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Trump Administration Advances Proposal to Rescind Nondiscrimination Protections

November 20th, 2019

 A new proposal will allow faith-based adoption and foster care agencies to turn away same-sex couples, singles parents, and people who do not share the agencies' religious beliefs.
A new proposal will allow faith-based adoption and foster care agencies to turn away same-sex couples, singles parents, and people who do not share the agencies’ religious beliefs.

Earlier this month, the Trump Administration’s Department of Health and Human Services (HHS) put forward a new proposal to rescind nondiscrimination protections that had been put into place by the Obama Administration. The protections that were added by Obama included discrimination based on religion, sexual orientation, and gender identity. Now, President Trump wants to remove these protections so that organizations that are awarded health grants from HHS are allowed to refuse service to someone based on these characteristics.

Origins of the HHS Proposal

This latest Health and Human Services proposal was expected, as it aligns with previous efforts by the Trump Administration to roll back protections for minorities. Just last month the Trump Administration argued before the Supreme Court that it should be legal to fire someone for being a member of the LGBTQ community, cases which have been covered on this blog.

Earlier in the year the Trump Administration sought to rescind protections for LGBTQ people, students, people with disabilities, and immigrants in a wide range of areas including housing, employment, education, and public benefits. HHS also put forward a proposal this summer to allow health care providers to refuse service to people based on their religious beliefs, which was also covered on this blog.

The Purpose of the New Proposal

The new policy put forth by HHS allows Obama-era protections to expire, meaning recipients of federal grants from the agency may once again discriminate on the basis of sexual orientation, gender identity, and religious affiliation when providing services to the public. Faith-based adoption and foster care agencies may now choose turn away same-sex couples, singles parents, and people who do not share the agencies’ religious beliefs.

HHS says the proposal “relieves regulatory burden,” will still prohibit discrimination based on existing law, and is in line with other Trump Administration efforts to increase religious liberty.

Support for the HHS Policy

Many faith-based groups hailed the decision as a win for religious liberty. Tony Perkins of the Family Research Council argued, “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.”

HHS said the policy would allow more religiously-affiliated providers to provide services with government funding.

Opposition to the Rule

Civil rights groups quickly denounced the change, with the American Civil Liberties Union proclaiming “religious liberty is not a license to discriminate. The needs of children in our foster care system must come first.” Human Rights Campaign president Alphonso David stated, “This 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.”

Child welfare groups have also expressed dismay, claiming this is bad policy not just for prospective adoptive or foster parents, but also for children who need a loving home. Now federally-funded agencies may chose not to place children with anyone who is not heterosexual and does not hold the same religious beliefs as the agency.

Indeed, earlier this year the Trump Administration granted a waiver to a Protestant nonprofit that only works with Protestant prospective parents and has a ban on working with people who are LGBTQ, progressive Christian, Jewish, Muslim, Hindu or from other faiths.

Keep Reading the Universal Life Church’s Legal Blog for the Latest Developments

The new HHS proposal was fast-tracked, meaning there is less time for the public to weigh in on the new policy. The comment period will only be open for 30 days once the rule is published in the Federal Register. However, like so may other policy changes put forth by the Trump Administration, the rule will most likely end up in court.

Keep reading the Universal Life Church’s Legal Blog for insights on the latest issues affecting freedom of religion, LGBTQ rights, the first amendment, and other areas of law.

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