The so-called HHS Grants Rule is a particular provision embedded within the sprawling regulations that govern grants, contracts, and other financial assistance from the U.S. Department of Health and Human Services (HHS). Late in the Obama Administration in 2016, with little fanfare, HHS added provisions prohibiting recipients of such funding from discriminating on the basis of religion, sexual orientation, and gender identity, and requiring recipients to treat same-sex civil marriages as valid in keeping with the Supreme Court’s decisions in U.S. v. Windsor and Obergefell v. Hodges. These two paragraphs in the Code of Federal Regulations became known as the "Grants Rule."
The Grants Rule would force charities that believe in traditional marriage as part of their religious beliefs to place children with same-sex couples. It would also force faith-based charities providing emergency housing or homeless shelters to allow biological men—if they prefer a female gender identity—to be housed with women in the shelter (or a biological woman to be housed with men).
Under the Trump Administration, HHS issued a notice that it would not enforce the Grants Rule on the grounds that the 2016 regulation was, essentially, procedurally deficient, for having not properly engaged in a particular analysis required by law. Then, in early January of 2021, HHS revised the Grants Rule, replacing the list of nondiscrimination requirements with a more general provision requiring recipients to abide by applicable federal civil rights law, and a provision stating that HHS would follow all applicable Supreme Court rulings. The revisions were also immediately challenged in court.
The new proposed Grants Rule from HHS is a slightly scaled-back version of the 2016 rule. Instead of imposing a prohibition on “sexual orientation and gender identity” discrimination on all funds from HHS, it imposes such a prohibition on any funds from HHS that are governed by a statute that prohibits sex discrimination, arguing that the Supreme Court’s decision in Bostock v. Clayton County, Georgia, means that any sex discrimination 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 substantive goal.
Catholic health and social service organizations either already receive funding or may plausibly seek funding under virtually every statute subject to the proposed rule. Their operation of these charitable ministries presents numerous fact-patterns that could create conflicts between the proposed rule’s requirements and Catholic teaching.
For example, Catholic charitable agencies provide emergency shelter for victims of domestic 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 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 children (UC) and unaccompanied refugee minors (URMs). A UC or URM who identifies as the opposite of his or her biological sex may be referred for placement in a shelter designated for children of the child’s non-biological sex. The proposed rule could require Catholic agencies serving UC and URMs to accept that referral, even when appropriate 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-determined “sexual orientation or gender identity,” or any other characteristic. The proposed rule could drive Catholic charities and other religious organizations out of service to their communities not because they want to be able to discriminate, but because they do not want to be forced to violate their beliefs.
Comments on Proposed HHS Grants Rule
Comments on Proposed HHS Grants Regulation