FederalJudicialTexas Challenges Federal ‘Sexual Orientation and Gender Identity’ Foster Care Rule

Paxton filed suit enjoin enforcement prohibiting discrimination in foster care services based on sexual orientation and gender identity.
December 28, 2022
As Texas seeks ways to provide for the thousands of children in the state’s foster care system, Texas Attorney General Ken Paxton has again filed suit against the U.S. Department of Health and Human Services (HHS) and its secretary, Xavier Becerra.

The suit alleges that the HHS sexual orientation and gender identity (SOGI) rule prohibiting recipients of HHS funds from discriminating on the basis of “age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation” as well as same-sex marriage status is a violation of the religious liberty rights of agencies who assist the state in providing foster care services.

Texas receives federal funding from the HHS. It also partners with many private agencies, some of which have sincerely-held religious beliefs that prevent them from following the SOGI rule.

In its complaint filed in the U.S. District Court for the Southern District in Galveston, Texas sought a declaratory judgment “that Texas and DFPS do not violate the SOGI Rule by working with religious social services providers to better serve foster children” along with a permanent injunction against the enforcement of the SOGI rule.

The rule was crafted at the end of the Obama administration. Paxton challenged it in 2019, but his challenge was dismissed as moot because the Trump administration gave Texas a waiver of enforcement of the SOGI rule and filed a more general Notice of Nonenforcement in the Federal Register.

The Texan Tumbler

However, Paxton has renewed his challenge, claiming that the Notice of Nonenforcement has been challenged in court and the Biden administration’s defense of it “does not inspire confidence.”

Consequently, if the nonenforcement waiver is no longer in place, then Texas may be susceptible to losing either federal funding or foster care providers who have religious objections to the SOGI rule. In either case, “children in foster care would suffer needlessly.”

Texas also challenged the adoption of the SOGI rule under several requirements of the Administrative Procedure Act, claiming the adoption process did not properly consider the “substantial impact” of the rule as required by law. It also argued that the rule is “arbitrary and capricious” in that “[i]t did not analyze whether the SOGI Rule would decrease the quantity or quality of child placing agencies by driving away noncompliant organizations.”

The complaint also includes three claims that the SOGI rule violates the “Spending Clause” of the U.S. Constitution because only Congress can impose requirements for federal spending programs. It also asserts that the SOGI rule is coercive in threatening federal funding necessary to ensure Texas children receive necessary foster care services.

This complaint contained no claims based on the First Amendment Free Exercise Clause or the Religious Freedom Restoration Act.

In 2021, the U.S. Supreme Court ruled in Fulton v. City of Philadelphia that the city violated the First Amendment Free Exercise Clause by requiring Catholic Social Services to certify same-sex foster parents against their sincerely held religious beliefs.


Disclosure: Unlike almost every other media outlet, The Texan is not beholden to any special interests, does not apply for any type of state or federal funding, and relies exclusively on its readers for financial support. If you’d like to become one of the people we’re financially accountable to, click here to subscribe.

Get “KB's Hot Take”

A free bi-weekly commentary on current events by Konni Burton.

Kim Roberts

Kim Roberts is a regional reporter for the Texan in the DFW metroplex area where she has lived for over twenty years. She has a Juris Doctor from Baylor University Law School and a Bachelor's in government from Angelo State University. In her free time, Kim home schools her daughter and coaches high school extemporaneous speaking and apologetics. She has been happily married to her husband for 23 years, has three wonderful children, and two dogs.