On Nov. 1, the U.S. Department of Health and Human Services
announced actions that effectively allow agencies receiving HHS grants, including foster care and adoption agencies, to refuse to serve gay, lesbian and transgender individuals and families on religious grounds. First, HHS issued a
Notice of Non-Enforcement of
rules adopted in 2016 that prohibit such discrimination. The non-enforcement decision was based on "significant concerns about compliance with the Regulatory Flexibility Act" in the promulgation of the 2016 rules. HHS then issued a
Notice of Proposed Rulemaking that would repromulgate the rules with narrower anti-discrimination protections. The proposed new rules would replace this section:
(c) 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. Recipients must comply with this public policy requirement in the administration of programs supported by HHS awards.
(d) In accordance with the Supreme Court decisions in United States v. Windsor and in Obergefell v. Hodges, all recipients must treat as valid the marriages of same-sex couples. This does not apply to registered domestic partnerships, civil unions or similar formal relationships recognized under state law as something other than a marriage.
The new rules will instead provide:
(c) 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, to the extent doing so is prohibited by federal statute.
(d) HHS will follow all applicable Supreme Court decisions in administering its award programs.
In its announcement, HHS said in part:
The proposed rule would better align its grants regulations with federal statutes, eliminating regulatory burden, including burden on the free exercise of religion.
New York Times reports on the HHS action.
