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In response to a lawsuit filed by a foster youth and alumni group as well as LGBTQ service and advocacy organizations, a court has remanded and vacated a Trump-era policy permitting taxpayer-funded discrimination against people who receive services from HHS grant programs.
A federal district court on Wednesday rescinded a discriminatory Trump-era rule that prohibited the U.S. Department of Health and Human Services (HHS) from requiring that service providers in its $500 billion federal grants program not discriminate based on sex, sexual orientation, gender identity, religion, and other characteristics when providing HHS grant-funded services. Democracy Forward and Lambda Legal, along with pro bono co-counsel Cravath, Swaine, and Moore, LLP, filed a lawsuit challenging the rule in February 2021 on behalf of Facing Foster Care in Alaska, Family Equality, True Colors United, and SAGE. Wednesday’s order rescinds the rule completely and restores protections in the 2016 Rule.
Just over a week before it left power, the Trump administration finalized an unlawful rule that scrapped nondiscrimination protections, including an important clarification recognizing the Supreme Court’s marriage equality decisions. The Trump administration’s rollback of these protections left beneficiaries of and participants in federally funded programs vulnerable to discrimination on the basis of sexual orientation, gender identity, and religion. In February of 2021, HHS agreed to a court order that immediately stayed the effective date of the rule.
Vulnerable and traditionally marginalized populations — such as children in foster care, older adults, youth experiencing homelessness, and families navigating the child welfare system — have been and, under this Rule, would have been subject to discriminatory practices from taxpayer-funded service providers and programs. Such discrimination harms beneficiaries, imposes additional barriers to service, causes significant economic costs, undermines HHS’s mission to enhance the health and well-being of all Americans, and will lead to worse outcomes in HHS programs.
“We are thrilled that the court has removed the continuing threat the presence of the discriminatory Trump-era rule posed to some of the most vulnerable members of society, including LGBTQ+ children, seniors, and people with low income, who rely on federally funded programs to meet their basic needs. 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.” said Currey Cook, Senior Counsel and Youth in Out-Of-Home Care Project Director at Lambda Legal. “This week, the court took an important step on the heels of HHS’s acknowledgment of a flawed process that violated important procedural safeguards ensuring that comment by the public is meaningfully considered.”
“There was simply no excuse for the Trump administration’s unlawful policy sanctioning taxpayer-funded discrimination against people who receive services from HHS grant programs, including youth and families in the child welfare system, youth experiencing homelessness and older adults, among other vulnerable populations,” said Kristen Miller, Senior Counsel at Democracy Forward. “While today's victory is a step in the right direction, the Trump-era decision not to enforce the lawful 2016 rule has not yet been reversed. Lambda Legal and Democracy Forward will continue to challenge the non-enforcement policy until all persons receive the protections of the law."
Read more about the case: Facing Foster Care in Alaska v. HHS
Americans United for Separation of Church and State and Lambda Legal, together with the law firm Orrick, Herrington & Sutcliffe LLP, today declared victory on behalf of Kelly Easter, an East Nashville, Tenn., woman who for more than two years had been denied the opportunity to foster refugee children through a federally funded program solely because she is a lesbian. After she filed a federal lawsuit, Easter v. HHS, the taxpayer-funded agency involved – the U.S. Conference of Catholic Bishops (USCCB) – told the federal government it no longer has a religious objection to working with a single lesbian foster parent and has allowed Easter the opportunity to provide a safe and loving home for refugee children.
Because Easter is now being allowed to participate in the program through the U.S. Office of Refugee Resettlement (ORR), she is voluntarily dismissing her case for the time being against the U.S. Department of Health and Human Services and several HHS officials in the U.S. District Court for the District of Columbia.
Camilla Taylor, deputy legal director for litigation at Lambda Legal:
“The federally funded child welfare agency finally has allowed Kelly to apply to foster a refugee child, and she is in the process of becoming licensed. While we are glad that Kelly is now permitted to participate in a federal program and a refugee child may find a loving home with her, it is a shame that USCCB and ORR fenced her out for almost two years, and required her to file a lawsuit before determining that USCCB’s religious objections to her identity were flexible. Two years is a long time for a refugee child without a loving home. Congratulations to Kelly for overcoming discriminatory obstacles, and for her tenacity in pursuing her dream of providing a safe and loving home for a child in need.”
Rachel Laser, president and CEO of Americans United:
“This is a win for religious freedom, Kelly Easter and the vulnerable refugee children she’ll now be able to help. But it’s a victory that should not have taken two years to achieve. The federal government should never allow a taxpayer-funded agency to discriminate against prospective foster parents because they don’t live according to its religious beliefs. Our laws cannot allow anyone to use their religious beliefs to harm others, and especially not vulnerable children and the commendable people like Kelly who want to help them.”
Plaintiff Kelly Easter:
“Providing a loving, nurturing home for a refugee child is my desire. All qualified individuals, regardless of their sexual orientation, should be encouraged to adopt, so these children may receive the best possible chance at finding a stable home. This is what I’ve wanted all along.”
While this is a victory for Easter, it’s only a partial win in the fight to ensure the federal government does not continue to sanction or enable discrimination against prospective LGBTQ foster parents by organizations that receive taxpayer funds to care for unaccompanied refugee children. USCCB’s policy may now permit single LGBTQ parents to foster children, but the agency still discriminates against married same-sex couples like Fatma Marouf and Bryn Esplin. The couple was rejected by a USCCB sub-grantee in Texas because, as a married same-sex couple, they didn’t “mirror the Holy Family” as the agency requires. Lambda Legal and Americans United also represent Marouf and Esplin in the federal lawsuit Marouf v. HHS.
The Easter v. HHS lawsuit was filed in October 2021 against the U.S. Department of Health and Human Services, along with several HHS officials and programs.
Kelly Easter wishes to become a foster parent for a child in a federal foster care program for immigrant children. Her 2020 inquiry to the U.S. Office of Refugee Resettlement (ORR) was directed to the only entity participating in the program in her area: Bethany Christian Services, a sub-grantee of the USCCB, which receives federal funds to provide foster care services. Bethany refused to permit Easter to apply to be a foster parent solely because she is a lesbian.
Easter reported this discrimination to ORR. When Bethany’s national leadership announced in 2021 that it had changed its policy and would now accept LGBTQ families, Easter again attempted to apply. However, a representative from Bethany informed her that she still would not be permitted to apply to the program near her home because Bethany operates that program as a sub-grantee of USCCB, which continued to exclude LGBTQ foster parent applicants from participation. In late February 2022, USCCB informed the federal government that Easter’s exclusion had all been a misunderstanding and it will now work with single LGBTQ foster parents.
For years the federal government had known that USCCB discriminates and requires its sub-grantees to discriminate against LGBTQ foster parent applicants, reducing the number of available homes for children in need, and sending a damaging message to LGBTQ adults and children alike that there is something wrong with their families. Yet HHS officials continue to enable and sanction this discrimination against married, same-sex couples.
In addition to the U.S. Dept. of Health and Human Services, also named as defendants in Easter v. HHS were ORR and the Administration for Children and Families, as well as HHS Secretary Xavier Becerra, ACF Acting Assistant Secretary Jooyeun Chang and ORR Director Cindy Huang.
The legal team representing Kelly Easter includes, at Lambda Legal, Camilla B. Taylor, Karen L. Loewy and M. Currey Cook; at Americans United, Richard B. Katskee and Kenneth D. Upton, Jr.; and at Orrick, Herrington & Sutcliffe LLP, Seth Harrington, Daniel A. Rubens and Andrew D. Silverman.
Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people, and everyone living with HIV through impact litigation, education, and public policy work.
Americans United is a religious freedom advocacy organization based in Washington, D.C. Founded in 1947, the nonprofit organization educates Americans about the importance of church-state separation in safeguarding religious freedom.
In this Q&A, we hear from Alan and Carlos McMillian on what it means to be fathers of a 12-year-old son, Julian, whom they adopted from Arizona’s foster care system.
Alan and Carlos started their journey to fatherhood in 2015 by first opening their home to children in foster care, making the most of these short-term parenting opportunities. Wanting to grow their family permanently, they decided to volunteer at a Children’s Heart Gallery event in 2018.
The Children’s Heart Gallery is run by the Arizona Department of Child Safety in an effort to help children in foster care find their forever home when their birth parents’ rights are severed. There are more than 13,200 children (ages 0-18) in our state’s foster care system with more than 1,300 up for adoption. Unlike private adoption, adopting through the state costs little to no money and comes with additional assistance and resources for parents.
During the Children’s Heart Gallery event, the McMillians served as a guide for one special boy who captured their hearts. After months of team meetings, phone calls, and lots of nerves, they officially adopted their son — becoming forever fathers at last.
What does being a father mean to you?
Alan: It’s about being there for your child. There to love, support, and keep them safe. There to share knowledge and experiences. There to equip them to be their very best person.
Carlos: Being a father means giving all the things that make me good and passing them on to my kiddo, with hopes he can be even a better person than me.
Did you always want to be a father?
Alan: After becoming involved in the foster/adoption program, there were many days when I thought fatherhood wouldn’t be possible. Trying to find a potential match and getting through the selection process takes time. There were several times when we expressed interest in a child and weren’t selected, but we hung in there and ultimately entered fatherhood two years ago.
Carlos: For sure. Growing up, I never saw other families that had two dads or two moms. Everything I was taught about family had both a mother and father figure. For a long time, I couldn’t see past that. Thankfully with support from friends and family, I did.
Was there ever a time you worried fatherhood wouldn’t be possible?
Alan: I have always looked forward to being a father, but in the back of my head, I felt the timing wasn’t right. Things finally aligned, and we jumped at the opportunity.
Carlos: I did, but ever since I was young, I had hopes of having my own family — complete with kids.
What do you wish others knew about fatherhood?
Alan: Being a father is a lot of hard work — especially if you’re doing it right! But it is very rewarding, and it makes my heart beat faster every time I hear him call me “Pops!”
Carlos: If you have the opportunity to become a father, just do it. Fatherhood can be tough, and I think, as a gay man, it has its own set of unique challenges as modern values of masculinity color so many things in life. As a gay parent, we constantly have to retell the narrative our son hears at school, sometimes about what family looks like or what dad and mom are supposed to look like. Fatherhood can be heartbreaking at times but also one of the best feelings in the world! I see myself and my husband as my son’s ultimate protector.
Is there anything special you do on Father’s Day? How do you like to celebrate?
Alan: Spending the day together has been great for me. My son is always excited for Father’s Day. He puts thought into what he wants to do for us, planning ahead to ensure he has Father’s Day cards and gifts. Last year he even cooked breakfast!
Carlos: We celebrate, of course, but are still in the process of establishing traditions. Father’s Day is a strange holiday for me because I don’t feel like I need to be celebrated as a Father. I feel like we are the lucky ones to have found our son. So, I like to think of Father’s Day as a “Family Day” where we celebrate each other!
What’s your favorite thing about being a dad?
Alan: I think the best thing about being a dad is having the opportunity to guide him through life, to share adventures and make memories.
Carlos: I love our family time when it’s all of us, but I also selfishly enjoy the one-on-one time he and I get to spend together — being able to show him new experiences and seeing him smile as he experiences the world.