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With a few weeks left in office, the Trump-led U.S. Department of Health and Human Services announced a rule last week that permits social service agencies and providers that receive HHS grants to discriminate on the basis of sexual orientation and gender identity, as well as religion and sex.
The rule impacts HHS-funded social services, including, but not limited to, foster care and adoption, HIV and STI prevention programs, refugee assistance, and services for seniors and people experiencing homelessness. The rule was formally published in the Federal Register on Tuesday, Jan. 12, and is scheduled to take effect on Feb. 11.
Under the rule, faith-based organizations that do social service work are allowed to receive federal funds, even if they actively discriminate based on certain characteristics.
As the rule states: “The government does not violate the Establishment Clause where grants are awarded to a wide variety of entities, including faith-based organizations, and for a wide variety of purposes, none of which are the promotion of religion.”
Citing a decision in which the U.S. Supreme Court ruled that religious entities had a right to obtain grant money from programs not directly involved with the propagation of faith, HHS wrote in response to public comment on the proposed rule: “[R]eligious adherents and organizations may, like nonreligious adherents and organizations, receive direct financial aid through a secular-aid program. Indeed, excluding religious adherents and organizations from secular-aid programs may violate the Free Exercise Clause.
“And the Department is under an affirmative duty to allow faith-based organizations to participate equally in federal grant programs while maintaining their independence, including their expression of their religious beliefs.”
In practice, the rule would allow a foster care agency to deny placement of children with prospective parents it deems unworthy, whether because of their sexual orientation or religion, for example.
Last year, a lesbian couple in South Carolina sued over a waiver granted by HHS to Miracle Hill Ministries, which had sought to refrain from placing children in homes with parents who were not heterosexual married Christian couples.
But the rule could also potentially empower social service providers to withhold or refuse treatment or services from people who are LGBTQ, or require individuals to pledge not to engage in certain behavior that offends the religious sensibilities of the provider in order to qualify for services.
For instance, a homeless shelter could refuse to house a queer youth based on their sexual orientation — or, in keeping with a rule issued by the U.S. Department of Housing and Urban Development last year — require transgender people to sleep in shelters based only on their assigned sex at birth. Other critics say the rule could be interpreted in a way where the driver of a shuttle service could refuse to provide transportation to the doctor for an elderly LGBTQ patient.
“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,” Sasha Buchert, a senior attorney with Lambda Legal, said in a statement. “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.”
Buchert urged the incoming Biden administration to take direct action to reverse the policies, but indicated that Lambda Legal would be open to pursuing legal action to block the rule from taking effect until such steps can be taken.
Even prior to the rule’s publication, HHS had previously announced it would stop enforcing nondiscrimination protections against federal grantees, prompting a lawsuit by Lambda Legal and Democracy forward on behalf of several LGBTQ organizations challenging that decision.
The HHS decision compounds previous anti-LGBTQ actions taken by the Trump administration — all currently being challenged in the federal courts — to strip away nondiscrimination provisions in health care and insurance coverage, as well as the aforementioned foster care waiver and HUD shelter rules.
“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,” M. Currey Cook, the director of Lambda Legal’s Youth in Out-0f-Home Care Project, said in a statement. “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.”
The Human Rights Campaign weighed in, blasting the rule as continuing a pattern of targeting the LGBTQ community.
“At the 11th hour, the lame duck Trump-Pence administration has published its parting assault on the LGBTQ community via a federal regulation that would permit discrimination across the entire spectrum of HHS programs receiving federal funding,” Alphonso David, the president of HRC, said in a statement. “The Biden-Harris administration and [HHS] Secretary Designate Xavier Becerra must urgently work to rescind this discriminatory regulation.”
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