementsChild welfare agencies that want to disclose an LGBT young person’s sexual orientation to potential adoptive parents should be cautious in how and when they decide to make a nonconsensual disclosure. These agencies should understand that a nonconsensual disclosure of an LGBT young person’s sexual orientation may not only violate that child’s constitutionally protected right to keep their sexual orientation private, but also result in significant psychological and physical harm to the child. a. A Constitutional Right to Keep One’s Sexual Orientation Private i. The History of Privacy Law Generally70 Id.14 In 1928, Justice Brandeis declared in his dissenting opinion in Olmstead v. UnitedStates71 that the privacy right is “the right to be let alone – the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion of the government upon the privacy of an individual . . . must be deemed a violation [of the constitution].”72 Not until thirty-seven years later did the Supreme Court acknowledge in Griswold v. Connecticut that an individual has a fundamental right to privacy protected by the constitution.73In Griswold, the Court stated that a state law prohibiting the use of contraceptives by married couples was unconstitutional because it violated an individual’s right to privacy.74 The Court explained that even though there are specific rights delineated in theBill of Rights, those “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”75 The Court concluded that the relationship of a married couple fell within the zone of privacy created by the several guarantees illuminated in the Bill of Rights, thereby establishing a fundamental right to privacy under the constitution.7671 277 U.S. 438 (1928). 72 Id. at 478 (Brandeis, J. dissenting). 73 381 U.S. 479 (1965). 74 Id. at 485. 75 Id. at 484. 76 Id. at 485-486.15 Since this groundbreaking case, the Court has extended the right to privacy to activities concerning marriage,77 contraception,78 the right to terminate a pregnancy,79 and the right to define one’s family with regard to living arrangements.80 Furthermore, in Whalen v. Roe, the Court distinguished the right of privacy as encompassing two different interests: 1) “the individual interest in avoiding disclosure of personal matters,” and 2) “the interest in independence in making certain kinds of important decisions.”81 In subsequent decisions, the Court has reaffirmed that one element of privacy includes the “individual interest in avoiding disclosure of personal matters.”82Still, the specific activities and interests protected under a constitutional right to privacy remain open-ended, and the exact boundaries of what is included in this constitutional right remain undefined. Venturing into the specific right to keep one’s sexual orientation private, the case law gets even murkier. While the Supreme Court has never explicitly extended the right to privacy to an individual’s sexual orientation, it has addressed the issue of sexual orientation and privacy in the context of state sodomy laws.83 Lower federal courts have addressed head-on the issue of sexual orientation and 77See Loving v. Virginia, 388 U.S. 1, 12 (1967). 78 See Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). In this case, the Court declared unconstitutional a Massachusetts law that made it a felony to give anyone other than a married person contraceptive materials. Id. In extending the right to privacy to individuals who are not in a martial relationship, the Court stated “It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the martial couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with separate intellectual and emotional makeup. If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Id. 79 See Roe v. Wade, 410 U.S. 113, 152 (1973) (stating that there is a “right of personal privacy, or a guarantee of certain areas or zones of privacy” protected by the constitution, and this guarantee of personal privacy covers “only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty” (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937))). 80 See Moore v. City of East Cleveland, 431 U.S. 494, 506 (1977) (holding that a housing ordinance limiting the types of groups or family members that could occupy a single family dwelling was unconstitutional). 81 429 U.S. 589, 599-600 (1977). 82 Nixon v. Administrator of General Services, 433 U.S. 425, 457 (1977). 83 See Lawrence v. Texas, 539 U.S. 538 (2003).16 privacy and the next section will address how and in what contexts lower courts have addressed the constitutional right to keep one’s sexual orientation private ii. Privacy and Sexual Orientation1. Sterling v. Borough of MinersvilleThe first U.S. Circuit Court to find that the constitutional right to privacy protects an individual from forced disclosure of their sexual orientation was Sterling v. Borough of Minersville.84 In April of 1997, Marcus Wayman and a seventeen year old male friend parked their vehicle, headlights off, in an empty lot adjacent to a beer distributor.85 Concerned about previous burglaries at the beer distributor, police officer F. Scott Wilinsky called for back-up when he spotted Wayman’s parked car.86 After back-up arrived, the two officers approached Wayman’s vehicle and began questioning the boys.87 Noting that the boys had been drinking, Wilinsky searched the car and discovered condoms.88 After more questioning, the boys admitted they were homosexuals and that they were there to engage in consensual sex.89At this point, the officers arrested the two boys for underage drinking and escorted them back to the police station.90 Once there, Wilinsky lectured the boys on the sins of homosexual activity, and told Wayman that if he did not tell his grandfather that he was gay and Wilinsky would have to disclose this information himself.91 Immediately 84 232 F.3d 190 (3d Cir. 2000). 85 Id. at 192. 86 Id. 87 Id. 88 Id. 89 Id. 90 Id. 91 Id. at 192-93.17 after hearing this threat, Wayman told his friend that he was going to kill himself.92 Holding true to his word, Waymon killed himself at his home immediately after being released from jail.93 Unsettled by her son’s tragic suicide, Waymon’s mother, Madonna Sterling, filed a federal civil rights action under 42 U.S.C. § 1983 against the officers, the police department, and the Borough of Minersville alleging that the police officers unconstitutionally deprived her son’s constitutional right to privacy when they threatened to tell his family that he was gay.94 In response, the defendants filed a motion for summary judgment claiming qualified immunity.95 The district court ruled that the officers were not protected by qualified immunity, and denied summary judgment.96 On an interlocutory appeal challenging the district court’s ruling, the Third Circuit found that encompassed in the constitutional right to privacy in personal information is a right to keep one’s sexual orientation private, and that this right was a clearly established constitutional right at the time of the disclosure.97The court first analyzed the Supreme Court’s jurisprudence on the constitutional right to informational privacy, and stated that the issue before them was an issue of first impression.98 At that time, only the Fourth Circuit had decided an issue similar to the one before the court.99 While the court acknowledged the Fourth Circuit holding that the mandatory disclosure on a state police questionnaire of sexual activities with members of 92 Id. at 193. 93 Id. 94 Id. at 193. 95 Id. 96 Id. 97 Id. at 196-97. 98 Id. at 193-95. 99 See Walls v. City of Petersburg, 895 F.2d 188 (4th Cir. 1990).18 the same sex did not violate an individual’s constitutional right to privacy, the court declined to follow that court’s ruling.100 The Fourth Circuit decision relied heavily on Bowers v. Hardwick’s holding in making its decision that the privacy right should not include sexual orientation in the informational privacy right.101 The Sterling Court disagreed with this logic, stating that the Bowers decision forbade conduct and was “not determinative of whether the right to privacy protects an individual from being forced to disclose his sexual orientation.”102 Even if one were to disagree with the court’s analysis, the fact that the holding in Lawrence v. Texas overruled Bowers103 makes the rationale behind the Fourth Circuit decision questionable at best.Through the rest of the Sterling court’s analysis, the court focused on the specific right to keep personal information private and the case law, both in and out of the Third Circuit, showing that there is a right to informational privacy in an array of contexts, including sexual orientation.104 Ultimately, the court held that sexual orientation is protected from disclosure under the second privacy right branch in Whalen, allowing the Section 1983 case to move forward.1052. Nguon v. WolfNguon v. Wolf also upholds an individual’s constitutional right to keep sexual orientation private.106 In Nguon, Charlene Nguon was disciplined for showing physical affection to another girl on campus, allegedly violating the school’s policy of not 100 Sterling, 232 F.3d at 195. 101 Id. In Bowers, the Supreme Court held that the Constitutional right to privacy did not extend to homosexual sodomy. 478 U.S. 186, 190 (1986) overruled by Lawrence v. Texas, 539 U.S. 558, 578 (2003). 102 Id. In making this analysis, the court also noted that punishing status as opposed to conduct would be directly contrary to the Court’s holding in Robinson v. California that held that the Eighth and Fourteenth Amendments forbid punishment of status. 103 Lawrence v. Texas, 539 U.S. 558, 578 (2003). 104 Sterling, 232 F.3d at 195-96. 105 Id. at 196-97. 106 517 F. Supp. 2d 1177 (C.D. Cal. 2007).19 allowing public displays of affection on campus.107 During the course of the disciplinary proceedings, the school principal, Wolf, allegedly called Nguon’s mother and, in a matter of words, informed her that her daughter is a lesbian.108 Because Nguon was not “out” to her mother at the time, Nguon’s case alleged that the public school and Wolf violated Nguon’s constitutional right to privacy by disclosing Nguon’s sexual orientation without her consent.109In its ruling, the California District Court stated that the plaintiff, Charlene Nguon, had a “Constitutionally protected privacy right with respect to disclosure of her sexual orientation.”110 The Court cited the decision in Sterling in making this decision.111 However, the court went on to dismiss Nguon’s federal privacy claim.112 In so holding, the court clarified that even though Nguon possessed this constitutional right, the right itself was not absolute, and the state could override this right if they could articulate a legitimate reason for the disclosure.113 Ultimately, because the court believed the state had a legitimate interest in disclosing her sexual orientation, the court dismissed her lawsuit.114 Still, the court opinion acknowledges that a constitutional right to keep one’s sexual orientation private does exist.115 As a result, at least two circuits have recognized that individuals do have a constitutional right to keep their sexual orientation private.While these cases clarify that a constitutional right to privacy is not absolute, child welfare agencies must at least recognize this right and make conscious efforts to 107 Id. at 1192. 108 Id. 109 Id. 110 Nguon, 517 F. Supp. 2d at 1191. 111 Id. 112 Id. 113 Id. 114 Id. at 1195 (“Because Wolf had a legitimate governmental purpose in describing the context of the suspension, there was no violation of Charlene’s First Amendment privacy rights when he disclosed to Charlene’s mother she was kissing another girl.”). 115 Id.20 respect the decision of an LGBT young person who chooses to exercise this right. If child welfare agencies unabashedly violate these young people’s constitutional rights, they set a dangerous example of creating hollow rights where meaningful ones once existed. By not acknowledging their right to privacy, and constitutional rights and liberties in general, child welfare agencies demean instead of empowering the youth they are mandated to protect. b. Potential Psychological and Physical Consequences of a Nonconsensual Disclosure of an LGBT Young Person’s Sexual OrientationDisclosure of a young person’s sexual orientation without the LGBT child’s consent, even if done in the “best interest of the child” and for the purpose of seeking permanency, may have a disastrous affect on the LGBT child’s life. Outing an LGBT adolescent to adoptive parents without their consent can cause severe stress for the young person. One’s sexual identity is an extremely private matter, and LGBT young people going through the adoption process may be fearful of the repercussions of being open with their sexuality.116 By disclosing this information, child welfare agencies may subject these youths to increased ridicule by their peers, and potential verbal and physical abuse in the foster care setting, streets, and school.117 Furthermore, outing a young person against their wishes may “interrupt or derail an LGBT youth’s development and adjustment, resulting in negative health effects and loss of trust.”118116WILBER, RYAN & MARKSAMER, supra note 15, at 36. 117 See Anne C. Hydorn, Note, Does the Constitutional Right to Privacy Protect Forced Disclosure of Sexual Orientation, 30 HASTINGS CONST. L.Q. 237, 253 (Winter 2003) (citing Suzanne M. Stronski Huwiler and Gary Remafedi, Adolescent Homosexuality, 33 REV. JUR. U.I.O.R. 151, 163 (1999)); see also WILBER, RYAN & MARKSAMER, supra note 15, at 35. 118 WILBER, RYAN & MARKSAMER, supra note 15, at 37-38.21 The facts in the Sterling case illustrate the dangerous results of a nonconsensual disclosure gone wrong. Because of Officer Wilinksy’s threats of nonconsensual disclosure to Marcus Wayman, Marcus took his own life.119 Sadly, this drastic action is all too common amongst young LGBT individuals. LGBT young people often suffer generally from the psychological effects of identifying and understanding their sexuality.120 These psychological effects may include “increased rates of depression and suicide, school problems, substance abuse, running away, eating disorders, high-risk sexual behavior, and illegal conduct.”121 In fact, studies show that LGBT youth have an increased rate of attempted suicide than their heterosexual counterparts.122 These facts and studies demonstrate the extremely sensitive nature of outing an LGBT young person without their consent. LGBT youth awaiting adoption are already in a fragile and vulnerable position, and adding the stress and fear of being outed may push these youth into taking drastic actions, much like Marcus Wayman did.III. Conflicting Child Welfare Agency Interests in DisclosureIn direct conflict with a LGBT young person’s interest in keeping their sexual orientation private are the child welfare agencies interests in disclosing this information. 119 Sterling, 232 F.3d at 193. 120 Anne C. Hydorn, Note, Does the Constitutional Right to Privacy Protect Forced Disclosure of Sexual Orientation, 30 HASTINGS CONST. L.Q. 237, 253-54 (Winter 2003) (citing Susanne, M. Stronski Huwiler and Gary Remafedi, Adolescent Homosexuality, 33 REV. JUR. U.I.P.R. 151, 163 (1999)). 121 Id. 122 Id.; See also SULLIVAN, SOMMER & MOTH, supra n. 20, at 15 (“The gravity of these stresses for LGBT youth is reflected in their high rates of suicide and suicide attempts. For example, a survey of students in grades 7 through 12 found that 28.1% of bisexual and gay males and 20.5% of bisexual and lesbian females had reported attempting suicide. (citing Gary Remafedi et al. “The Relationship Between Suicide Risk and Sexual Oreintation: Results of a Population-Base Study,” 88 Am. J. Public Health 57 1998). Other data suggests that gay youths account for approximately 30% of all completed adolescent suicides.” (citing Paul Gibson, Gay Male and Lesbian Youth Suicide, in REPORT OF THE SECRETARY’S TASK FORCE ON YOUTH SUICIDE 3-110 (U.S. Dept. of Health and Human Services ed., 1989))).22 In line with the prevailing professional attitude that relevant medical and social information of adopted children should be disclosed to adoptive parents are state interests in disclosing a child’s sexual orientation. For child welfare agencies, fulfilling its obligation to provide complete and accurate information to adoptive parents, avoiding costly wrongful adoption lawsuits, and finding permanent placements for LGBT children so as to act in the “best interest of the child” are viable and important interests. a. Obligations to Potential Adoptive ParentsConflicting with the obligation to protect the privacy interests of an LGBT child is a child welfare agency’s obligation to provide the social history of youth to adoptive parents.123 By providing this information, child welfare agencies are better able to find the most appropriate placement for young people, thereby minimizing costs, enabling potential adoptive parents to be “good” parents and the best fit for each particular young person, and securing a positive and safe environment for the youth to grow and mature. Under the Uniform Adoption Act of 1994, a person placing a minor for adoption is required to submit a written report detailing the social history of the child.124 While sexual orientation is not explicitly enumerated in the Act as something that must be disclosed,125 adoption professionals, experts, and professional guidelines have endorsed in recent years a move towards full disclosure of the complete medical and social history of a child up for adoption.126 Experts on adoption and foster care have gone further and emphasized that disclosure of an LGBT child’s sexual orientation should also be included123 See Uniform Adoption Act of 1994 § 2-106. 124 Id. 125 Id. 126 D. Marianne Blair, supra note 21, at § 16.01.23 in the information given to adoptive and prospective adoptive parents during the adoption process.127Nearly every state also requires both the medical and social history of children up for adoption to be released to potential adoptive parents.128 States have an interest in ensuring the welfare of its children, and disclosing information that will result in a permanent placement furthers that interest.129 Without full disclosure, the chance that medical or social issues with an adoptee will arise in the future greatly increases.130 As a result, the lack of disclosure increases the risk that adoptive parents will not want the child any longer or that adoptive parents will only keep the child if they are paid a substantial fee.131For child welfare agencies placing LGBT youth, there is arguably an even greater interest in finding homes for these typically hard to place youth. Unfortunately, many families do not want an LGBT young person, nor do they want the challenge of bringing an LGBT young person into their home at the same time that the LGBT individual is having a personal struggle with their sexual identity.132 Therefore, child welfare agencies may argue that it is important that adoptive parents know, or are at least made aware of, the fact that the potential adoptee is an LGBT individual.133 In fact, under many statutes mandating the disclosure of a child’s social history, adoptive parents may arguably have a127 See Telephone interview with Madelyn Freundlich, Excal Consulting Partners LLC, in New York, NY (Feb. 4, 2008); Telephone interview with Jody Marksamer, Staff Attorney, National Center for Lesbian Rights, in New York, NY (Feb. 5, 2008). 128 See, supra note 41. 129 See Juman v. Louise Wise Services S, 608 N.Y.S. 2d 612, 616 (New York County 1994). 130 Id. 131 Id. 132 See SULLIVAN, SOMMER & MOTH, supra note 20, at 15 (noting that LGBT youth already coping with coming out and dealing with peers have added pressure because of frequent rejection by foster parents and disapproval by the child welfare agency staff). 133 See Telephone interview with Jody Marksamer, Staff Attorney, National Center for Lesbian Rights, in New York, NY (Feb. 5, 2008).24 right to know if the potential adoptee identifies as LGBT. It does not appear, however, that a statute exists specifically mandating the disclosure of sexual orientation.134 Still, by informing adoptive parents that the young person they are considering is LGBT, child welfare agencies comply with their state statutory duty and encourage adoptive parents to take in children whom they know will be a good fit with their family. States have an interest in complying with these statutes and fulfilling their obligation to disclose pertinent and necessary information regarding adoptees to potential adoptive parents. b. Avoiding Costly LitigationIn line with this statutory duty to disclose the social history, and arguably the sexual orientation of an adoptee, to potential adoptive parents, states also have an interest in avoiding costly lawsuits alleging wrongful adoption. Over the past few decades, many lawsuits have successfully argued that the failure to disclose pertinent information to adoptive parents resulted in harm to both the adoptee and the adoptive parents and their family, thereby resulting in damages.135 Federal and states courts have entertained several lawsuits against public and private agencies for wrongful adoption under several theories, including intentional misrepresentation, intentional non-disclosure, and negligent conduct.136 In the majority of these lawsuits, the central argument states that the placing agency failed to disclose important medical or social information about an adoptee, resulting in either future harm 134 See Telephone interview with Madelyn Freundlich, Excal Consulting Partners LLC, in New York, NY (Feb. 4, 2008). 135 See D. Marianne Blair, supra note 21, at § 16.01 (stating that courts are siding towards increased disclosure and upholding wrongful adoption suits because of bad side effects of not disclosing all relevant medical information). 136 See D. Marianne Blair, supra note 21, at § 16.02.25 to the adoptee or adoptive parents and family that could have been avoided by full disclosure.137 Furthermore, many lawsuits also argue that a lack of disclosure led to placements in homes that were not prepared for the intense and complicated needs of special children.138 This is an extremely important concern for state agencies since the inaccurate or failed disclosure of information on adoptees, particularly older and special needs adoptees, often results in improper preparation on the part of adoptive parents, resulting in failed placements and “adoption disruption.”139 Overall, these lawsuits subject child welfare agencies to expensive litigation, unpopular press, and harm to the reputation of an agency charged with placing helpless children in loving homes.140While a dearth of case law prevents specific analysis of a case discussing failed disclosure of sexual orientation to adoptive parents, the issues facing adoption agencies in medical disclosure are similar to potential situations facing child welfare agencies deciding whether to disclose an LGBT young person’s sexual orientation.141 With medical disclosure cases, child welfare agencies must consider several issues including the privacy needs of the adoptee and of the biological parents, the potential physical and psychological consequences to the child due to non-disclosure, and the potential discomfort and harm to the adoptive family unit due to non-disclosure.142 Similarly, when dealing with the nonconsensual disclosure of an LGBT young person’s sexual 137 See, e.g., Michael J. v. County of Los Angeles 201 Cal. App. 3d 859, 247 Cal. Rptr. 504 (1988); Mohr v. Commonwealth, 421 Mass. 147, 653 N.E.2d 1104 (1995). 138 See J.A. v. St. Joseph's Children's & Maternity Hospital, 52 Pa. D. & C. 4th 142, 151 (2001). 139 D. Marianne Blair, supra note 21, at § 16.01. 140 Id. 141 Arguably, issues surrounding disclosure of medical documents or information are not as complicated as the issues surrounding the disclosure of such social information as a person’s sexual orientation. Because many statutes state what medical information must be disclosed, it may be somewhat easier for public child welfare agencies to plan and act when disclosing this information. 142 See D. Marianne Blair, supra note 21, at § 16.02.26 orientation, adoption agencies must also consider many of the same issues, including the potential for physical and psychological harm to the child, the potential disruption nondisclosure may have on the adoptive family, and the resulting violation of the LGBT young person’s privacy. One of the most prevalent theories in wrongful adoption cases is intentional nondisclosure, more commonly referred to as fraud.143 Under this theory, adoptive agencies may be liable to adoptive parents for failing to disclose relevant information to adoptive parents that would be necessary for those parents to make an informed decision about the adoption.144 Courts have ruled that a special relationship exists between adoption agencies and adoptive parents, and that a duty to disclose all relevant and important information results from this special relationship.145 In addition, adoption guidelines recognize the right of all parties to an adoption, including adoptive parents, to “self-determination and informed decision-making.”146In this context, the failure of adoption agencies to disclose an LGBT young person’s sexual orientation could subject these agencies to a wrongful adoption suit arguing intentional nondisclosure. Adoptive parents could persuasively argue that the sexual orientation of an adoptee is a fact that would be necessary and useful in making an informed decision as to whether the adoptive parents could successfully care for the 143 Id. at § 16.03, n. 2. 144 Id. at § 16.03. “The elements of the tort of fraud set forth by the court in Burr v. Board of County Commissioners are essentially the same elements commonly recognized elsewhere. These include: a) a representation or, where there is a duty to disclose, concealment of a fact, b) which is material to the transaction at hand, c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, d) with the intent of misleading another into relying upon it, e) justifiable reliance upon the representation or concealment, and f) a resulting injury proximately caused by the reliance.” Id. 145 See Id. at § 16.03, n. 22. At least one court has said that a duty to disclose all relevant information exists even if adoptive parents don’t ask. Taeger v. Catholic Family & Community Services, 995 P.2d 721 (Ariz. Ct. App. 1999). 146 See D. Marianne Blair, supra note 21, at § 16.03 (citing Child Welfare League of American, Standards of Excellence for Adoption Service, Standards 16-17, 1.16, and 54-55 (2000)).27 child. As the guidelines indicate, adoptive parents have a right to make an informed decision as to whether or not they want to, or have the capability, of adopting and caring for an LGBT child. It is this argument that may result in an intentional nondisclosure wrongful adoption suit seeing success.The number and variety of wrongful adoption suits arguing nondisclosure of relevant medical and social information emphasizes the potential need for full disclosure to adoptive parents. These law suits have the potential of costing child welfare agencies thousands of dollars,147 creating a significant interest in curtailing the number of circumstances where a wrongful adoption lawsuit may result. Still, there is a tension in a child welfare agency’s desire to avoid these costly lawsuits by fully disclosing the sexual orientation of an adopted child to adoptive parents and the desire of the LGBT adopted child to keep their sexual orientation private. c. Obligation to promote best interest of child.The primary interest in adoption proceedings is the promotion of the general welfare of the child.148 Within this general interest lies the more specific interest of placing potential adoptees in permanent familial settings.149 When making the decision as to whether or not a child welfare agency caseworker should disclose an LGBT young person’s sexual orientation to potential adoptive parents, the agency may point to their interest in finding a permanent home for the LGBT child as overriding the child’s interest in privacy. 147 See, e.g., D. Marianne Blair, supra note 21, at § 16.05 (stating that in Mohr v. Commonwealth of Mass., a wrongful adoption suit based on negligent failed disclosure and intentional failed disclosure, the jury awarded the plaintiffs $3.8 million). 148 See Joan Heifetz Hollinger, supra note 34, at § 1.01. 149 Id.28 With thousands of LGBT children awaiting permanent placement in foster care, states have a significant interest in moving these young people into permanent placements.150 In foster care, LGBT children are often subject to many placements as a result of discrimination, harassment, or sexual assault from foster parents and the child welfare agency staff.151 When the “temporary” placement fails, these youth become estranged and disconnected from all sense of family and social support.152 Studies have shown that youth who leave foster care and other forms of state custody are particularly susceptible to “homelessness, poverty, incarceration, and victimization.”153Furthermore, adolescents in the “coming out” stage of their life are even more vulnerable and in need of a strong family relationship.154 While many foster parents provide this support, because of the temporary nature of the relationship and the possible lack of personal connection between the child and parent, many foster parents may have a negative reaction to a child coming out as LGBT. This caregiver rejection has disastrous implications for youth trying to navigate life without a permanent family connection.155 According to the guidelines:LGBT young people whose families and caregivers rejected their sexual orientation during adolescence were much more likely to report higher rates of depression, suicidality, substance abuse problems, and risk for HIV infection than their peers who reported having families and caregivers who had accepted their sexual identity. Family acceptance and rejection also affected self-esteem, access to social support, and life satisfaction.156150 In re G, 436 N.Y.S.2D 546, 553 (Fam. Ct. N.Y. 1980). 151WILBER, RYAN & MARKSAMER, supra note 15, at 6. A study cited by these guidelines found that “78% of LGBT youth were removed or ran away from their placements as a result of hostility toward their sexual orientation or gender identity.” (citing Joint Task Force of New York City’s Child Welfare Administration and the Council of Family and Child Caring Agencies, Improving Services for GAY AND Lesbian Youth in NYC’s Child Welfare System: A Task Force Report, 1994). 152 WILBER, RYAN & MARKSAMER, supra note 15, at 15. 153 Id. (citing North American Council on Adoptable Children, A Family for Every Child: Strategies to Achieve Permanence for Older Foster Children and Youth, Baltimore: Annie E. Casey Foundation, 2005). 154 WILBER, RYAN & MARKSAMER, supra note 15, at 17. 155 Id.29 Multiple placements stemming from caregiver discrimination and harassment, and the lack of permanent caregiver support undermines the much needed permanent placement and family relationship needed by LGBT youth in out-of-home care.157 Studies and expert guidelines state that placing LGBT youth in permanent homes is the best way to reduce the negative effects associated with temporary placements.158Maintaining LGBT children in foster care and temporary placements comes at an enormous social cost, both to the children themselves and to society.159 Arguably, the state has a legitimate and even compelling interest in placing LGBT youth in foster care in permanent, loving homes.160 In the words of one state court, “the state’s interest in achieving permanency for children whose parents are unable or unwilling to provide stable long-term continuous care is nothing if not ‘compelling.’”161Fulfilling an obligation to disclose relevant information to potential adoptive parents, avoiding costly litigation, and placing children in permanent placements so as to act in the best interest of the child are three important state interests. While these interests align with a desire to disclose information to adoptive parents, they directly conflict with the privacy interests of the youth who are at the center of the adoption process. As a result, these interests are pinned against each other, seemingly creating a “someone has to lose” scenario.156 Id. (citing Ryan, C. & Diazm R., Family Responses as a Source of Risk & Resiliency for LGBT Youth, Paper Presented at the Child Welfare League of America Preconference Institute, Washington, D.C. (Feb. 2005)). 157 Id. at 23. 158 Id. (citing Jacobs, J. & Freundlich, M., Achieving Permanency for LGBTQ Youth, Washington, D.C.: Child Welfare League of America (2006)). 159 In re G, 436 N.Y.S.2D 546, 553. 160 Id. 161 Id.30 Instead, however, child welfare agencies should try to balance these interests in order to find a fair and workable result for both parties. By not balancing these interests for every young person, child welfare agencies risk alienating LGBT youth struggling with their sexual orientation and causing significant psychological and physical harm to these children who are not ready to be completely “out.”IV. Protecting LGBT Youth When Nonconsensual Disclosure is NecessaryChild welfare agencies’ interests in disclosing an LGBT young person’s sexual orientation to potential adoptive parents without the young person’s consent should not be taken as an unrestricted license to disclose this information in any manner the caseworker deems appropriate. In the context of placing LGBT youth in foster care, experts have stated that only in very limited situations should child welfare agency caseworkers break their duty of confidentiality and disclose a youth’s sexual orientation to others without the young person’s consent.162 These experts go even further by arguing that non-disclosure policies should be put in writing, thereby making it extremely clear to all caseworkers that the sexual orientation of a young person is private and should only be disclosed in the most extreme circumstances.163 However, some of the same experts who argued for confidentiality in the foster care context argue for increased 162 See WILBER, RYAN & MARKSAMER, supra note 15, at 38; See also The Rhode Island Task Force for Lesbian, Gay, Bisexual, Transgender, Queer and Questioning Youth, Bandaids Don’t Cut It: A Statewide Plan to Address the Needs of Lesbian, Gay, Bisexual, Transgender, Queer and Questioning Youth in Rhode Island, 8 (2006). 163 See WILBER, RYAN & MARKSAMER, supra note 15, at 38-39 (“To ensure that agency employees respect confidential information related to a youth’s sexual orientation or gender identity, agencies should have written policies regarding the management of this information. . . . Unless disclosure is legally required, no employee should disclose information regarding he sexual orientation or gender identity of youth unless that person can identify a direct benefit to the youth and has discussed the matter with the youth and obtained his or her consent.”).31 disclosure in the adoption process because it involves extreme circumstances; those circumstances include seeking permanent placement for LGBT youth.164 In order to best address the consequences of nonconsensual disclosure, child welfare agencies should establish practices and policies to reduce the effect a nonconsensual disclosure will have on LGBT young people. First, agencies and agency caseworkers must be sensitive and understanding when discussing the sexual orientation of a young person they are seeking to permanently place.165 Understandably, these youth may be reluctant to discuss their sexual orientation, and the caseworkers must not rush or push these youth to make any quick or drastic decisions.166 Instead, agency workers should create a relaxed atmosphere in which the youth can feel comfortable discussing their sexual orientation.167 Not only will this make the youth more relaxed and trusting, but it will allow the agency personnel to fully evaluate the youth and better understand the potential sensitive nature of disclosing the youth’s sexual orientation.168Second, if it becomes known that the potential adoptee identifies as LGBT, agency caseworkers should discuss with the young person how that aspect of their personality fits in the adoption process. Agency caseworkers should try to assess whether the LGBT young person has a problem with disclosing their sexual orientation to potential adoptive parents, and if they do, the reasons why the young person wishes not to disclose that information. These young people may not understand why it is necessary to 164 See Telephone interview with Madelyn Freundlich, Excal Consulting Partners LLC, in New York, NY (Feb. 4, 2008); Telephone interview with Jody Marksamer, Staff Attorney, National Center for Lesbian Rights, in New York, NY (Feb. 5, 2008). 165 See WILBER, RYAN & MARKSAMER, supra note 15, at 36. 166 Id. 167 Id. 168 Experts also report that youth who discuss their sexual orientation with others feel more confident about their sexual identity and feel better about themselves. WILBER, RYAN & MARKSAMER, supra note 15, at 27 (citing D’Augelli, Hersheberger, & Pilkington, Lesbian, Gay, and Bisexual youth and Their Families: Disclosure of Sexual Orientation and its Consequences, American Journal of Orthopsychiatry, 68, 361- 371(1998)).32 disclose their sexual orientation to potential adoptive parents, and agency caseworkers must be able to articulately and sensitively explain why their may be a need to disclose this information.169 Caseworkers should explain to the LGBT young person that the young person has a right to keep this information private, but that in some situations the caseworker may have to disclose this information in order to make sure that the child remains safe and can be placed in the best environment. Caseworkers should emphasize that the disclosure is done in order to promote the child’s best interest, and that the agency will provide support if any negative consequences were to arise.170During this intake period, it will also be important to provide information on the benefits of “coming out,” and encourage the LGBT young person to speak to counselors and, if possible, other youth who have been in the same situation. It may be that the young person has never spoken to anyone about being open with their sexual orientation, and that speaking with a trained person on the matter will assist the young person in making the transition to being openly LGBT.Third, if the LGBT young person still wants to keep his or her sexual orientation private, agency caseworkers and staff should come together to evaluate the next steps in the young person’s case. At this point, agency caseworkers ought to balance the benefits and potential liabilities of disclosing the sexual orientation of the young person to the potential adoptive parents without the young person’s consent. As part of this analysis, agency caseworkers should consider the LGBT young person’s privacy rights,171 as well 169 See WILBER, RYAN & MARKSAMER, supra note 15, at 39 (“In some circumstances, limited disclosure may be legally required to protect a young person’s safety. . . . Case managers should actively engage young people in discussions about these issues. When disclosure is legally required, case mangers should explain who is entitled to the information and why.”). 170 Id. 171 During this analysis, state agency’s may also want to consider the potential for legal liability under a Section 1983 action brought by the LGBT youth alleging a violation of their constitutionally protected right to privacy in their sexual orientation. Given the Sterling and Nguon decisions, LBGT youth may argue that33 as the risk of liability for not disclosing enough information to potential adoptive parents in order for those parents to make an informed decision. In addition, the caseworker should analyze the potential risk of psychological and physical harm by prematurely outing the youth, as well as the potential for harm to the child that may come from not being able to place the youth in a loving, permanent environment. The result should not be a quick and off-the-cusp decision; the caseworker should take time to fully analyze all of the potential risks and benefits of a nonconsensual disclosure.172 Even where a caseworker believes nonconsensual disclosure is inevitable, the caseworker should always attempt to honor the young person’s wishes to keep their sexual orientation private, and should only disclose insofar as is absolutely necessary.173 As was seen in Sterling, inappropriately disclosing a young person’s sexual orientation may have tragic consequences. this privacy right clearly exists, and can be extended to situations where state agency caseworkers disclose their sexual orientation without their consent. Making this argument may be difficult, however, given the decision in DeShaney v. Winnebago and the subsequent litigation surrounding the case establishing that states do not have an affirmative duty of care or protection for those outside of their immediate control and that courts will only hold state actors liable in Section 1983 actions when the state action was deliberately indifferent to the best interest of the child. See Deshaney v. Winnebago, 489 U.S. 189, 202 (1989); Weatherford v. State, 206 Ariz. 529, 537-38 (S. Ct. Ariz. 2003); Roe v. Fla. Dept. of Children & Family Servs., 176 F. Supp. 2d 1310, 1321 (S.D. Fla. 2001). 172 The timing and manner of the disclosure is also very important, and should be considered by the child welfare agency. In the context of disclosing information gained during family therapy sessions, experts state that the timing and manner of disclosing personal information and “secrets” is vital in order to minimize the harm to the family. In addition, one expert provides a series of questions to ask, including “1. Does the secret interfere with current functions?; 2. Does the secret interfere with direct and open communication within the family?; 3. Who should reveal the secret, to whom, and under what circumstances?; and 4. What will be the effects of disclosure?” See Paul Bennett, Secret Reflections: Some Thoughts About Secrets and Court Processes in Child Protection Matters, 45 ARIZ. L. REV. 713, 734 (2003) (citing Mark A. Karpel, Family Secrets: Conceptual and Ethical Issues in the Relational Context, 19 Family Process 296, 302 (1980); Peggy Papp, The Worm in the Bud: Secrets Between Parents and Children, in Secrets in Families and Family Therapy, 65-85, 69-70 (Imber-Black ed., 1993)). 173 See WILBER, RYAN & MARKSAMER, supra note 15, at 38; See also Paul Bennett, Secret Reflections: Some Thoughts About Secrets and Court Process in Child Protection Matters, 45 ARIZ. L. REV. 713, 747 (2003) (discussing disclosure of the secrets of children involved in child protection proceedings and stating that these children should be given more “autonomy to reveal only what is essential” for the agencies involved to make intelligent decisions).34 In order to administer the aforementioned analysis, child welfare agencies should adopt policies and procedures to review these issues on a case-by-case basis. Because the facts and circumstances of each LGBT child and case are different, individual case analysis is very important.174 The consequences of not conducting this individual analysis are too extreme. Thus, child welfare agency caseworkers should take care and precaution to ensure that every decision is the product of careful analysis and has a goal of minimizing harm.More generally, child welfare agencies and caseworkers should keep the LGBT youth completely involved throughout the entire adoption process.175 Caseworkers must remember that this process is about the best interest of the child involved in the adoption proceedings, and not about what the caseworker would like to see happen. Thus, more attention should be placed on what the young person really wants, and the young person should always be at the center of and involved in every aspect of his or her case.176 Some states have taken proactive steps to make sure that youth awaiting permanent placements are more involved in the process. Recently, the Minnesota Department of Human Resources instituted a program called “The Homecoming Project” as a way of making youth “partners” in developing permanency plans to help them find permanent homes.177 The program specifically targets youth ages thirteen to seventeen who are under state guardianship and who have a permanency plan but no prospect of an 174 WILBER, RYAN & MARKSAMER, supra note 15, at 42. 175 See Telephone interview with Madelyn Freundlich, Excal Consulting Partners LLC, in New York, NY (Feb. 4, 2008). 176 Id. 177 See Minnesota Department of Human Services, The Homecoming Project: Youth/Adult Partners for Permanence, http://www.mnadopt.org/homecoming.htm. 35 adoptive parent in sight.178 Overall, this project “fully engage[s] adolescents in identifying and achieving their own individualized permanency outcomes.”179 Minnesota’s project illustrates the importance of keeping youth involved in making decisions for their adoption. Caseworkers should engage with LGBT youth throughout the adoption process and allow them to be involved in the decision-making. If youth feel as though a caseworker is making decisions for them, there is an increased likelihood of tension and potential for the child to become even more opposed to disclosing any information or going through with the adoption.180 To the contrary, if LGBT youth are involved in the process from the beginning, and kept apprised of the decisions being made, they are more likely to trust the caseworker and agree to disclosure. In the end, even if nonconsensual disclosure is necessary, having a secure and trusting relationship between the LGBT child and caseworker is a must in case negative reactions or consequences arise in the future.ConclusionFor LGBT youth, and particularly those in out-of-home care, dealing with sexual orientation and understanding one’s sexual identity can be a stressful and scary experience. Disclosure of this information when an LGBT young person is not ready can result in significant psychological and physical harm to the child and infringes on that child’s right to keep his or her sexual orientation private. Still, during the adoption process, disclosure of relevant and necessary medical and social information, like one’s sexual orientation, is an important step in the adoption 178 Id. 179 Id. 180 See Telephone interview with Madelyn Freundlich, Excal Consulting Partners LLC, in New York, NY (Feb. 4, 2008).36 process and one that is deemed vital by many adoption professionals and experts. Furthermore, child welfare agency interests in disclosing relevant information to potential adoptive parents, avoiding costly litigation, and placing children in permanent placements so as to act in the best interest of the child, while in tension with a LGBT child’s interest in keeping his or her sexual orientation private, bolster the argument that complete disclosure of an adoptee’s medical and social history, including their sexual orientation, should be disclosed.Even then, caseworkers and their employers must respect and seek to protect, as much as possible, LGBT young people’s desire to keep their sexual orientation private. Furthermore, policies and practices should be implemented by child welfare agencies so as to make thoughtful, individualized decisions about the need for disclosure. Nonconsensual disclosure should never be the “go to” policy, and should only be done when all else has failed. Ultimately, carefully executed policies that take an LGBT young person’s privacy rights into consideration will help prevent serious and tragic consequences of nonconsensual disclosures. 37

Coming out the Hard Way

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