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.”
According to the lawsuit, Texas previously challenged the SOGI Rule in 2019, but HHS then argued that the case was moot as the department had assured the court that the rule would not be enforced and that a new rule would be issued repealing it.
At the time, Texas countered that argument by contending that HHS’ 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.
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 For example, in November 2021, the department rescinded the exception from enforcement it had previously extended to Texas, stating that it was “overbroad.”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.
Contending that the SOGI Rule violates the U.S. Constitution and the Administrative Procedure Act, which outlines the process through which federal agencies develop and issue regulations, the complaint petitions the court to declare the rule unlawful and invalid.
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.
