THE LATEST: On March 30, 2022, a district court judge ruled that our plaintiffs in the case Family Equality v. Azar do not have standing to challenge the Department of Health and Human Services’ (HHS) policy to not enforce legal requirements that prohibit grant recipients from discriminating against program beneficiaries. On August 26, 2022, we filed a brief in the United States Court of Appeals for the Second Circuit urging the court to reverse the March 30th ruling and confirm that our plaintiffs have standing.

In a separate but related lawsuit, we won an important victory on June 29, 2022, when a federal district court vacated the Trump-era rule that would have eliminated the nondiscrimination protections entirely. The order vacates the rule completely, reinstating the nondiscrimination protections first promulgated in 2016.

BACKGROUND

Trump’s Department of Health and Human Services violated the law when it halted enforcement of existing nondiscrimination protections without providing the public any notice or an opportunity to comment. In November 2019, HHS proposed new rules to weaken the nondiscrimination protections in a broad range of HHS-funded programs. Simultaneously, HHS announced that it would no longer enforce its current nondiscrimination protections that govern HHS grants. HHS violated the law by not providing the public any notice or an opportunity to comment on its refusal to uphold nondiscrimination rules;, by relying on a mistaken legal analysis, and by failing to take into account the harms caused by nonenforcement.

This notice of non-enforcement invites federal grant recipients to deny services and discriminate against individuals —putting already at-risk communities, such as homeless LGBTQ youth, older adults, and foster children, in even greater danger of harm. Potential discrimination could include:

  • Federally funded foster care agencies refusing to place children with families because of a host family’s sexual orientation or gender identity, limiting the number of potential homes for kids who need them.
  • Child welfare agencies and homelessness service providers engaging in abusive and discriminatory practices, including verbal and physical abuse, conversion therapy, and forced services that invalidate one’s sexual orientation or gender identity.
  • Adult daycare providers denying services to transgender individuals.

“The Trump administration’s unlawful abandonment of anti-discrimination protections signals to federal grantees that they can freely discriminate without repercussion. Especially now, we are proud to stand alongside our partners to protect vulnerable people from the Trump administration’s decision to subsidize discrimination with taxpayer dollars.”

 – Anne Harkavy, Democracy Forward Former Executive Director

As the COVID-19 pandemic continues to spread rapidly throughout the U.S., LGBTQ individuals of all ages are even more vulnerable to the Trump administration’s illegal action. Students, whose colleges and universities have shut down housing to prevent virus transmission, may be discriminated against when seeking shelter through HHS-funded homelessness programs. Older adults could be vulnerable to providers that subject them to harassment or refuse to offer services, such as home-delivered meals, on the basis of sexual orientation or gender identity, at a time when senior centers are shutting down in major metropolitan centers to help combat spread.

Alongside Lambda Legal, we’re representing Family Equality, True Colors United, and SAGE in this challenge to HHS’ unlawful, harmful action which implicitly permits grantees to discriminate when providing critical services. The case was filed on Thursday, March 19, 2020, in the United States District Court for the Southern District of New York.

 

Last updated: August 29, 2022

Kristen Miller

Senior Counsel

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

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Robin Thurston

Deputy Legal Director

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

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Ben Seel

Counsel

Focusing on justice, national security, immigration, and health care issues.

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