HRW: Letter on Proposed Rule on Health and Human Services Grants Regulation

Secretary Alex Azar
Department of Health and Human Services
Hubert H. Humphrey Building
200 Independence Avenue SW., Room 445-G
Washington, DC 20201

RE: Proposed Rule on Health and Human Services Grants Regulation

Dear Secretary Azar,

Human Rights Watch opposes the Proposed Rule on Health and Human Services Grants Regulation (RIN 0991-AC16).[1] We also oppose the decision of the Department of Health and Human Services (HHS), effective immediately, that it will not enforce certain existing nondiscrimination protections in its grantmaking. The regulatory protections enacted in 2016 were designed to ensure that federal funding is not used to discriminate on the basis of sexual orientation and gender identity, among other grounds.[2] With the proposed rule, HHS would give grantees a license to discriminate that jeopardizes the rights of lesbian, gay, bisexual, and transgender (LGBT) people and compromises the effectiveness of federally funded health and welfare programs.

In recent years, Human Rights Watch has conducted firsthand research on the discrimination that LGBT people face in health and welfare programs. In February 2018, Human Rights Watch released a report entitled “All We Want is Equality”: Religious Exemptions and Discrimination Against LGBT People in the United States, which documented how state religious exemption laws jeopardize LGBT people’s access to physical and mental health care, adoption and foster care, and other goods and services.[3] In July 2018, Human Rights Watch released “You Don’t Want Second Best”: Anti-LGBT Discrimination in US Health Care, which specifically explored the barriers that LGBT people face in healthcare settings.[4] Finally, in November 2018, Human Rights Watch released Living at Risk: Transgender Women, HIV, and Human Rights in South Florida, which detailed in part how discrimination in healthcare programs and settings prevents transgender women from obtaining effective HIV prevention, treatment, and care.[5] Our opposition to the proposed rule is informed by the extensive research that formed the basis for these reports.

The proposed rule is a step in the wrong direction. It fails to recognize the significant discrimination and daunting barriers that many LGBT people encounter when seeking health and welfare services. It exacerbates these problems by sending a signal to providers and LGBT people alike that discrimination is permissible. It jeopardizes the rights of children, including LGBT children. And it promotes a dangerous approach to religious freedom that treats religious belief not as a shield, but as a sword used to deny other people their rights. To safeguard the rights of all people, Human Rights Watch urges HHS not to proceed with the proposed rule.

I. LGBT People Face Persistent Discrimination in Health and Welfare Programs

Under Executive Order 13563, HHS may only propose a rule where it has made a reasoned determination that a rule’s benefits outweigh its costs and it is tailored to impose “the least burden on society.”[6] However, the proposed rule fails to incorporate an understanding of the barriers that LGBT people continue to face in accessing health and welfare programs.

Data consistently show that LGBT people are at heightened risk for a variety of physical and mental health issues.[7] Yet LGBT people are less likely to have the means to seek medical care, and are twice as likely to be uninsured as their heterosexual, cisgender counterparts.[8] When they do seek care, they often face discrimination. In a nationally representative survey conducted by the Center for American Progress in 2017, 8 percent of lesbian, gay, and bisexual respondents and 29 percent of transgender respondents reported that a healthcare provider had refused to see them because of their sexual orientation or gender identity in the past year.[9]

Discrimination contributes to the physical and mental health issues that LGBT people experience. In a nationally representative survey from 2017, 68.5 percent of LGBT people who experienced discrimination in the past year said it negatively affected their psychological well-being, while 43.7 percent said it negatively affected their physical well-being.[10] Researchers have found that “in US regions where LGB people have better social and legal conditions, they also have better health and lesser health disparities compared with heterosexuals.”[11] Repealing protections for LGBT people may not only make it more difficult to curb discrimination, but may actually contribute to adverse health outcomes.

While healthcare settings offer particularly vivid examples, LGBT people interviewed by Human Rights Watch have also described discrimination in adoption and foster care, antiviolence programs and shelters, homeless shelters, programs for runaway and homeless youth, sexuality education, and other domains that will be affected by the proposed rule. Removing explicit nondiscrimination protections for sexual orientation and gender identity will put LGBT people at heightened risk in federally funded programs across these areas.

The proposed rule also sows confusion for grantees. Under Executive Order 13672, federal contractors are not permitted to discriminate in hiring and employment on the basis of sexual orientation or gender identity.[12] The proposed rule is likely to burden contractors and grantees by imposing inconsistent nondiscrimination requirements in different domains. The least burdensome option for society is to consistently prohibit discrimination based on sexual orientation and gender identity in both hiring and employment and in the provision of goods and services.

II. The Proposed Rule Jeopardizes LGBT Rights

Human Rights Watch has documented how discrimination on the basis of sexual orientation or gender identity prevents LGBT people from obtaining goods and services. The administration has announced or undertaken efforts to narrowly construe prohibitions on sex discrimination under federal law,[13] making explicit protections for sexual orientation and gender identity in HHS grantmaking particularly important.

Individuals interviewed by Human Rights Watch described three distinct difficulties that LGBT people face in obtaining health and welfare services. First, in our research, Human Rights Watch has documented multiple cases where LGBT people were refused services that were provided to heterosexual, cisgender people. At times, those refusals led individuals to delay or even forego the services they sought. In the domain of adoption and foster care, for example, one couple in Tennessee described being turned away from three different agencies and nearly giving up on becoming parents before finding an agency that would place children with a same-sex couple.[14] Similarly, same-sex couples in Michigan noted that being turned away from religiously affiliated adoption and foster care agencies significantly limited their ability to form a family, requiring lengthy travel and other barriers that heterosexual couples did not confront.[15] More than a dozen interviewees were unaware of local programs for people experiencing intimate partner violence and/or homelessness that were open to transgender individuals, leaving them unable to access vital programs available to others.[16]

While service refusals are a particularly glaring form of discrimination, they are not the only kind of discrimination LGBT people experience. Interviewees have described incidents of being mocked for their gender expression or repeatedly addressed by the wrong name or pronouns,[17] being chastised and prayed over during routine testing for HIV/AIDS,[18] and other forms of discrimination and disrespect. Allowing grantees to discriminate based on sexual orientation and gender identity increases the likelihood of this kind of mistreatment and humiliation in federally funded programs.

These various factors contribute to a third barrier that is exacerbated by discrimination: LGBT people’s hesitation to seek out goods and services in environments where they feel discrimination is likely. Practitioners who work with LGBT individuals noted that many of their clients had foregone care for years because of the discrimination they had faced in the past or felt they were likely to face from providers. Kelley Blair, who runs the Diversity Center in Oklahoma City, Oklahoma, noted from her practice that:

A lot of people have never been to therapy. And they may be 30 or 40 years old. They’ve waited a very long time to come in for services. They delay transitioning until they’re 40 or 50 years old. Some haven’t gone to a primary care health provider for basic things, basic healthcare issues. Our trans males haven’t gone in for pap smears until they’re 30 or 40 years old, some haven’t had basic HIV/AIDS screenings. And that’s because of the discomfort they feel with a general practitioner.[19]

LGBT individuals interviewed by Human Rights Watch expressed hesitation about trying to adopt or foster children from agencies they perceived to be hostile to LGBT individuals or seeking commercial services where they felt they might be turned away. On the heels of efforts to roll back nondiscrimination protections for transgender people under the Affordable Care Act, moving ahead with the proposed rule will only further the impression that discrimination against LGBT people is legally permissible and deter people from seeking the goods and services they need.

III. The Proposed Rule Jeopardizes Children’s Rights

In addition to the rights of LGBT people, permitting HHS grantees to discriminate in federally funded programs will jeopardize the rights of children. When child welfare programs are allowed to discriminate against LGBT parents, for example, children may face longer waiting periods or even age out of the system as a result. For LGBT children, these restrictions may prevent placements with families who are particularly well equipped to provide a loving, affirming home.

The proposed rule would also affect children’s rights outside of the child welfare context. Allowing providers of sexuality education to discriminate on the basis of sexual orientation or gender identity can, for example, prevent LGBT children from receiving information about sex and sexuality that is crucial to their sexual health and safety. And in interviews, LGBT young people experiencing homelessness have told Human Rights Watch that they feel uncomfortable and even unsafe in shelters that do not respect their gender identity and expression.[20] In these and other domains, the proposed rule would not only endanger LGBT rights, but the rights of children as well.

IV. The Proposed Rule Is Not Needed to Protect Religious Freedom

A portion of the proposed rule suggests that it is needed to safeguard religious freedom for recipients of federal funding.[21] As discussed more fully above, this argument misunderstands the freedom of religion, turning it from a shield for an individual’s beliefs into a sword used to deprive others of their rights.

The proposed rule would replicate some of the worrying features of recent religious exemptions in the United States. Unlike true religious exemptions, it would not attempt to strike a balance between equality and religious liberty, and instead would simply eliminate nondiscrimination protections wholesale in the name of religious objectors. It shows no regard for the harm that eliminating nondiscrimination protections would inflict on those who are at particular risk of losing access to goods and services. It instead would allow grantees to discriminate whether or not they harbor a religious objection, turning narrow exceptions for religious objectors into a universal rule. The result would not only fail to recognize the state’s legitimate interest in making federally funded services open to all, but also misunderstand the role of exemptions by turning narrow and particular exceptions into a sweeping license to discriminate. 

V.        Rights at Stake

The proposed rule will function in practice to limit a variety of rights under international law. Among these are the right to nondiscrimination, the right to health, and children’s rights.

1. The Right to Freedom from Discrimination

The right to freedom from discrimination is a central principle of international human rights law.[22] As a party to the International Covenant on Civil and Political Rights (ICCPR), the United States is obligated to guarantee effective protection against discrimination, including discrimination based on sex, sexual orientation, and gender identity.[23] 

The UN Human Rights Committee, which provides authoritative guidance on the ICCPR, has clarified that the freedom of thought, conscience, and religion does not protect religiously motivated discrimination against women, or racial and religious minorities.[24] It has urged states considering restrictions on the manifestation of religion or belief to “proceed from the need to protect all rights guaranteed under the Covenant, including the right to equality and non-discrimination.”[25]

As Human Rights Watch has documented, religious exemptions at the state level have emboldened service providers to discriminate against LGBT people. Indeed, there is substantial evidence that permitting such discrimination is the primary motivation for some of these exemptions.[26] By granting virtually unfettered discretion to providers who refuse to meet the needs of LGBT people – and declining to provide any safeguards to mitigate the harm that such refusals inflict – the proposed rule likely fails to satisfy the US’s obligations under international law.

2. Right to Health

Exemptions that deny or deter people from seeking healthcare services jeopardize the right to health. The International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health,”[27] without discrimination based on race, sex, religion, or “other status,” including sexual orientation and gender identity.[28] The United States has signed but not ratified the ICESCR, obligating it to refrain from actions that undermine the object and purpose of the treaty.[29] In addition, the ICESCR and the jurisprudence of the Committee on Economic, Social and Cultural Rights provide a useful and authoritative guide to the kind of state action necessary to advance and protect the right to health.

When states enact laws allowing healthcare providers to deny service because of an individual’s sexual orientation or gender identity, they undermine the right to health. Individuals may be denied services outright; have difficulty finding services of comparable quality, accessibility, or affordability; or avoid seeking services for fear of being turned away.

The Committee on Economic, Social and Cultural Rights has noted that the right to health is threatened both by direct discrimination and by indirect discrimination, in which laws appear neutral on their face but disproportionately harm a minority group in practice.[30] To promote the right to health, the Committee has thus urged states to “adopt measures, which should include legislation, to ensure that individuals and entities in the private sphere do not discriminate on prohibited grounds.”[31] 

3. Children’s Rights

The United States is obligated to adopt special measures to protect children, as required by the ICCPR.[32] These protections include appropriate economic, social, and cultural measures.[33] Consistent with the right to equality before the law and to equal protection of the law,[34] measures of protection for children should be “aimed at removing all discrimination in every field.”[35]

The Convention on the Rights of the Child, signed but not ratified by the United States, provides an authoritative understanding of children’s rights globally and the measures needed to ensure they are respected and protected.[36]

The convention specifies that the best interests of the child should be a primary consideration in all actions concerning children, whether taken by public or private social welfare institutions, and should be the paramount consideration where adoption is concerned.[37] Permitting child welfare agencies to turn away qualified parents because of their sexual orientation or gender identity, however, limits the options available to children in need of placement and may delay or deny foster or adoptive placements for those children. Moreover, doing so may pose a particular threat for LGBT children who are in the care of agencies that harbor objections to LGBT people.

The convention additionally recognizes that children, including LGBT children, have the right to freedom from discrimination, the right to seek and receive information, and the right to the highest attainable standard of physical and mental health.[38]

Permitting discrimination in federally funded health and welfare programs undermines these rights and denies children the special measures of protection to which they are entitled.

VI. Conclusion

The proposed rule raises serious concerns about discrimination and access to substantive goods and services that are advanced by HHS grantmaking. It is virtually certain to limit LGBT people’s access to federally funded programs, license refusals of service and outright discrimination, and deter LGBT people from accessing the goods and services they need. It is also likely to jeopardize the rights of children, including LGBT children, who should be served by these programs. In these ways, it jeopardizes the right to nondiscrimination, the right to health, and children’s rights under international law. For all of these reasons, Human Rights Watch calls on HHS to reject the proposed rule.

Sincerely,

Ryan Thoreson
Researcher, LGBT Rights Program
Human Rights Watch