EPPC Scholars Submit Comment Opposing State Department Proposed Rules Imposing Expansive Nondiscrimination Requirements in Foreign Assistance


Published March 19, 2024

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On March 19, 2024, EPPC scholars Rachel N. Morrison and Eric Kniffin submitted a public comment opposing two proposed rules by the U.S. Department of State that would establish certain nondiscrimination requirements for grant recipients and contractors in foreign assistance. The proposed rules would prohibit discrimination against beneficiaries and employees on a long list of bases, including “sex, gender, sexual orientation, gender identity or expression,” and even “any factor not expressly stated as permissible in the award.”

As the scholars explained,

We support the State Department’s goal of ensuring “access for all eligible beneficiaries of the target population” without discrimination in order “to achiev[e] effective, comprehensive, and sustainable foreign assistance results.” Yet these rules would have the opposite effect….

Rather than achieving “effective, compressive, and sustainable” foreign assistance, as proposed, the rules would impose undefined and confusing nondiscrimination requirements. Requirements that State failed to demonstrate a need for. The rules would decimate the pool of foreign assistance providers—both American and foreign partners—by forcing faith-based and other providers to choose between providing assistance to beneficiaries and no longer being able to hire employees that align with their sincerely held religious beliefs or convictions. The loss of these partners will impede the effective delivery of foreign aid and thwart the U.S. government’s foreign policy objectives.

The scholars noted that the State Department failed to provide any evidence that this proposed rule solves an existing problem. Their comment also stressed that State is wrong to claim that it has unlimited discretion to create policy relating to foreign aid. In response, the scholars outlined the State Department’s obligations to respect religious liberty under federal law and the United States Constitution.

The scholars urged State to abandon its proposed rules. But in the alternative, the scholars provided specific comments and suggestions so that State could issue rules that “truly reflect democratic values, respect religious liberty, and explicitly acknowledge and submit to the constitutional and statutory limits on the president’s foreign policy.”

Other organizations and experts also submitted comments on the Department’s proposed rules, including:


Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she directs EPPC’s HHS 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.

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