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HHS finalizes rule limiting some nondiscrimination protections at the agency

Brooks Brunson, Gregg Pitts, Thomas Brunson-Pitts same sex couple adoption
Posted at 2:50 PM, Jan 14, 2021
and last updated 2021-01-14 16:50:21-05

With just days left in President Donald Trump’s administration, his Health and Human Services Department released finalized rules that critics say allow social-service providers that get government funds to discriminate based on sexual orientation and gender identity.

According to the guidance, published this week in the Federal Register, agencies can give religious concerns greater weight in deciding whether or how to serve enrollees who identify as LGBTQ.

Critics worry the policy change will mean adoption agencies who receive taxpayer money can deny adoptions and foster care placements to same-sex couples. It could also impact homeless shelters and senior centers who receive taxpayer money, they could turn away LGBTQ people seeking shelter or needing services, according to NBC News.

The change is to requirements put in place at the end of Obama’s administration that agencies refrain from discrimination based on the basis of sex, religion, sexual orientation and gender identity.

This rule change has been under consideration for more than a year, it was originally proposed in late 2019 and public commenting ended at the end of that year.

In December 2019, House Democrats wrote a letter to Health and Human Services Secretary Alex Azar asking his department to “abandon its proposal to weaken civil rights protections for Americans served by a wide array of federally funded health and social services programs administered by HHS.”

The lawmakers argued that the rule change would incorrectly invoke the Religious Freedom Restoration Act (RFRA) “that runs contrary to its original purpose to protect sincerely held religious beliefs of religious minorities.”

“The proposal severely undermines efforts by Congress and previous administrations to eradicate discrimination in HHS-funded programs,” the statement continues.

In their published finalized rule, HHS responded to the criticism saying the change means they will follow Supreme Court precedents in situations specifically addressed by the high court, and not further.

“The Department begins by noting that Congress has selectively imposed nondiscrimination requirements in certain statutes, and with respect to certain grant programs, and not imposed the same requirements in others,” the release states. “Congress has not expressly included discrimination on the basis of sexual orientation, gender identity, or same-sex marriage status, in any statute applicable to departmental grants.”

HHS was among nine agencies asked by Trump during his administration to draft guidelines safeguarding “religious freedom.” Some have released new rules in the last several months.