The so-called HHS Grants Rule is a particular provision embedded within the sprawling regulations that govern grants, contracts, and other financial assistance from the U.S. Department of Health and Human Services (HHS). Late in the Obama Administration in 2016, with little fanfare, HHS added provisions prohibiting recipients of such funding from discriminating on the basis of religion, sexual orientation, and gender identity, and requiring recipients to treat same-sex civil marriages as valid in keeping with the Supreme Court’s decisions in U.S. v. Windsor and Obergefell v. Hodges. These two paragraphs in the Code of Federal Regulations became known as the "Grants Rule."
The Grants Rule would force charities that believe in traditional marriage as part of their religious beliefs to place children with same-sex couples. It would also force faith-based charities providing emergency housing or homeless shelters to allow biological men—if they prefer a female gender identity—to be housed with women in the shelter (or a biological woman to be housed with men).
Under the Trump Administration, HHS issued a notice that it would not enforce the Grants Rule on the grounds that the 2016 regulation was, essentially, procedurally deficient, for having not properly engaged in a particular analysis required by law. Then, in early January of 2021, HHS revised the Grants Rule, replacing the list of nondiscrimination requirements with a more general provision requiring recipients to abide by applicable federal civil rights law, and a provision stating that HHS would follow all applicable Supreme Court rulings. The revisions were also immediately challenged in court.
The 2021 Grants Rule still had not gone into effect by the time of President Biden’s inauguration, so HHS was able to defer the rule’s effective date, and the court hearing the legal challenge to the rule then entered a stay to further impede the rule’s implementation. That stay has been extended numerous times and remains in effect. In November of 2021, HHS revoked the waivers granted to South Carolina, Michigan, and Texas. However, the litigation against the notice of non-enforcement of the Grants Rule never resulted in the court striking it down, so while the 2016 Grants Rule is still officially on the books, HHS is still officially not enforcing it.
Catholic charities serve everyone in need—no one is turned away because of their asserted sexual orientation or gender identity, or any other characteristic. Reinstating the 2016 regulation could drive Catholic charities and other religious organizations out of service to their communities not because they want to be able to discriminate, but because they don’t want to be forced to violate their beliefs.
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