Religious Freedom vs. LGBTQ Rights
The U.S. Department of Health and Human Services (HHS) proposed a new rule in November 2019 that would allow HHS grant recipients, including adoption and foster care agencies, to decline services to individuals on the basis of their sexual orientation and gender identity.
The proposed rule, which was announced on the first day of National Adoption Month, would roll back a 2016 regulation that added nondiscrimination language to grant-funded programs to protect the rights of LGBTQ individuals. As it stands, federal law does not provide consistent protection against discrimination on the basis of sexual orientation or gender identity.
Trump administration officials said the Obama-era regulation came at the expense of religious freedom, while the new HHS rule would better align the agency’s grant regulations with federal statutes.
“The proposed rule represents the Trump administration’s strong commitment to the rule of law ― the Constitution, federal statutes and Supreme Court decisions,” HHS officials said in a statement announcing the proposed rule. “These require that the federal government not infringe on religious freedom in its operation of HHS grant programs and address the impact of regulatory actions on small entities.”
Faith-based adoption and foster care groups support the new rule, which they say will no longer place them in the difficult position of having to choose between their beliefs and children in need of a home.
“This is tremendous news for children, birth moms and adoptive families who want the opportunity to work with an agency that shares their values and core beliefs — without fear of government discrimination,” Tony Perkins, president of the Family Research Council, said in a statement. “Under the proposed HHS rule, faith-based adoption providers will no longer have to choose between abandoning their faith or abandoning homeless children because the government disapproves of their views on marriage.”
The United States Council of Catholic Bishops also commended the proposed rule. “To restrict faith-based organizations’ work by infringing on religious freedom — as the 2016 rule threatened to do — is unfair and serves no one, especially the children in need of these services,” the council’s chairmen said in a joint statement. At a time when over 400,000 children are in foster care we need to take steps to increase — not decrease — their opportunities to be placed with safe and loving families.”
The American Civil Liberties Union decried how the new HHS rule could prevent individuals, including LGBTQ families and families whose religious beliefs do not align with faith-based adoption and foster care agencies, from receiving services. “Religious liberty is not a license to discriminate,” the group said in a tweet following the rule’s announcement. “The needs of children in our foster care system must come first.”
Also speaking out against the proposed rule are LGBTQ rights activists. Alphonso David, president of the Human Rights Campaign, said the HHS rule would promote sweeping discrimination not just among LGBTQ individuals, but also among women and religious minorities, with taxpayers covering the cost.
The proposed rule “would permit discrimination against LGBTQ people, religious minorities and women in programs related to foster care, adoption, HIV and STI prevention, youth homelessness, refugee resettlement, elder care programs and more,” David said in a statement. “It is unconscionable that the Trump-Pence administration would prioritize advancing discrimination over the well-being of vulnerable people and expect taxpayers to foot the bill for their discriminatory policies.”
The proposed HHS rule points to a larger issue of LGBTQ rights and expanding protections for these individuals under federal law. The Democrat-controlled House recently sought to extend nondiscrimination protections for LGBTQ individuals when it passed the Equality Act (H.R. 5) in May 2019 by a vote of 236-173. The bill would amend several civil rights laws — including the Civil Rights Act of 1964, the Fair Housing Act and the Jury Selection and Services Act — to protect against discrimination on the basis of sexual orientation and gender identity in several areas of life, including employment, housing, education and jury service. While some civil rights advocates were hopeful about the Equality Act’s prospects after it passed the House, the bill has not been taken up by the Republican-controlled Senate.
The Trump administration’s proposed HHS rule, meanwhile, is open to public comment and could be challenged in court.
For more, see the December 2013 Congressional Digest issue on “LGBT Rights in the Workplace.”
