Foster Youth and LGBTQ Advocacy Groups Celebrate Biden Administration’s Agreement to Halt Discriminatory HHS Rule Change In Response to Legal Challenge

In response to a lawsuit filed by a foster youth and alumni group as well as LGBTQ service and advocacy organizations, the U.S. Department of Health and Human Services (HHS) has agreed to a court order that immediately stayed the effective date of a discriminatory Trump-era rule. If it were to go into effect, that rule would have eliminated essential protections preventing service providers from discriminating on the basis of sexual orientation, gender identity, religion, and other characteristics when providing HHS grant-funded services.

In response to the plaintiff groups’ motion to stay or enjoin the rule, the Biden-Harris administration agreed to postpone the rule’s effective date, stated that the Trump-era policy is under review, and agreed to advise the court on its progress. The court order — issued on Tuesday — postpones the effective date of the rule for 180 days, until August 2021.

“We are thrilled to see this Administration taking immediate steps to prioritize the safety and wellbeing of the communities that HHS is charged with protecting, particularly when it comes to their ability to access the critical services that HHS funds.. If this Trump administration rule were ever to become law, our plaintiffs – youth and alumni in foster care and advocacy organizations dedicated to safety and equity for LGBTQ children and families, LGBTQ youth experiencing homelessness, and LGBTQ seniors - would be harmed, along with other youth and families who would face potential denial of services and discrimination.” said Currey Cook, Lambda Legal Senior Counsel and Youth In Out-Of-Home Care Project Director.            

The lawsuit was filed on February 2 by Lambda Legal, Democracy Forward, and Cravath, Swaine & Moore LLP on behalf of foster youth and alumni group, Facing Foster Care in Alaska (FFCA) and three LGBTQ advocacy organizations — Family Equality, True Colors United, and SAGE. 

In response to the agreed stay of the rule, the groups issued the following joint response:

“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.

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.”

Background

Just over a week before it left power, the Trump administration finalized an unlawful rule that scraps nondiscrimination protections, including an important clarification recognizing the Supreme Court’s marriage equality decisions. The Trump administration’s rollback of these protections — which were codified in a 2016 HHS rule — left beneficiaries of and participants in federally-funded programs vulnerable to discrimination on the basis of sexual orientation, gender identity, and religion.

Absent Tuesday’s court order postponing the February 11 effective date, the Trump administration’s rule could lead to harmful situations such as::

• A transgender teenager experiencing homelessness to be turned away from an HHS-funded shelter;

• A federally-funded foster care agency to refuse to place children with a married same-sex couple or parents of a religion of which the agency disapproves;

• An older man to be refused critical aging services because he is gay;

• Child welfare agencies to engage in discriminatory practices, forcing LGBTQ youth to accept services that deny their sexual orientation or gender identity.

Discrimination on the basis of sexual orientation, gender identity, and religion remains a pressing problem and is harmful.  One study, for example, found that LGBTQ youth are dramatically overrepresented in foster care. They are 30% of the foster care population, but only 11% of youth overall. Another study shows that 28% of area agencies on aging reported that LGBTQ seniors might not be welcomed by local senior service agencies, which provide services like senior centers and group meal programs.