Biden Nixes Trump Policy Allowing Anti-LGBTQ Discrimination in Foster Care

Senate Health, Education, Labor, and Pensions Committee hearing to discuss reopening schools during the coronavirus disease (COVID-19), in Washington
Health and Human Services Secretary Xavier Becerra said the administration’s move to re-establish non-discrimination protections in foster care “ensures we are best prepared to protect every American’s right to be free from discrimination.”
REUTERS/Shawn Thew

The Biden administration’s Department of Health and Human Services (HHS) is nixing a Trump-era rule that exempted federally-funded foster care providers from following non-discrimination rules in Michigan, South Carolina, and Texas.

In a new policy unveiled on November 18, HHS asserted that the administration would instead revert back to its previous policy of examining religious exemption requests on a case-by-case basis in accordance with the Religious Freedom Restoration Act (RFRA). The Trump administration had interpreted RFRA in such a way that provided the three states with waivers to reject prospective parents because of their sexual orientation or gender identity.

“Today’s action supports the bedrock American principle and a core mission of our Department — to ensure Americans have access to quality health and human services,” HHS Secretary Xavier Becerra said in a written statement. “Our action ensures we are best prepared to protect every American’s right to be free of discrimination. With the large number of discrimination claims before us, we owe it to all who come forward to act, whether to review, investigate, or take appropriate measures to protect their rights. At HHS, we treat any violation of civil rights or religious freedoms seriously.”

In South Carolina, the Trump administration in 2019 granted Miracle Hill Ministries exemptions from HHS regulation 45 CFR §75.300(c), which stipulated that nobody should face discrimination in HHS programs and services — including discrimination on the basis of sexual orientation and gender identity. The letter that the Trump administration sent to South Carolina Governor Henry McMaster at the time mentioned that other foster care agencies would also be able to discriminate.

In a press release, HHS further noted that the Trump administration’s policy was “inappropriate and unnecessary” because that administration did not follow civil rights protections pertaining to grants. HHS concluded that the waivers were “inconsistent with the department’s critical goal of combating discrimination based on religion, sexual orientation, and gender identity.”

The Trump administration’s broad policy had prompted a federal lawsuit — currently pending in the US District Court for the District of South Carolina, Greenville Division — targeting South Carolina and HHS on behalf of a married LGBTQ couple who faced rejection by a child welfare agency. Lambda Legal, which is defending that couple in court, welcomed the Biden administration’s latest announcement.

“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,” Lambda Legal CEO Kevin Jennings said in a written statement. “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.”

The National Center for Transgender Equality (NCTE) also praised HHS for doing away with the Trump-era policy.

“This is an important step forward to ensure that transgender people can go about their lives without fear of discrimination,” NCTE executive director Rodrigo Heng-Lehtinen said in a written statement. “No one should be denied health care or turned away from other critical services just because they are transgender. The Biden-Harris administration continues to demonstrate its strong commitment to equality and fairness.”

On inauguration day, Biden signed an executive order directing federal agencies to broadly interpret federal sex discrimination laws to include discrimination on the basis of sexual orientation and gender identity.