The U.S. Department of Health and Human Services (HHS) will allow recipients of its grants to discriminate against LGBTQ people.
The sweeping new proposed rule announced on Friday eradicates civil rights protections in a wide range of areas, including adoption, foster care, HIV protection, health research, and more. Even worse, HHS will begin enforcing parts of the rule immediately.
Although the administration framed the rule change in its press release as “comply[ing] with applicable nondiscrimination provisions,” it does anything but that. Instead, it removes nondiscrimination protections put in place by the Obama administration meant to ensure that LGBTQ people be treated equally. Put another way, grantees who actively discriminate based on sexual orientation, gender identity, same-sex marital status, unmarried marital status, and more will still be eligible to receive federal taxpayer money.
The proposed rule gives primacy to religious conservatives who oppose LGBTQ rights by elevating “religious freedom” over the rights of LGBTQ people. For example, under the new rule, child-welfare organizations such as adoption placement agencies and foster care providers may refuse to place children with LGBTQ individuals or couples if doing so offends their religious beliefs.
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One of the underlying pretextual reasons for allowing this is HHS’ assertion that the previous rule, which prohibited discrimination, “reduces the effectiveness of programs … by reducing foster care placements.” To the extent that the old regulations reduced foster care placements, that’s because religious placement providers refused to place children with LGBTQ individuals. It’s somewhat of a tautology: foster care placements decreased because providers refused to place foster care children.
The proposed rule refers to “several complaints, requests for exceptions, and lawsuits” it claims necessitated the change, forcing its issuance in order to comply with the existing law. But it provides only one example: a case in Michigan where a Catholic social services provider sued the state over a nondiscrimination requirement claiming it could not “review and certify an unmarried or same-sex parental application” because of its religious beliefs. And to drive home the direct attack on LGBTQ people, the administration announced it would be replacing the rule with guaranteed protections “required by federal statute.” Those statutes, the Civil Rights Act of 1964 and the Americans With Disabilities Act of 1990, do not expressly provide protections for discrimination on the basis of sexual orientation and/or gender identity.
HHS justified the new rule by claiming the old rule prohibiting discrimination “created a lack of predictability and stability” for the department. It’s not clear how a blanket prohibition on discrimination against LGBTQ individuals, same-sex couples, and unmarried people could lead to a lack of predictability. If anything, the new rule creates a minefield for people seeking health or human services assistance, as there is no way to know if a grantee will provide services or instead invoke conservative religious beliefs to refuse to do so.
Nearly Every HHS Program Could Be Affected
It doesn’t stop with foster care or adoption placement, however. If an HHS grantee receives money for biomedical research, it could refuse to include LGBTQ people in that research. The same is true for drug abuse and addiction research programs. This rule essentially removes LGBTQ individuals from the entire scope of HHS-funded research, treatment, and provision of services.
Given the breadth of grants promulgated by HHS, it’s almost impossible to overstate how many programs this rule change will affect. As the National Center for Transgender Equality (NCTE) pointed out, this doesn’t just mean discrimination in well-expected areas such as HIV and STI prevention programs—but it also applies to all discretionary and non-discretionary HHS grants, affecting nearly everything covered under HHS funding.
In a particularly awful twist, HHS said it would stop enforcing the Obama administration’s nondiscrimination rules immediately, even though rule-making takes anywhere from several months to a year or longer and existing rules typically stay in place throughout that time. HHS argues that the existing rules may negatively affect “a significant number of small entities”—presumably grantees who do not wish to follow anti-discrimination laws.
HHS said the previous administration failed to adequately examine the effect on those small entities, an analysis known as a “regulatory flexibility analysis.” A prohibition on federal funding, for smaller grantees, might be fatal to their existence, the rule proposal claimed.
Even were that the case, HHS acknowledged it could tailor the non-enforcement more narrowly for small entities while leaving larger grantees under the existing rule. However, it declined to do so and instead said it would be “exercising its discretion to not enforce the rules with respect to any grantees.”
How Discrimination Will Affect Family Well-Being
HHS also boasted that the new rule “promotes flexibility by removing unnecessary burdens.” That part is true in that grantees are no longer required to adhere to regulations that prohibit discrimination. That’s hardly flexibility, though—that’s just allowing organizations to pick and choose who they believe is afforded rights to their services.
At the same time HHS dinged the previous administration for what it claims were failures to adequately examine the impacts of the old rule, it engaged in its own blithe dismissal of the effect of the new rule. When rules are promulgated, the agency is required to determine whether a policy or regulation could affect family well-being. Here, HHS simply said, without elaboration, that this wouldn’t have any impact on family well-being.
That’s simply not true. Under the new rules, same-sex couples can be barred from adopting and building a family. Unmarried people can be barred from enhancing their family by having a foster child placed with them. Transgender individuals can be barred from any number of health services, including those that may strengthen a family unit, such as HIV prevention and maternal and infant care.
Of course, this isn’t the first move the administration has made to erase the civil rights of LGBTQ people. HHS finalized a rule in May allowing health-care providers to discriminate against LGBTQ people, a rule so wide-ranging it would allow anyone from a doctor to a hospital receptionist to refuse care to LGBTQ individuals. That rule is set to take effect at the end of this month unless blocked first by a federal court in one of several legal challenges arguing the administration acted outside the scope of its power when issuing it. HHS also proposed in May rolling back protections on the basis of gender identity, which would allow health-care providers to refuse transition-related services and to deny reproductive health care to transgender individuals. A final version of that rule could be released by the administration any day now.
The new rule gives the green light to discrimination across every type of service and protection offered by HHS by protecting religious animus at the expense of the health and well-being of millions of people. While the rule will still be subject to a comment period, as Politico noted, it will almost certainly face a legal challenge.
Meanwhile, next week, the Roberts Court will consider taking up a case out of Pennsylvania that asks this very question: Can government contractors launch religious objections to serving LGBTQ families and keep their government contracts?
It only takes four votes for the U.S. Supreme Court to agree to hear a case. The question is whether this latest action by the Trump administration pushes the Court to step into this fight now, or pump the brakes and let it play out a little longer. We could know in a matter of weeks.