New York City, NY – Today, the United States Court of Appeals for the Second Circuit in New York City heard arguments in Family Equality v. Azar. Plaintiffs urged the court to reverse a lower court ruling that a coalition of organizations serving vulnerable LGBTQ+ populations – including Family Equality, True Colors United, and SAGE – 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, such as same-sex couples seeking to become foster parents. The coalition is represented by Democracy Forward and Lambda Legal. 

On June 29, 2022, in a separate but related lawsuit, a federal district court vacated a Trump-era rule that would have permanently eliminated the nondiscrimination protections.

“For three years, the notification of nonenforcement has been a barrier to much-needed protections for the 1 in 3 youth in foster care who identify as LGBTQ+ and the countless qualified adoptive and foster parents who have been turned away for discriminatory reasons.” said Shelbi Day, Chief Policy Officer at Family Equality. “The notice, which is preventing enforcement of existing nondiscrimination protections, runs counter to the federal government’s responsibility to protect the best interests of all children in its care and contributes to the shortage of qualified temporary and permanent homes for kids in care. This case is key to removing this barrier and moving us closer to addressing and preventing the widespread anti-LGBTQ+ discrimination in the child welfare system.” 

“The federal government must protect the most vulnerable and at-risk members of society,” said Aaron Tax, SAGE’s Managing Director of Government Affairs & Policy Advocacy. “Ensuring that all older people have access to critical aging services that are free from discrimination is vital for the health and well-being of LGBTQ+ elders.” Continued Tax, “we will always advocate for the rights of LGBTQ+ pioneers and we continue to believe we have standing in this case.”

“Ensuring equitable access to services for LGBTQ+ youth experiencing homelessness has only become more critical in the three years since the notice of nonenforcement was issued,” said Dylan Waguespack, CEO at True Colors United. “LGBTQ+ young people across the country need to know that they’re protected from discrimination and harassment when seeking housing and supportive services. As lawmakers in several states advance legislation targeting LGBTQ+ youth, and in particular trans youth, HHS has an obligation to end the confusion and make clear to these young people that they’re entitled to the same access as their peers to services funded by the federal government.”

“As we explained in court, there’s no question that the nonenforcement notice has directly harmed the plaintiffs,” said Kristen Miller, Senior Counsel at Democracy Forward. “The Notice has introduced substantial confusion regarding the nondiscrimination protections that remain in place for HHS-funded services. As a result, Plaintiffs have been forced to expend significant time and resources updating their education programs to ensure that the LGBTQ+ community understands their rights to receive nondiscriminatory services and that service providers understand their legal obligations to provide such services. Most importantly, the nonenforcement notice puts LGBTQ+ folks at increased risk of discrimination as they pursue HHS-funded services.”

“Our clients are community-based nonprofits that provide critical services to LGBTQ people and marginalized communities across all ages. Unfortunately, their essential work is gravely undermined by HHS’s refusal to enforce nondiscrimination requirements for agency-funded programs that serve these communities. We are confident that the court will see how these organizations are harmed by the agency’s refusal to enforce these protections and allow their claims to move forward at the district court,” said Karen Loewy, Senior Counsel and Director of Constitutional Law Practice for Lambda Legal. 

Plaintiffs and members of the legal team are available for comment.