Under the cover of chaos the day after Trump supporters stormed the U.S. Capitol, the Trump administration has officially nixed regulations barring federal grantees in the Department of Health & Human Services from discriminating against LGBTQ people, including in adoption services.
HHS went public on Thursday with the final rule, which rescinds regulations implemented in the Obama administration barring discrimination among HHS grantees with respect to sex, religion, sexual orientation and gender identity. The change also rescinds the Obama-era regulations requiring HHS grantees to "treat as valid the marriages of same-sex couples."
Although Title VI of the Civil Rights Act of 1964, which governs federal programs, prohibits discrimination based on race, color, or national origin, it doesn't prohibit anti-LGBTQ discrimination, so the regulation allows considerable discrimination in federal programs against LGBTQ people.
"Given the careful balancing of rights, obligations and goals in the public-private partnerships in federal grant programs, the department believes it appropriate to impose only those nondiscrimination requirements required by the Constitution and federal statutes applicable to the department's grantees," the federal rule says.
Most prominently, the new regulation would allow taxpayer-funded child welfare services to refuse placement into LGBTQ families or discriminate against LGBTQ youth. Religiously affiliated adoption and foster care centers have been pushing for this change in regulation, including Catholic Social Services in Philadelphia, which currently has a case pending before the U.S. Supreme Court seeking a First Amendment right to reject same-sex couples on religious grounds.
Rachel Laser, CEO of Americans United for Separation of Church & State, criticized the regulation in a statement for allowing discrimination in the child welfare system.
"The federal government should protect our country's most vulnerable people instead of issuing rules that license discrimination," Laser said. "People should never be turned away from the services they need. That is especially true for children in foster care and the families who want to provide them with loving, safe homes. Rather than prioritizing the best interests of children and families, the Trump administration's new rule invites taxpayer-funded foster care agencies to discriminate against them."
But the proposed regulation will have far-reaching implications in health services, allowing anti-LGBTQ discrimination in HIV and STI prevention programs, opioid programs, youth homelessness services, health professional training and substance-use recovery programs.
The finalization of the rule, first proposed in November 2019, was expected. The Office of Management & Budget, which coordinates the rule-making process among federal agencies indicated on its website it had received the proposed rule and it was scheduled to be made final in the lame-duck session before Trump's exit.
But the Trump administration had already ceased enforcing the nondiscrimination components of the Obama-era rule when it proposed the regulation in 2019, arguing the previous administration didn't go through the correct rule-making process when it was made final in the eleventh-hour of the Obama administration in December 2016.
The Trump-era rule seeks to justify itself by saying the Obama-era regulations aren't based on statutes and religious-affiliated groups have complained and filed lawsuits over meeting those requirements. These groups, HHS noted, assert the policy is unlawful under the Religious Freedom Restoration Act and the First Amendment.
"In the statutes establishing certain programs and grants, Congress has specified the protected categories with respect to which discrimination is prohibited," the rule says. "Congress has not expressly included discrimination on the basis of sexual orientation, gender identity, or same-sex marriage status, in any statute applicable to departmental grants."
HHS had already granted an exemption from the Obama-era rule to South Carolina, which sought to get out of the regulation on behalf of the Miracle Hill Ministries adoption agency.
Laser cited the exemption granted to South Carolina and Americans United's lawsuit against it in her criticism of the final rule.
"Discrimination should never be funded or supported by our government, but that's exactly what this rule does," Laser said. "Families, senior citizens and children could lose protections against discrimination and suddenly be turned away from taxpayer-funded programs they need. That includes people like Americans United client Aimee Maddonna, who was turned away from helping children in foster care by a government-funded agency solely because Aimee is Catholic – the 'wrong' religion according to an evangelical Protestant agency in South Carolina."
Although the U.S. Supreme Court decision this year Bostock v. Clayton County, which found anti-LGBTQ discrimination is a form of sex discrimination, against anti-LGBTQ discrimination has widespread implications across all areas of federal law, the decision doesn't apply to federal programs, such as HHS grants, because Title VI doesn't bar sex discrimination in federal programs.
HHS notes the Bostock decision, which hadn't yet come down when the rule was first proposed, in the final text of the regulation.
"Nothing about the Bostock decision undermines the department's choice in this final rule to refer to statutory nondiscrimination requirements and state that the department will follow applicable Supreme Court decisions in administering its award programs, rather than delineating the specific protected categories from discrimination in the rule or applying two specific Supreme Court decisions," the rule says. "If anything, Bostock shows the utility of the Department's approach in this final rule."
The Equality Act, legislation Biden has pledged to sign within 100 days after being inaugurated on Jan. 20, would amend the Civil Rights Act of 1964 to ban anti-LGBTQ discrimination in federal programs specifically as a form of sex discrimination.
An HHS spokesperson said in response to the rule the department "respects the dignity of every human being," but also "protects and enforces the civil rights of all to the fullest extent permitted by the laws as written."
"LGBT individuals remain fully protected under civil rights statutes and regulations," the HHS spokesperson said. "If any covered entity subjects an LGBT individual to discrimination on the basis protected under an applicable statutory non-discrimination provision, HHS will protect that individual by vigorously enforcing its non-discrimination statutes and regulations."
The Trump-era rule is set to go into effect 30 days after the date of publication in the Federal Register. The White House deferred to HHS for comment.
This article originally appeared in the Washington Blade and is made available in partnership with the National LGBT Media Association.
