Job protection and adoption options for LGBTQ community are being targeted 

This fall hasn’t been a promising one for the LGBTQ community as the administration of Donald Trump continues its path of destruction. The most recent attack has come in the form of a proposal that would allow government-funded, faith-based adoption agencies to deny LGBTQ families the right to adopt children.

As with much of the Trump administration’s moves against LGBTQ rights, this newest proposal rolls back protections put in place by the Obama administration in 2016. The Department of Health and Human Services made the announcement on November 1, 2019. It would apply federally-funded foster care and adoption agencies.

South Carolina is already operating under the new rule, having been given a waiver from the Trump administration. The Obama rule prohibited discrimination on the basis of marital status, sexual orientation, or gender identity from adoption agencies receiving federal money.

In a statement, HHS said, “the proposed rule represents the Trump administration’s strong commitment to the rule of law: the Constitution, federal statutes, and Supreme Court decisions… These require that the federal government not infringe on religious freedom in its operation of HSS grant programs and address the impact of regulatory actions on small entities…(the rule is to guarantee) the protection of religious liberty.

“Children should never be denied the opportunity to join a stable, loving family—even if that means the family is LGBTQ. Research has shown LGBTQ families provide the same kind of love, protection, and support as other families, and no child should be denied that kind of environment,” Sarah Kate Ellis, the president GLAAD. “The Trump Administration has once again demonstrated how they prefer to prioritize the gross work of anti-LGBTQ activists over the safety and well-being of our children.”

Despite a campaign trail statement that he was a fervent supporter of the LGBTQ community, Trump has proven to be anything but an ally. Earlier this year, during the National Prayer Breakfast in February, Trump told those gathered that, “my administration is working to ensure that faith-based adoption agencies are able to help vulnerable children find their forever families while following their deeply held beliefs.”

While that policy is damning in and of itself, there are worse implications that will have a horrific impact on transgender citizens. According to a press release from the National Center of Transgender Equality, the rule will also allow “anti-transgender discrimination in HIV and STI prevention programs, opioid programs, youth homelessness services, health professional training, substance use recovery programs” amongst other crisis services.

“This rule is an abuse of taxpayer dollars in the name of empowering hatred and bigotry toward society’s most vulnerable members,” Mara Keisling, Executive Director for the NCTE, said in a statement. “Stigma and prejudice are fueling a public health crisis among transgender people across the country, one that manifests itself as suicide, addiction, intimate partner violence, and HIV. Enabling providers of life-saving services to worsen these crises by rejecting transgender people is a moral crime and a severe abdication of HHS’s mission to preserve public health.”

The American Civil Liberties Union (ACLU) is suing the administration over the new rule, filing suit in Greenville Federal Court against HHS and the state of South Carolina. The suit is on behalf of a family who was rejected by Miracle Hill Ministries, a South Carolina adoption agency run by an Evangelical Christian group.

“Families who are rejected by an agency because of their faith or sexual orientation may not have other options in their area,” ACLU Deputy Director Leslie Cooper said in a statement. “Even if they do, the sting and humiliation of discrimination may deter some from approaching other agencies to possibly face more discrimination.”

Earlier in the fall, the Supreme Court heard oral arguments on two cases that could have significant impact on thousands of LGBTQ employees. At issue is Title 7 of the Civil Rights Act of 1964, which bans discrimination based on sex. Currently it also applies to sexual orientation and gender identity. Lower courts over the past few years have said that it does. But lawyers for the Trump administration, as well as various religious groups, say it does not. One of the two cases is based on gender identity, with Aimee Stephens having been fired from her job as a funeral director for being transgender. The other case is based on sexual orientation involving a fired sky diving instructor, who has since died, and a government worker in Georgia.

Noel Francisco, the U.S. Solicitor General, in oral arguments said that using Title 7 to bar employment discrimination “would expand the scope of liability without giving any consideration to those religious liberty interests on the other side of the balance.” He has since said he believes Congress should make the change, not the courts. (Congress has debated this issue several times in the past, but has declined passing bills that would add sexual orientation to the list of “protected traits” under the law).

The conservative justices expressed concerns that a win in favor of the LGBTQ community would endanger men’s and women’s restrooms, dress codes, and fitness tests. The four liberal justices denounced the firings of all three individuals, saying that all should have been protected by the ban on sex discrimination.

“We can’t deny that homosexuals are being fired merely for being who they are and not because of religious reasons, not because they are performing their jobs poorly,” Associate Justice Sonia Sotomayor said.

Federal appeals courts have been split on this issue since 2017, when the U.S. Court of Appeals for the 7th Circuit was the first to rule that gay men and lesbians should be covered by the 60-year-old law. The 2nd Circuit in New York ruled in favor of Donald Zarda, the deceased sky diving instructor, and the 6th Circuit in Cincinnati ruled in favor of Stephens. However, the Atlanta-based 11th Circuit ruled against Gerald Bostock, the government worker.

More than 200 companies are on the side of the employees, stating, “the U.S. economy benefits from a diverse workforce.” On the other side, religious organizations support the employers, along with the U.S. Conference of Catholic Bishops says that a win in favor of the LGBTQ community could adversely affect faith-based schools, health care providers, and homeless shelters.

The Supreme Court decision is expected next summer, during the thick of the 2020 race for the White House.