In 2016, the previous presidential administration instituted an anti-discrimination regulation that included gender identity and sexual orientation as protected classes. This made it illegal for adoption agencies and foster care organizations anywhere in the United States, including New York, to deny services to individuals or couples on these bases and still receive federal funding. However, last week the Department of Health and Human Services released a proposed rule that would allow faith-based adoption groups to turn away LGBT families on religious grounds.

There is no indication that the proposed rule would affect families who have already adopted, but merely prospective parents. Proponents of the rule change claim that it does not prevent LGBT people from adopting but merely allows faith-based organizations to act according to their religious principles in attempting to help children.

Nevertheless, as demonstrated by a 2016 study showing that only 3% of opposite-sex couples have adopted children versus 21.4% of same-sex couples, the fact remains that the latter are far more likely to raise an adopted child than the former. The same study estimated that there were 114,000 American same-sex couples raising adopted children at that time.

Refusal to place adoptive or foster children with a same-sex couple could have a negative effect on children in the United States foster care system. Approximately one-quarter of the 400,000 children currently in the system cannot return to their families of origin.

Upon publication of the rule in the Federal Register, the public has 30 days to make comments on it. The comments could have an effect on the final rule, which goes into effect sometime after the 30-day comment period closes. LGBT individuals or couples wishing to adopt may wish to seek the guidance of a family law attorney.