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Proposed HHS rule would strip Obama-era protections for LGBTQ individuals

Foster care and adoption groups that rely on federal grants would be allowed to refuse placement for gay, lesbian parents.

Outside the Supreme Court, Daniel Goldman of Arlington, Va., holds a Transgender Pride flag and conservative groups, left, carry signs supporting their right to not be forced to be inclusive against their religious beliefs. (Michael S. Williamson/The Washington Post)
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Citing concerns about religious freedom, Health and Human Services Secretary Alex Azar on Friday proposed a new rule that would effectively eliminate discrimination protections for LGBTQ individuals in all its grant programs.

The most immediate impact would likely be on the nation’s $7 billion federally funded child-welfare system, including foster care and adoption programs. Faith-based agencies in several states, including South Carolina, Texas, Michigan and Pennsylvania, have argued they should not be forced to work with gay, lesbian or transgender parents against their own beliefs.

But the proposed rule would also apply to other HHS grants, including those for HIV and sexually transmitted disease prevention, other public health initiatives, health education, prekindergarten programs and more.

The draft says HHS will remove language introduced during the Obama administration that “no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination” based on a long list of characteristics including race, age, gender identity and sexual orientation.

In its place, the agency would guarantee protections required by federal statute. The Civil Rights Act of 1964, Americans With Disabilities Act of 1990 and others provide protections for everything on the Obama-era list except for sexual orientation and gender identity. Efforts to get Congress to add these protections over the years have stalled. The most recent attempt, the Equality Act, passed the Democratic-controlled House in May but has not moved in the Republican-controlled Senate.

In his address at the 74th annual U.N. General Assembly on Sept. 24, President Trump said his administration supported rights for women and the LGBTQ community. (Video: Reuters)

Azar wrote in the proposal that the agency had received complaints that the nondiscrimination language violates the U.S. Constitution, the Religious Freedom Restoration Act of 1993 and exceeds the department’s authority.

Denise Brogan-Kator, chief policy officer of the Family Equality Council, which advocates on behalf of LGBTQ families, called the change “outrageous.”

“This represents another attack by this administration on the lives of the most vulnerable in our country under the pretense of religious freedom. Religious freedom is important — we protect it in the First Amendment — but it does not extend to harming others,” Brogan-Kator said.

Leslie Cooper, deputy director of the American Civil Liberties Union’s LGBT & HIV Project, said in a statement that the rule would “open the door to discrimination” in countless programs.

Supporters of the rule said that in the past, faith-based groups accepting federal grants were forced to compromise their beliefs, or else opt out of participating in foster care and adoption.

President Trump on Feb. 7 said he is working to allow faith-based adoption agencies to follow religious beliefs in choosing parents for children. (Video: The Washington Post)

Lori Windham, senior counsel at the Becket Fund, a nonprofit group that champions religious freedom, said in a statement that HHS is repealing “a bad regulation that made it harder for faith-based foster care and adoption agencies to follow their sincere religious beliefs while serving children in need.”

The old rule, “made in the waning days of the Obama administration, with no legislative or judicial mandate, limits the good done for needy kids by faith-based agencies because of their longstanding beliefs about marriage,” Andrea Picciotti-Bayer, legal adviser for the Catholic Association Foundation, said in a statement. “Agencies that find loving foster and adoptive homes shouldn’t be subject to ideological shakedowns by the government.”

The rule is the culmination of smaller efforts by HHS to prioritize religious rights, which they say were neglected under previous administrations. In January, HHS granted a waiver to South Carolina’s Miracle Hill Ministries — which requires foster-care parents to affirm their faith in Jesus Christ and refused to work with a Jewish woman seeking to be a mentor — to continue to receive federal funds. And the agency drafted a budget request seeking broad authority to allow faith-based foster-care and adoption groups that reject LGBTQ parents, non-Christians and others in federally funded child-welfare programs.

In February, President Trump made a promise to religious leaders at the National Prayer Breakfast that faith-based adoption agencies that won’t work with same-sex couples would still be able to get federal funding to “help vulnerable children find their forever families while following their deeply held beliefs.”

HHS has also drafted a “conscience” rule, the subject of a lawsuit but still set to take effect later this month, that would dramatically expand the situations in which health providers could refuse to provide services they say violate their religious or moral beliefs. In oral arguments this week, an attorney for the city of San Francisco contended that rule is so broad it could allow an ambulance driver to deny care to a woman at risk of losing her life.

HHS said on Friday it would begin immediate enforcement of the nondiscrimination change.

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