Texas' New Anti-Gay Law Could Have Made This Family Impossible

We may earn a commission from links on this page.

The brown teddy bear, in particular, is special to Brendan.

It’s one of the first gifts his adopted fathers, Andy Delony and Brendan Robert, gave him. On that Christmas morning in 2009, the bear sat on a children’s bike that was wrapped in a bow. The stuffed toy survived the last eight years; the bike was given to a neighbor. Its giant head now droops and his fur is matted down, tell-tale signs of a well-loved toy.

A month earlier—November 16, National Adoption Day—Delony and Robert had adopted eight-year-old Brendan, his preteen brothers Andy and Jean-Luc, and his four-year-old sister Kim. To celebrate being a new family, the pair bedecked their two-story home in North Austin with holiday trimmings. Their large tree twinkled with lights, and ornaments dangled from the branches.

Delony remembers the siblings being taken aback by the sheer number of gifts under the tree on Christmas morning. “They stop on the stairs and don’t move,” he recalls. The kids were “dead quiet. It was shocking.”

Now, in the same brick colonial house on a quiet tree-lined street in Austin, Texas, Brendan hugs the stuffed animal after retrieving it from his room. “Oh. My. God,” Delony says in recognition.

“I told you I still had it,” Brendan, now a teenager, replies.

The four siblings didn’t come to their new home with much. They lost most of what they owned from their three and half years in the foster system. Brendan and Kim were separated from Andy and Jean-Luc soon after Texas Child Protective Services removed them from their biological home. Andy, now 19, tells me that they came from a Southern Baptist household that was abusive and neglectful. Child welfare workers placed his younger siblings in a handful of homes; Andy and Jean-Luc bounced around at least nine places, including a shelter. Luckily, Delony and Robert were able to adopt all four children together before it was too late. They didn’t want the kids to be divided permanently.

Andy figured he would be stuck in foster care until he turned 18. At least that’s what some of his foster parents pounded into his head. It was like a threat, he says—if no one adopts him by the time he became a teenager, they’d tell him, then he’d end up on the streets.

“You feel really unwanted, really worthless,” Andy explains via telephone from London, where he’s doing a summer program at King’s College. “Like the world didn’t want you enough to keep you around.”

Kids in the U.S. child welfare system have to navigate a complex network of agencies and policies in order to advocate for their health and well-being. And come September, the system will become much harder for Texas children and adoptive parents to maneuver. On June 15, Republican Gov. Greg Abbott signed legislation that advocates say will make it legal to deny services to youth because of their “sincerely held religious beliefs.” Which means, among other disastrous consequences, that LGBTQ kids like Andy and Jean-Luc could be turned away. The law could also make it harder for same-sex couples seeking to adopt.

In other words, if Texas House Bill 3859 had existed on National Adoption Day in 2009, Andy Delony and Brendan Robert’s new family may have never existed.

Like many states, Texas faces an escalating foster care crisis. The state’s child welfare system is overburdened and underfunded. In December 2015, a federal judge from South Texas issued a 254-page opinion in a five-year-old class action suit that declared the state’s foster care system unconstitutional. According to the ruling, the Texas Department of Family and Protective Services (DFPS), the umbrella agency over CPS, violated the U.S. Constitution’s 14th Amendment by failing to protect children from harm while in state custody. The agency was cycling kids through a system, U.S. District Judge Janis Graham Jack wrote, where “rape, abuse, psychotrophic medication, and instability are the norm.”

Nearly a year later, two court-appointed Special Masters released a list of recommendations on how to fix the state’s broken child welfare system, which had more than 28,700 kids in substitute care by the end of the 2016 fiscal year. But Texas Attorney General Ken Paxton had fought those proposals with every resource at his disposal. The Lone Star State was already improving child welfare services, Paxton claimed, pouring hundreds of millions of dollars in emergency funding into the state agency. Elected officials were also working on legislation that would restructure the system, and allow more agencies to operate within it.

Part of that work included HB 3859, titled the “Freedom to Service Children Act,” a sweeping bill that uses “religious freedom” to shield service providers receiving tax dollars from litigation if they turn away certain children and families. Faith-based child welfare agencies in the state have discriminated against certain groups for years, but supporters of HB 3859 have said they have been “terrified” of legal action. The new law, authored by Rep. James Frank (R-Wichita Falls) closes that loophole; it goes into effect September 1.

Supporters of the bill contend HB 3859 won’t shut anyone out of the foster care system, but instead will allow faith-based groups to operate without fear of prosecution. Texas Catholic Conference of Bishops Executive Director Jennifer Allmon said in a statement that the new law allows religious agencies “to serve the children of Texas while maintaining our faith teachings.”

But progressive advocates believe the conservative law, dubbed the “religious-refusal bill,” will have widespread and harmful consequences for the state’s LGBTQ youth, who are disproportionately represented in the foster care system. By codifying discrimination in Texas’ child welfare system, they say, lawmakers are effectively shrinking—not broadening—the pool of qualified parents. “It’s a use of taxpayer money to subsidize discrimination against kids and families through this guise of religious belief,” says Kali Cohn, staff attorney for the American Civil Liberties Union of Texas, which fought against HB 3859.

A child welfare service provider is “very broadly” defined in the legislation, Cohn says, which means that not only adoption and foster agencies but also group homes, caseworkers, therapists, and treatment centers could discriminate against children in the system if they could prove a “sincerely held religious belief” for doing so. And this could play out in dangerous ways: Under the law, foster families could legally force gay, lesbian, bisexual, and transgender kids into “conversion therapy,” a discredited practice that the Substance Abuse and Mental Health Services Administration has linked to poor mental health outcomes including suicidal ideation.

Kids who identify as LGBTQ could also be rejected from shelters, denied access to counseling or medical services, and be kept away from their partners and friends. “I just worry that you’re going to have a kid who ends up sick or potentially dead because somebody won’t provide a specific service to them,” says Will Francis, government relations director for the Texas Chapter of the National Association of Social Workers.

HB 3859 is not the first bill of its kind in the country, although according to Francis it’s the “most restrictive.” South Dakota and Alabama both passed similar legislation in recent months. (California banned state-sponsored and state-funded travel to all three states to protest what its attorney general calls “discriminatory legislation.”) The law is also not the first time Texas has targeted LGBTQ foster youth; earlier this year, DFPS removed “gender identity” and “sexual orientation” from its Foster Care Bill of Right’s fair treatment clause. After the story broke, the agency removed all mention of protected classes and instead listed “be treated fairly” as its nondiscrimination policy.

Internal emails obtained via the Freedom of Information Act, passed onto me by an advocacy organization on the condition of anonymity, reveal that DFPS leadership directed management to “take out references to sexual orientation and gender identity,” as well as explicit language protecting a child’s right to practice the religion of their choice. According to the memos, staff would claim the changes were made in an effort to “align with minimum standards”—although “minimum standards” are not clearly defined.

DFPS spokesperson Patrick Crimmins told Fusion in an email that the changes made to Foster Care Bill of Rights is a “non-issue” because it is “not a legal document.” The agency routinely changes public documents to ensure they are “actually in line with the legally-binding state standards, which themselves are based on state and federal law,” Crimmins wrote.

Meanwhile, lawmakers refused to consider amendments that would have reduced the potential harm caused by the legislation. Instead, they included a so-called referral provision that would require faith-based agencies that deny kids services to point them to a website with a list of available providers.

“[It’s] extremely weak,” says Chuck Smith, CEO of Equality Texas, another group that testified against the bill back in March. The “minimum standard” of passing on a website is, to advocates, “wholly unacceptable.”

But the “Freedom to Save Children Act” won’t only affect gay, lesbian, bisexual, or trans kids. The law would have far-reaching implications for young girls and children of different faiths. A foster family, for example, could legally enroll a Muslim teenager into an Catholic school against that child’s wishes. Or they could deny a sexual assault survivor access to emergency contraceptives or even an abortion, despite the fact that the Foster Care Bill of Rights states that no child can be “pressured…to parent a child.”

The Delony-Robert children have all experienced abuse while in their biological home. But, Andy tells me, none of the straight, Christian homes he and Jean-Luc were placed with had helped him “overcome our trauma and realize that we can do something in the world.”

That didn’t happen, he says, until his two fathers came along.

Andy “Dad” Delony met his husband, Brendan “Pop” Robert, back in high school in Houston. The East Texas natives knew each other casually at first, then became best friends during senior year. They both went to the University of Texas-Austin, where they were dorm roommates. In 1997, the relationship turned romantic. They bought their North Austin home in 2004, and wed a year later.

Delony and Robert are both short with stocky builds; their three boys tower over them, and Kim’s not far behind. They both adore their copper Golden Retrievers, Ringo and Lady. But they’re polar opposites in a lot of ways: Robert, an IT consultant with short flaxen hair and silver metal glasses, speaks in a measured tone. Delony has dark hair, a hearty laugh, and a degree in Chemistry.

The first few years as a new family were difficult. Andy, Jean-Luc, Brendan, and Kim had to learn how to trust their new dads after experiencing so much abuse, trauma, and neglect.

Jean-Luc, now 17, doesn’t remember much from his childhood. He was so young, he says. But his home life was “pretty terrible.” Some memories do come to mind, like the times he “had to resort to eating the cockroaches that were in the cereal” because his biological parents let him starve.

“I know, lovely dinner conversation,” he says as he cuts into his roasted chicken breast.

Robert says the couple recognized that their kids would need “an extensive amount of care and direction,” so they knew it would be best if one of them stayed at home. Delony volunteered, and has spent the last eight years in that role. Though not originally the plan, he has home-schooled all four kids. They’ve thrived from the specialized attention.

Jean-Luc, tall and slender like his brothers, has made the President’s Honor Roll at Austin Community College. Andy will start New York University in the fall after his London program. Brendan, an avid rower, is learning about French philosopher René Descartes. At 12, Kim has started to get into politics, attending rallies and speaking up against injustices; a Hillary Clinton poster hangs on one of her bedroom walls.

Their writing teacher Sara Nagorski, a former Columbia University professor, described the Delony-Robert kids as “interested in being interested.” One can tell the parents have worked hard with their kids so they could learn and grown independently, Nagorski says. “It’s clear there’s a lot of mutual respect.”

But HB 3859 would make parents like Delony and Robert less accessible to children in foster care. The law would give state-funded faith-based agencies the right to refuse adoption services to prospective same-sex parents. HB 3859 would also make it possible for providers to turn away non-Christian couples, divorced parents, or single people.

There’s a belief among certain conservative Christians that LGBTQ families harm children. But two decades of research have failed to prove this theory. In fact, 75 of 79 peer-reviewed studies collected by Columbia Law School’s What We Know Project, a public policy research portal, found that kids from same-sex families fare as well as those with heterosexual parents.

“Our foster care system is in distress,” says Chuck Smith of Equality Texas, “and we are supportive of efforts that would seek to expand the number of available and qualified homes for kids to have a safe place to live. It’s disappointing that they have sought to do that in a way that allows taxpayer funded discrimination.”

Advocates still plan to fight the legislation. Part of that work, they say, includes public awareness campaigns that inform foster care youth and prospective adoptive parents of their rights under the bill and how to navigate the system. The other part, according to Kali Cohn of ACLU Texas, will be exploring possible legal challenges to file against HB 3859 in the future.

“We believe there are serious constitutional problems with the bill,” she says.

Until then, there will likely be fewer Andy Delonys and Brendan Roberts to offer loving homes to foster children in Texas. Kids like Andy, who are at risk of aging out of the system and becoming homeless, may have less of a chance to become valedictorians.

“It was the same-sex couple that, in many ways, saved me,” Andy says. They “helped me to become a better person that no straight couple in my life have ever done before.”

Annamarya Scaccia is an award-winning freelance journalist covering public health and social justice issues. She is based in Austin, Texas.

This feature is part of Fusion’s project to recruit local, embedded reporters, essayists, and photographers across the country. Read more here.