Lambda Legal: Biden Admin Reversal of Discriminatory Trump-Era Policy That Harmed Prospective LGBTQ Parents Important First Step

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November 18, 2021

Lambda Legal responded to today’s actions by the U.S. Department of Health and Human Services (HHS), appreciating the agency’s termination of an outrageous Trump administration policy while calling on the Biden administration to enforce federal nondiscrimination rules rigorously to prioritize child welfare in all federally funded contexts.

“It is an essential baseline that HHS will no longer be granting blanket licenses to discriminate for child welfare agencies that receive government funding in order to carry out government functions,” said Lambda Legal CEO Kevin Jennings. “That must be just the first step, however. As our cases make clear, HHS is still not rigorously enforcing non-discrimination requirements that are critical to protect vulnerable LGBTQ young people, seniors, and others who need its assistance. Make no mistake. Our work will continue until every LGBTQ person can access federally-funded services without fear of discrimination.”

HHS announced today that it has ended a Trump-era policy that misused the Religious Freedom and Restoration Act (RFRA) in order to allow states to categorically permit federally-funded child welfare agencies to turn away well-qualified prospective parents based on their sexual orientation or gender identity. After South Carolina Governor Henry McMaster successfully petitioned the Trump administration to ignore federal nondiscrimination protections in 2019, Lambda Legal was joined by the American Civil Liberties Union (ACLU), ACLU of South Carolina, and the South Carolina Equality Coalition in filing a federal lawsuit (Rogers v. HHS) to challenge the constitutionality of South Carolina’s and HHS’s discriminatory policies on behalf of Eden Rogers and Brandy Welch, a married same-sex couple who were turned away by a child welfare agency receiving government funding when seeking to foster children in need of homes. That case is pending in the United States District Court for the District of South Carolina, Greenville Division.

While today’s actions mark an important initial step towards reducing the damage that the previous president did to LGBTQ Americans among many others, there is much more work left to be done. Earlier this week, Lambda Legal and Americans United for Separation of Church and State (AU) opposed HHS’s effort to impose an indefinite hold on a lawsuit filed on behalf of Fatma Marouf and Bryn Esplin, a married same-sex couple who were denied the ability to apply to provide a home to an unaccompanied refugee child by the U.S. Conference of Catholic Bishops (USCCB), which continues to dominate the federally-funded program for these children in the part of Texas where Fatma and Bryn live. Today’s actions by HHS do not address, let alone resolve, the discrimination problems inherent in the government’s authorization of USCCB to operate the federal refugee program according to USCCB’s religious beliefs.

In addition, last month, Lambda Legal and AU also filed a suit on behalf of Kelly Easter in the U.S. District Court for the District of Columbia. Easter, who is a lesbian, was informed last September that she could not participate in the federally-funded unaccompanied minor program at Bethany Christian Services, which operates the program under USCCB, because of her sexual orientation.

USCCB, which receives millions of dollars in grant funding from HHS through the Office of Refugee Resettlement (ORR) to assist with the programs for unaccompanied refugee children, has been delegated the government function of providing foster care services for these children. These services are to include placing the children in homes that serve their best interests, which cannot be done with policies that prioritize religious interests over children’s needs by requiring rejection of applications based on prospective parents’ sexual orientation or gender identity.

Also in 2019, the Trump Administration announced it would not enforce nondiscrimination protections in the HHS Grants Rule, which prohibits discrimination by grantees who receive more than $500 billion dollars in funding from HHS. Lambda Legal and co-counsel Democracy Forward challenged the legality of this policy change (Family Equality v. Azar) on behalf of Family Equality, True Colors United, and SAGE. HHS’s actions today do not replace this illegal and harmful nonenforcement policy with a robust commitment to civil rights enforcement throughout HHS-funded programs, leaving the people these federal programs are intended to help  still without effective protection by HHS’s Office of Civil Rights.