n the closing weeks of the Obama administration, the federal Department of Health and Human Services (HHS) put in place a change to one of the regulations that apply to all of its grants, adding the requirement that all of its grantees must not discriminate on the bases of religion, sexual orientation, or gender identity, among other characteristics. There was no exemption for religious organizations.
The Trump administration, arguing that the regulatory change had not been made properly and that the nondiscrimination requirements are not justified by any law, in its closing weeks finalized a change–the regulation was now simply to stress that grantees must follow all nondiscrimination requirements required by law. The effect of the revised regulation was to modify the religion nondiscrimination requirement and end the ban on sexual orientation and gender identity discrimination.
The Trump changes were to come into effect on February 11, 2021–a few weeks after the Biden administration began. This was one of a number of late Trump regulatory changes that the new administration paused and then, in many cases, stopped (Congress also stopped some regulations through a special process it can use). The judge in a federal court case has several times extended the date when the regulation will become effective, while the administration decides whether or how it will challenge it. In the meantime, an earlier stop-gap Trump administration action to pause enforcement of the Obama regulation remains in effect.
In related action, the Biden administration has reversed an earlier Trump administration work-around of the Obama regulation. When, in 2016, officials in South Carolina moved to exclude a Christian foster care agency from HHS funding because the agency required the parents it worked with to be professing Christians, the South Carolina governor sought for and received a waiver from the application of the nondiscrimination regulation. Trump officials agreed that the Religious Freedom Restoration Act (RFRA) applied to the issue and that RFRA required that the Christian agency be able to receive the HHS funding despite its religion-based practices that violated the Obama regulation. Two other states also received a RFRA-based waiver.
But the Biden administration has now withdrawn those waivers. It accepts that RFRA may in some circumstances permit a religious organization to continue to receive HHS funding despite not following all regulations, but argues that RFRA requires a case-by-case evaluation and not a blanket exemption for all religious organizations in a state.
So what is the status of the Obama broad nondiscimination requirement applied to all HHS grants? Confused and subject to change. IRFA’s advice is that Congress should pass, and then HHS and other agencies should put into practice, a both-and policy that would protect both LGBT beneficiaries and the participation of faith-based organizations in federal funding programs. The Fairness for All Act that has been introduced into Congress (H.R. 1440) provides a workable way forward. A carefully designed set of rules like this is far better than subjecting faith-based organizations, and the people they wish to serve, to the off-on-off set of regulations and waivers coming out of HHS.