Latest Update February 10, 2021

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

In response to our lawsuit, the U.S. Department of Health and Human Services has agreed to a court order 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 effective date of the rule is postponed for 180 days, until August 2021.

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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.

Kristen Miller

Senior Counsel

Litigating challenges to unlawful actions involving civil rights, health care, consumer protections, and more.

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Robin Thurston

Managing Senior Counsel

Litigating challenges to unlawful actions, abuses of power, and threats to democracy on behalf of those who are harmed.

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