On November 1, 2019, the US Department of Health and Human Services (HHS) issued a Notice of Proposed Rulemaking along with a “Notice of Nonenforcement” that states the agency will not enforce nondiscrimination protections put in place by the Obama administration in December 2016. These protections were enacted to ensure lesbian, gay, bisexual, transgender, and queer (LGBTQ) people would not experience discrimination by any entity receiving federal grants from HHS. To comply with these protections, the grantees—including foster and adoption agencies—were also directed to treat persons in same-sex marriages as equal to persons in different-sex marriages, in line with the 2015 Supreme Court ruling in Obergefell v. Hodges.
If enacted, the New York Times has reported, the proposed HHS rule change could remove sexual orientation and gender identity as protected classes. Once the proposed rule is published in the Federal Register, the public has 30 days to submit comments. After that point, if HHS decides to finalize the proposed changes, any organization receiving federal funds from HHS will have the ability to discriminate against individuals who are LGBTQ on religious grounds. Such scenarios include allowing agencies receiving HHS funds to bar would-be adoptive or foster parents from taking care of children explicitly because of their sexual orientation or gender identity.
As the largest university-wide LGBTQ health research center in the US, the Institute for Sexual and Gender Minority Health and Wellbeing (ISGMH) at Northwestern University conducts scientific research on the physical and mental health of LGBTQ people. It is already well established that lesbian, gay, and bisexual people face high levels of discrimination (Meyer 2019). Research has consistently found that such discrimination manifests itself in the form of tangible and quantifiable health disparities. For instance, in Texas, research has shown that LGBTQ people experience disparate rates of food insecurity, housing insecurity, housing access, and healthcare (Mallory, Brown, Russell, and Sears 2017). Other research has found that “LGBTQ youth and young adults are 120% more likely to experience homelessness than their straight and cisgender peers” and that “LGBT youth continue to be disproportionately represented among homeless youth in our country, and their experiences of homelessness continue to be characterized by violence, discrimination, poor health, and unmet needs.” These disparities have profound effects upon the immediate health of LGBTQ persons, and they also reverberate throughout the wider society with great costs (in terms of public spending and human suffering).
Here at ISGMH, we have found that discrimination takes a particular kind of toll on the health of LGBTQ youth, including mental health disparities which affect trans, non-binary, and gender diverse youth (Newcomb, Hill, Buehler, Ryan, Whitton, and Mustanski 2019). We have also found that young sexual minority men experience high levels of victimization and are at a higher risk for mental health and substance use problems compared with heterosexual youth (Swann, Forscher, Bettin, Newcomb, and Mustanski 2019); that the cumulative effects of victimization experienced by LGBT youth result in a higher risk for depression and post-traumatic stress disorder (Mustanski, Andrews, and Puckett 2016); and that LGBT youth have a higher prevalence of mental disorder diagnoses than youth in national samples (Mustanski, Garofalo, and Emerson 2010).
But while the challenges facing LGBTQ youth are difficult, we know that these youth have better mental health outcomes when they are supported by their families and peers throughout adolescence (McConnell, Birkett, and Mustanski 2016). And when it comes to youth who need foster care or adoptive care (a group that is disproportionately LGBTQ), it is would-be adoptive and foster parents who are also disproportionately LGBTQ. In a 2018 report, the Williams Institute at UCLA’s School of Law found that 114,000 of the 700,000 cohabitating same-sex couples in the US were raising children together. That same research showed that 21.4% of same-sex couples raising children, versus only 3% of different-sex couples, were raising adopted children. Similarly, same-sex couples are also more likely to raise foster children than different-sex couples (2.9% vs. 0.4%). When it comes to the quality of parenting that same-sex couples provide, studies show little to no difference in the outcomes of children raised by same-sex parents compared to those raised by different-sex parents. Williams Institute research found that young people raised by lesbians have strong mental health, and the Institute’s review of decades of research has found that “despite confronting heterosexism in a variety of social contexts—including the healthcare system, the legal system, and the school system—LGB parents and their children are functioning quite well.”
The research is clear. Discrimination against LGBTQ people greatly harms their physical and mental health, with LGBTQ children and adolescents especially vulnerable to harm. A supportive family can play a crucial role in the mental health of LGBTQ youth. This proposed HHS change has the potential to affect the creation of supportive adoptive and foster families for LGBTQ youth specifically, but also for youth needing homes in general. To have the sexual orientation, gender identity, or marital validity of LGBTQ people called into question as a reason to deny them services by HHS grantees would not just have a deleterious effect on their health, but on the health and wellbeing of children who could benefit from loving homes. It would most likely result in even more homeless LGBTQ youth, and research has long established that homelessness leads to heightened risk of suicide, incarceration, and exposure to HIV/AIDS.
The proposed HHS rule does not have to go into effect; once it is posted, the public will have 30 days to comment, and HHS must listen to and summarize the comments. Under executive order 12866, any member of the public may request a meeting about a regulatory action under review at the Office of Management and Budget to present their views and may invite other outside parties to attend the meeting. Information on regulatory reviews can be found at www.reginfo.gov and www.federalregister.gov. We urge public health professionals, educators, and our fellow researchers to make their research-backed comments known.
Based upon the work of our more than 90 researchers, postdoctoral fellows, and staff members, ISGMH respectfully submits this statement as a public comment and will formally submit our comments to HHS upon publication of the proposed rule in the Federal Register.
A version of this statement was printed as an op-ed in Out Magazine on November 19, 2019.