The Biden administration on Tuesday proposed expanding nondiscrimination protections related to sexual orientation and gender identity to some federal grant programs providing human services.
While most of the Department of Health and Human Services’s purview covers health care, such as the Centers for Disease Control and Prevention or the National Institutes of Health, those health programs and services, said Melanie Fontes Rainer, the director of HHS’ Office of Civil Rights, are covered under a provision of the 2010 health law preventing discrimination based on factors like sex, race and national origin.
The new rule would focus on human services, such as some of the HHS programs covered by the Administration for Children and Families including Head Start and services provided to homeless individuals, refugees and those experiencing substance use or mental health disorders. The rule would expand sex-based discrimination protections on the basis of gender identity and sexual orientation to those programs.
“This rule is really seeking to try to address that gap in civil rights protections by examining various authorities that the department has to different programs,” Fontes Rainer said in an interview with CQ Roll Call.
Sexual orientation and gender identity protections have faced a number of challenges, in part because of pushback from religious groups who have argued some of these policies violate longstanding religious freedom protections.
The Obama administration issued a rule in 2016 expanding its interpretation of sex-based discrimination under the 2010 health law to cover gender identity and gender expression in health programs. The Trump administration issued its own rules that relaxed that enforcement on health programs in 2020 and for grantees in January 2021.
Both the Obama-era and Trump-era rules have faced litigation.
Fontes Rainer said the new proposal takes a different approach by citing precedent under the 2020 Supreme Court case, Bostock v. Clayton County, which prohibits work-based discrimination based on sexual orientation or gender identity.
She said the department has looked closely at its various authorities to find where it has the authority to enforce nondiscrimination protections related to sexual orientation and gender identity in human services programs.
“Under previous iterations there were different attempts at doing that. All of those attempts, you know, are currently being litigated,” she said. “I think the attempt here is to try to do something that’s on solid, legal footing, and identify a specific program’s authorities that gives the public the opportunity to weigh in, you know, to the extent we miss some of those authorities.”
Unlike previous rules, she said, the proposed rule would also include a process for grantees to seek a religious exemption to the rule on a case-by-case basis. Rule violations would be subject to the same enforcement protocol as other Office of Civil Rights policies.
The rule will be in a public comment period for 60 days.
“I think the goal is to be very clear about what the department expects from grantees,” she said. “I think we have to be very strong and very clear about what the law says and how we’re going to enforce it.”
Anti-discrimination protections for foster youth would fall under a separate rule that HHS is pursuing under a separate track under a different authority.
“We have another rule that my office is working on, at some point this year, hopefully,” said Fontes Rainer. “This is one of the steps we’re working on in this space.”
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