The Biden administration took a major step toward reversing some discriminatory Trump-era policies this week by overturning a rule allowing foster care agencies to refuse services to queer and trans prospective parents.
The Department of Health and Human Services (HHS) announced on Thursday that it would be withdrawing waivers granted to three states allowing them to bypass federal U.S. nondiscrimination policy. In order to receive federal funding, foster care agencies are required to affirm that they do not discriminate against prospective parents based on their identities, which can include interfaith couples, Muslim parents and unmarried applicants, as well as LGBTQ2S+ people.
Biden’s HHS claimed in a statement that the waivers issued to agencies in Michigan, South Carolina and Texas are “inappropriate,” “unnecessary” and “inconsistent with the department’s critical goal of combating discrimination based on religion, sexual orientation and gender identity.”
“Today’s action supports the bedrock American principle and a core mission of our department—to ensure Americans have access to quality health and human services,” said HHS secretary Xavier Becerra, who was appointed to lead the federal agency in December. “Our action ensures we are best prepared to protect every American’s right to be free of discrimination.”
Among the agencies who had requested to skirt federal nondiscrimination policy is Miracle Hill, South Carolina’s largest provider of foster care and adoptions. In order to foster a child through its network, prospective parents are forced to sign a “doctrinal statement” affirming that “God’s design for marriage is the legal joining of one man and one woman in a life-long covenant relationship,” as the LGBTQ2S+ publication NewNowNext previously reported.
Advocacy groups hailed the Biden administration for putting an end to the Trump-era loopholes issued under the Religious Freedom Restoration Act, which date back to 2019. Rachel Laser, president and CEO of Americans United for Separation of Church and State, calls the move a “critical first step.”
“The Department of Health and Human Services should never allow taxpayer-funded foster care agencies to apply a religious litmus test to discriminate against Catholic, Jewish, LGBTQ and other families who want to help children who are in foster care,” Laser said in a statement. “The Religious Freedom Restoration Act was never intended to be used to allow discrimination against participants in government-funded programs or to grant sweeping exemptions to social service providers to ignore civil rights laws.”
Others cautioned that the reversal of Trump-era policy does not mean the end of discrimination against LGBTQ2S+ parents in the U.S. foster care system. HHS claimed that the department would return to its “longstanding practice of a case-by-case evaluation of requests for religious exemptions” but did not state how future requests would be evaluated.
Lambda Legal is an LGBTQ2S+ advocacy group that challenged the Trump administration’s stance on foster care in court. In a statement, the group’s CEO, Kevin Jennings, says it’s an “essential baseline that HHS will no longer be granting blanket licenses to discriminate for child welfare agencies” but affirmed that more work remains to be done.
“As our cases make clear, HHS is still not rigorously enforcing non-discrimination requirements that are critical to protect vulnerable LGBTQ young people, seniors, and others who need its assistance,” Jennings said. “Make no mistake. Our work will continue until every LGBTQ person can access federally-funded services without fear of discrimination.”
The Biden administration’s decision will not affect other forms of discrimination impacting LGBTQ2S+ people seeking to provide a home to vulnerable youth. In October, Lambda Legal filed a lawsuit on behalf of Kelly Easter, a Tennessee woman who was blocked from fostering a refugee child because she is a lesbian. Bethany Christian Services, which oversees the local program in Easter’s area, agreed in March to end its longstanding policy of turning away LGBTQ2S+ prospective parents but has continued to deny Easter’s requests.
According to NBC News, Bethany Christian Services receives funding from the U.S. Conference of Catholic Bishops (USCCB), a national Catholic leadership organization. The USCCB, which came under fire earlier this year after opposing a nationl suicide hotline for being LGBTQ2S+ inclusive, receives federal funding from the U.S. government.
An October report from The Williams Institute, a pro-equality think tank at the University of California, Los Angeles, found that same-sex couples are seven times more likely to foster or adopt than opposite-sex households.
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