Risks to LGBTQ People in Coronavirus Crisis Cited in New Lawsuit Against HHS

LGBTQ legal advocates highlighted the dangers of the coronavirus people in a lawsuit Thursday challenging the Trump administration's refusal to enforce an Obama-era rule barring federal grantees from discriminating against LGBTQ people.

Because medical practitioners are among federal grantees, LGBTQ legal advocates say the Department of Health & Human Services' refusal to enforce the rule puts LGBTQ people at risk as the coronavirus pandemic escalates.

"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," said Puneet Cheema, staff attorney at Lambda Legal. "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."

Amid pervasive fears about the coronavirus, the three advocacy groups behind the lawsuit — Family Equality, True Colors United and SAGE — enumerated in a news statement many situations in which the refusal to enforce the non-discrimination rule would negatively affect LGBTQ people.

Among them are students being susceptible to anti-LGBTQ discrimination as they seek shelter under the HHS' Runaway & Homeless Program, which could happen at a time when colleges and universities shut down housing to halt the spread of the coronavirus, the statement says.

"LGBTQ youth are 120 percent more likely to experience homelessness than their straight and cisgender peers," said Gregory Lewis, CEO of True Colors United. "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."

Older adults, who are seen as particularly vulnerable to the coronavirus, could also if they're LGBTQ be subject to discrimination from home delivery providers at a time when senior centers are shutting down in major cities, the statement says.

"Ensuring that all older people have access to critical aging services and supports free from discrimination is vital for the health and well-being of LGBT elders," said SAGE CEO Michael Adams.

The basis of the 39-page complaint — filed before the U.S. District Court for the Southern District of New York — is the Trump's administration refusal to enforce the Obama-rule violates the Administrative Procedure Act.

"The notice of non-enforcement is unlawful," the lawsuit says. "Despite the sweeping impact of this substantive rule-making, defendants provided no opportunity for public comment. That omission violates their obligations under the APA. The notice of non-enforcement is also arbitrary and capricious. The only proffered explanation is an incorrect legal determination that the 2016 rule-making violated the Regulatory Flexibility Act, which cannot support HHS's action."

The Trump administration announced in November 2019 it would refuse to enforce the rule at the same time it declared a proposed a rule change through the regulatory process to undo the Obama-era measure, which was implemented in December 2016 just before Obama left the White House and Trump took over.

HHS under the Trump administration made the rule change in response to complaints from religious-affiliated adoption agencies, such as Catholic Social Services, who wanted freedom to place children in home consistent with their religious beliefs. In other words, the agencies wanted to deny child placement into LGBTQ homes, and the Trump administration complied.

"In November 2019, the U.S Department of Health and Human Services acted illegally by choosing, unilaterally and without justification, to ignore existing law that prevented HHS grantees from discriminating on the basis of sexual orientation and gender identity," Family Equality CEO Rev. Stan Sloan said in a statement. "This action runs counter to HHS' mission — to enhance the health and well-being of all Americans — and instead places the well-being of millions of vulnerable LGBTQ Americans at risk."

Although the lawsuit seeks court action to require HHS to begin enforcing the Obama-era rule again, the litigation doesn't address the Trump administration proposal to lift the rule through the regulatory process.

There's currently no lawsuit challenging the Trump proposal to change the non-discrimination through the regulatory process, although that's likely because it's not yet a final agency action, according to Democracy Forward.

"The Trump administration's unlawful abandonment of anti-discrimination protections signals to federal grantees that they can freely discriminate without repercussion," said Democracy Forward Executive Director Anne Harkavy. "Especially now, we are proud to stand alongside our partners to protect vulnerable people from the Trump administration's decision to subsidize discrimination with taxpayer dollars."

An HHS spokesperson declined to comment on the lawsuit, citing a general policy of not commenting on litigation.

Christina Wilson Remlin, lead counsel at the New York-based Children's Rights, said in a statement the lawsuit holds HHS accountable for "a taxpayer-funded license to discriminate that would harm those most vulnerable among us."

"The action that prompted the suit, the rescission of non-discrimination provisions in the distribution of federal funding, is a huge step backwards for the children we serve," Remlin said. "It places our clients and all foster children in harm's way. While thousands of children languish in foster care systems across the country, the Trump administration should be focused on expanding the pool of prospective foster and adoptive parents—not turning them away based on non-merit factors like sexual orientation, gender identity and expression, or religion."

This article originally appeared in the Washington Blade and is made available in partnership with the National LGBT Media Association.


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