The White House Office of Management and Budget is seeking to force recipients of federal grant money to accept transgender ideology in order to be eligible, according to a proposed rule.
OMB's grant guidance is used as a government-wide standard which all agencies follow when allocating federal money.
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The Biden administration's proposed rule, for which the public comment period closes Dec. 4, strips grant allocation guidance of religious and other First Amendment protections while applying an expanded definition of "sex discrimination" to include gender identity.
"They're taking the long-standing rule and they're revising it to cut out long-standing protections for religious liberty — constitutional and statutory protections, to be clear," Rachel N. Morrison, a fellow at the Ethics and Public Policy Center, told the Washington Examiner. "They're taking something that should be neutral, that should be properly implementing constitutional and statutory requirements and sound management for the government, and they’re making it ideological. They're making it very partisan."
The new rule, if implemented, would mean that any recipient of federal dollars — including contractors, schools, and nonprofit groups — would be subject to "ideological restrictions to dollars that Congress appropriates," Morrison said.
Changes proposed to Section 200.300, called "statutory and national policy requirements," remove the requirement that grants be allocated in a manner that "protect[s] free speech, religious liberty, public welfare, the environment, and prohibit[s] discrimination."
It also inserts language that requires grant allocation processes to look out for sex discrimination, which now includes protections for sexual orientation and gender identity, "consistent with the Supreme Court's reasoning in Bostock v. Clayton County." That decision, authored by Justice Neil Gorsuch, introduced gender identity into the definition of "sex" in Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination.
Even though grant allocation is not dictated by employment law, the reference to Bostock is one indication of the Biden administration's attempt to take that consequential case and apply its reasoning governmentwide, Morrison said.
"It's the whole-of-government approach that we've been seeing by the Biden administration to push this ideological position to impose sexual orientation and gender identity non-discrimination in anything and everything that says 'sex discrimination,'" she said, explaining that the White House is viewing Bostock as having opened the door to a broad application of civil rights protections that now include transgender people.
That, Morrison said, is a misread of the decision, which she contended was written narrowly to apply only to Title VII. She said the Biden administration's efforts to cite the ruling in other areas are injecting gender ideology into broader policymaking decisions.
"I think much of the goal is to shift expectations and to encourage folks to voluntarily or preemptively adopt policies and positions that the administration at the end of the day may not actually be able to legally require," Morrison stated, adding that federal agencies will take actions where they know they are unlikely to win on the merits but "want to generate the behavioral change."
In his dissent in Bostock, Justice Samuel Alito, joined by Justice Clarence Thomas, foreshadowed this issue, writing, "The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning."
Significant concerns face charities, religious groups, and other institutions that may have either disagreed with the transgender movement or attempted to avoid taking a public position on the subject.
"Once you basically push entities into updating their policies and procedures and all of that into taking public positions that their companies or their organizations may not have taken before because they didn't want to and didn't have to, but now they're being forced to take it, are they really going to walk it back after they've done that?" Morrison said. "It gets really tricky. So strategically, that is a big part of the rule."
The result of the proposed OMB rule has the potential to divide businesses and charities along the lines of which entities are willing to comply voluntarily in order to avoid risking the loss of federal dollars. Some organizations that previously provided a service to their community with the help of grants may struggle to stomach the new change, Morrison said.
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"A lot of religious folks or other folks are just fed up with the whole woke nonsense being imposed by the Biden administration that they just don't even want to participate in these programs anymore," she said.
OMB did not respond to a request for comment from the Washington Examiner.