EPPC Scholar and Others Submit Comments Raising Concerns with OMB’s Proposed Guidance for Federal Awards 

December 6, 2023

On Monday, December 4, 2023, EPPC scholar Rachel N. Morrison submitted a public comment on the Office of Management and Budget’s (OMB) proposed “Guidance for Grants and Agreements.”  

Morrison, a former attorney at the Equal Employment Opportunity Commission and current EPPC Fellow and Director of EPPC’s HHS Accountability Project, focused her comment on proposed changes to 2 CFR § 200.300, the regulation that establishes statutory and national policy requirements for federal awards. 

Under OMB’s proposal, references to free speech and religious liberty protections would be removed from section (a) and references to alleged requirements not to discriminate based on sexual orientation and gender identity would be added in proposed sections (b) and (c). 

Morrison argued in her comment

In short, proposed § 200.300 is contrary to law and arbitrary and capricious. OMB provides no explanation for its proposed removal of references to free speech and religious liberty protections in section (a). Section (b) cites to the Supreme Court’s decision in Bostock in support of sexual orientation and gender identity nondiscrimination requirements, but Bostock was a limited holding. As the Supreme Court made clear, Bostock was limited to hiring and firing decisions based on sexual orientation and transgender status under Title VII. It did not address other employment issues, “gender identity” as a protected class, related conduct, or other sex discrimination laws. Bostock also acknowledged statutory and constitutional religious liberty protections, which the proposed guidance ignores. Section (c) states that the Equal Protection clause may require heightened scrutiny for sexual orientation and gender identity, but the Supreme Court has never so held. OMB’s proposed guidance will harm faith-based organizations and federal agencies. 

Morrison urged OMB to restore section (a)’s explicit references to free speech and religious liberty protections and reject proposed sections (b) and (c). 

Religious, legal, and policy organizations also submitted public comments raising their concerns with OMB’s proposed guidance, and specifically 2 CFR § 200.300. These organizations include: 

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