Biden administration reverses Trump-era waivers of nondiscrimination protections

The Biden administration is reversing Trump-era rules that allowed federally-funded child welfare agencies to bypass non-discrimination rules if they conflicted with providers' religious beliefs. 

The Department of Health and Human Services (HHS) on Thursday said it was rescinding waivers granted to three states that allowed faith-based foster care groups that contracted with state agencies to turn away same-sex and non-Christian couples while still receiving federal money.

At the time, Trump administration officials said they were protecting religious liberty by granting blanket waivers from nondiscrimination protections to South Carolina, Texas and Michigan — some of which did not even ask for such a waiver. The Trump administration argued those protections violated the Religious Freedom Restoration Act (RFRA).

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Civil rights advocates argued the waivers opened the door to federally funded discrimination against prospective parents, including single parents, LGBT individuals or same-sex couples, parents who may previously have been divorced, interfaith couples, or people who were followers of another religion.

In South Carolina, the state’s Foster Care Program contracted with Miracle Hill Ministries, South Carolina’s largest state-contracted, federally funded foster care agency. According to civil rights groups, in order to foster through Miracle Hill, a family must agree with Miracle Hill’s “doctrinal statement,” including “that God’s design for marriage is the legal joining of one man and one woman in a life-long covenant relationship.”

In rescinding the waivers, HHS said it was "restoring proper application of RFRA," by ensuring religious liberty is protected without using it as a shield for blanket discrimination.

"Today, HHS reaffirms its important commitment to core American values: HHS will not condone the blanket use of religious exemptions against any person or blank checks to allow discrimination against any persons, importantly including LGBTQ+ persons in taxpayer-funded programs," the agency said in a statement.

"The waivers are inconsistent with the Department’s critical goal of combating discrimination based on religion, sexual orientation, and gender identity."

HHS is also reversing a Trump-era policy that centralized authority within the HHS Office of Civil Rights for decisions relating to issuing waivers on the basis of the RFRA.