As we rounded the corner into the new year, many of us were hopeful that 2021 would bring about some sort of relief from the chaos and hardship caused by the infamous 2020. Unfortunately for the LGBTQ community, however, the feeling of optimism was short-lived, as not even two weeks into the new year, LGBTQ protections were erased with a simple stroke of a pen. In the eleventh hour of the Trump administration, the Department of Health and Human Services (DHHS) finalized a rule which substantially impacts the LGBTQ community’s rights to foster or adopt. The rule, previously set to take effect on Feb. 11, allows federally funded social-service providers, such as adoption and foster care agencies, to discriminate on the basis of sexual orientation and gender identity.
How is the government able to accomplish such a devastating blow? DHHS has stated that the previous Obama administration regulations, which barred such discrimination, are not based on statutes and that President Barack Obama’s former policy was a violation of the First Amendment and the Religious Freedom Restoration Act. The rule states in part, “[g]iven the careful balancing of rights, obligations, and goals in the public-private partnerships in Federal grant programs, the Department believes it appropriate to impose only those nondiscrimination requirements required by the Constitution and federal statutes applicable to the Department’s grantees.” Simply put, only the protected classes specified by Congress or the Constitution make the cut. The rule references Title VI of the Civil Rights Act, for example, which prohibits discrimination on the basis of race, color and national origin, but does not prohibit discrimination on the basis of religion or sex.
Therefore, the rule allows child placement agencies who receive federal funding to prevent same-sex couples from adopting or fostering on the basis of their sexual orientation or gender identity, despite being otherwise qualified. Not only do such restrictions eliminate certain agencies as a viable option for LGBTQ couples to grow their families, but many children who may have been placed with LGBTQ families (either temporarily or permanently) no longer have that opportunity.
While it appears that in one fell swoop the Trump administration effectively limited LGBTQ couples’ ability to foster or adopt, there is a glimmer of hope that such obstructions will be broken down under the Biden administration. President Joe Biden has vowed to enact the Equality Act within 100 days of being sworn into office — April 30, to be exact. Such legislation will amend the Civil Rights Act of 1964, prohibiting discrimination on the basis of sexual orientation and gender identity. Though it is unclear if Biden will be able to accomplish such a feat within the desired timeframe, he has already shown his commitment to overturning legislation, rules and regulations enacted by the former administration which affect the rights of those within the LGBTQ community.
On Jan. 20, Biden’s chief of staff, Ronald Klain, issued a memorandum to the heads of all executive agencies and departments. Such memorandum set forth that all rules that have been published in the Federal Register but that have not yet taken effect, such as the new DHHS rule, will be postponed for a period of 60 days to allow for additional review under the new administration. Thereafter, on Biden’s first day in office, he issued an executive order which built on the landmark Supreme Court decision in Bostock v. Clayton County, a ruling that the Trump administration rejected in part. The executive order calls for each federal agency head to “review all existing orders, regulations, guidance documents, policies, programs or other agency action” and consider whether revisions, suspension or rescissions are necessary to implement statutes that prohibit discrimination on the basis of sexual orientation and gender identity.
While the actions taken by the Biden administration appear to be a step in the right direction, the executive order does not set forth a concrete timeline that such agencies have to review and/or revise any existing orders, regulations, guidance documents, policies, programs or other agency actions. As a result, the LGBTQ community is in a state of limbo until the DHHS rule, implemented at the beginning of this year, can be properly reviewed and the intended meaning of the Bostock ruling — extending the definition of discrimination on the basis of sex to include sexual orientation and gender identity — can be carried out.
Overall, though 2021 may not have started out the way we envisioned, we can find solace in the measures that have been taken by the Biden administration so far to restore and extend protections to the LGBTQ community. As the year progresses, we can look forward to watching as the new administration continues to address longstanding discrimination against individuals, specifically, on the basis of sexual orientation and gender identity — including those who have been affected by the DHHS rule.
Kariss Frank is a family law attorney in practice with Sodoma Law in Charlotte, N.C.
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