Trump’s HHS Finalizes Rule Allowing Discrimination in Foster Care, Adoption, and Other Social Services

Trump's HHS Finalizes Rule Allowing Discrimination in Foster Care, Adoption,
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Not letting a little thing like insurrection stop them, the Trump administration on Thursday finalized a rule that will allow foster care and adoption agencies, along with other public health and social service organizations receiving taxpayer funds, to discriminate against LGBTQ people and others.

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 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 last Thursday, while the capitol was still reeling from the insurrection, and will be officially published Monday. It is set to go into effect on February 11, 2021.

Even before this new rule made it explicit, HHS had said it would stop enforcing nondiscrimination protections among federal grantees. LGBTQ advocacy organizations have already been fighting this policy. Lambda Legal and Democracy Forward, in March sued HHS in the U.S. District Court for the Southern District of New York on behalf of Family Equality, True Colors United, and SAGE, claiming the policy was “arbitrary and capricious” and that there had been no opportunity for public comment.

Lambda Legal Senior Attorney Sasha Buchert said of the new rule, “Even as Trump administration officials abandon ship, HHS has announced yet another dangerous rule that invites discrimination against the very people federal grant programs are meant to help. We call on the Biden-Harris administration to address discriminatory policies such as these immediately, and commit to eliminating them root and branch. But in the meantime, Lambda Legal is prepared to take whatever action is necessary to protect the LGBTQ community from harm.”

M. Currey Cook, director of Lambda Legal’s Youth in Out-of-Home Care Project, added that the rule “puts at risk some of the most vulnerable members of our communities, including LGBT people who are poor or experiencing homelessness; LGBT seniors and LGBT youth in out-of-home care, including children in foster care, people living with HIV, and many others.”

Denise Brogan-Kator, interim CEO of Family Equality, also observed that “Removing nondiscrimination protections from health and human services programs could literally endanger the lives of vulnerable populations disproportionately impacted by the pandemic, including the LGBTQ+2S community.”

“We are particularly concerned that the 34% of foster youth who identify as LGBTQ+ and Two-Spirit, who are eligible for $400 million in direct relief under the most recent COVID-19 relief bill, will be excluded from services and supports under this new rule,” said Julie Kruse, Family Equality’s director of federal policy.  “Turning away those in need of health and human services during a pandemic is unconscionable.”

“Family Equality will sue HHS over this unlawful action,” asserted Brogan-Kator.

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