Published April 1, 2024
On Monday, April 1, 2024, EPPC scholar Eric Kniffin met with government officials in the Executive Office of the President (EOP) to oppose a new rule from the U.S. Department of Health and Human Services (HHS) that would rewrite sex discrimination provisions in more than a dozen laws that undergird federal grant programs. HHS proposes applying these provisions as if they also prohibit discrimination based on sexual orientation and gender identity.
As the scholar’s comment explained,
To start, HHS’s interpretation of Bostock is implausible. The Supreme Court did not, as HHS claims, conclude that Title VII bars discrimination on the basis of gender identity. Moreover, the Supreme Court explicitly denied that its interpretation of Title VII applied to other statutes—not to Title IX and not to the thirteen statutes listed in the proposed rule. HHS has no mandate from Congress and no duty under Bostock to redefine what discrimination on the basis of sex means under these laws. . . .
While HHS claims to “take[] seriously its obligations to comply with Federal religious freedom laws, including the First Amendment and RFRA,” the proposed religious exemption process is inadequate and not reflective of an agency “seriously” considering religious freedom laws.
I urge OIRA and HHS to take this final chance to reverse course, acknowledge the fundamental problems with this proposed rule, and abandon this attempt to rewrite more than a dozen federal statutes.
Kniffin’s comments to OIRA build on criticisms that he and other EPPC scholars submitted have to the White House in June 2023 and to HHS in September 2023 over the same HHS Grants proposal.
A written version of Kniffin’s comments, submitted to the government, is available here (PDF).
Eric Kniffin is a fellow at the Ethics and Public Policy Center, where he works on a range of initiatives to protect and strengthen religious liberty as part of EPPC’s HHS Accountability Project.
