Religious-Liberty-Annual-Report

IV – Religious Liberty and the Executive Branch 25

student groups that require their leaders to affirm the beliefs of the group’s religion. In recent years, numerous public universities have discriminated against Christian student groups because of the groups’ policies requiring their leaders to affirm the belief that sex is reserved for marriage between a man and a woman. 27 The universities regarded such policies as discriminatory against students who identify as gay or lesbian. In February 2023, USDE issued a proposal to rescind the ECA provisions. 28 The justifications offered for the proposal are thin, focusing mainly on purported confusion among public universities about how to apply the ECA provisions. What is clear is that, if the rescission of the ECA provisions is finalized, student faith groups will be especially vulnerable to discrimination by their school ad ministrations. 3. EEOC Harassment Guidance The Equal Employment Opportunity Commission (EEOC) enforces the employment nondiscrimina tion provisions of Title VII of the Civil Rights Act, which prohibits discrimination on the basis of sex, among other things. In October 2023, the EEOC issued proposed guidance — a nonbinding notice to the public of what the EEOC understands the law to mean — regarding what constitutes harass ment that is prohibited under Title VII. 29 The guid ance states that sex-based harassment includes harassment based on (1) “a woman’s reproductive decisions, such as decisions about contraception or abortion,” and (2) “sexual orientation and gender identity.” The proposal would chill or prohibit speech that upholds the sanctity of life, the nature of con jugal relationships, and the created, bodily reality of human beings, such as by requiring the use of “preferred pronouns.” It also would require em ployers, in the name of prohibiting harassment, to allow employees who identify as transgender to use bathrooms, locker rooms, and other private spaces reserved for members of the opposite sex. Aside from being an improper interpretation of the text of Title VII, the guidance likely runs afoul of constitutional rights of speech, expressive asso

ciation, and religious exercise. 4. Department of Justice/Multiagency Rule on Faith-Based Partnerships The Equal Treatment for Faith-Based Organiza tions regulations were first promulgated in the first term of the George W. Bush Administration 30 and have been the subject of back-and-forth revi sions by successive administrations. The currently planned revisions 31 would be a joint rulemaking across nine federal agencies, helmed by the U.S. Department of Justice, setting out each agency’s separate but mostly identical protections and con ditions for faith-based organizations’ participation in federally funded social service programs. Throughout their various iterations, the Equal Treatment regulations have stood for the basic proposition that faith-based social service providers must be eligible for federal awards on equal terms with secular providers. Part of the disagreement has been about what that equality looks like. When HHS revised its Equal Treatment regulations in 2020 to better fa cilitate faith-based organizations’ involvement, it made a few main changes to the previous regu lations aimed at removing requirements that the regulations imposed only on faith-based provid ers but not secular providers (such as an obliga tion to refer beneficiaries to a secular provider upon request, even though secular providers bore The proposal would chill or prohibit speech that upholds the sanctity of life, the nature of conjugal relationships, and the created, bodily reality of human beings, such as by requiring the use of “preferred pronouns.” It also would require employers, in the name of prohibiting harassment, to allow employees who identify as transgender to use bathrooms, locker rooms, and other private spaces reserved for members of the opposite sex.