HHS Rule Provides Discretion to Federally Funded Programs I KingSpry

U.S. Department of Health and Human Services Finalizes Rule, Providing Federally Funded Programs Discretion on Religious Grounds

Posted on January 22nd, 2021
by Dorota Gasienica-Kozak

Former President Trump’s Department of Health and Human Services (HHS) approved a bill that would make it possible for foster care and adoption agencies to refuse LGBTQ families the ability to adopt children based on religious reasons.

On January 7th, 2021, the final proposed rule was released, removing regulations barring discrimination on sex, religion, sexual orientation, and gender identity.

Additionally, the Obama-era regulations that made it mandatory for federally funded agencies to honor same-sex couple marriages were removed. The HHS reasoned that it is only appropriate to impose nondiscrimination requirements provided by the Constitution and the federal government. They further held these current regulations are not based on statutes and are unlawful under the Religious Freedom Restoration Act and the First Amendment.

Many religiously affiliated adoption and foster care centers have been promoting a change in regulation to allow them to choose which families can participate in their foster care services, including LGTBQ couples looking to adopt. Unfortunately, this new regulation could lead to discrimination within governmentally funded and supported programs, and many families and children in the LGBTQ community could lose protections and be turned away by taxpayer-funded organizations.

Currently, there is a case pending before the U.S. Supreme Court, Catholic Social Services in Philadelphia, regarding a religiously affiliated, taxpayer adoption and foster care center whose position is that they have a First Amendment right to deny services to same-sex couples on religious grounds.

The concern is that the language of this regulation could allow taxpayer funded child welfare services to refuse placement into LGBTQ families and potentially discriminate against LGBTQ youth. While the U.S. Supreme Court recently ruled in Bostock that discrimination against sexual orientation is a form of sex discrimination under Title VII in the workplace, neither the holding nor Title VII have any legal implications on sex discrimination within federally funded programs, such as religiously affiliated, taxpayer funded adoption and foster care centers.

If it goes into effect, this new rule could potentially have negative impacts on the LGBTQ community as a whole and particularly on LGBTQ youth in foster care. One of the concerns is that this newly proposed regulation could also have broader, far-reaching implications in health services, such as possible anti-LGBTQ discrimination in HIV and STI prevention programs, because it encompasses all federally funded programs, not just religiously affiliated adoption, and foster care centers. Any federally funded organization could have the authority to turn away LGBTQ individuals.

According to a UCLA Williams Institute School of Law report, about 114,000 same-sex couples in 2016 were raising children in the United States, and same-sex couples were more likely to adopt than different-sex couple, compared at 21.4% versus 3% rates, respectively. Therefore, this as an impact on the LGBTQ community.

Further, while this proposal could have impacts far beyond the foster care system, i.e. other federally funded programs for HIV prevention and STIs and treatment centers for addiction, the welfare and foster care systems seem to take the hardest hit.

This newly signed regulation, if published in the Federal Register, will have a 30-day comment period, and after that, the comments will close, and the regulation will become final. However, President Biden seeks to sign an amendment to the Civil Rights Act of 1964 banning anti-LGBTQ discrimination in federal programs.

As these issues develop, it is wise to speak with your legal counsel to understand the law as it relates to your situation.

heARTbeat is a publication of KingSpry’s Adoption Law and Assisted Reproductive Technology Law Practice Group. It is meant to be informational and does not constitute legal advice.