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January 01, 2020

HHS proposes eliminating nondiscrimination protections in grant regulations

ABA expresses concerns about potential impact on child welfare system

On November 19, 2019, the Administration released a Notice of Proposed Rule Making that would cease enforcement of non-discrimination rules in Health and Human Services (HHS) grant programs. HHS administers around $500 billion in grant funding for programs annually, some of which funds child welfare and adoption services across the country. Current regulations prohibit discrimination by HHS grantees in the administration of these grants. However, HHS has proposed removing that nondiscrimination language which may result in federal funds being used to discriminate against children in foster care and against families who seek to provide foster or adoptive care.

Religion, sexual orientation, and gender identity are not protected classes in federal child welfare statutes. If the nondiscrimination language is removed, children in state custody could be denied the services they need by grantees that contract with state child welfare agencies on factors such as sexual orientation and gender identity. Stripping protections against nondiscrimination from the process is not only potentially harmful, it contradicts prior policy guidance from HHS regarding the importance of supporting lesbian, gay, bisexual and transgender, queer, or questioning (“LGBTQ”) youth, as well as a trove of training and technical assistance information on the topic from HHS’s Children’s Bureau. 

The American Bar Association has long supported all individuals’ rights to be free from discrimination through a variety of association policies and resolutions. Most recently, ABA Midyear Resolution 113 (2019) opposed “laws, regulations and rules that discriminate against LGBT individuals in the exercise of the fundamental right to parent.”

On December 16, 2019 the ABA submitted a public comment to HHS expressing concern with the agency’s decision to eliminate anti-discrimination rules designed to support children and families in the context of foster care and adoption. The ABA urged HHS to withdraw the proposed rule changes because they will cause harm to children and families and are inconsistent with child welfare law and the Administrative Procedure Act.

There are currently 440,000 children in the foster care system in the United States, 117,000 of whom cannot safely return home and are waiting to be adopted. Approximately 20,000 of these kids will become adults without finding an adoptive or permanent home. Children in foster care are disproportionately LGBTQ, with one study finding that 30.4% of youth in foster care identify as LGBTQ and 5% as transgender, compared to 11.2% and 1.17% of youth not in foster care.  LGBTQ children needing services also have worse outcomes than their non-LGBTQ peers in terms of  higher rates of placement in group homes, juvenile justice involvement, psychiatric hospitalization, and homelessness. 

Simultaneously, LGBTQ people are an underutilized resource for foster and adoptive placements. LGBT individuals and LGBT parents are significantly more likely to be raising adopted or foster children. Limiting the number of homes and families for youth in state custody because of discrimination, particularly when there are many LGBTQ youth in foster care and LGBT individuals are more likely to foster and adopt children, makes no sense.

Want to know more?  Follow us @ABAGrassroots to watch for further developments.