Human Rights Campaign Hails Health & Human Services Decision To Rescind Discriminatory Waivers and Recalibrate Use of the Religious Freedom Restoration Act

by Delphine Luneau

Decision reverses Trump-era policy allowing federal funds to go to entities that turn away program beneficiaries for discriminatory reasons

The Human Rights Campaign (HRC) — the nation’s largest lesbian, gay, bisexual, transgender and queer (LGBTQ+) civil rights organization — praised the announcement Thursday by the U.S. Department of Health and Human Services (HHS) that it would rescind waivers granted to Texas, Michigan and South Carolina that allowed agencies in those states to disburse federal dollars to entities that claim religious exemptions as a pretext to discriminate against marginalized populations.

HHS is also reversing a Trump-era policy that centralized authority within the HHS Office of Civil Rights (OCR) for decisions relating to issuing waivers on the basis of the Religious Freedom Restoration Act. The Dec. 7, 2017, move to delegate that authority to OCR was part of an administration-wide effort to exert political pressure in favor of entities that claim religious exemptions as a pretext to discriminate against marginalized populations.

“These moves from the Department of Health and Human Services are great steps forward in putting a stop to discriminatory practices that far too many LGBTQ+ people and members of religious minorities currently face at the hands of federally funded organizations,” said JoDee Winterhof, Human Rights Campaign Senior Vice President for Policy and Political Affairs. “Putting these guidelines into practice will help ensure that everyday people who need to access important social services won’t be turned away on the basis of their sexual orientation, gender identity or religious affiliation.”

In the case of the South Carolina waiver, the state’s Foster Care Program contracted with a child welfare provider that refused to place children with Jewish families, a discriminatory practice that flies in the face of the intent of the Religious Freedom Restoration Act. The granting of such waivers opened the door to federally-funded discrimination against prospective parents, including single parents, LGBTQ+ individuals or same-sex couples, parents who may previously have been divorced, interfaith couples, or people of deep faith that happens to be of another religion. Such discrimination can also contribute to the ongoing overrepresentation of LGBTQ+ youth in the foster care system, a particularly vulnerable population.

The Human Rights Campaign has long argued that misuse of RFRA provisions in such a manner is inappropriate and contrary to the intent of the law. By ending the discretionary oversight of waiver requests by a single division, HHS will be ensuring that the agency avoids the kind of broad-based exemptions granted during the Trump years that made it particularly easy for some organizations to discriminate.

HRC believes that religious freedom is a fundamental American value, and protecting religious minorities from discrimination is entirely compatible with protecting LGBTQ+ people from discrimination. At the same time, religious freedom is not a license to deprive others of their civil rights. HRC this September praised the reintroduction in the U.S. Senate of the “Do No Harm Act,” which seeks to reassert the original intent of the RFRA and undo regulations and policies that have used RFRA to justify broad carve-outs to nondiscrimination protections.

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