Texas Sues to Overturn Adoption Rule It Says Discriminates Against Religious Groups

The U.S. Department of Health and Human Services building is seen in Washington on July 22, 2019. Alastair Pike/AFP via Getty Images

Texas Attorney General Ken Paxton filed a lawsuit (pdf) against the Biden administration on Dec. 12 to ensure the state can continue working with faith-based organizations to provide adoption and foster care services.

Primarily, the lawsuit seeks an end to an Obama-era Health and Human Services Department (HHS) rule, known as the SOGI (Sexual Orientation and Gender Identity) Rule, which prohibits the recipients of federal funding for adoption and foster care services from discriminating based on gender identity, sexual orientation, or marital status.

The SOGI Rule, the lawsuit contends, requires religious organizations to compromise their First Amendment rights in order to qualify for federal funding.

“There are so many vital religious institutions in Texas and around the country that can aid in making sure foster children are protected and able to find good homes,” Paxton said in a statement. “The SOGI Rule would force them either to adopt a radical woke agenda or surrender their mission of helping children. That’s not right.

“It’s a disgrace that the Biden Administration is playing politics with our foster care and adoption services, and this lawsuit aims to put our children first and to protect religious freedom.”

Former Challenge

According to the lawsuit, Texas previously challenged the SOGI Rule in 2019, but HHS at the time argued that the case was moot, since the department had assured the court that the rule wouldn’t be enforced and that a new rule would be issued repealing it.

At the time, Texas countered that argument by contending that the department’s assurances amounted to nothing more than a “non-binding half-measure,” noting that no permanent changes to the law had been made and that the department “could start enforcing the challenged provisions at any time.”

Ultimately, the court sided with HHS, holding that there was no reason to doubt that the department’s assurances had been made in good faith.

Argument

However, the new lawsuit argues that, since that case was dismissed, the Biden-era HHS has repeatedly undermined its previous Trump-era promises. For example, in November 2021, the department rescinded the exception from enforcement it had previously extended to Texas, stating that it was “overbroad.”

Further, the new, revised rule that HHS finalized at the end of the Trump administration was vacated in court at the request of the department itself after the new rule faced legal challenges in light of the Supreme Court’s subsequent ruling that discrimination based on sex encompasses gender identity and sexual orientation in the context of employment.

In May, HHS announced that going forward, it would interpret and enforce the prohibition of discrimination based on sex outlined in Section 1557 of the Affordable Care Act and Title IX to include discrimination based on sexual orientation and gender identity.

“The Supreme Court has made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation,” HHS Secretary Xavier Becerra said at the time. “That’s why today, HHS announced it will act on related reports of discrimination.”

The next month, President Joe Biden signed an executive order on “Advancing Equality for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Individuals,” which ordered Becerra to “consider how to use the Department’s authorities to strengthen non-discrimination protections on the basis of sex, including sexual orientation, gender identity, and sex characteristics, in its programs and services.”

The order also instructed HHS to “advance policies that help to prevent the placement of LGBTQI+ youth in foster and congregate care environments that will be hostile to their gender identity or sexual orientation,” and ordered the director of the Office of Management and Budget to conduct a review of the eligibility requirements of executive departments and agencies that administer federal programs.

Those agencies, the order added, “shall seek opportunities, consistent with applicable law, to adopt more inclusive eligibility standards” in line with the administration’s policy.

Other Challenges

Other similar Biden administration policies have recently been challenged in court, including one that prohibited health care providers from discrimination based on gender identity or sexual orientation.

A group of doctors sued the government over that policy, which relied on an updated interpretation of Section 1557 of the Affordable Care Act’s prohibition of discrimination “on the basis of sex.”

In November, a federal judge sided with them, finding that policy to be illegal.

“This is a historic victory against both the imperial presidency and extremist gender ideology,” said Stephen Miller, president of America First Legal, which represented the doctors in that case. “Forcing doctors to treat boys as girls and women as men is sheer anti-science lunacy. This decision affirms that Biden broke the law by ordering doctors to substitute superstition for biology and to conduct barbaric experiments on children, including chemical castration and permanent sterilization.”

Likewise, similar cases challenging the administration’s mandate requiring doctors and insurers to perform or pay for gender transition procedures—regardless of any personal or medical objections they might have—achieved legal victories.