HHS Finalizes Anti-LGBTQ Rule

As the House of Representatives was impeaching President Trump for the second time, Trump’s Health and Human Services Department (HHS) finalized its last attack on LGBTQ people.

In a 77-page statement published Jan. 12 in the Federal Register and scheduled to go into effect on February 11, HHS narrowed nondiscrimination protections for LGBTQ people seeking services of health and welfare programs that are funded by HHS. The new regulation states that an Obama-era protection for sexual and gender identity violates the Religious Freedom Restoration Act.

This would affect LGBTQ people in all health, welfare and social service areas.

HHS thus overturns an Obama-era ruling, 45 CFR 75.300 (c), stipulating that social service and health care providers cannot discriminate on the basis of age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation in receiving benefits of HHS programs. That ruling also asserts that same-sex marriages be treated as legally valid in every aspect, including adoption.

Since 2019, when the regulation was first proposed, HHS Secretary Alex Azar has ordered recipients of federal funding to accept employees’ religiously based refusals to perform job duties, including denying contraception to women and medical treatment to gay and trans patients.

In its release adopting the new rule, HHS said that they are “committed to the principle that every person must be treated with dignity and respect and afforded all of the protections of the Constitution and statutes enacted by Congress — and to fully enforcing such civil rights protections and requirements.”

But the new ruling contradicts that statement. The Obama-era protection required grant recipients to treat same-sex marriages as valid. The Trump HHS ruling does not.

The new HHS rule, first proposed in 2019, deletes all references to the previous requirement that recipients recognize the marriages of same-sex couples, replacing it with a generic statement that HHS will respect new Supreme Court decisions.

“Given the careful balancing of rights, obligations, and goals in the public-private partnerships in federal grant programs, the Department believes it appropriate to impose only those nondiscrimination requirements required by the Constitution and federal statutes,” the HHS rule states.

The Obama-era regulation ensured that adoption and foster care agencies who receive federal funding serve all qualified parents, including same-sex couples. Rolling back existing nondiscrimination protections will harm those families, as well as the many children awaiting placement in loving and supportive LGBTQ homes.

In 2019, Human Rights Watch argued that these changes threatened children’s rights as well as families’ freedom from discrimination and right to health. Human Rights Watch documented how religious freedom laws can serve as a license to discriminate, shutting LGBTQ people out of health and welfare services.

A major Supreme Court case addressing this very issue, Fulton v. City of Philadelphia, was heard before the SCOTUS on Nov. 4. Fulton would determine whether private adoption agencies receiving taxpayer money can deny services to same-sex potential parents. According to the new HHS assessment, the answer is yes. And the case, for which a decision is expected later this spring, could hinge on the HHS ruling. The ruling in turn could set new precedent for subsequent discrimination cases brought by LGBTQ people.

Julie Kruse, director of federal policy for LGBTQ advocacy group, Family Equality, told NBC News that both President Donald Trump and Vice President Mike Pence have made allowing discrimination in adoption and foster care a priority over the last four years and that the ruling is about targeting same-sex parents.

Trump has made numerous statements to that effect, including in 2019 when he spoke out against lawsuits by LGBTQ prospective parents. Trump stated that his administration was “working to ensure that faith-based adoption agencies are able to help vulnerable children find their forever families, while following their deeply held beliefs.”

The HHS rule ignores all levels of existing law protecting LGBTQ people — including the landmark June 2020 ruling on employment discrimination against lesbian, gay and trans workers.

HHS references Bostock at the end of the new regulation, noting, “Nothing about the Bostock decision undermines the department’s choice in this final rule to refer to statutory nondiscrimination requirements and state that the department will follow applicable Supreme Court decisions in administering its award programs, rather than delineating the specific protected categories from discrimination in the rule or applying two specific Supreme Court decisions.”

HHS inexplicably writes: “If anything, Bostock shows the utility of the Department’s approach in this final rule.”

HHS told multiple news sources that it “respects the dignity of every human being,” but also “protects and enforces the civil rights of all to the fullest extent permitted by the laws as written. LGBT individuals remain fully protected under civil rights statutes and regulations.”

Trump tasked all his departments with focusing on religious freedom actions. This was most notable in HHS, the Education Department under Betsy DeVos, the Department of Justice and the Department of Homeland Security, all of which authored far-reaching anti-LGBTQ policy, as PGN reported last week.

The Congressional Review Act allows Congress to reject a recently enacted regulation and, with the president’s signature, prevent it from taking effect. President-elect Biden and Vice-President-elect Harris are both strong supporters of the Equality Act. Harris especially has a decades-long history of supporting LGBTQ rights and was marrying same-sex couples in 2004 as District Attorney of San Francisco.

Biden has committed to signing the Equality Act into law in his first 100 days. But if allowed to stand, the HHS regulation can influence the Supreme Court and lower court rulings, as well as interfere in the daily lives of millions of LGBTQ people, particularly in the areas of healthcare and social services. Homeless LGBTQ could be denied a placement in a shelter, for example. And gay and trans patients denied healthcare services.

The new administration has the opportunity — with a new Democrat-led Congress — to overturn this ruling before it can become entrenched and impact not just LGBTQ families, but the healthcare of LGBTQ people in the midst of a pandemic and the job security of LGBTQ people already disproportionately impacted by job losses in the economic crisis.

HHS did not return PGN’s requests for comment.

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Victoria A. Brownworth is a Pulitzer Prize-nominated award-winning journalist whose work has appeared in The New York Times, the Los Angeles Times, The Philadelphia Inquirer, Baltimore Sun, DAME, The Advocate, Bay Area Reporter and Curve among other publications. She was among the OUT 100 and is the author and editor of more than 20 books, including the Lambda Award-winning Coming Out of Cancer: Writings from the Lesbian Cancer Epidemic and Ordinary Mayhem: A Novel, and the award-winning From Where They Sit: Black Writers Write Black Youth and Too Queer: Essays from a Radical Life.