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The Trump administration is moving forward with a proposed regulation that will allow taxpayer-funded adoption agencies to refuse placement to LGBT families over religious objections.
The Department of Health & Human Services went public on Friday with the regulation, which will undo an Obama-era policy implemented in December 2016 prohibiting discrimination on the basis of sexual orientation and gender identity among federal grantees.
The proposed regulation, which will have far-reaching implications, was immediately criticized by LGBT rights supporters.
Julie Kruse, director of federal policy at Family Equality Council, said in a statement the policy was “outrageous,” especially at the start of National Adoption Month.
“The American public overwhelmingly opposes allowing taxpayer-funded adoption and foster care agencies to turn away qualified parents simply because they are in a same-sex relationship,” Kruse said.
Mara Keisling, executive director of the National Center for Transgender Equality, said in a statement the regulation would also allow anti-trans discrimination in health care.
“This rule is an abuse of taxpayer dollars in the name of empowering hatred and bigotry towards society’s most vulnerable members,” Keisling said. “Stigma and prejudice are fueling a public health crisis among transgender people across the country, one that manifests itself as suicide, addiction, intimate partner violence and HIV. Enabling providers of life-saving services to worsen these crises by rejecting transgender people is a moral crime and a severe abdication of HHS’s mission to preserve public health.”
According to NCTE, the rule will allow anti-trans discrimination in HIV and STI prevention programs, opioid programs, youth homelessness services, health professional training, substance-use recovery programs and other life-saving services.
The proposal seeks to gut an Obama-era rule that barred entities receiving money under federal contracts, including adoption agencies, from discriminating on the basis of sexual orientation.
As the new proposed rule notes, HHS has 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.
The 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.
“The existence of these complaints and legal actions indicates [the Obama-era rule] imposed regulatory burden and created a lack of predictability and stability for the department and stakeholders with respect to these provisions’ viability and enforcement,” the rule says.
It’s true the Civil Rights Act of 1964, which prohibits discrimination in federal programs, has no language against either sex discrimination or anti-LGBT discrimination. The Obama-era rule, therefore, is more than an expanded interpretation of discrimination based on sex as defined under the law to include anti-LGBT discrimination.
The proposed rule also says religious-affiliated agencies will cease to provide services altogether if forced to comply with the Obama-era rule, which HHS concludes “would likely reduce the effectiveness of programs funded by federal grants by reducing the number of entities available to provide services under these programs.”
In recent years, Catholic adoption agencies have closed in Massachusetts, Illinois and D.C., citing new laws that bar anti-LGBT discrimination and allow same-sex couples to marry. Those decisions pre-dated the Obama-era rule, but show the extent these agencies are willing to go to deny placement into LGBT homes.
Religious-affiliated agencies have also challenged the Obama-era rule in court. Just last month, a federal judge in Michigan ruled in favor of St. Vincent, a Lansing-based adoption agency that sued both the state and federal government to allow it to refuse to certify LGBT homes for adoption.
As a result, the Trump administration proposal seeks an amendment to the Obama-era regulation with the following language to give federal grantees more leeway — including the ability to discriminate against LGBT people — in the services they provide:
“It is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services, to the extent doing so is prohibited by federal statute,” the language says.
The new regulation was expected. In May, Axios reported the Trump administration was planning to implement a rule to allow adoption agencies to reject same-sex parents.
In a speech on the National Day of Prayer in February, President Trump expressed solidarity with religious affiliated agencies seeking to place children into homes consistent with their religious beliefs, even if that means denying placement into LGBT families.
“My administration is working to ensure that faith-based adoption agencies are able to help vulnerable children find their forever families while following their deeply held beliefs,” Trump said.
White House Deputy Press Secretary Judd Deere denied the proposed rule was in violation of Trump’s promise to protect LGBT people.
“The President is in no way undermining his promise or preventing LGBT people from adopting. LGBT people can still adopt and that will not change. The Administration is rolling back an Obama-era rule that was proposed in the 12’o clock hour of the last administration that jeopardizes the ability of faith-based providers to continue serving their communities. The Federal government should not be in the business of forcing child welfare providers to choose between helping children and their faith,” Deere said.
An HHS spokesperson referred the Blade to a news statement summarizing the proposed rule in response to an inquiry on why it’s necessary and its potential negative impact on LGBT people.
Tony Perkins, president of the anti-LGBT Family Research Council, applauded the Trump administration in a statement for moving forward with the anti-LGBT regulation.
“Thanks to President Trump, charities will be free to care for needy children and operate according to their religious beliefs and the reality that children do best in a home with a married mom and dad,” Perkins said.
An estimated 440,000 children are currently in the foster care system in the United States, and more than 123,000 kids are now available for adoption.
TAGLINE This article originally appeared in the Washington Blade and is made available in partnership with the National LGBT Media Association.