HHS Officially Scraps Biden-Era Rule Requiring LGBTQ-Affirming Foster Homes

The Department of Health and Human Services finalized the removal of a Biden-era foster care rule on a Tuesday in March, according to The Daily Wire, which first reported the move. The rule, issued in April 2024, required federal agencies to ensure children in foster care who "self-identify with an alternative sexual orientation or self-identify as something other than their sex" were placed with families willing to affirm that identity.

The rule never went into force. A federal judge in the U.S. District Court for the Eastern District of Texas vacated it in June 2025, ruling that HHS exceeded its statutory authority under what's known as the Major Questions Doctrine, the legal principle holding that agencies can't make sweeping policy decisions Congress never explicitly authorized, according to The Catholic Spirit.

HHS Assistant Secretary Alex Adams told The Daily Wire the agency is stripping the leftover language from the Code of Federal Regulations to "ensure clarity" for states and providers, since a vacated rule technically still sat on the books even though it carried no legal force.

"The message that we think it sends is that all families are welcome," Adams said. "We have too few foster families nationally. We must roll out the red carpet, and we must ensure that there's homes waiting on kids, not kids waiting on homes."

The Numbers Behind the Push

Adams pointed to a specific shortage: the country has 57 foster homes for every 100 kids who need one, he told The Daily Wire. When there aren't enough homes, he said, kids end up in short-term rentals, hotels, or government office space.

HHS says families with strong religious convictions are disproportionately likely to volunteer as foster parents, and that a policy sorting families into "LGBTQ-friendly" and not creates a chilling effect on recruitment. Data from the Bipartisan Policy Center, cited by The Catholic Spirit, found that people for whom religion plays a major role in life are nearly 50% more likely to be familiar with the child welfare system than those with minimal religious commitment.

The agency also estimates rescinding the rule will save more than $10.8 million over three years, according to a notice from HHS Secretary Robert F. Kennedy Jr., cited by The Advocate. HHS said the change won't have a "significant impact" because only a small number of foster care agencies were ever affected by the original rule.

What Supporters of the Original Rule Are Losing

The strongest case for the Biden-era rule, made by LGBTQ advocacy groups like the Human Rights Campaign and cited by The Catholic Spirit, is that LGBTQ youth are overrepresented in the foster system relative to their share of the general youth population. Advocates argue that without some baseline requirement for affirming placements, LGBTQ kids could be routed into homes that reject who they are, at a vulnerable moment in their lives.

Foster kids don't get to choose their placement, and a teenager who's already been removed from one home is in a precarious spot. The question is whether a federal mandate requiring states to certify "designated placements" was the right tool to address it, especially after a federal court already ruled HHS didn't have the authority to impose it in the first place.

The Trump administration isn't proposing an alternative federal protection for LGBTQ foster youth. Gay City News reported that when it asked the administration for comment in March, ACF press secretary Emily Hilliard said the Biden rule "discouraged many faith-based families from participating in foster care at a time when the nation is experiencing a record year-over-year decline in foster families," and that removing it "reinforc[es] its commitment to biological reality, parental rights, and equal access to the foster care system."

Gay City News noted that the administration made this claim without published data directly tying the foster family shortage to the 2024 rule, which never even took effect due to the court's injunction. HHS has cited a general nationwide foster family shortage but hasn't released such evidence.

The Broader Push

This rescission is part of a wider effort tied to First Lady Melania Trump's "Fostering the Future" initiative and Adams's "Home for Every Child" campaign, which is focused on closing the gap between foster kids and available homes, according to The Daily Wire.

Days before the proposed rule was issued, ACF sent letters to all 50 states reminding them that children cannot be removed from a home solely because parents decline to affirm a child's gender identity, Adams said in a March 3 statement cited by The Catholic Spirit. "Parents have the right to raise their children according to their sincerely held religious beliefs and moral convictions," Adams said. "When states overstep their bounds, ACF will take action to deter inappropriate policies that drive unnecessary interactions with child welfare systems."

The proposed rule underwent a 30-day public comment period that closed April 6, and HHS has now finalized the removal. States retain authority to set their own foster care licensing standards, meaning individual states, not the federal government, will continue to decide whether LGBTQ-affirming placement requirements exist locally. Indiana already moved in that direction; Gov. Mike Braun signed a bill in February protecting foster parents from rejection over religious beliefs, while Massachusetts has gone the opposite way, according to The Catholic Spirit, removing a rule that required foster parents to support LGBTQ youth. Whether other states follow either path is now the open question.