Lawsuit Filed at Critical Time
On March 19, three organizations serving the LGBTQ community sued the U.S. Department of Health and Human Services over its Nov. 2019 announcement that it would no longer enforce nondiscrimination protections against federal grantees that deny services or otherwise discriminate against individuals. Family Equality, True Colors United and SAGE are the plaintiffs in the lawsuit that was filed by Democracy Forward and Lambda Legal. The November rollback of the enforcement rule occurred when the Trump Administration bowed to taxpayer-funded, faith-based adoption agencies' pressure to permit them to discriminate against LGBTQ couples, under the pretense of religious freedom.
As the U.S. faces the COVID-19 pandemic, the timing of this lawsuit is somewhat coincidental — yet its urgency is heightened by the HHS's decision to fail to protect vulnerable populations like LGBTQ youth and elders at this time, according to Lambda Legal staff attorney Puneet Cheema. Access to homeless shelters, the delivery of Meals on Wheels and fostering a child are just some examples of what could be denied by this license to discriminate, already in place for four months now.
Effect on Elders
Angie Perone, Director of SAGE Metro Detroit, said that back in November the Notice of Non-enforcement "kind of left us in a lurch [because of] the possibility that other service providers that we rely on may deny services, because they can, or they think they can, at least."
Perone was referring to service providers who receive grants from HHS that interact with SAGE Metro Detroit clients. The local nonprofit is an affiliate of SAGE USA, one of the plaintiffs in the lawsuit.
As other organizations are scrambling to transition the ways in which they provide services in this time of global crisis, Perone is concerned that her clients may be "erased" or suffer from gaps in services.
"We are very concerned, especially given the current pandemic," she said.
There are two ways Perone said non-enforcement of protections can affect SAGE.
"Even with top-level organizations, there are individual service providers that work there that may not feel comfortable working with LGBTQ older adults," Perone said. "It's a really challenging time at SAGE to make sure that everyone's on board, making sure that everyone's being culturally responsive, and that, of course, isn't just for LGBTQ issues but for a variety of issues that are really specific to vulnerable older adults."
She added that because of the urgency of the COVID-19 pandemic, there may be less accountability within organizations because "there's so many moving pieces right now."
"And then there's also just organizations that I think at a top level don't want to provide services and think it's okay to deny services to LGBTQ older adults based on this guise of religious freedom," Perone added. "And that's just really problematic. So that's a really huge concern for us because some of these faith-based providers provide critical services like meals or medical transportation or [other] things that are really necessary right now, that folks are gonna have trouble accessing."
Effect on Young People
At present, youth may be experiencing homelessness in greater numbers because many colleges have had to shut down student housing due to the outbreak of COVID-19. Without anti-discrimination protections, LGBTQ youth may be legally denied entry to a shelter that receives HHS funding.
"LGBTQ youth are 120 percent more likely to experience homelessness than their straight and cisgender peers," noted Gregory Lewis, Executive Director and CEO of True Colors United, in a statement about the lawsuit. "Transgender youth are at especially high risk and face unique types of discrimination and trauma while experiencing homelessness. Young people should never have to fear discrimination or violence in seeking services, and we must not fail them by rolling back the very policies meant to protect them."
True Colors United is a national organization that implements innovative solutions to youth homelessness that focus on the unique experiences of LGBTQ young people. Many of their LGBTQ-friendly programs are funded by HHS grants. Prior to the Notice of Non-enforcement, True Colors United had relied on HHS's nondiscrimination requirements in educating and training recipients of HHS's Runaway and Homeless Youth grant awards about the importance of providing services that are safe for LGBTQ youth.
On the local level, HHS's Runaway and Homeless Youth Program provides grants to numerous Michigan agencies that serve homeless youth, of whom national statistics indicate 40 perfect are LGBTQ. Grant recipients include Alternatives for Girls in Detroit, Common Ground, Catholic Family Services in Kalamazoo, and Child and Family Charities in Lansing, to name a few. Since the Nov. 2019 reversal, should any young person be turned away from one of these shelters because of their sexual orientation, gender identity or expression, there has been no recourse. Because of this lawsuit, that could change.
HHS is the largest grant-making agency in the U.S., administering approximately $500 billion in federal grants. Most HHS grants are provided directly to states, territories, tribes, and educational and community organizations. With 11 operating offices, HHS has eight agencies in the U.S. Public Health Service and three human services agencies. The Food and Drug Administration and the Centers for Disease Control and Prevention are perhaps the best known of HHS agencies.
HHS grantees in Michigan — like all states — are affected by the Notice of Non-enforcement. In addition to those cited above, examples of HHS grants large and small awarded to Michigan entities include drug treatment courts in Genesee and Kent Counties and programs in Northwest Detroit and Allegan County that seek to prevent underage drinking. In 2017, HHS awarded $15 million to residents of Flint affected by lead exposure.
By nature of it being so wide-ranging and well-funded, HHS is a powerful agency. It's not difficult to imagine how the government-sanctioned failure to enforce nondiscrimination protections could impact LGBTQ people in far-reaching ways.
Cheema made it clear when she said in the press statement, "We are suing the Trump administration because of its cruel effort to make it easier for HHS grant recipients to discriminate against LGBTQ youth, families, and older people, in ways that put their lives at risk. At any moment, but especially at a time of a global pandemic, it is callous to expose already vulnerable populations to discrimination, and allow them to be denied basic, critical services."
The case was filed in the United States District Court for the Southern District of New York. A judge has not yet been assigned to the case.