THE LATEST: On June 29, 2022, a federal district court vacated the  Trump-era rule that had eliminated nondiscrimination protections in grant programs funded by the U.S. Department of Health and Human Services (HHS). HHS spends approximately $500 billion annually on programs that provide health and human services, such as funding for older people to age in place, child welfare programs, support for runaway and homeless youth, and many more essential services.  The nondiscrimination protections  prohibit service providers  from discriminating based on sex, sexual orientation, gender identity, religion, and other characteristics when providing HHS grant-funded services. The order vacates the rule completely, reinstating the nondiscrimination protections–which were first promulgated in 2016.

Statements upon issuance of the June 29, 2022 order:

“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. While today’s victory is a step in the right direction, the Trump-era decision not to enforce the lawful 2016 rule has not yet been reversed.  Lambda Legal and Democracy Forward will continue to challenge the non-enforcement policy until all persons receive the protections of the law.” – Kristen Miller, Senior Counsel at Democracy Forward

“We are thrilled that the court has removed the continuing threat the presence of the discriminatory Trump-era rule posed to some of the most vulnerable members of society, including LGBTQ+ children, seniors, and people with low income, who rely on federally funded programs to meet their basic needs.  Beneficiaries and participants in HHS funded programs should have the basic expectation that they can access all services and care and do so without facing harm. This week, the court took an important step on the heels of HHS’s acknowledgement of a flawed process that violated important procedural safeguards ensuring that comment by the public is meaningfully considered.” – Currey Cook, Senior Counsel and Youth in Out-Of-Home Care Project Director at Lambda Legal

BACKGROUND

In its last days in power, the Trump administration finalized another effort to remove nondiscrimination protections. In its new Grants Regulation, Trump’s Department of Health and Human Services eliminated protections adopted in 2016 against discrimination based on sexual orientation, gender orientation, and religion and requiring the recognition of the Supreme Court’s marriage equality decisions.

Vulnerable and traditionally marginalized populations — such as children in foster care, older adults, youth experiencing homelessness, and families navigating the child welfare system — have been and, under this Rule, would be subject to discriminatory practices from taxpayer-funded service providers. Such discrimination harms beneficiaries, imposes additional barriers to service, causes significant economic costs, undermines HHS’s mission to enhance the health and well-being of all Americans, and will lead to worse outcomes in HHS programs.

As the COVID-19 pandemic stretches on in the U.S., already at-risk individuals will be put in even greater danger of harm if they are subject to discriminatory treatment or are refused services. One study found that LGBTQ+ youth are massively overrepresented in foster care — they are 30% of the foster care population, but only 11% of youth overall — and they face an increased risk of emotional and physical harm in those settings. Another study shows that 78% of LGBTQ+ youth run away from their foster care placements because of hostility they experience based on their sexual orientation or gender expression and they exit to homelessness at higher rates. And LGBTQ+ seniors may not be welcomed at as many as 28% of their local aging services agencies, which provide services like senior centers and group meal programs.

Trump’s rollback of these nondiscrimination protections, after previously refusing to enforce them, is consistent with its legacy of undermining protections for the LGBTQ+ community. The former administration axed crucial data reporting requirements for understanding LGBTQ+ youth in foster care, expanded the ability of federally funded faith-based service providers to discriminate based on religion, attempted to grant healthcare providers an unlawful religious exemption to deny life-saving medical services, and created an unlawful State Department commission dedicated to exporting its members’ anti-LGBTQ+ positions.

On behalf of Facing Foster Care in Alaska, Family Equality, True Colors United, and SAGE, we filed suit with Lambda Legal and Cravath, Swaine & Moore LLP to continue our ongoing fight to overturn the Trump administration’s legacy of illegal and harmful rollbacks of non-discrimination protections. The lawsuit was filed on February 2, 2021 in the U.S. District Court for the District of Columbia. We filed a motion for a temporary restraining order and for a stay of the effective date of the rule on February 4th. The government agreed to stay the effective date of the rule, and the Judge entered an order staying it for six months on February 9, 2021.

Last Updated: July 20, 2022