HHS Sued Over Non-Enforcement of LGBTQ Anti-Discrimination Rules

As previously reported, last November the U.S. Department of Health and Human Services announced actions that effectively allow agencies receiving HHS grants 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. HHS then issued a Notice of Proposed Rulemaking that would repromulgate the rules with narrower anti-discrimination protections. Yesterday, a lawsuit was filed in a New York federal district court challenging the legality of the Notice of Non-Enforcement.

The complaint (full text) in Family Equality v. Azar, (SD NY, filed 3/19/2020) contends that the Notice of Non-Enforcement violates the Administrative Procedure Actin three ways. It was promulgated without notice-and-comment rule making. It was based on a mistaken determination that the 2016 original non-discrimination rule did not comply with the Regulatory Flexibility
Act. HHS failed to consider alternative remedies, the costs and benefits of their decision, and the public interest.  Lambda Legal issued a press release announcing the filing of the lawsuit, saying in part:

As the coronavirus pandemic continues to spread rapidly throughout the U.S., LGBTQ individuals of all ages are left vulnerable by the Trump administration’s illegal action, which implicitly permits discrimination when providing critical services.