Religious-Liberty-Annual-Report

IV – Religious Liberty and the Executive Branch 21

The new proposed Grants Rule from HHS is a slightly scaled-back version of the 2016 rule. 15 Instead of imposing a prohibition on “sexual ori entation and gender identity” discrimination on all funds from HHS, it imposes such a prohibition on any funds from HHS that are governed by a stat ute that prohibits sex discrimination, arguing that the Supreme Court’s decision in Bostock v. Clay ton County, Georgia , means that any sex discrim ination law also prohibits “sexual orientation and gender identity” discrimination. In essence, HHS is acknowledging that the 2016 rule exceeded HHS’s statutory authority but is pursuing the same sub stantive goal. Catholic health and social service organiza tions either already receive funding or may plausi bly seek funding under virtually every statute sub ject to the proposed rule. Their operation of these charitable ministries presents numerous fact-pat terns that could create conflicts between the pro posed rule’s requirements and Catholic teaching. For example, Catholic charitable agencies pro vide emergency shelter for victims of domestic vi olence. Some of those shelters are single-sex facil ities for women, in order to offer an environment that is as safe and comfortable as possible for wom en who have been abused by men. Instead of offer ing agencies that operate these shelters flexibility to respond to the unique circumstances and needs of those in their care, the proposed rule would argu ably mandate them to house biological men who identify as women in single-sex facilities. Catholic charitable agencies will continue endeavoring to meet the needs of all who come to their doors and should be allowed the flexibility to provide shelter in a way that best serves those in their care and honors their Catholic beliefs, which include both the call to shelter those in need and the recognition of the immutable difference between, and dignity of, men and women. Similar situations may arise in the context of the placement of unaccompanied migrant chil dren (UC) and unaccompanied refugee minors (URMs). A UC or URM who identifies as the op posite of his or her biological sex may be referred for placement in a shelter designated for children

of the child’s nonbiological sex. The proposed rule could require Catholic agencies serving UC and URMs to accept that referral, even when appropri ate accommodations cannot be made, and thereby endorse a view of human embodiment and sexual difference contrary to Catholic teaching. Catholic charities serve everyone in need — no one is turned away because of their self-deter mined “sexual orientation or gender identity,” or any other characteristic. The proposed rule could drive Catholic charities and other religious orga nizations out of service in their communities not because they want to be able to discriminate, but because they do not want to be forced to violate their beliefs. 2. USDE Title IX Athletics Rule Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in any education program or activity receiving federal fi nancial assistance. The Title IX statute includes a provision exempting any educational institution controlled by a religious organization from the statute’s requirements to the extent they conflict with the organization’s religious tenets. 16 The U.S. Department of Education (USDE) has regulations that interpret and implement these provisions of the Title IX statute, with legally binding effect on violence. Some of those shelters are single-sex facilities for women, in order to offer an environment that is as safe and comfortable as possible for women who have been abused by men. Instead of offering agencies that operate these shelters flexibility to respond to the unique circumstances and needs of those in their care, the proposed rule would arguably mandate them to house biological men who identify as women in single-sex facilities. Catholic charitable agencies provide emergency shelter for victims of domestic