Last Updated: May 4, 2020
Table of Contents
In November 2019 the Trump Administration’s Department of Health and Human Services (HHS) proposed a new rule that, if made final, will severely weaken the nondiscrimination protections that apply to a wide array of HHS services and create a nationwide license to discriminate for agencies and programs that receive HHS funding. At the same time, HHS issued a “Notice of Nonenforcement” stating that it would immediately stop enforcing an existing 2016 regulation that prohibited HHS contractors and grantees from discriminating against LGBTQ people.
This Notice of Nonenforcement is a violation of law and brings direct harm to LGBTQ+ people and families, among others. In response, Family Equality is suing HHS, and we are asking the courts to stop the Trump Administration from implementing the Notice of Nonenforcement. This would require HHS to continue to enforce the 2016 non-discrimination rule while the proposed rule goes through the administrative process.
Winning this case would be a step in the right direction, reminding HHS that they cannot simply disregard existing rules in their rush to create a nationwide license to discriminate against LGBTQ people. However we will still need to fight against the new rule proposed in November 2019, and that will be a longer term battle to demonstrate to HHS that discrimination has no place in our nation’s administration of health and human services.
In 2016, the Department of Health and Human Services (HHS) under the Obama Administration implemented a rule stating that “it is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services based on non-merit factors such as age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation.” (Regulation 45 CFR Part 75.300)
In November 2019 the Trump Administration’s Department of Health and Human Services (HHS) proposed a new rule that, if made final through the rulemaking process, will severely weaken the nondiscrimination protections that apply to a wide array of HHS services. Family Equality activated our Every Child Deserves a Family campaign and created a portal to submit comments opposing this proposed new rule. Our comment letter on that rule can be found here (and our follow-up comment letter is here). At the same time, the administration announced through a “Notice of Nonenforcement” that, effective immediately, it would no longer enforce the 2016 nondiscrimination rule.
On March 19, 2020, through our attorneys at Democracy Forward and Lambda Legal, Family Equality, along with SAGE and True Colors United, sued the Department of Health and Human Services over its Notice of Nonenforcement of the Department’s 2016 nondiscrimination rule. Read our press release about the lawsuit.
Why did Family Equality Sue HHS?
Given that we have worked closely with HHS over many years (and, in fact, were among the LGBTQ+ rights groups who supported the codification of the 2016 rule) and that we will need to continue to work with HHS in the future, suing HHS was not our first choice.
However, with the pervasiveness of discrimination faced by LGBTQ+ people and families across the many sectors of the economy that receive HHS funds, we had no choice but to fight this attempt to allow discrimination with impunity.
As our CEO The Rev. Stan Sloan said:
“Family Equality takes no pleasure in suing HHS — rather, we wish the federal government were responsive to the needs of vulnerable LGBTQ Americans — but under the circumstances, we have no choice but to ask the courts to intervene to ensure LGBTQ people are afforded the protections we deserve.”
Of particular relevance to the work of Family Equality to assure that LGBTQ+ people who wish to form or expand their families are able to do so free of discrimination, is the fact that the 2016 nondiscrimination provision prohibits state child welfare agencies from discriminating because they receive federal funds through awards from the Administration for Children and Families (ACF), a division of HHS.
LGBTQ+ people foster and adopt at seven times the rate of their non-LGBTQ+ counterparts, and family formation through the foster care system is an important pathway for LGBTQ+ people and people who have limited financial means.
What is the impact of HHS’ decision not to enforce the 2016 anti-discrimination rule?
HHS is a massive organization inside the federal government, and it administers approximately $500 billion in grants. Those grants fund critically important programs that provide essential health and welfare services to millions of people around the country, including some of the most vulnerable members of our society such as children in foster care, youth experiencing homelessness, and older people.
HHS’s actions give recipients of federal funds a license to discriminate in their provision of government-funded services to millions of people. Among those most likely to be impacted are LGBTQ children and youth. Those children and youth are particularly vulnerable when placed in out-of-home care or while experiencing homelessness, where they are dependent on HHS grantees for care and services. In addition, LGBTQ+ families interacting with the child welfare system are likely to be subjected to discrimination.
Family Equality’s work leading the Every Child Deserves a Family Campaign has shown us that discrimination against LGBTQ+ families interacting with the child welfare system can reduce the number of homes available to youth in care as well as inflict real dignitary harm on people seeking to expand their families through the foster care system.
What legal claims are we making?
- The Notice of Nonenforcement constitutes a substantive rule subject to the Administrative Procedure Act’s notice-and-comment requirements because it affirmatively and categorically circumscribes HHS’s existing authority to enforce non-discrimination requirements that prohibit recipients of HHS funds from discriminating on a variety of non-merit factors, including sex, gender identity, sexual orientation, and religion.
- In issuing the Notice of Nonenforcement, HHS impermissibly promulgated a new rule without undertaking notice-and-comment rulemaking.
- The Notice of Nonenforcement is arbitrary and capricious, an abuse of discretion, and not in accordance with law because HHS grounded its action in a mistaken determination of law: that the 2016 Grants Rule did not comply with the Regulatory Flexibility Act.
- The Notice of Nonenforcement is arbitrary and capricious, an abuse of discretion, and not in accordance with law because, among other things, HHS failed to provide a reasoned explanation for its decision to cease enforcement with respect to all entities, failed to consider alternative remedies, failed to consider the costs and benefits of its decision, and failed to consider whether continued enforcement of the non-discrimination protections is in the public interest.
What are we asking the court to do?
- A declaration that HHS’ promulgation of the Notice of Nonenforcement violates the Administrative Procedure Act;
- Set aside and vacate the Notice of Nonenforcement;
- Enjoin HHS from implementing the Notice of Nonenforcement;
- Award Family Equality, SAGE, and True Colors United costs, attorneys’ fees, and other disbursements for this action; and
- Grant any other relief the court deems appropriate.