Trump Administration Launches Another Eleventh Hour Attack on LGBTQ Community with New HHS Rule Inviting Grantees to Discriminate

The U.S. Department of Health and Human Services (HHS) Thursday announced a rule that will permit social service agencies and providers that receive HHS grant funding to discriminate on the basis of sexual orientation or gender identity, as well as religion and sex. The rule impacts HHS-supported social services ranging from foster care, adoption, HIV and STI prevention programs, and refugee assistance, to programs for seniors and adults and youth experiencing homelessness, and many other public health services. It will be formally published on Monday, January 12, and is scheduled to take effect on February 11, 2021.

“With this rule, the Trump Administration and HHS continue their no-holds-barred and comprehensive assault on the health and well-being of LGBTQ people and everyone living with HIV, as well as on women, religious minorities, and limited English speakers,” said Lambda Legal Senior Attorney Sasha Buchert. “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.”

“HHS is charged with protecting the health and wellbeing of all people, but its actions today demonstrate once again its complete disregard for its mission,” added M. Currey Cook, Director of Lambda Legal’s Youth in Out-of-Home Care Project. “This rule rolls back critical protections against discrimination on the basis of sex, sexual orientation, gender identity and religion, and in doing so, 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.”

Even before the release of this new rule’s final text, HHS had already announced it would stop enforcing anti-discrimination protections against federal grantees. In partnership with Democracy Forward, Lambda Legal 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 challenging its nonenforcement policy in order to protect those vulnerable community members served by federally funded programs (see here).

The rule announced Thursday is just the latest in a series of regulatory changes by HHS that target LGBTQ people and people living with HIV, as well as other vulnerable and marginalized communities. These include rules that significantly undernmine the nondiscrimination protections in Section 1557 of the Affordable Care Act (ACA) and that compel recipients of federal funding to accept their employees’ religiously motivated refusals to perform basic job duties, including discriminatory denials of care by health care workers at all levels of the medical system.  

Lambda Legal in partnership with others is already challenging each of these previous rules. Its challenge with Steptoe & Johnson LLP of HHS’s effort to undermine the nondiscrimination protections in Section 1557 filed in June is currently before the U.S. District Court for the District of Columbia (see here). Last November, the U.S. District Court for the Northern District of California struck down the Denial of Care rule in the challenge brought by Lambda Legal in partnership with Americans United for Separation of Church and State, the Center for Reproductive Rights and the County of Santa Clara. That ruling is on appeal to the U.S. Court of Appeals for the Ninth Circuit (see here). Relatedly, Lambda Legal also is challenging discrimination by HHS-funded contract agencies who refuse to serve same-sex couples seeking to foster refugee children in Marouf v. Azar  and children in state foster care in Rogers  v. HHS.