By Kelly Recker*
On November 1, 2019, the Trump administration announced plans to eliminate the Obama-era rule prohibiting discrimination on the basis of sexual orientation and gender identity in foster and adoption agencies. The new Department of Health and Human Services (HHS) proposal justifies the move based on “serious concerns about compliance with certain requirements of the Regulatory Flexibility Act,” a 1980 law requiring that government agencies consider the disproportionate economic burden regulatory changes might have on small businesses and organizations.[i]
In the context of private faith-based adoption agencies receiving public funds, the argument is essentially that requiring these organizations to work with LGBTQ foster parents might prompt religious agencies to forgo public funding, limiting their services and thereby reducing the overall number of available foster care placements.[ii] HHS fails to provide any concrete evidence to support these claims, making it likely that the changes would be deemed arbitrary and capricious upon judicial review under the Administrative Procedure Act (APA).[iii] Moreover, HHS fails to address the proposal’s likely impact on foster youth in general, and on LGBTQ foster youth in particular. Critically, HHS’s proposed changes do not address the concern that faith-based organizations could discriminate against LGBTQ youth under the amended policy.[iv]
Shortly after the US Supreme Court ruled in Obergefell v. Hodges (2016) that the right to marry is guaranteed to same-sex couples, the Obama administration amended HHS’s grant policies to explicitly prohibit recipients of federal funding from discriminating on the basis of sexual orientation or gender identity.[v] The Trump administration’s proposed change, which will take effect after 30 days of public comment, eliminates those protections. Instead, it bars HHS grant recipients from discriminating “to the extent doing so is prohibited by federal statute” – a toothless blanket statement that capitalizes on the lack of federal anti-discrimination protections for LGBTQ people.[vi]
This move was foreshadowed by HHS’s decision in January 2019 to waive the non-discrimination grant requirements for a federally funded South Carolina organization that required foster parents to affirm their faith in Jesus Christ. HHS justified granting the waiver, which originated after the agency rejected a Jewish woman from becoming a mentor, on the grounds of the Religious Freedom Restoration Act (RFRA). HHS argued that forcing the organization to work with people from all faiths would violate the RFRA, which prohibits the government from substantially burdening an individual’s exercise of religion without serving a compelling government interest.[vii] President Trump also signaled the move towards the new proposal at the National Prayer Breakfast in February 2019, when he promised to ensure federal funding to faith-based adoption agencies that were unwilling to work with same-sex couples.[viii]
While HHS mentions the RFRA and related lawsuits as reasons for the proposal, it anchors its mandate for a rule change in the Regulatory Flexibility Act (RFA). The RFA was designed to encourage government agencies to consider the economic impact of new regulations on small businesses and organizations, and it requires agencies to assess whether a rule will have a significant economic impact on a substantial number of small entities. The RFA does not prohibit rules that do have a significant impact, but rather requires that the government agency conduct a “regulatory flexibility analysis” – essentially a report that acknowledges the economic impact and assesses whether any harmful effects are worth it.[ix] HHS contends that this provision was not sufficiently complied with, and as a result it is choosing not to enforce the provisions of the Obama-era rule.[x]
In support of its claim, HHS provides no evidence of the purported economic burden to faith-based child welfare organizations during the three years the rule has been on the books. It asserts that some grantees might choose to cease providing services if they have to work with LBGTQ foster parents, potentially reducing the number of potential foster care homes.[xi] However, HHS does not offer any data regarding how many, if any, faith-based foster care agencies have shuttered their doors over the past three years as a result of the LGBTQ non-discrimination policy. HHS cites the concern that faith-based groups might choose to stop providing foster youth services altogether if they are forced to allow certain families to adopt, but there is no conclusive data to support that claim. In fact, a nationwide research project reports that the overall number of licensed foster homes in the United States increased from 2018-2019.[xii] Without any data regarding the economic impact or availability of foster homes, and with only brief references to the applicability of the RFRA, it is difficult to see the real motivation behind the proposed rule change.
On the other hand, the harmful implications of eliminating the non-discrimination policy are broad and well-supported by data. While HHS’s policy change is concerned with a reduction in the number of available foster homes, it fails to take into account the fact that LGBTQ families are significantly more likely to foster and adopt youth; one study found that “21% of same-sex couples are raising adopted children, compared to 3% of different-sex couples.”[xiii] If faith-based organizations are permitted to discriminate on the basis of sexual orientation or gender identity, it is highly likely there will be fewer foster and adoptive homes overall.
HHS also suggests that the new rule will minimize the government’s involvement in related disputes and litigation. However, there are several pending lawsuits arguing that denying qualified LGBTQ couples from fostering is a violation of their due process rights under the Fifth and Fourteenth Amendments of the US Constitution, and the proposed rule does nothing to eliminate those claims.[xiv] Furthermore, public opinion is largely in favor of maintaining the non-discrimination policy – 68% of Americans are against allowing federal funding recipients to refuse placing foster youth with same-sex families.[xv] This echoes the sentiment of major child welfare professional organizations, which consistently oppose discrimination on the basis of sexual orientation in foster and adoptive placements.[xvi]
Furthermore, the proposed rule change has significant potential to harm an already vulnerable population – LGBTQ foster youth. Not only would the rule allow faith-based organizations to turn away qualified LGBTQ families, but it could also allow them to refuse to work with LGBTQ children altogether.[xvii] This is not a small subset of the population; LGBTQ children are significantly overrepresented in foster care and experience disproportionate rates of violence and discrimination. Studies show that 30% of foster youth identify as LGBTQ, as compared to 11% of youth nationally.[xviii] LGBTQ youth are more likely than their straight peers to be placed in group homes instead of foster homes, and 70% of LGBTQ foster youth report experiencing violence in the group home environment as a result of their LGBTQ status.[xix] Any reduction in the potential availability of foster homes, especially a reduction in LGBTQ-affirming foster homes, poses a direct and clear danger to the wellbeing of LGBTQ foster youth.
HHS’s proposed rule amendment seeks to remove sexual orientation and gender identity anti-discrimination protections for foster parents. As justification it cites the Regulatory Flexibility Act (RFA) and makes reference to the Religious Freedom Reformation Act (RFRA), but it fails to demonstrate any significant economic burdens or substantial burdens on the exercise of religion. On the other hand, the government has a clear, compelling interest in ensuring the safety and security of LGBTQ foster youth. Eliminating protections for LGBTQ foster parents will do nothing to serve that goal, and HHS should expect to hear as much from the public.
*Kelly Recker is a Junior Editor on MJEAL. They can be reached via email at firstname.lastname@example.org.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[i] Health and Human Services Grants Regulation, 84 Fed. Reg. 63,831 (Nov. 19, 2019) (to be codified at 45 C.F.R. pt. 75); Regulatory Flexibility Act, 5 U.S.C. §§ 601-12 (2018).
[ii] See Health and Human Services Grants Regulation, 84 Fed. Reg. at 63,832.
[iii] Administrative Procedure Act, 5 U.S.C. §§ 551-59 (2018).
[iv] Anna North, A new Trump administration rule could hurt LGBTQ youth in foster care, Vox (Nov. 7, 2019), https://www.vox.com/2019/11/5/20947709/trump-hhs-lgbt-lgbtq-youth-foster-care.
[v] Health and Human Services Grants Regulation; 81 Fed. Reg. 45,270 (July 13, 2016) (codified at 45 C.F.R. pt. 75).
[vi] Ariana Eunjung Cha, Proposed HHS rule would strip Obama-era protections for LGBTQ individuals, Wash. Post. (Nov. 1, 2019), https://www.washingtonpost.com/health/2019/11/01/new-hhs-rule-would-strip-obama-era-protections-lgbtq-individuals/.
[vii] Health and Human Services Grants Regulation, 84 Fed. Reg. at 63,835.
[viii]See Letter from Steven Wagner, Principal Deputy Assistant Sec’y, Admin. for Child. & Fam., to Henry McMaster, Governor of S.C. (Jan. 23, 2019), https://governor.sc.gov/sites/default/files/Documents/newsroom/HHS%20Response%20Letter%20to%20McMaster.pdf. Note that several commentators have argued the Establishment Clause of the US Constitution requires a very narrow reading of the RFRA, see, e.g., Amanda Brennan, Playing Outside the Joints: Where the Religious Freedom Restoration Act Meets Title VII, 68 Am. U. L. Rev. 569 (2018). This may be why the RFRA is mentioned but does not figure prominently in the reasoning for the Trump administration’s proposed rule change.
[ix] Howard M. Friedman, The Oversupply of Regulatory Reform: From Law to Politics in Administrative Rulemaking, 71 Neb. L. Rev. 1169, 1178 (1992).
[x] Health and Human Services Grants Regulation, 84 Fed. Reg. at 63,832.
[xii] John Kelly, Who Cares 2019: Executive Summary, Chron. of Soc. Change (Sept. 30, 2019), https://www.fostercarecapacity.com/stories/who-cares-2019-executive-summary.
[xiii] Shoshana K. Goldberg & Kerith J. Conron, How Many Same-Sex Couples in the U.S. are Raising Children?, Williams Inst. at UCLA (Jul. 2018), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Parenting-Among-Same-Sex-Couples.pdf.
[xiv] See Complaint at 21, Dumont v. Lyon, 341 F. Supp. 3d 706 (E.D. Mich. 2018), available at https://www.aclu.org/legal-document/dumont-v-lyon-complaint; Complaint at 19, Marouf v. Azar, No. 18-CV-00378, 2019 U.S. Dist. LEXIS 98528 (D.D.C. June 12, 2019), available at https://www.lambdalegal.org/in-court/legal-docs/marouf_dc_20180220_complaint.
[xv] Daniel Cox & Robert P. Jones, Most Americans Oppose Restricting Rights for LGBT People, Pub. Religion Res. Inst. (Sept. 14, 2017), https://www.prri.org/research/poll-wedding-vendors-refusing-service-same-sex-couples-transgender-military-ban/?_ga=2.204126672.1977028309.1572631092-1239028520.1572631092.
[xvi] See Complaint at 15, Dumont v. Lyon, 341 F. Supp. 3d 706 (E.D. Mich. 2018), available at https://www.aclu.org/legal-document/dumont-v-lyon-complaint.
[xvii] Anna North, A new Trump administration rule could hurt LGBTQ youth in foster care, Vox (Nov. 7, 2019), https://www.vox.com/2019/11/5/20947709/trump-hhs-lgbt-lgbtq-youth-foster-care.
[xviii] Laura Baams et al., LGBTQ Youth in Unstable Housing and Foster Care, 143 Pediatrics 1, no. 3 (Mar. 1, 2019), available at https://pediatrics.aappublications.org/content/pediatrics/143/3/e20174211.full.pdf.
[xix] Mimi Laver & Andrea Khoury, Opening Doors for LGBTQ Youth in Foster Care: A Guide for Lawyers and Judges 1 (2008), available at https://www.americanbar.org/content/dam/aba/administrative/child_law/2008_Openingdoors_Text.authcheckdam.pdf.