Respect Equality

Service providers awarded HHS grants may not discriminate based on sexual orientation or gender identity, court rules

The ruling reverses a Trump-era rule that had prevented the Department of Health and Human Services from requiring that providers in its federal grant program not discriminate on the basis of sexual orientation, gender identity or other characteristics.
Health and Human Services Secretary Xavier Becerra speaks about actions the Biden administration plans to take in response to the Supreme Court’s decision to overturn Roe v. Wade, June 28, 2022, in Washington. (AP Photo/Patrick Semansky, File)

Story at a glance


  • The Department of Health and Human Services (HHS) may require service providers in its federal grant program to not discriminate based on sexual orientation, gender identity, religion or other characteristics, a court ruled this week.

  • The ruling is the result of a lawsuit filed on behalf of welfare groups alleging that revisions made to HHS’ grants rule under former President Trump exposed vulnerable populations to “unlawful discrimination.”

  • Under the Trump administration’s revised rule, entities like faith-based foster groups receiving federal grant money could obtain waivers that allow them to bypass nondiscrimination protections.

A federal district court Wednesday reversed a Trump-era rule that had prevented the Department of Health and Human Services (HHS) from requiring that service providers in its federal grant program not discriminate based on sexual orientation, gender identity or other characteristics.

The ruling stems from a lawsuit filed last year by Lambda Legal, the nonprofit Democracy Forward and the law firm Cravath, Swaine, and Moore, LLP on behalf of a group of plaintiffs that included foster care and youth homelessness organizations.

In a complaint filed last February, Facing Foster Care in Alaska (FFCA), Family Equality, True Colors United, and Services and Advocacy for GLBT Elders (SAGE) alleged that revisions made to HHS’ grants rule shortly before former President Trump left office in 2021 left vulnerable members of society “exposed to unlawful discrimination.”

ABOUT a week before President Biden was inaugurated, the Trump administration finalized a rule scrapping protections developed under former President Obama in 2016 that prohibited discrimination on the basis of “age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation.”


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Under the revised rule, entities like faith-based foster groups receiving HHS grant money could be given waivers allowing them to circumvent nondiscrimination provisions protecting same-sex or non-Christian couples.

“The Department believes that when faith-based organizations are permitted to participate consistent with their religious beliefs, there is greater availability of foster care and adoption services and placements,” HHS wrote in the 2021 rule.

The department late last year reversed the Trump-era policy, arguing that the waivers are inconsistent with its “critical goal of combating discrimination based on religion, sexual orientation, and gender identity.” HHS said it would return to its long-standing practice evaluating requests for religious exemptions, waivers and modifications of program requirements on a case-by-case basis.

This week, U.S. District Judge Jia M. Cobb formally closed the case.

“Beneficiaries and participants in HHS funded programs should have the basic expectation that they can access all services and care and do so without facing harm,” Currey Cook, senior counsel at Lambda Legal, said in a statement. “This week, the court took an important step on the heels of HHS’s acknowledgement of a flawed process that violated important procedural safeguards ensuring that comment by the public is meaningfully considered.”

Kristen Miller, senior counsel at Democracy Forward, said the former policy had sanctioned “taxpayer-funded discrimination” against people receiving care from HHS grant programs. She added that more work is needed to ensure that the Trump-era decision not to enforce the 2016 rule is completely reversed.

“Lambda Legal and Democracy Forward will continue to challenge the non-enforcement policy until all persons receive the protections of the law,” Miller said.