While You’re Focusing on COVID-19, Trump Is Moving to OK Discrimination Against Gays and Others
The Trump administration isn’t so occupied with the pandemic that it has eased efforts to revive discriminatory government policies.
Now it has been taken to court over its refusal to enforce Obama-era rules against gender discrimination by a large swatch of organizations that get federal grants.
Trump’s Health and Human Services Department announced in November that it would no longer enforce an Obama-era rule prohibiting HHS grantees from discriminating against LGBTQ people.
About $1.4 trillion a year—a quarter of federal spending—flows through HHS. It administers Medicare and Medicaid, as well as Head Start, the old food stamp program now called SNAP and the Centers for Disease Control.
The lawsuit filed in Federal District Court in Manhattan by the Lambda Legal and Democracy Forward seeks protection for “some of the most vulnerable members of our society such as children in foster care, youth experiencing homelessness, and older people.”
The HHS decision to not enforce the Obama administration rules prohibiting bigoted actions by recipients of HHS grants removes critical protections and introduces substantial confusion among grant recipients regarding their legal obligations and the right of the populations they serve to be free from discrimination.
HHS also proposed to get rid of the 2016 rule which specified organizations receiving HHS financial support could not discriminate based on sexual orientation or gender identity. If the new rule is adopted it would essentially give HHS grantees free reign to discriminate against LGBTQ clients, say several people involved in the lawsuit.
“So here you have the Trump administration, which took a perfectly fine and good rule by the Obama administration, which prohibited taxpayer dollars, through the form of HHS grants, from being used to discriminate against LGBT people and other folks,” said Aaron Tax, director of advocacy at SAGE, a group representing older LGBTQ people and one of the three organizations represented in the lawsuit. “Here’s the Trump administration saying, we’re going to put a halt to that rule and greenlight discrimination with tax dollars.”
Older LGBTQ adults, many of whom have faced a lifetime of discrimination from their families of origin, social institutions and government programs can be wary of seeking support from government or other traditional assistance mechanisms, Tax said. The rule change “in a sense, it’s validating the fears of this population, that they can be discriminated against by federally funded aging services and supports,” which is especially dangerous in the era of COVID-19, he said.
But young people accessing HHS’s programming are overwhelmingly at risk, too.
“The Federal Government has a duty to protect the most vulnerable among us – especially with regard to our youth. By abdicating its responsibility to protect LGBTQ Americans from discrimination in accessing critical programs, HHS commits a grave violation against the people it exists to serve,” Gregory Lewis, the executive director and CEO of True Colors United, one of the groups involved in the lawsuit, said in a press release.
Puneet Cheema, a staff attorney with Lambda Legal, told DCReport that HHS’s reasoning for the nonenforcement and rule change was “blatantly false.”
“HHS claimed that the agency previously hadn’t complied with the Regulatory Flexibility Act” — designed to ease regulatory burdens on smaller businesses and organizations while still complying with those regulations and statutes — “in issuing the 2016 rule, but it clearly did,” Cheema said.
“It’s a falsehood,” she added, explaining that HHS would have been required to conduct an impact analysis on the burdens smaller organizations would face under the rule if it feared that those businesses and organizations would feel any impact at all.
No Public Comment
Cheema also told DCReport that the Trump administration’s proposed rule change violates the Administrative Procedure Act, which requires an agency to allow public comment on proposed rule changes.
“In this case, because the agency simply announced its decision, it tried to get around those requirements and provided no period for the public to comment on its decision,” Cheema noted. That means the Trump administration is doing what it falsely accused the Obama administration of – not following the law in making rules changes.
HHS did not answer DCReport’s questions about nondiscrimination enforcement and the proposed rule change.
However, in its release announcing the proposed rule change, HHS cited concerns about the nondiscrimination rules placing burdens on small businesses and infringing on religious freedom. “It’s been an organized and concerted effort by some organizations to use religion as a sword to be able to discriminate against LGBTQ,” Cheema told DCReport, though “it’s certainly not the only basis for discrimination.”
While the proposed rule change hasn’t gone into effect yet, Cheema said it may as well have, since HHS’s non-enforcement of its nondiscrimination rules already has.
“The risk of discrimination here is not hypothetical,” Cheema said. We have additional cases already in which HHS grantees or fund recipients have already discriminated against people who are LGBTQ, and this announcement just makes it more likely that grantees will do so, and do so more often.”
Featured image: Anti-gay protesters in Atlanta, 2017. (Project Q Atlanta)