Religious-Liberty-Annual-Report

22 IV – Religious Liberty and the Executive Branch

3. HHS Section 504 Rule Section 504 of the Rehabilitation Act of 1973 pro hibits recipients of federal funds from discriminat ing on the basis of disability. Unlike the Americans with Disabilities Act, Section 504 has no exemp tion for religious organizations. In September 2023, the U.S. Department of Health and Human Services (HHS) proposed var ious revisions to their regulations that implement Section 504. 19 Most of the proposed changes are positive — by enhancing nondiscrimination re quirements and emphasizing safeguards for par ticularly vulnerable populations, the proposed rule protects the dignity of the human person and counteracts societal tendencies to discredit the val ue of the lives of persons with disabilities. However, HHS also proposed to interpret Sec tion 504 to prohibit discrimination on the basis of gender identity, under the theory that gender dys phoria qualifies as a disability. The proposed rule offers no indication that HHS has considered how such an interpretation will burden religious liberty. 4. HHS Adoption & Foster Care Rule In September 2023, HHS’s Administration for Chil dren and Families (ACF) published proposed rules governing how adoption and foster care agencies receiving funding from HHS handle the placement of children who suffer from gender dysphoria or experience same-sex attraction. 20 In some respects the proposed regulations establish laudable norms. The regulations would, for example, require place ments that are “safe” and “appropriate,” an environ ment free of “hostility,”“mistreatment,” and “abuse,” and access to services that support the child’s “health” and “well-being.” Of course, this should be the case for all children. However, other provisions of the proposed reg ulations are problematic because they propose, in correctly, that unquestioning affirmance is the only and best response to a child who presents an issue with regard to “sexual orientation or gender iden tity” (SOGI). ACF asserts that gender affirmance is in the “best interests” and meets the “special needs of the child.” The regulations would therefore re quire agencies to ensure that children “who iden

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covered schools and other organizations engaged in education. In 2022, USDE published a proposed rule in terpreting Title IX to prohibit discrimination on the basis of “sexual orientation and gender iden tity” [see discussion of this rule in Section VII(B) (2)]. 17 The proposed rule disclaimed any applica tion to school athletic programs, instead reserving that topic for a future rulemaking. In April 2023, USDE published its proposed rule on how Title IX governs school athletics pro grams. 18 The rule would forbid schools from hav ing a categorical policy of separating their teams based on biological sex. It would technically per mit schools to maintain sex-separate teams in some circumstances, but the rule is unclear about what exactly those circumstances are. Although the rule briefly acknowledges the ex istence of Title IX’s exemption for religious schools, it does not address how that exemption interacts with the rule’s requirements and prohibitions. For instance, the rule prohibits separation of teams by sex for the purpose of “communicating or codify ing disapproval of a student or a student’s gender identity.” This is, of course, not the purpose of any Catholic school’s policy of maintaining sex-sepa rate teams. However, as the USDE is surely aware, that is exactly how many who oppose such policies describe them.