Report: Trump Policy Enabled Discrimination Against LGBTQ+ Families

The Department of Health and Human Services has been systematically discriminating against LGBTQ+ families in federally supported foster care programs, according to a new report from the U.S. House Ways and Means Committee.

The report comes as the Supreme Court has set a date to hear oral arguments on whether agencies that receive taxpayer funds can discriminate in adoption and foster care services. That case, to be heard November 4, involves a Catholic agency whose contract was terminated by the city of Philadelphia because of the agency's anti-LGBTQ+ policy.

The discrimination documented by the Ways and Means Committee originated with a waiver from antidiscrimination policy granted to South Carolina in January 2019 but didn't stop there, states the report, titled "Children at Risk: The Trump Administration's Waiver of Foster Care Nondiscrimination Requirements." As soon as the waiver was OK'd, an investigation into discrimination was launched by two Democratic congressmen, Worker and Family Support Subcommittee Chairman Danny K. Davis and then-Chairman of the Subcommittee on Oversight, the late John Lewis.

"The Trump administration has repeatedly sought to limit the rights and freedoms of LGBTQ Americans, and with today's report, Chairmen Davis and Lewis have exposed that the waiver HHS granted to South Carolina is part of that pattern of discrimination," Ways and Means Committee Chairman Richard E. Neal said in a press release Wednesday.

"While Chairman Lewis is sadly not with us to see the final outcome of his investigation, the revelations he and Chairman Davis uncovered are the direct result of these leaders' fierce commitment to protecting young people from harm. I applaud the Oversight and Worker and Family Support Subcommittees' relentless fight on behalf of the most vulnerable children in our foster care system, and I hope that the findings and recommendations in this new report will lead to the withdrawal of the South Carolina waiver and ensure that in the future, federal foster care funds are used in the best interest of young people, not to enable discrimination."

HHS agreed to allow South Carolina an exemption from a long-standing policy that "barred states from distributing federal funds to child welfare service providers that discriminated against potential foster parents, including discrimination on the basis of sex, sexual orientation, and gender identity," the report notes. The state's governor had requested the waiver on behalf of an agency called Miracle Hill, which "recruits foster parents and rejects other prospective foster parents exclusively based on religious status and sexual orientation," according to the report. It further states that the waiver was driven by Trump administration appointees who excluded child welfare experts from the process.

The report documents rejection of Jews, Catholics, and a same-sex couple as foster parents or mentors by Miracle Hill, which adheres to evangelical Protestant beliefs. The agency eventually said it would accept Catholics and Orthodox Christians, but only if they agreed to its doctrinal statement, which reflects some beliefs that may not be shared by these groups and explicitly rejects same-sex couples and LGBTQ+ individuals.

Such discrimination not only harms prospective parents who are LGBTQ+ but also LGBTQ+ youth, by placing them in homes where they are not affirmed, the report says. It also notes that LGBTQ+ adults are more likely than others to become foster parents, especially for older youth, and that LGBTQ+ youth are overrepresented in the child welfare system.

In November of last year, HHS announced a new rule that would allow similar religious exemptions in federally funded adoption and foster care services nationwide and said it would cease enforcing the existing antidiscrimination policy.

In the Philadelphia case, Fulton v. City of Philadelphia, the Trump administration's Department of Justice has filed a friend-of-the-court brief arguing that the city's policy violates the agency's religious freedom, therefore arguing for the agency's right to discriminate. The administration, through the DOJ's acting solicitor general, is also seeking to participate in the oral arguments, the Washington Blade reports. Friend-of-the-court briefs supporting the city's position are due Thursday. The city has won at the district and appeals court levels.

The American Civil Liberties Union, which has intervened in the Philadelphia case in support of the city, issued a statement on the case and the Ways and Means report. "The 440,000 children in our nation's child welfare system need every qualified family that is willing to open up their homes to care for them," said Ian Thompson, the group's senior legislative representative. "There's no reason families who are LGBTQ, Catholic, Jewish, Muslim or otherwise don't meet an agency's religious test should be turned away from being foster parents. We appreciate the work of the Ways and Means Committee to shine a light on this unconstitutional discrimination enabled by the Trump administration and hope the Supreme Court will agree that there is no license to discriminate in our Constitution."