In a move supported by the ABA, the Biden Administration has rescinded waivers granted by the prior Administration allowing states to use federal funding for contracts with social service providers who refuse to provide public services to individuals on the basis of sexual orientation and religion. In addition to granting these waivers, the prior Administration had promulgated regulations eliminating nondiscrimination language in regulations governing social services contracts, including in the provision of foster parent licensing services and child placement services in foster care.
The ABA had advocated to reverse the prior Administration’s actions, both granting the waivers and issuing regulations. A 2019 letter from then-ABA President Judy Perry Martinez to Alex Azar, secretary of the U.S. Department of Health and Human Services (HHS), urged the administration to withdraw the actions “because they will cause harm to children and families and are inconsistent with child welfare law.”
In her letter, Martinez cited longstanding ABA policies that support all individuals’ rights to be free from discrimination, as well as policy passed at the 2019 Midyear Meeting opposing laws and regulations that discriminate against Lesbian, Gay, Bisexual and Transgender (LGBT) individuals in the exercise of the fundamental right to parent.
According to recent research, LGBT individuals are significantly more likely to be raising adopted or foster children. One in five same-sex couples (21.4%) are raising adopted children compared to just 3% of different-sex couples, and 2.9% of same-sex couples have foster children compared to 0.4% of different-sex couples.
In Jan. 2021, the prior Administration finalized the rule, which was set to take effect Feb. 11, 2021, shortly after the Biden Administration took office. But on Feb. 2, 2021, a coalition of nonprofit and private sector organizations and attorneys challenged the rule in court. In response, the new Administration stayed the effective date of the rule, while a judge in the U.S. District Court for the District of Columbia also stayed the rule, so that it never took effect.
In an announcement Nov. 18, 2021, HHS rescinded the prior Administration’s waivers as well, stating it “will not condone the blanket use of religious exceptions against any person, or blank checks to allow discrimination against any person, importantly including LGBTQ+ persons in taxpayer-funded programs.”
Current ABA President Reginald M. Turner welcomed the Biden Administration’s decision. “Eliminating discrimination against foster parents, parents, kin and children and youth in care will help more adults provide supportive, stable homes for children and will help ensure children are also not discriminated against while in foster care,” Turner said. “The ABA stands with all families and all children and youth.”