After a lawsuit brought by LGBTQ organizations and a foster youth and alumni group, the Biden administration’s Department of Health and Human Services (HHS) has agreed to delay implementing a Trump-era rule that would have allowed taxpayer-funded foster care and adoption agencies and other health and social service organizations to discriminate against LGBTQ people and others. This will allow the administration time to review the rule and potentially change or nullify it.

U.S. Department of Health & Human Services - Hubert Humphrey Building

U.S. Department of Health & Human Services – Hubert Humphrey Building. Photo credit: Sarah Stierch. Licensed under CC BY 4.0.

The rule, first proposed by the Trump administration at the end of 2019 with a shorter-than-usual period for public comment, removes explicit protections against discrimination on the basis of sexual orientation, gender identity, sex, and religion in programs receiving grants from the Department of Health and Human Services (HHS). These programs include not only adoption and foster care services, but also ones dedicated to preventing youth homelessness, HIV, STI, and substance abuse, among others. The rule was filed in its final form January 7, 2021, just one day after the insurrection at the U.S. Capitol, as I previously discussed; and was officially published January 12th. It was set to go into effect on February 11.

A foster youth and alumni group, Facing Foster Care in Alaska, along with LGBTQ organizations Family Equality, True Colors United, and Services & Advocacy for GLBT Elders (SAGE), filed a lawsuit last Tuesday, however, challenging the Rule as unlawful under the Administrative Procedure Act (APA). “The new Rule reverts to a confusing patchwork of protections that vary between programs and leave many potential beneficiaries and participants, including some of the most vulnerable members of our society, exposed to unlawful discrimination,” their complaint says. It also “violates the APA’s prohibition against arbitrary and capricious agency actions. Its proffered justifications are unreasoned, undeveloped, incorrect, and conflict with many of HHS’s own program-specific regulations, findings, policies, and priorities.”

The plaintiffs said in a statement, “There was simply no excuse for the Trump administration’s unlawful policy sanctioning taxpayer-funded discrimination against people who receive services from HHS grant programs, including youth and families in the child welfare system, youth experiencing homelessness and older adults, among other vulnerable populations.” They added, “We commend the Biden-Harris administration for hitting pause on this harmful and unlawful Trump-era rule, and hope that it will move forward expeditiously to ensure that all persons receive equal treatment under the law.”

This is splendid news. Add to this today’s announcement by the U.S. Department of Housing and Urban Development, which said it will administer and enforce the Fair Housing Act to prohibit discrimination on the basis of sexual orientation and gender identity, and it’s turning out to be a very good day indeed.