On February 10, the Department of Health and Human Services (HHS) agreed to a court order halting the Trump-era License to Discriminate rule, one day before it would have gone into effect. This rule, first introduced in November of 2019, would have rescinded regulations that provided blanket non-discrimination protections from HHS-funded programs. Without those protections, child welfare providers using taxpayer funds could have turned away eligible foster and adoptive parents simply because of their religion, sexual orientation, or gender identity and discriminated against the children they are meant to serve on the basis of sexual orientation or gender identity.
The License to Discriminate rule is callous and despicable. LGBTQ+ youth are disproportionately represented in foster care, often being brought into the child welfare system due to abuse they faced because of their sexual orientation or gender identity. They are far more likely to face harassment within the system than their non-LGBTQ+ peers and, as a result, have worse outcomes. Allowing taxpayer-funded discrimination against them is antithetical to their well-being and goes against the cardinal rule of child welfare: that the best interests of the child must always be paramount.
Further, at a time when children are being forced to sleep on cots in the CPS office because there are not enough foster families willing to take them in, turning away people who want to provide loving, stable homes is unconscionable. This is especially true given the fact that the very families that are being turned away are the ones who are more likely to take in the children deemed “hard to place,” including LGBTQ+ youth, older youth, and sibling groups. The system’s inability to meet their needs already leads these youth to be more likely to be placed in unnecessary institutional care and to age out of the child welfare system. We need to be recruiting more homes for these children, not turning them away. CDF strongly opposes discrimination of any kind and has stood against this rule since it was proposed.
The court order was issued in response to a lawsuit filed by Lambda Legal, Democracy Forward, and Cravath, Swaine & Moore LLP on behalf of Facing Foster Care in Alaska, Family Equality, True Colors United, and SAGE. We applaud the leadership of these groups and are thankful that the Biden Administration halted the rule. The court order stays the rule for 180 days, during which we hope and expect the Administration will do the right thing and rescind this callous rule entirely. We can—and must—do better for children.