States Press HHS Over ‘Illegal’ Rule That Could Force Foster Care Providers To ‘Facilitate’ Trans Procedures
The US Department of Health and Human Services building is seen in Washington, DC, on July 22, 2019. (Photo by Alastair Pike / AFP)
Photo by ALASTAIR PIKE/AFP via Getty Images.

Tennessee Attorney General Jonathan Skrmetti led a coalition of 17 Republican attorneys general to press the Biden administration over a proposed Health and Human Services rule that they say could compel foster care providers to facilitate transgender procedures on minors. 

They penned a letter to HHS official Kathleen McHugh on Monday urging the agency to reconsider a proposed rule they say would expand the power of the federal government over family law and intrude on religious liberty. 

The rule, proposed in September, would dictate that minors who identify as LGBT are placed with providers who agree to affirm a child’s gender identity, pronouns, and provide them with “services that are necessary to support their health and wellbeing.” Federal funding would also be contingent on following the proposed rule, which the Republican officials said goes beyond the scope of federal authority. 

“The proposed rule exceeds the agency’s authority and raises serious constitutional concerns. It also hampers the ability of the states to protect kids by forcing children’s services agencies to police pronoun usage with the same urgency they address physical abuse,” Skrmetti said in a statement.

The letter identifies three major issues with the proposed rule. First, it says the policy is effectively a power grab by HHS. 

“It’s illegal. This is another example of a federal agency overreaching beyond the scope of its authority and intruding on the state’s responsibilities,” Skrmetti told The Daily Wire. 

The AGs say that HSS does not have the authority to ”mandate particular federal conceptions of ‘proper’ foster care for LGBTQI+ youth, let alone support requiring agencies to restructure sex-segregated facilities and programs to instead align around foster children’s gender identity.”

There are also concerns that foster care providers would be forced to support “transitions” of minors who identify as transgender.

“The apparent requirement that foster parents facilitate risky medical treatments for youth is a particularly problematic case in point. After careful consideration, Tennessee prohibited gender-transition hormone and surgical treatments for minors because the State determined that those treatments are unproven and unsafe,” the letter says. 

Skrmetti said that the rule would impact many faith-based providers, forcing them to comply with “gender ideology.”

“A lot of foster care providers are committed to helping kids as a way of living out their faith. By laying down a thick set of rules forcing them to affirmatively promote every excess of gender ideology, and by creating a risk that either the federal government or an unhappy foster child could tie them up in costly federal litigation, this rule will interfere with their ability to help kids. It will do it in a way that could violate their First Amendment rights. And we have a shortage of good foster homes. We need to be getting more people involved, not creating barriers to providing foster care,” he told The Daily Wire. 

The AGs also say that the rule violates the Administrative Procedure Act and risks driving out qualified care providers through additional regulations. 

“The resulting restrictions would perversely undercut the Placement Rule’s stated goal of promoting LGBTQI+ care by driving up the compliance costs and legal exposure associated with taking in LGBTQI+ foster children,” the letter says. 


The other AGs who signed onto Skrmetti’s letter represent Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, South Carolina, Texas, Virginia, and West Virginia. 

Skrmetti said that the Volunteer State could sue if the rule goes into effect. “Tennessee has not hesitated to litigate to stop illegal federal overreach,” he said.

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The Daily Wire   >  Read   >  States Press HHS Over ‘Illegal’ Rule That Could Force Foster Care Providers To ‘Facilitate’ Trans Procedures