The House Ways and Means Committee issued a scathing, 34-page report this week accusing the Trump administration of “intentionally” harming LGBTQ Americans and violating a congressional mandate to act in the best interest of children by permitting South Carolina’s government-funded adoption and foster care agencies to turn away same-sex prospective parents.
The report, “Children at Risk: The Trump Administration’s Waiver of Foster Care Nondiscrimination Requirements,” called on the Department of Health and Human Services (HHS), led by Trump appointee Alex Azar, to immediately rescind the 2019 waiver granted to South Carolina.
“As subsequent Trump Administration actions confirm, HHS is using the South Carolina waiver as a harmful precedent beyond child welfare, essentially using vulnerable foster youth as test cases for its discriminatory policies across all HHS services,” the report, released by the Democratic-led committee on Wednesday, states.
The Health and Human Services Department, which regulates child welfare agencies, issued the waiver to Miracle Hill Ministries in January 2019 after South Carolina Gov. Henry McMaster requested an exception to the department’s nondiscrimination regulations. At the time, McMaster praised President Donald Trump for protecting the religious liberty of the evangelical Protestant organization, which handles up to 15 percent of the foster placements in the state.
The report says the department inappropriately issued the waiver and ignored child welfare experts in order to create a policy that “intentionally harms LGBTQ children, adults, and families.” It says that the waiver was not about ensuring religious freedom but was intended to target the LGBTQ community, and that the department withheld documentation regarding its motivations for the waiver.
House Ways and Means Committee Chairman Richard Neal, D-Mass., said the report exposes that the waiver is part of a “pattern of discrimination.”
“The Trump Administration has repeatedly sought to limit the rights and freedoms of LGBTQ Americans,” he said in a statement.“I hope that the findings and recommendations in this new report will lead to the withdrawal of the South Carolina waiver and ensure that in the future, federal foster care funds are used in the best interest of young people, not to enable discrimination.”
The department did not respond to NBC News’ request for comment.
‘Improper and unprecedented’
The report called the Health and Human Services Department’s reliance on the Religious Freedom Restoration Act of 1993 (RFRA), bipartisan legislation that aims to prevent governmental interference in the exercise of religion, “improper” and stated that the department’s use of the law “set a harmful precedent.”
“In seeking to remove nondiscrimination requirements applicable to Miracle Hill, the agency relied on a broad regulatory exception that had never been used for a foster care rules waiver,” the report states, noting that researchers could not find any other instances of the department selectively waiving federal grant requirements.
According to the report, by waiving nondiscrimination requirements, the department places a “higher value on Miracle Hill’s rights as an organization under RFRA than the civil rights of individuals.”
Religious freedom or discrimination?
Despite public justifications for the waiver that cited religious liberty as the primary motivation, congressional researchers found internal department documentation that suggested some staff thought of the waiver as an LGBTQ issue and knew it would hurt LGBTQ youth and same-sex prospective parents.
In May, Roger Severino, director of the Health and Human Services Department's Office of Civil Rights, told NBC News that by issuing the waiver, the department has “granted relief to faith-based adoption agencies who merely want to continue to do what they have done for decades, and that is to provide forever homes to children by working with folks using their own language of faith.”
Wednesday’s report, however, cites an email exchange between two departmental staffers referring to South Carolina’s waiver request as “a waiver of the Dept regulation on serving LGBTQ population.”
“That senior civil servants understood that the South Carolina waiver application was related to serving the LGBTQ population is a clear indication that HHS recognized that this had broader consequences than simply protecting sincerely-held religious beliefs,” the report states. “The investigation’s findings — based on internal HHS documents and the full set of circumstances surrounding the South Carolina waiver — rebut HHS’s claim that the waiver process was about serving youth in foster care. Rather, it was understood that the policy decision by HHS would have the effect of expanding discrimination against LGBTQ Americans, including foster youth.”
After the waiver, the department undertook several initiatives that the report criticized as weakening nondiscrimination protections for LGBTQ people.
In May 2019, it finalized a health care refusal rule that would broaden the ability of health providers to refuse to provide particular medical services because of religious or moral objections. Later that year, the department proposed a rule to allow foster and adoption agencies nationwide to turn away same-sex parents.
In May, the department finalized a regulation that eliminates data collection related to LGBTQ foster and adoptive families in the child welfare system. Then in June, it finalized a rule to roll back nondiscrimination protections in the Affordable Care Act and to expand the religious exemption by broadening the range of entities that would be exempt from the nondiscrimination provisions.
“Viewed together, these actions are part of the Trump Administration’s sweeping efforts to weaken rights and protections for LGBTQ Americans and other marginalized communities,” the report states.
Failure to consult experts and consider consequences
The report further says that the department ignored the advice of experts in child welfare to put forward policies harmful to children and the foster system.
The report contains a 142-page appendix of letters from child welfare experts opposed to the waiver.
“HHS acted negligently by not meaningfully consulting internal or external child welfare policy experts to understand how this waiver would affect children and families in South Carolina, and by not investigating assertions made by the waiver applicants,” the report states. “Instead, HHS inappropriately empowered staff who lack child welfare expertise to apply never-before-used administrative grant regulations and to enact a policy that would harm vulnerable children.”
The waiver also appears to run afoul of the established research on the needs of children in foster care and of the system generally, according to research cited in the report. A 2018 report by the Williams Institute at the UCLA School of Law found that same-sex couples were significantly more likely than heterosexual couples to be raising adopted or foster kids, and previous research has also suggested that LGBTQ people are more likely to adopt older, special-needs and minority children.
“When foster care agencies deny qualified and willing adults the opportunity to serve as foster parents, this action greatly exacerbates existing foster home shortages for — and undermines the well-being of — abused and neglected children who desperately need a safe and affirming environment to mitigate the trauma and instability they have experienced,” the report states.
The consequences of the waiver fall most heavily on LGBTQ youth, according to research published in the journal Pediatrics, which is cited in the report. Research indicates that more than one-fifth of foster children identify as LGBTQ and are twice as likely to report mistreatment and abuse while in foster care.
One young person in the foster system, Mark, told the committee, “My foster parents did not know how to be supportive, caring, and understanding. When they found out I was gay, they were angry. My foster dad said that I couldn’t be gay in his house. They did not speak to me.”
“These actions represent a stark departure from longstanding HHS policy and practice to consult experts and families to ensure that agency decisions promote the best interests of vulnerable children,” the report states.
In addition to condemning the waiver itself, the report alleges that the administration withheld information concerning the measure’s development.
“HHS chose to redact material and to withhold key documents from the Committee, impeding the Committee’s review of the waiver approval process,” the report states.
It also notes that researchers tried repeatedly to obtain documentation from the Health and Human Services Department with little success and called the agency “largely uncooperative and nonresponsive.”
“In replying to nearly every inquiry, HHS provided duplicate versions of the same documents and otherwise produced numerous documents that were not relevant to the staff investigation,” the report states. “Such actions hid from congressional leaders and taxpayers many aspects of how, or why, HHS made this policy decision.”
The report makes several recommendations, including immediately rescinding the waiver and stopping other initiatives that weaken nondiscrimination protections. It further calls on the department to enforce existing nondiscrimination laws and to comply with congressional requests for information related to the South Carolina waiver.
The future of nondiscrimination
The report relates directly to a case scheduled to hit the Supreme Court’s docket in the fall. Fulton v. City of Philadelphia concerns whether faith-based child welfare organizations can reject LGBTQ families and others whom they consider to be in violation of their religious beliefs. Legal experts say the case could have a significant impact on not just parental rights but also nondiscrimination protections more broadly.
The Trump administration submitted a brief to the Supreme Court arguing that the taxpayer-funded organization at the center of the case, Catholic Social Services, should be able to refuse to work with same-sex couples and others whom the group considers to be in violation of its religious beliefs.
In its brief, the government argued that “Philadelphia has impermissibly discriminated against religious exercise,” and that the city’s actions “reflect unconstitutional hostility toward Catholic Social Services’ religious beliefs.”
On Thursday, at least 46 friend-of-the-court briefs were filed on behalf of the city of Philadelphia. Among those voicing their concern are 30 civil rights groups, Republican and Democratic lawmakers, and congressional leadership from the House and the Senate.
Ian Thompson, senior legislative representative with the American Civil Liberties Union, which is intervening in the case in support of Philadelphia, said, “The 440,000 children in our nation's child welfare system need every qualified family that is willing to open up their homes to care for them."
“We appreciate the work of the Ways and Means Committee to shine a light on this unconstitutional discrimination enabled by the Trump administration and hope the Supreme Court will agree that there is no license to discriminate in our Constitution," he said in a statement.