Fostering Transgenderism, by Rule

Wait, what? We didn’t vote on this?

It’s spring in American politics, and that can mean only one thing: the pollen count is high, the radical rhetoric is higher, and the seasonal bloom of performative outrage is in full force.

Last week, the pollen bomb was ignited by an announcement in Washington.

The Trump administration announced it would rescind a Biden-era rule requiring foster care systems to ensure placements that affirm a child’s sexual orientation and gender identity. The new rule would allow faith-based foster families to decline to house LGBTQ+ children.

But here’s what no one is saying: Wisconsin did not need Biden’s rule. It already had one and, astonishingly, still does—and no one voted for it. Not a single soul.

The Biden rule is the foster-home care equivalent of a ban on conversion therapy, which the U.S. Supreme Court struck down in Colorado last month in Chiles v Salazar (see my MacIver column, Conversion Diversion). Prior to that 8-1 victory for free speech, in a progressive state, counselors could affirm and promote gender identity transitioning but could not use talk therapy to discuss the possibility of reconciling with one’s own biological sex. The Colorado decision shades all similar bans as likely unconstitutional.

Similarly, under the Biden out-of-home care rule, foster care parents must affirm and promote the child’s gender identity—no matter what, if they want to be foster parents—and the states had to have policies to comply. The embedding of transgender ideology in the state’s foster-care infrastructure is not quite the same as in conversion therapy, but its practical outcome is identical: It’s pro-transgender all the time and all the way, and, if you don’t like it, don’t be a therapist or a foster parent.

It’s their way, or the highway.

Well, on March 6, the Trump administration officially moved to rescind the Biden rule. Led by the Administration for Children and Families (ACF), the rescission aims to reduce burdens on, and increase participation by, faith-based providers, who frequently cite religious objections to such requirements.

The noise that followed the administration’s announcement wasn’t the relaxed buzz of a midweek crowd at Wine Down Wednesday; it was outrage on cue. Advocacy groups led the staged cacophony, and Democrats weren’t far behind, racing to find a microphone—any microphone—to broadcast the latest denunciation of the evil Trump machine.

In Madison, bureaucrats were defiant, if calmer. The federal mandate might be jettisoned, said Department of Children and Families secretary Jeff Pertl, but Wisconsin was standing tough when it came to the placement of LGBTQ+ youth.

“Policy may change at the federal level, but our moral compass does not,” Pertl said. “Our standards are non-negotiable. We have always—and will always—make placement decisions based on what is best for the youth’s long-term health and stability. Our job is to make kids feel as safe and loved as possible during an incredibly difficult time in their lives.”

It’s always refreshing to see a progressive embrace states’ rights, isn’t it?

Anyway, Pertl’s statement struck me as a little odd. No, make that a lot odd. Obviously, given the clap back at Trump’s pulling the plug on foster care transgender propaganda, the Democrats’ definition of “long-term health and stability” is to adopt standards that encourage transgender ideology at every turn. Those non-negotiable standards didn’t emerge until about 2018, when the Democrats began to go broke with woke.

In one crucial sense, however, it was exactly accurate: Wisconsin’s standards were never dependent on the Biden rule. They were already here and enforceable. Virtually the same standard as Biden sought to impose nationwide had been on the books in the Badger state for years, and, here’s the thing, no one voted to put them on said books.

Well, OK, they weren’t really on the books. What was on the books was a ban on discriminating against foster children on the basis of sexual orientation. But you know how that is in a progressive bureaucrat’s rulebook. When it comes to interpretation, black is white and sexual orientation is gender identity, and that “guidance” and “interpretation” is why we get a Wisconsin bureaucrat lecturing us on moral compasses. It’s exactly upside down.

Sexual orientation in fact refers to whom a person is attracted to, not to gender identity, which concerns how a person identifies in relation to biological sex. And yet, in practice, Wisconsin state agencies treat the two as interchangeable. Through guidance documents, training materials, and placement decisions, the prohibition on discrimination based on sexual orientation has been expanded—without any change in statutory or rule language—to require affirmation of a child’s gender identity. In other words, a rule that says one thing on paper has been made to do something else entirely in practice. That transformation, not interpretation.

So we have the Wisconsin administrative state taking broad statutory authority—there they go again—to write a rule saying one thing about sexual orientation, and then using guidance and interpretation to craft a “policy” that says the rule says another thing that the rule language never gets close to. And, by the way, it’s the law of the land.

Got that?

The national story

The rule’s genesis in Wisconsin is the real story here, for it exposes yet another instance of raw bureaucratic power, but before we get to that story, it pays to examine what is happening nationally, because it underscores the consequences of this approach.

The Biden rule—formally titled Designated Placement Requirements Under Titles IV-E and IV-B for LGBTQI+ Children—required states to demonstrate that they had a supply of “designated placements” who had established an environment that supports a child’s status or identity and who had been trained in providing for the specific needs of LGBTQ+ youth. Foster parents also had to facilitate a youth’s access to resources, services, and activities that support their health and well-being.

Specifically, the agency was required to offer the child a placement consistent with their gender identity, and it must also consult with the child to provide an opportunity to voice any concerns related to placement. Also under the rule, agencies were required to facilitate “clinically appropriate mental and behavioral health care supportive of their sexual orientation and gender identity and expression.”

According to the federal register, the Biden rule exhorted states to allocate approximately 15 percent of all foster care placements as “designated placements.”

The enforcement mechanism was pretty straightforward in all this: States had to comply or risk losing federal child welfare funding. In addition, the rule compelled states to penalize foster care providers who disagreed with a child’s identity, which would be labeled as “retaliation.” So you can see why many faith-based families no longer participated in the program. You can also see why the number of transgender youth is high in the foster care program—the program became an ideological prop for affirming gender transitioning rather than exploring the quite real gender dysphoria issues at hand. It was all self-fulfilling.

Naturally, after a while, some states—certainly not Wisconsin—got miffed about all this. So none other than Texas attorney general Ken Paxton challenged the rule in court, arguing that it intruded into an area traditionally governed by the states.

“The Biden administration is trying to shoehorn gender identity into the statutes governing our nation’s foster care system by requiring states like Texas to provide special treatment and special placements for so-called ‘LGBTQI+’ youth,” the lawsuit stated, adding that the rule was constitutionally flawed, harmful to youth, and fiscally expensive to boot.

For one thing, Paxton argued, the rule imposed its new requirements without any statutory basis because Title IV—the relevant law—did not address sexual orientation or gender identity.

“Title IV’s anti-discrimination provisions do not include protections for sex, much less the derivative categories of gender identity and sexual orientation,” the complaint stated. “Accordingly, the Final Rule is unlawful and violates the Constitution, and the Court should declare it unlawful, set it aside (i.e., vacate it), and enjoin its implementation.”

That’s a complaint that could also be made about the Wisconsin rule’s interpretation—it has no specific statutory foundation and springs from no specific legislative directive, and survives only in the heads of bureaucrats as an interpretive derivative of sexual orientation, with no sanction by the people of the state. That is precisely the kind of rulemaking the state legislature sought to prevent with a bill it passed this past session requiring both explicit and specific statutory authorization to promulgate rules, which of course Evers vetoed.

What the federal rule actually did, Paxton observed, was exacerbate a growing shortage of foster care providers by compelling states to recruit new providers to comply with the rule.

“The Final Rule itself understood this proverbial gun-to-the-head when it ‘anticipate[d] that a majority of states and tribes would need to expand their efforts to recruit and identify providers and foster families that the state or tribe could identify as Designated Placements for LGBTQI+ children,’” the Texas complaint stated.

Ditto for Wisconsin. According to data from The Imprint, the number of licensed foster homes in the state dropped from 4,140 in 2019 to 2,866 in 2025, and the number of non-licensed foster homes plunged from 3,560 in 2019 to 1,628 last year. So there is a need to act, which Trump did. But not progressive Wisconsin, which wants to rest on the laurels of its moral compass.

In addition, Paxton’s complaint continued, the Biden rule imposed mushrooming compliance costs.

“These compliance costs stem from the various new protections and processes created under the final rule,” the complaint stated. “Specifically, Texas and DFPS must now recruit additional foster-care providers that are willing to meet the Final Rule’s requirements or allow youth to remain in their current placements if the placement agrees to meet the conditions of a designated placement—all while dealing with a shortage of current foster-care providers.”

What’s more, the complaint stated, the rule contradicted existing Texas state law.

The court agreed within the sum and substance of the Texas complaint, and, in 2025, a federal judge vacated the rule nationwide, finding the administration had exceeded its authority.

“Biden’s attack on Texas’s foster care system, families, and laws has been totally defeated,” Paxton said. “This victory will protect vulnerable children from dangerous and radical ‘gender ideology.’ Thank you to the Trump administration for agreeing with us that this rule was unlawful and needed to be completely rejected.”

The Trump administration’s rescission simply finished the job the federal court had already started, and it surely will protect children in Texas.

But not in Wisconsin.

The rest of the story

If one reads only the national headlines, it’s easy to assume the policy came from Washington.

In Wisconsin, it didn’t. What makes this more than a policy disagreement is how it happened.

Under Wisconsin law, administrative agencies may promulgate rules only within the bounds of statutory authority granted by the legislature. However, for decades, that boundary has been elastic. Lawmakers years ago granted agencies a broad grant of authority that allows them to create rules or regulations interpreting statutes, even if that statute does not grant rulemaking authority.

If ever the agency decides a rule is necessary, it just just waves its wand and writes new law.

That practice has been the subject of repeated legislative concern: “Administrative rules and regulations carry the weight of law, and it is critical that rules interpreting statutes do not exceed or diverge from what was intended by the legislature,” state Rep. Brent Jacobson (R-Mosinee) said in recent testimony. “Writing the law is a core function of our branch of government, and this legislation would ensure that agencies do not promulgate rules that we never intended to give them the authority to promulgate.”

This past session, Jacobson attempted to rein in that authority by requiring agencies to have explicit and specific statutory authorization for each rule promulgated. Not surprisingly Evers vetoed those reforms and preserved the status quo.

And, again, the status quo is that agencies propose laws, agencies interpret laws, and, unless the legislature acts affirmatively to stop them, enact rules that take effect with the full force of law.

That’s how policy gets made without a vote. And once in place, those rules are not advisory. They bind you and me—and foster agencies, shaping placement decisions and carrying enforcement consequences. In practice, they function no differently than statutes, except that no legislator had to cast a recorded vote to enact them.

Long before the Biden rule—long before the lawsuit, long before the headlines—Wisconsin had already embedded many of the same concepts into its own administrative code, some by actual rewrites of the rules and some by interpretation.

For example, once upon a time not too long ago, like in 2018, this was the rule: “No foster child 6 years of age or older may regularly share a bedroom with another child of the opposite sex.” This is the rule now: “A foster child may share a bedroom with another child with the approval of the supervising agency and the consent of any foster child who is 6 years of age or over.”

Bright-line biological sex requirements for bedroom sharing for foster children have gone out the bedroom window, and not a single soul outside the state bureaucracy voted on that rule change. Perhaps it’s a defensible change, but, if so, it’s important enough to go to the legislature, given doubts about the consent ability of six-year-olds, given the potential ramifications on child safety of the state’s insistence on affirming a child’s gender identity, and given that the sharing requires state approval but says nothing about approval of the foster parents. And, of course, the transmutation of sexual orientation into gender identity is not even in the rule. It’s just made up. Just for fun, there’s the ubiquitous requirements that foster parents are “respectful toward the cultural beliefs, attitudes, and behaviors of a foster child and their family.”

In other words, promote and affirm their gender identity, and if that requires bedroom sharing by opposite-sex young children, despite your best judgment, so be it. The bottom line is, take a walk along the pathway of those sentences, and you find yourself on a bridge between gender identity and placement decisions, headed over a river of rules with the force and effect of law.

Naturally, all this work was carried out over time. Bureaucrats layered in the policy. Prior to 2016, the bureaucrats crafted general nondiscrimination language. Afterwards, they moved slowly to reinterpret terms and make actual changes. Progressives have been hooked on gender identity as a way to destabilize the nation’s cultural foundations for years, all the while using that same identity politics to build up tribalism, and they have infiltrated and successfully shielded themselves behind walls of power that not even elected officials have been able to tear down.

For them, the only question is, which tribe shall rule?

So Wisconsin’s woke foster system predates the Biden rule and the rescission. It’s been part of the rogue and woke bureaucratic woodwork for a very long time. While Washington argued over whether to impose or rescind the rule, Wisconsin had long ago internalized it.

The Biden rule made the policy explicit, national, and enforceable through funding. Wisconsin made it embedded, state-level, and largely invisible.

An opening

Wisconsin’s Department of Children and Families has made clear that federal changes will not alter its approach. As Pertl said, the agency’s woke standards are non-negotiable.

That’s called laying down the gauntlet, and it underscores that the debate—as with conversion therapy—isn’t really about foster care out-of-home placement, or at least not only about foster care out-of-home placement. It’s about who governs. Will it be the legislature, which is accountable to voters, or woke state agencies operating through rulemaking authority?

On issue after issue, the administrative state, acting at the behest of its Democratic and progressive ideological allies, has called the shots and does so ever more after the 2025 Supreme Court decision denuding the legislature of its oversight powers.

All of which gets to an underlying point. The system works the same regardless of who is in charge. The foster-home placement rule is a perfect example of its incursion into law, occurring across administrations, including during Republican Gov. Scott Walker’s tenure, when some of the changes were being formulated, and then continuing and expanding under Evers.

Don’t get me wrong, I’m pretty confident Walker would have been staunchly opposed to those rules had they they surfaced then. But the bureaucracy, robotic and focused and barricaded behind years of accumulated power, clutching their civil service get-out-of-jail free cards and hiding within the maze of institutional progressivism (or, as they like to say, “stakeholders”) could not care less.

They promulgate and interpret no matter who wins elections.

There’s no better justification for the need for reform. As I wrote before, the solution is structural. It means restoring legislative authority over rulemaking, requiring explicit and specific statutory authorization for major rules, as well as legislative approval for significant policy changes, and establishing periodic review requirements. It also means ending the state’s civil service regime, which is simply a bureaucratic excuse to ignore elected officials by keeping radicals employed until the time is right for action.

Vivek Ramaswamy has said that the bureaucracy cannot be reformed, and he is right on point. The bureaucracy eats reform for breakfast. Its power must be ended completely, and, fortunately, there are realistic ways to do so, for we all know that some level of bureaucracy is necessary to deliver core services. But automatic sunsetting of both agencies and rules, ending its ability to make any rule without explicit and specific authorization, and then having to justify that rule on the back end, is a fairly good way to do that, along with hiring what bureaucrats are left according to the elected will of the people.

Finally, the Trump administration’s rule rescission on out-of-home care requirements for LGBTQ+ individuals is not entirely irrelevant in the state. It will help alleviate a shortage of foster parents because it will allow allow faith-based, taxpayer-funded agencies to place children in homes that match their religious views, even if those views do not align with the child’s gender identity or sexual orientation.

In addition, Wisconsin’s intransigence could create legal conflict between state protective standards and federally sanctioned religious freedom exceptions. Freedom of religion will win in that instance. For now, the Biden rule may be gone, but the system that produced it—and embedded it here—remains untouched. No one voted for it. No one approved it. And no one, apparently, is accountable for it.

Until that changes, elections will keep coming and going—and bureaucrats will keep ignoring them.