Published January 16, 2025
In the waning days of the Biden-Harris administration, multiple agencies have announced that they are withdrawing proposed rules (detailed below) that were aimed at advancing the administration’s priorities on DEI, gender identity, and reproductive rights.
The agencies provided multiple “independently sufficient reasons” for the withdrawals. These reasons included the need for further consideration in light of concerns raised by public comments, pending Title IX lawsuits, the forthcoming change in administration, and the need to focus on other matters before the current administration ends.
Withdrawing proposed rules—especially those that promote an administration’s priorities—is an unusual move since there is no reason why a proposed rule must be withdrawn before a new administration begins.
Typically, there is a rush to finalize outstanding proposed rules before the end of an administration. Any remaining proposed rules remain pending for the new administration to consider. Agency staff can easily continue evaluating comments in a new administration. And if an agency needs more input, as many of the withdrawals indicated, it can open up a supplemental comment period requesting additional feedback from the public. Indeed, even while withdrawing certain proposed rules, the Biden-Harris administration continues to propose other rules with comment periods that close after the inauguration.
As I told the Daily Signal, “On balance, withdrawing these rules is a win for everyone who submitted comments opposing them . . . . It means these bad policy proposals by the Biden administration will not go into effect.” With the rules withdrawn, Congress will not need “to expend political capital” to invalidate the rules under the Congressional Review Act, “it won’t take time away from other important things that Congress is doing, and there doesn’t need to be litigation by any advocates on these rules, which allows them to have time and resources spent towards other things as well.”
The withdrawn rules include:
- Department of Labor DEI Apprenticeship Rule. This rule would have promoted the Biden Administration’s diversity, equity, inclusion, and accessibility goals in the National Apprenticeship System. After a broad and diverse range of stakeholders submitted over 2,100 comments and conducted 18 meetings with the Office of Information and Regulatory Affairs, raising many concerns with the rule’s implementation, the Department of Labor withdrew the rule on December 27.
- Department of Housing and Urban Development Affirmatively Furthering Fair Housing Rule. This rule would have required the submission and approval of Equity Plans to address “inequities” based on race, sex (which HUD interprets to include gender identity, sexual orientation, and nonconformance with gender stereotypes), and other protected characteristics that allegedly cause “unequal and segregated access to housing.” In the January 16 withdrawal, HUD summarily stated that it “has determined to withdraw the proposed rule at this time and to terminate this rulemaking proceeding,” without further explanation.
- Two State Department Nondiscrimination in Foreign Assistance Rules. These rules would have required foreign assistance award recipients and contractors to comply with broad nondiscrimination obligations, including based on sexual orientation, gender identity, and gender expression, as well as pregnancy, which the Biden-Harris administration has interpreted to include abortion. Under the rule, faith-based organizations that received an award or contract would have been prohibited from exercising their religious employment rights. In its January 8 withdrawal, the State Department cited concerns about the need for more clarity concerning whether faith-based organizations “would be prohibited from employing individuals of a particular religion” as guaranteed by federal law.
- Department of Education Title IX Athletics Rule. This rule, withdrawn on December 26, was a supplement to the recently enjoined Title IX rule that redefined the law’s prohibition on sex discrimination in federally-funded educational programs and activities to include discrimination based on sexual orientation and gender identity. While the general Title IX rule applies to athletics and requires allowing male athletes who identify as female to participate in girls’ and women’s sports, the athletics rule would have established additional criteria for determining participation based on gender identity.
- Department of Education Rule Rescinding Regulations Protecting Religious Student Groups. This rule would have rescinded regulations on free speech and free exercise protections for religious student groups at institutions of higher education. These protections require institutions not to discriminate against religious student groups based on religion, including their religiously motivated membership and leadership decisions. The withdrawal, published on December 26, states that many of the approximately 58,000 comments pointed to “ongoing issues faced by religious student groups as evidence of the need to keep these regulations.”
- Health and Human Services Parentage Establishment in Child Support Services Rule. On January 15, HHS’s Administration for Children and Families withdrew a proposed rule that would have replaced the “gender-specific” terms “paternity,” “mother,” and “father” with the “gender-neutral” terms “parentage” and “parent” throughout its regulations on child support services. HHS explained that additional input would be beneficial, and that the Department is focused on other child support priorities with the time remaining in the administration.
- HHS, Labor, and Treasury Departments Contraceptive Mandate Rule. After much litigation (including Hobby Lobby and Little Sisters of the Poor), the Trump administration issued a rule providing for religious and moral exemptions to the contraceptive mandate. The Biden administration’s proposed rule, officially withdrawn on December 30, would have removed the moral exemption, even while acknowledging that “few entities make use of the moral exemption at this time” and that “the moral exemption likely affects very few individuals.”
- HHS, Labor, and Treasury Departments Over-the-Counter Contraceptive Mandate Rule. This rule was proposed a week before the election and would have required health plans to provide free coverage of all over-the-counter contraceptives without a prescription. The departments withdrew the rule on January 15, less than a month after the public comment deadline, citing comments that raised “operational and cost issues” with the proposal and the need to focus “instead on other matters.”
- HHS Temporary Assistance for Needy Families Rule Targeting Prolife Pregnancy Centers. This rule, withdrawn by HHS on January 14, would have amended regulations for the Temporary Assistance for Needy Families (TANF) program, under which an organization must achieve one or more of TANF’s four purposes to receive funding. The proposed rule singled out pregnancy centers as an example of the type of organization that would not qualify for funding. Public commenters countered this mischaracterization, demonstrating in detail how pregnancy centers can satisfy all four TANF purposes.
Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she directs EPPC’s Administrative State Accountability Project. An attorney, her legal and policy work focuses on religious liberty, health care rights of conscience, the right to life, nondiscrimination, and civil rights.
