Equal Participation of Faith-Based Organizations in the Federal Agencies' Programs and Activities

Federal RegisterDec 17, 2020

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DEPARTMENT OF EDUCATION

2 CFR Part 3474

34 CFR Parts 75 and 76

[ED-2019-OPE-0080]

RIN 1840-AD 45

DEPARTMENT OF HOMELAND SECURITY

6 CFR Part 19

[DHS-2019-0049]

RIN 1601-AA93

DEPARTMENT OF AGRICULTURE

7 CFR Part 16

[USDA-2020-0009]

RIN 0510-AA008

AGENCY FOR INTERNATIONAL DEVELOPMENT

22 CFR Part 205

[AID-2020-0001]

RIN 0412-AA99

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Parts 5, 92, and 578

[HUD-2020-0017]

RIN 2501-AD91

DEPARTMENT OF JUSTICE

28 CFR Part 38

[DOJ-OAG-2020-0001; A.G. Order No. 4925-2020]

RIN 1105-AB58

DEPARTMENT OF LABOR

29 CFR Part 2

[DOL-2019-0006]

RIN 1291-AA41

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 50, 61, and 62

[VA-2020-VACO-0003]

RIN 2900-AQ75

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of the Secretary

45 CFR Part 87

Administration for Children and Families

45 CFR Part 1050

[HHS-OS-2020-0001]

RIN 0991-AC13

Equal Participation of Faith-Based Organizations in the Federal Agencies' Programs and Activities

AGENCY:

Department of Education, Department of Homeland Security, Department of Agriculture, Agency for International Development, Department of Housing and Urban Development, Department of Justice, Department of Labor, Department of Veterans Affairs, Department of Health and Human Services.

ACTION:

Final rule.

SUMMARY:

This rule amends the regulations of the agencies listed above (“the Agencies”) to implement Executive Order 13831 of May 3, 2018 (Establishment of a White House Faith and Opportunity Initiative). This rule provides clarity about the rights and obligations of faith-based organizations participating in the Agencies' Federal financial assistance programs and activities. This rulemaking is intended to ensure that the Agencies' Federal financial assistance programs and activities are implemented in a manner consistent with the requirements of Federal law, including the First Amendment to the Constitution and the Religious Freedom Restoration Act.

DATES:

This final rule becomes effective on January 19, 2021.

FOR FURTHER INFORMATION CONTACT:

For information regarding each Agency's implementation of these final regulations, the contact information for that Agency follows. If you use a telecommunications device for the deaf (“TDD”) or a text telephone (“TTY”), call the Federal Relay Service (“FRS”), toll free, at 800-877-8339:

•

Department of Education:

Lynn Mahaffie, Assistant General Counsel, Division of Regulatory Services, Office of the General Counsel, 202-453-7862,

Lynn.Mahaffie@ed.gov.

•

Department of Homeland Security:

Peter Mina, Deputy Officer for Programs and Compliance, Office for Civil Rights and Civil Liberties, 202-401-1474 (phone), 202-401-0470 (TTY).

•

Department of Agriculture:

Emily Tasman, Assistant General Counsel, Office of the General Counsel, 202-720-3351,

emily.tasman@usda.gov.

•

Agency for International Development:

Brian Klotz, Deputy Director, Center for Faith & Opportunity Initiatives, 202-712-0217,

bklotz@usaid.gov

•

Department of Housing and Urban Development:

Richard Youngblood, Director, Center for Faith-Based and Neighborhood Partnerships, 202-402-5958.

•

Department of Justice:

Michael L. Alston, Director, Office for Civil Rights, Office of Justice Programs, 202-514-2000,

EO_13831@ojp.usdoj.gov.

•

Department of Labor:

Mark Zelden, Director, Centers for Faith & Opportunity Initiatives, 202-693-6017,

Zelden.Mark.A@dol.gov.

•

Department of Veterans Affairs:

Conrad Washington, Director, Center for Faith and Opportunity Initiatives, Office of Public and Intergovernmental Affairs, 202-461-7865.

•

Department of Health and Human Services:

Shannon O. Royce, Director, Center for Faith and Opportunity Initiatives, 202-260-6501.

SUPPLEMENTARY INFORMATION:

I. Background

Shortly after taking office in 2001, President George W. Bush signed Executive Order 13199, 66 FR 8499 (Jan. 29, 2001) (Establishment of White House Office of Faith-Based and Community Initiatives). That Executive Order sought to ensure that “private and charitable groups, including religious ones, . . . have the fullest opportunity permitted by law to compete on a level playing field” in the delivery of social services. To do so, it created an office within the White House, the White House Office of Faith-Based and Community Initiatives, with primary responsibility to “establish policies, priorities, and objectives for the Federal Government's comprehensive effort to enlist, equip, enable, empower, and expand the work of faith-based and other community organizations to the extent permitted by law.”

On December 12, 2002, President Bush signed Executive Order 13279, 67 FR 77141 (Dec. 12, 2002) (Equal Protection of the Laws for Faith-Based and Community Organizations). Executive Order 13279 set forth the principles and policymaking criteria to guide Federal agencies in formulating and implementing policies with implications for faith-based organizations and other community organizations, to ensure equal protection of the laws for faith-based and community organizations, and to expand opportunities for, and strengthen the capacity of, faith-based and other community organizations to meet social needs in America's communities. In addition, Executive Order 13279 directed specified agency heads to review and evaluate existing policies that had implications for faith-based and community organizations relating to their eligibility for Federal financial assistance for social service programs and, where appropriate, to implement new policies that were consistent with and necessary to further the fundamental principles and policymaking criteria articulated in the Executive Order.

In 2004, the Department of Veterans Affairs (“VA”) promulgated regulations at 38 CFR part 61 consistent with Executive Order 13279. VA Homeless

Providers Grant and Per Diem Program; Religious Organizations, 69 FR 31883 (June 8, 2004). The Department of Education similarly promulgated regulations at 34 CFR parts 74, 75, 76, and 80. Participation in Education Department Programs by Religious Organizations; Providing for Equal Treatment of All Education Program Participants, 69 FR 31708 (June 4, 2004). In 2003 and 2004, the Department of Housing and Urban Development (“HUD”) promulgated three final rules to implement Executive Order 13279.

See

Providing for Equal Treatment of All Program Participants, 69 FR 62164 (Oct. 22, 2004); Equal Participation of Faith-Based Organizations, 69 FR 41712 (July 9, 2004); Participation in HUD's Native American Programs by Religious Organizations; Participation in HUD Programs by Faith-Based Organizations; Providing for Equal Treatment of all HUD Program Participants, 68 FR 56396 (Sept. 30, 2003). In 2004, the Department of Justice (“DOJ”), Department of Agriculture (“USDA”), Department of Labor (“DOL”), Department of Health and Human Services (“HHS”), and Agency for International Development (“USAID”) issued regulations through notice-and-comment rulemaking implementing Executive Order 13279.

See

Participation in Justice Department Programs by Religious Organizations; Providing for Equal Treatment of All Justice Department Program Participants, 69 FR 2832 (Jan. 21, 2004); Equal Opportunity for Religious Organizations, 69 FR 41375 (July 9, 2004); Equal Treatment in Department of Labor Programs for Faith-Based and Community Organizations; Protection of Religious Liberty of Department of Labor Social Service Providers and Beneficiaries, 69 FR 41882 (July 12, 2004); Participation in Department of Health and Human Services Programs by Religious Organizations; Providing for Equal Treatment of All Department of Health and Human Services Program Participants, 69 FR 42586 (July 16, 2004); Participation by Religious Organizations in USAID Programs, 69 FR 61716 (Oct. 20, 2004). DOL subsequently issued guidance detailing the process for recipients of financial assistance to obtain exemptions from religious nondiscrimination requirements under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. 2000bb through 2000bb-4.

DHS issued a Notice of Proposed Rulemaking (“NPRM” or “proposed rule”) in 2008,

see

Nondiscrimination in Matters Pertaining to Faith-Based Organizations, 73 FR 2187 (Jan. 14, 2008); however, DHS did not issue a final rule related to the participation of faith-based organizations in its programs prior to 2016.

See

DOL, Guidance Regarding Federal Grants and Executive Order 13798,

ttp

://www.dol.gov/agencies/oasam/grants/religious-freedom-restoration-act.

President Obama maintained President Bush's program but modified it in certain respects. Shortly after taking office, President Obama signed Executive Order 13498, 74 FR 6533 (Feb. 5, 2009) (Amendments to Executive Order 13199 and Establishment of the President's Advisory Council for Faith-Based and Neighborhood Partnerships). This Executive Order changed the name of the White House Office of Faith-Based and Community Initiatives to the White House Office of Faith-Based and Neighborhood Partnerships, and it created the President's Advisory Council on Faith-Based and Neighborhood Partnerships, which subsequently submitted recommendations regarding the work of the Office.

On November 17, 2010, President Obama signed Executive Order 13559, 75 FR 71319 (Nov. 17, 2010) (Fundamental Principles and Policymaking Criteria for Partnerships with Faith-Based and Other Neighborhood Organizations). Executive Order 13559 made various changes to Executive Order 13279, which included: Making minor and substantive textual changes to the fundamental principles; adding a provision requiring that any religious social service provider refer potential beneficiaries to an alternative provider if the beneficiaries objected to the first provider's religious character; adding a provision requiring that the faith-based provider give notice of potential referral to potential beneficiaries; and adding a provision that awards must be free of political interference and not be based on religious affiliation or lack thereof. An interagency working group was tasked with developing model regulatory changes to implement Executive Order 13279, as amended by Executive Order 13559, including provisions that clarified the prohibited uses of direct financial assistance, allowed religious social service providers to maintain their religious identities, and distinguished between direct and indirect assistance.

These efforts eventually resulted in DHS's promulgating regulations and the other Agencies promulgating amendments to their regulations. In April 2016, the Agencies promulgated a joint final rule through notice-and-comment rulemaking to ensure consistency with Executive Order 13279, as amended by Executive Order 13559.

See

Federal Agency Final Regulations Implementing Executive Order 13559: Fundamental Principles and Policymaking Criteria for Partnerships With Faith-Based and Other Neighborhood Organizations, 81 FR 19355 (April 4, 2016).

The revised regulations defined “indirect Federal financial assistance” in a way that sought to indicate that the aid must flow to a beneficiary from a religious provider only through the genuine and independent choice of the beneficiary.

See, e.g.,

81 FR at 19381 (describing “indirect” assistance programs as those in which the benefits under the program are provided as a result of a “genuine and independent choice”);

id.

at 19406-07 (defining “indirect Federal financial assistance” in terms of whether, inter alia, the “organization receives the assistance as the result of the decision of the beneficiary, not a decision of the government”). The rules also provided that aid would be considered “indirect” only if beneficiaries had at least one secular option as an alternative to the faith-based provider.

See id.

at 19407. Further, the rules not only required that faith-based providers give the notice of the right to an alternative provider specified in Executive Order 13559, but also required faith-based providers, but not other providers, to give written notice to beneficiaries and potential beneficiaries of programs funded with direct Federal financial assistance of various protections, including nondiscrimination based on religion, the requirement that participation in any religious activities must be voluntary and that they must be provided separately from the federally funded activity, and that beneficiaries may report violations.

E.g., id.

at 19423.

President Trump has given new direction to the program established by President Bush and continued by President Obama. On May 4, 2017, President Trump issued Executive Order 13798, 82 FR 21675 (May 4, 2017) (Promoting Free Speech and Religious Liberty). Executive Order 13798 states that “Federal law protects the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue interference by the Federal Government. The executive branch will honor and enforce those protections.” It directed the Attorney General to “issue guidance interpreting religious liberty protections in Federal law.” Pursuant to this instruction, the Attorney General subsequently published guidance in the

Federal

. See

Federal Law Protections for Religious Liberty, 82 FR 49668 (Oct. 26, 2017) (“the Attorney General's Memorandum”).

The Attorney General's Memorandum emphasizes that individuals and organizations do not give up religious liberty protections by providing government-funded social services, and that “government may not exclude religious organizations as such from secular aid programs . . . when the aid is not being used for explicitly religious activities such as worship or proselytization.”

Id.

at 49669.

On May 3, 2018, President Trump signed Executive Order 13831, 83 FR 20715 (May 3, 2018) (Establishment of a White House Faith and Opportunity Initiative), amending Executive Order 13279, as amended by Executive Order 13559, and other related Executive Orders. Among other things, Executive Order 13831 changed the name of the “White House Office of Faith-Based and Neighborhood Partnerships” as established in Executive Order 13498, to the “White House Faith and Opportunity Initiative”; changed the way that the initiative is to operate; directed departments and agencies with “Centers for Faith-Based and Community Initiatives” to change those names to “Centers for Faith and Opportunity Initiatives”; and ordered that departments and agencies without a Center for Faith and Opportunity Initiatives designate a “Liaison for Faith and Opportunity Initiatives.” Executive Order 13831 also eliminated the alternative provider referral requirement and requirement of notice thereof in Executive Order 13559 described above.

On January 17, 2020, DHS, USDA, USAID, DOJ, DOL, VA, HHS, and ED issued NPRMs with proposed regulatory amendments to implement Executive Order 13831 and conform more closely to the Supreme Court's current First Amendment jurisprudence; relevant Federal statutes such as RFRA; Executive Order 13279, as amended by Executive Orders 13559 and 13831; and the Attorney General's Memorandum. Equal Participation of Faith-Based Organizations in DHS's Programs and Activities: Implementation of Executive Order 13831, 85 FR 2889 (Jan. 17, 2020); Equal Opportunity for Religious Organizations in U.S. Department of Agriculture Programs: Implementation of Executive Order 13831, 85 FR 2897 (Jan. 17, 2020); Equal Participation of Faith-Based Organizations in USAID's Programs and Activities: Implementation of Executive Order 13831, 85 FR 2916 (Jan. 17, 2020); Equal Participation of Faith-Based Organizations in Department of Justice's Programs and Activities: Implementation of Executive Order 13831, 85 FR 2921 (Jan. 17, 2020); Equal Participation of Faith-Based Organizations in the Department of Labor's Programs and Activities: Implementation of Executive Order 13831, 85 FR 2929 (Jan. 17, 2020); Equal Participation of Faith-Based Organizations in Veterans Affairs Programs: Implementation of Executive Order 13831, 85 FR 2938 (Jan. 17, 2020); Ensuring Equal Treatment of Faith-Based Organizations, 85 FR 2974 (Jan. 17, 2020); Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, Direct Grant Programs, State-Administered Formula Grant Programs, Developing Hispanic-Serving Institutions Program, and Strengthening Institutions Program, 85 FR 3190 (Jan. 17, 2020). On February 13, 2020, HUD issued a parallel NPRM. Equal Participation of Faith-Based Organizations in HUD Programs and Activities: Implementation of Executive Order 13831, 85 FR 8215 (Feb. 13, 2020). These NPRMs proposed to do the following:

• Remove the notice-and-referral requirements that were required of faith-based organizations but were not required of other organizations;

• Require the Agencies' notices or announcements of award opportunities and notices of awards or contracts to include language clarifying the rights and obligations of faith-based organizations that apply for and receive Federal funding. ED, DHS, USDA, DOJ, DOL, HUD, VA, and HHS proposed specific language in these notices to clarify that, among other things, a faith-based organization may apply for awards on the same basis as any other organization, the Agencies will not discriminate in selection on the basis of the organization's religious exercise or affiliation, a participating faith-based organization retains its independence and may carry out its mission consistent with—and may be able to seek an accommodation under—religious freedom protections in Federal law, and a faith-based organization may not discriminate against beneficiaries on certain religious bases;

• Clarify that accommodations are available to faith-based organizations under existing Federal law and directly reference the definition of “religious exercise” from RFRA;

• Update the prohibitions against the Agencies (and, for some Agencies, their intermediaries) discriminating in selection and disqualifying an organization, so as to prohibit such conduct on the basis of religious exercise and affiliation;

• Update the definition of “indirect Federal financial assistance” to align more closely with the Supreme Court's decision in

Zelman

Simmons-Harris,

536 U.S. 639 (2002), by removing the requirement that beneficiaries have at least one secular option;

• Clarify the existing provision that a faith-based organization participating in an indirect Federal financial assistance program or activity need not modify its program to accommodate a beneficiary, so that it expressly states that such an organization need not modify its policies that require attendance in “all activities that are fundamental to the program;”

• Clarify that faith-based organizations participating in Agency-funded programs shall retain their autonomy, right of expression, religious character, and independence;

• Clarify that none of the guidance documents that the Agencies or their intermediaries use in administering the Agencies' financial assistance shall require faith-based organizations to provide assurances or notices where similar requirements are not imposed on secular organizations, and that any restrictions on the use of grant funds shall apply equally to faith-based and secular organizations;

• Clarify that faith-based organizations need not remove, conceal, or alter any religious symbols or displays;

• Clarify the standard for permissible discrimination on the basis of religion with respect to employment or board membership, as relevant;

• Clarify the methods that can be used to demonstrate nonprofit status;

• Update the terminology to refer to “faith-based organizations,” not “religious organizations;” and

• Clarify that the Agencies and their intermediaries cannot advantage or disadvantage faith-based organizations affiliated with historic or well-established religions or sects in comparison with other religions or sects.

These final regulations are effective on January 19, 2021. In light of the public comments and as explained further below, the Agencies are making the following changes from the NPRMs:

• Update the prohibitions against the Agencies (and, for some Agencies, their intermediaries) discriminating in selecting and disqualifying an organization, so as to prohibit such conduct on the basis of religious character and affiliation, and add such a prohibition against discrimination on the basis of religious exercise with

additional language based on the applicable Free Exercise Clause and RFRA standards; and

• Update the notices in the appendices for ED, DHS, USDA, DOJ, DOL, HUD, VA, and HHS to reflect that these prohibitions apply to discrimination on the basis of religious character, affiliation, or exercise. These Agencies are also updating such notices to indicate that the listed Federal laws provide religious freedom “and conscience” protections.

Unless otherwise specified in the discussion below, these final regulations amend existing regulations or establish new regulations to do the following, consistent with the NPRMs:

• Remove the notice-and-referral requirements that were required of faith-based organizations but were not required of other organizations;

• Require the Agencies' notices or announcements of award opportunities and notices of awards or contracts to include language clarifying the rights and obligations of faith-based organizations that apply for and receive Federal funding. ED, DHS, USDA, DOJ, DOL, HUD, VA, and HHS are also including specific language in these notices to clarify that, among other things, a faith-based organization may apply for awards on the same basis as any other organization; a participating faith-based organization retains its independence and may carry out its mission consistent with—and may be able to seek an accommodation under—religious freedom (and conscience) protections in Federal law;

and a faith-based organization may not discriminate against beneficiaries on certain religious bases;

In this rulemaking, the word “accommodation” refers both to provisions of relief from the burdens that a generally applicable law might impose on religious exercise, such as RFRA and the Religious Land Use and Institutionalized Persons Act (“RLUIPA,” 42 U.S.C. 2000cc

et seq.

), and to protections of conscience more generally, such as the Coats-Snowe Amendment (42 U.S.C. 238n), the Weldon Amendment (a rider in HHS's annual appropriation,

see, e.g.,

Further Consolidated Appropriations Act, 2020, Pub. L. 116-94, div. A, sec. 507(d), 133 Stat. 2534, 2607 (Dec. 20, 2019)), the Church Amendments (42 U.S.C. 300a-7), and 42 U.S.C. 18113.

• Clarify that accommodations are available under existing Federal law and directly reference the definition of “religious exercise” from RFRA;

• Update the definition of “indirect Federal financial assistance” to align more closely with the Supreme Court's decision in

Zelman,

536 U.S. at 639, by removing the requirement that beneficiaries have at least one secular option;

• Clarify that faith-based organizations participating in Agency-funded programs shall retain their autonomy, right of expression, religious character, and independence;

• Clarify that faith-based organizations need not remove, conceal, or alter any religious symbols or displays;

• Clarify the standard for permissible discrimination on the basis of religion with respect to employment or board membership, as relevant;

• Clarify the methods that can be used to demonstrate nonprofit status;

• Update the terminology to refer to “faith-based organizations,” not “religious organizations;” and

Additionally, in its NPRM, ED proposed to add severability clauses to each part of its regulations, and it is finalizing those severability clauses. USDA, DOL, DOJ, and HHS are also adding a severability provision indicating that, to the extent that any provision of this regulation is declared invalid by a court of competent jurisdiction, the Agency intends for all other provisions that are capable of operating in the absence of the specific provision that has been invalidated to remain in effect. They are making this addition because they conclude that each of the regulations discussed in this preamble would serve one or more important, related, but distinct purposes, as demonstrated by the extensive discussion of each provision below and in the USDA, DOL, DOJ, and HHS NPRMs. This provision is not a substantive addition, so the Agencies do not believe that notice and comment is required. Even if notice and comment were required, the absence of notice and comment for this provision would not be prejudicial, as commenters received an opportunity to provide their views on all substantive aspects of the rule. Hence, although the issue of severability was not raised in the USDA, DOL, DOJ, or HHS NPRMs, commenters were able to evaluate the practical impact of each facet of the proposed rules, and finalizing the proposed rules with a severability provision will not meaningfully alter the rules' impact on commenters. The Agencies accordingly have concluded that they will not re-notice the rules to raise the issue of severability.

See First Am. Discount Corp.

CFTC,

222 F.3d 1008, 1015 (D.C. Cir. 2000) (declining to decide whether additional notice was required where petitioner suffered no prejudice).

The Agencies received over 95,000 comments in response to their NPRMs. The major cross-cutting issues raised in those comments are discussed in the Joint Preamble (Part II). Many commenters filed similar or identical comments with some or all of the Agencies. Thus, unless otherwise noted in response to a particular comment, the responses in this joint preamble are adopted by all Agencies, regardless of whether a particular Agency received a particular comment.

Within each discussion of a category of comments, there are subheadings entitled “Summary of Comments,” “Response,” “Changes,” and “Affected Regulations.” Under the “Changes” subheading, the Agencies describe the types of changes, if any, that they are making to the proposed rules as a result of the comments. Under the “Affected Regulations” subheading, the Agencies list the actual sections of the regulations that they have changed.

Comments that raised issues specific to an Agency or that required an explanation of how a cross-cutting issue affects an Agency are addressed in the Agency-Specific Preambles (Part III).

Following is the organization of this rulemaking:

I. Background

II. Joint Preamble

A. General Support and Opposition

B. Regulatory History and Legal Background

1. Executive Orders 13199 and 13279

2. Executive Orders 13498 and 13559

3. Executive Orders 13798 and 13831 and the Attorney General's Memorandum

C. Notice-and-Referral Requirements

1. Beneficiary Rights

a. Notice and Referral to Alternative Provider

b. Other Notices

2. Beneficiary Harms

a. In General

b. Specific Examples, Studies, and Hypotheticals

3. Tension With the Free Exercise Clause and RFRA

a. Unequal Burdens

b. Substantial Burdens

c. Compelling Interests

d. Least Restrictive Means and Appropriate Remedy

e. Third-Party Harms

D. Indirect Federal Financial Assistance

1. Definition of “Indirect Federal Financial Assistance”

a. Consistency With Zelman v. Simmons-Harris

b. Rights of Beneficiaries and Providers

c. Harms to Beneficiaries and Providers

2. Required Attendance at Religious Activities

a. Establishment Clause

b. Clarification

E. Accommodations for Faith-Based Organizations

F. Discrimination on the Basis of Religious Character or Exercise

1. “Religious Character”

2. “Religious Exercise”

a. Scope of “Religious Exercise”

b. Clarified Basis for Protecting “Religious Exercise”

G. Rights of Faith-Based Organizations

1. Religious Symbols

2. Nonprofit Status

3. Notice to Faith-Based Organizations

4. Same Requirements for Faith-Based and Secular Organizations

5. Religious Autonomy and Expression

H. Employment and Board Membership

1. Preserving the Section 702 Exemption

2. Acceptance of or Adherence to Religious Tenets

a. Employment

b. Board Membership

I. Conflicts With Other Federal Laws, Programs, and Initiatives

J. Procedural Requirements

1. Comment Period

2. Arbitrariness and Capriciousness

K. Regulatory Certifications

1. Regulatory Impact Analysis (Executive Orders 12866 and 13563)

2. Economic Significance Determination (Executive Order 12866)

3. Deregulatory Action Determination (Executive Order 13771)

4. Federalism (Executive Order 13132)

5. Unfunded Mandates Reform Act

III. Agency-Specific Preambles

A. Department of Education

1. Comments in Support

2. Comments in Opposition

a. Concerns Regarding Discrimination and Impact on Programs

b. Concerns Regarding Appropriate Use of Taxpayer Dollars

c. Concerns Regarding Potential for Religious Compulsion

d. Concerns Regarding Modifications

e. Severability Clauses

B. Department of Homeland Security

C. Department of Agriculture

D. Agency for International Development

1. Notice and Alternative Provider Requirements

2. “Religious Organizations” to “Faith-Based Organizations”

3. Reasonable Accommodations

4. Religious Character and Religious Exercise

5. Exemption From Title VII Prohibitions for Qualifying Organizations Hiring Based on Acceptance of, or Adherence to, Religious Tenets

6. Assurances from Religious Organizations With Sincerely Held Religious Beliefs

7. Findings and Certifications

a. Regulatory Flexibility Act

b. Paperwork Burden

E. Department of Housing and Urban Development

1. Other Conflicting Laws

2. Conflicting Agency Programs and Policies

3. Procedural Issues

a. Comment Period

b. Rulemaking Authority

c. RIA/Administrative Sections

F. Department of Justice

G. Department of Labor

1. Beneficiary Harms

2. Notice Requirement

3. Deregulatory Action Determination (Executive Order 13771)

4. General Comments

H. Department of Veterans Affairs

I. Department of Health and Human Services

1. Nondirective Mandate

2. Certain Provisions of the ACA

3. Notice Requirements in Other Department Regulations

4. Medical Ethics

5. Discrimination Against Women, Persons With Disabilities, Low-Income Persons, and LGBT Persons

IV. General Regulatory Certifications

A. Regulatory Planning and Review (Executive Order 12866); Improving Regulation and Regulatory Review (Executive Order 13563)

1. Costs

2. Cost Savings

3. Benefits

B. Regulatory Flexibility Analysis

C. Civil Justice Reform (Executive Order 12988)

D. Consultation and Coordination With Indian Tribal Governments (Executive Order 13175)

E. Federalism (Executive Order 13132)

F. Reducing Regulation and Controlling Regulatory Costs (Executive Order 13771)

G. Paperwork Reduction Act

H. Unfunded Mandates Reform Act

V. Final Regulations

Department of Education

Department of Homeland Security

Department of Agriculture

Agency for International Development

Department of Housing and Urban Development

Department of Justice

Department of Labor

Department of Veterans Affairs

Department of Health and Human Services

II. Joint Preamble

A. General Support and Opposition

Summary of Comments:

Several commenters, including Members of Congress, agreed with the proposed rules and said that they protect religious liberty for faith-based organizations, including as guaranteed by the First Amendment to the U.S. Constitution. These commenters added that faith-based organizations are allowed to participate in Federal funding programs. Some commenters disagreed, however, arguing that no Federal funds should be given to faith-based organizations, including because such organizations are exempt from paying taxes. Some commenters argued that such faith-based organizations should be taxed.

Several commenters supported the proposed rules because, they said, faith-based organizations should be allowed to compete on equal footing with secular organizations, without any discriminatory or unfair restrictions imposed based on religious character, affiliation, or exercise, which would raise constitutional problems. Some of these commenters also stated that such equal treatment aligns the proposed rules with

Trinity Lutheran Church of Columbia, Inc.

Comer,

137 S. Ct. 2012 (2017). A common theme among these commenters was that organizations should not be forced to check their faith at the door when participating in government programs. Other commenters argued, however, that faith-based organizations have no entitlement to receive discretionary Federal financial assistance from the Agencies. Rather, these commenters argued that faith-based organizations need to be made aware of their obligations to comply with program requirements and with beneficiaries' constitutional protections. Some commenters said that faith-based organizations can exercise religion fully with private funds but need to serve all if they choose to accept Federal funds. One of these commenters stated that the proposed rules presented a solution in search of a problem, arguing that there is no indication faith-based organizations were harmed under the prior rule.

Some commenters supported the proposed rules because they would clarify and reinforce existing Federal law regarding faith-based organizations' rights to freely exercise their religion and participate in civic life. They argued that the proposed rules were not a radical shift in policy. Some of these commenters also noted that the proposed rules would provide faith-based organizations with clarity regarding these rights. These commenters argued that such rights were unclear, given what they perceived as conflicts between the prior rule and Federal law, including constitutional rights to be free from discrimination

based on religious character when participating in the Agencies' programs. For example, some commenters noted that the prior rule forced only faith-based organizations (and no other organizations) to give assurances and notices, which, they argued, was a violation of the Free Exercise Clause.

Some commenters argued that the proposed rules, by creating greater clarity and removing burdens, would enhance faith-based organizations' participation in Federal programs, thus expanding the scope of social services provided to people in need. Some of these commenters also emphasized the role that faith-based organizations play in promoting the public good and human flourishing in the public square, including teaching, providing medical services, serving underserved communities, and participating in the foster care system. One commenter relied on data estimating the large dollar amounts—over one trillion dollars in total, and billions by specific groups and denominations—that religious organizations contribute to the economy annually. One commenter to HUD supported the proposed rules because equal participation by faith-based organizations is “essential to revitalizing communities,” including to “bridge the gap between communities and government.”

Other commenters argued that the proposed rules would violate the Establishment Clause. They argued that the proposed rules could create impermissible third-party harms, could lead to religious coercion or proselytizing, could result in the use of taxpayer funds to favor certain religions over others, could create divisiveness, and could further entangle government and religion. Some of these commenters were also concerned that the proposed rules would allow the use of taxpayer funding for religious exercise or programming, contrary to taxpayers' consciences. These commenters argued that such funding would be contrary to the views of James Madison, as expressed in the

Memorial and Remonstrance Against Religious Assessments

(“

Memorial and Remonstrance”

) in 1785, and of Thomas Jefferson, as expressed in a bill that ultimately became the Virginia Statute for Religious Freedom in 1786 (“

Bill for Religious Freedom”

See

James Madison, To the Honorable the General Assembly of the Commonwealth of Virginia: A Memorial and Remonstrance (ca. June 20, 1785), Founders Online, National Archives,

https://founders.archives.gov/documents/Madison/01-08-02-0163

(“

Memorial and Remonstrance”

); Thomas Jefferson, A Bill for Establishing Religious Freedom (June 18, 1779), Founders Online, National Archives,

https://founders.archives.gov/documents/Jefferson/01-02-02-0132-0004-0082

(“

Bill for Religious Freedom”

Numerous commenters were concerned that the proposed rules did not place enough emphasis on the interests of, and the impact on, beneficiaries. Several of these commenters argued that the proposed rules would favor faith-based organizations over beneficiaries, especially vulnerable beneficiaries. Commenters emphasized that beneficiaries are the focus of these government-funded programs and deserve consideration equal to, if not greater than, that afforded to faith-based organizations.

Several of these commenters were concerned that the proposed rules could cause harms to beneficiaries, including discrimination and denial of services. These commenters were particularly concerned about discrimination against groups that these commenters identified as vulnerable, marginalized, or underserved, including people from minority religions or professing no religion, women, LGBTQ

people, people with low incomes, and people with disabilities. Commenters were concerned that beneficiaries' access to services would be impacted and that providers could impose religious litmus tests. Commenters were also concerned about removal of beneficiaries' religious liberty protections. One commenter also expressed concern regarding potential discrimination against volunteers.

This rule uses the term “LGBTQ” to refer to people identifying as lesbian, gay, bisexual, transgender, transsexual, queer, questioning, intersex, asexual, allied, pansexual, or otherwise, regardless of whether commenters used alternative acronyms such as LGBTQ+ or LGBTIA.

Some commenters impugned the motives behind the proposed rules. Some commented that the proposed rules were designed—consciously or unconsciously—to give preferences, and ensure aid flows, to specific officials' religious denominations. One commenter argued that the proposed rules were designed to further discrimination under the guise of promoting faith-based organizations' religious freedom.

Response:

The Agencies agree with the comments that said the proposed rules (and this final rule) protect the religious liberty of faith-based organizations. The First Amendment allows faith-based organizations to participate, and compete on equal footing with secular organizations, in neutral government funding programs.

See, e.g., Espinoza

Mont. Dep't of Revenue,

140 S. Ct. 2246, 2254 (2020) (“We have repeatedly held that the Establishment Clause is not offended when religious observers benefit from neutral government programs.”). This final rule applies to such neutral Federal financial assistance programs and activities, removes burdens that were imposed solely on faith-based organizations, prohibits the imposition of additional such burdens, and more clearly conforms these regulations with existing Federal law, including constitutional law.

Contrary to some comments, the tax-exempt status of faith-based organizations does not preclude them from participating in Federal financial assistance programs and activities.

See

26 U.S.C. 501(c)(3). The Agencies also note that these programs are open to tax-exempt secular organizations and, as discussed in Part III.G.2 below, to faith-based organizations that pay taxes.

To be sure, the Agencies agree with commenters that faith-based organizations, like all other organizations, have no entitlement to receive discretionary Federal financial assistance from the Agencies. But this final rule does not provide for any such entitlement. This final rule merely removes barriers to equal competition. It does not require any faith-based organization to be awarded Federal financial assistance in any program. Under this final rule, such award decisions will be made on neutral terms, consistent with Federal law.

The Agencies also agree with the comment that the added accommodation language merely clarifies and reinforces Federal law regarding faith-based organizations' rights to exercise their religion and participate in civic life. Federal law requires or permits certain accommodations,

see, e.g.,

42 U.S.C. 2000bb-1, and this final rule merely clarifies the application of this law, as discussed in Part II.E. Similarly, the changes discussed in Parts II.D, II.F, II.G, and II.H bring these regulations into clearer conformity with existing Federal religious liberty law in those areas. The other changes ensure that faith-based organizations are eligible on equal terms with other organizations, which is consistent with and alleviates tension with the First Amendment and RFRA, as discussed in Parts II.C and II.G.

The Agencies also agree with the comment that said it is important to give faith-based organizations notice of their obligation to comply with program requirements and beneficiaries' protections. This final rule provides for such notice, as discussed in Parts II.C and II.G.3 below.

The Agencies disagree with the comment that said this final rule is a solution in search of a problem. Each provision in this final rule is being issued to address valid concerns, as discussed throughout this preamble. If anything, the alternative provider notice-and-referral requirements were solutions in search of a problem because, as discussed in Part II.C, there is no indication anyone sought a referral under those provisions, and there is no indication anyone has ever sought a referral under a separate HHS program where a statute mandates reporting of all referral requests.

The Agencies disagree with the commenters that said this final rule violates the Establishment Clause. As discussed in each relevant section below, each change is consistent with the Establishment Clause. Third-party harms are discussed extensively in Parts II.C, II.D, and II.F, and this final rule retains the prohibition on religious coercion and proselytizing. Also, as demonstrated throughout this Joint Preamble, there is no indication that this final rule will lead to any improper use of taxpayer funds to favor certain religions, to create divisiveness, or to entangle government and religion.

The Agencies also disagree with the commenters that the proposed rule would allow the use of taxpayer funds for religious exercise or programming in any improper way. This final rule retains the prohibition on explicitly religious activities in programs and activities funded with direct Federal financial assistance. Although indirect Federal financial assistance may be used for explicitly religious activities under this rule, the same was true under the prior rule,

see, e.g.,

81 FR at 19358, 19361-62, 19419. This practice is consistent with Federal religious liberty laws, including the Religion Clauses of the First Amendment, as discussed in Part II.D.

The Agencies' conclusions are not affected by Madison's

Memorial and Remonstrance

or Jefferson's

Bill for Religious Freedom.

As they discuss throughout, this final rule is consistent with the Constitution and with governing statutes, as interpreted by the Federal courts. Any inconsistency with a pre-constitutional writing or State statute would not affect this final rule. Indeed, both documents cited by commenters contain several arguments that would not be considered appropriate for a government under current constitutional doctrine.

See, e.g., Memorial and Remonstrance

(objecting to bill as “adverse to the diffusion of the light of Christianity” because it should be the “first wish of those who enjoy this precious gift” to be that it “may be imparted to the whole race of mankind”);

Bill for Religious Freedom

(stating that “Almighty God hath created the mind”);

id.

(rejecting certain coercive civil actions as “a departure from the plan of the holy author of our religion”).

Regardless, this final rule is consistent with the broader principles animating Madison's

Memorial and Remonstrance

and Jefferson's

Bill for Religious Freedom.

Madison's

Memorial and Remonstrance

criticized a 1784 bill that would have provided for non-neutral funding—it mandated a tax to fund Christian teachers, with categorical exemptions for specific denominations.

Thus, similar to this final rule and current constitutional doctrine, Madison's

Memorial and Remonstrance

did not reflect opposition to faith-based organizations receiving neutral government funding on the same terms as other organizations.

Memorial and Remonstrance

(charging that the 1784 bill “violates equality by subjecting some to peculiar burdens” and “by granting to others peculiar exemptions”).

See, e.g., Rosenberger

Rector and Visitors of Univ. of Va.,

515 U.S. 819, 854 (1995) (Thomas, J., concurring) (“Madison's objection to the assessment bill did not rest on the premise that religious entities may never participate on equal terms in neutral government programs. . . . Madison's comments are more consistent with the neutrality principle[.]”).

Additionally, Jefferson's

Bill for Religious Freedom

denounced the power of the Government—as embodied by the “magistrate”—to dictate permissible religious expression. For example, Jefferson's bill said that the civil magistrate cannot be allowed “to restrain the profession or propagation of principles on supposition of their ill tendency,” calling that “a dangerous fa[l]lacy, which at once destroys all religious liberty.” That sentiment is consistent with the added language in this final rule regarding faith-based organizations' religious autonomy and expression, as discussed in Part II.G.5.

The Agencies agree with the comments that said this final rule provides greater clarity regarding faith-based organizations' religious liberties within the affected Federal financial assistance programs and activities. These rights were unclear under the prior rule, and improving clarity will increase participation for beneficiaries, including in unserved and underserved communities, as explained in the relevant Parts below. The Agencies also agree that these outcomes will help satisfy the needs of the beneficiaries of these programs, a consideration on which the Agencies place significant emphasis when designing and implementing these programs. And the Agencies recognize the contributions that both faith-based and secular organizations make to such beneficiaries, which contributions warrant allowing such organizations to compete on equal terms for Federal financial assistance. As discussed in detail throughout this preamble, the Agencies disagree that this final rule de-emphasizes, disfavors, or harms beneficiaries at the expense of faith-based organizations.

There is no indication that any aspect of this final rule will lead to the harms asserted by commenters, including discrimination and denial of service, as explained in each section below. Because this final rule retains the prohibition on faith-based organizations discriminating against beneficiaries on religious bases, such organizations cannot impose a religious litmus test on beneficiaries. Faith-based organizations must comply with any other nondiscrimination provisions that apply to each program. This final rule does not change that requirement. The only relevant aspect of this final rule is the added accommodation language, which merely clarifies that otherwise binding Federal law applies. The accommodation language added in this final rule does not create any new bases for broader accommodations that would authorize discrimination or the denial of service, as discussed in Part II.E.

Additionally, the treatment of volunteers is beyond the scope of this final rule. The prior rule, Executive Order 13831, and the NPRMs did not address volunteers. Therefore, the Agencies are not addressing volunteers directly in this final rule. To the extent that volunteers are impacted indirectly by any provision in this final rule, that provision is appropriate for the reasons discussed in the relevant Part below.

Finally, this final rule is being promulgated for the reasons discussed throughout this preamble. The Agencies disagree with the comments that question the motivation behind this final rule. Because this final rule applies equally to all faith-based organizations, there is no basis for the comment that this rule is motivated by the desire to favor any specific religious denomination. Similarly, this final rule does not permit discrimination by faith-based organizations, indicating that a desire to allow for such discrimination was not a motive for the rule.

Changes:

None.

Affected Regulations:

None.

B. Regulatory History and Legal Background

As explained in the NPRMs, the primary purpose of this final rule is to implement Executive Order 13831, the most recent in a series of executive

orders that address issues that affect faith-based and community organizations. As discussed in Part I above, the NPRMs provided a summary of those executive orders, as well as the Attorney General's Memorandum that was drafted and published pursuant to Executive Order 13798. Because many of the commenters who addressed Executive Order 13798 also referenced the Attorney General's Memorandum, the Agencies respond to those comments in the discussion of Executive Order 13798 below.

1. Executive Orders 13199 and 13279

Summary of Comments:

A number of commenters who supported and opposed the proposed rules referenced President George W. Bush's Executive Orders 13199 and 13279. Some commenters stated that the proposed rules were consistent with Executive Order 13279, which helped to ensure that faith-based organizations have equal protection and opportunity under the law as they work to meet the social needs of American communities.

Other commenters stated that removing the alternative provider requirements would stray greatly from tradition, current practice, and consensus in this area. They noted that “Charitable Choice” laws, which were precursors to the George W. Bush administration's faith-based regulations, included alternative provider requirements.

See, e.g.,

42 U.S.C. 290kk-1(f), 300x-65(e), 604a(e). One commenter stated that the NPRMs would stray from Executive Orders 13199 and 13279 by reducing the efficacy of distributing Federal funding. Another commenter stated that repealing or weakening the core beneficiary protections in the 2016 final rule is inconsistent with Executive Order 13279, which continues to bind the Agencies.

One commenter objected that these executive orders sidestepped the bipartisan process and allowed for government-funded religious discrimination. Some commenters also expressed the sentiment that Executive Order 13279 and this final rule were contrary to the “separation of church and state.”

Response:

The Agencies disagree that removing the alternative provider notice-and-referral requirements undermines principles of equal treatment or strays from tradition. To the contrary, removing these requirements serves to remove unnecessary regulatory barriers to enable faith-based organizations to compete for, and participate fully in, Federal financial assistance without impairing their independence, autonomy, expression, or religious character. Additionally, removal of the notice-and-referral requirements does not “stray greatly from tradition.” First, doing so merely reinstates the status quo prior to 2016. Second, although there may be a pre-2016 practice of requiring referrals in the programs to which the Charitable Choice statutes cited by the commenters are applicable, the Agencies are not aware that any beneficiary has ever sought such a referral under one of those statutes, or that any beneficiary ever sought a referral under analogous provisions of the prior rule.

See

Part II.C. The Agencies' experience thus demonstrates that maintaining the referral requirements is not necessary to avoid harm to beneficiaries.

Additionally, the Agencies disagree that these final rules are inconsistent with any portions of Executive Orders 13199 and 13279 that are currently in effect. Executive Order 13199 was revoked by Executive Order 13831 on May 3, 2018. 83 FR at 20717. Even so, this rule would have been consistent with Executive Order 13199, which directed the predecessor White House Office of Faith-Based and Community Initiatives (now replaced by the White House Faith and Opportunity Initiative) “to eliminate unnecessary . . . regulatory[] and other bureaucratic barriers that impede effective faith-based and other community efforts to solve social problems.” 66 FR at 8500. This final rule removes unnecessary regulatory barriers to enable faith-based organizations to compete for, and participate fully in, Federal financial assistance programs and activities without impairing their independence, autonomy, expression, or religious character.

Executive Order 13279 remains in effect, as amended by Executive Order 13559 and further amended by Executive Order 13831. Executive Order 13279 currently provides that faith-based organizations should be eligible to compete for Federal financial assistance used to support social service programs and to “participate fully in [such programs] without impairing their independence, autonomy, expression, or religious character.” 67 FR at 77142. This final rule fulfils that directive by removing unnecessary regulatory barriers that applied only to faith-based organizations that wished to participate in federally funded social service programs.

The Agencies furthermore do not believe that this final rule will reduce the efficacy of awarding Federal funding. Rather, it will enable faith-based organizations to participate equally in competing for Federal funding with secular organizations. If anything, removal of unnecessary administrative burdens will improve the efficiency and efficacy of awarding Federal funding. Reduced compliance burdens may free more resources for beneficiaries, and the removal of requirements that chill faith-based organizations' participation in Federal assistance programs may result in a broader, more diverse, and more competitive pool of grant recipients. Moreover, this final rule provides greater clarity on several issues, as discussed in Parts II.C, II.D, II.E, II.G, II.G, and II.H.

The Agencies also disagree that Executive Orders 13199 and 13279 allow for government-funded religious discrimination. The opposite is true. Although it is no longer effective, the Agencies note that Executive Order 13199 stated that the delivery of social services in the United States “should value the bedrock principles of pluralism, nondiscrimination, evenhandedness, and neutrality.” 66 FR at 8499. Similarly, Executive Order 13279 currently provides that all organizations that receive Federal financial assistance under social services programs should be prohibited “from discriminating against beneficiaries or prospective beneficiaries of the social services programs on the basis of religion or religious belief,” and that such organizations, in their service-provision and outreach programs using Federal financial assistance, “should not be allowed to discriminate against current or prospective program beneficiaries on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to actively participate in a religious practice.” 67 FR at 77142. This final rule maintains the regulatory prohibition on such religious discrimination.

The Agencies also do not believe that it is sensible to charge that an executive order has sidestepped the bipartisan process. An executive order is the President's exercise of constitutional authority, and the Agencies have carried out Executive Order 13831 in accordance with established rules of administrative process that provide full opportunity for input from people of all parties and perspectives. The Agencies have carefully reviewed and considered each of the comments they have received. In most cases, the Agencies are not even aware of, and in all cases are indifferent to, a commenter's partisan affiliation. The Agencies have considered each comment based on its

independent merit. Additionally, to the extent the comment about the bipartisan process was referring to the 2010 President's Advisory Council on Faith-Based and Neighborhood Partnerships, the Agencies incorporate their discussion of that process from Part II.C.

Finally, the Agencies disagree that these executive orders and this final rule are contrary to “the separation of church and state.” Some of these comments refer to and quote extensively from President Thomas Jefferson's letter of January 1, 1802 to the Baptist Association of Danbury, Connecticut, which letter described the First Amendment as “building a wall of separation between Church & State.” Thomas Jefferson, Letter for the Danbury Baptist Association (Jan. 1, 1802), Founders Online, National Archives,

https://founders.archives.gov/documents/Jefferson/01-36-02-0152-0006.

The precise meaning and usefulness of this metaphor for constitutional adjudication remains unclear. As Justice Frankfurter cautioned, “the mere formulation of a relevant Constitutional principle is the beginning of the solution of a problem, not its answer. This is so because the meaning of a spacious conception like that of separation of Church from State is unfolded as appeal is made to the principle from case to case.”

McCollum

Bd. of Educ.,

333 U.S. 203, 212-13 (1948) (Frankfurter, J., joined by Jackson, Rutledge, and Burton, JJ.). It is thus critical to recognize that, in actual cases, the Supreme Court has “repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.”

Espinoza,

140 S. Ct. at 2254. That result is what this final rule achieves, as explained throughout this preamble.

Allowing for such participation is also consistent with many interpretations of Jefferson's letter, including that the wall of separation was intended to protect religion from the state, which this final rule does.

Furthermore, the relevance of that letter to constitutional law jurisprudence has been questioned repeatedly, including because President Jefferson at times invoked religion in his official actions and approved the use of Federal Government funds for religious purposes.

Significantly, and consistent with the Supreme Court's statement in

Espinoza,

then-Justice Rehnquist explained that, even when considering Jefferson's wall metaphor, “[t]he Establishment Clause did not . . . prohibit the Federal Government from providing nondiscriminatory aid to religion.”

Wallace

Jaffree,

472 U.S. 92, 106 (1985) (Rehnquist, J., dissenting). In short, “[t]he metaphor has served as a reminder that the Establishment Clause forbids an established church or anything approaching it. But the metaphor itself is not a wholly accurate description of the practical aspects of the relationship that in fact exists between church and state.”

Lynch

Donnelly,

465 U.S. 668, 673 (1984)).

See, e.g.,

Noah Feldman,

Divided By God

40 (2007) (arguing that the “Jefferson who drafted the Virginia statute” was “focus[ed] . . . on protecting religion from government, not the other way around”).

See, e.g., Wallace

Jaffree,

472 U.S. 92, 103 & n.5 (1985) (Rehnquist, J., dissenting) (observing that a treaty entered into by the Jefferson administration “provided annual cash support for [a Native American tribe's] Roman Catholic priest and church”);

Engel

Vitale,

370 U.S. 421, 446-49 & n.3 (1962) (Stewart, J., dissenting);

McCollum,

333 U.S. at 245-47 (Reed, J., dissenting);

see also

2903 (USDA), 2926 (DOJ), 2983-84 (HHS). None of the over 95,000 comments received by the Agencies provided any data or insights on assessment methodologies that would meaningfully supplement the information the Agencies already have or demonstrate that costs would be more than minimal. The issue of costs and benefits is addressed in more detail in Part II.K.1.

Sixth,

the Agencies disagree that, without the notice requirement, beneficiaries will be blindsided by the religious nature of the Government-funded services they may receive from program providers. In 2016 as today, all federally funded services offered by the programs must be secular. Beneficiaries do not need a warning of the religious nature of federally funded services when religious federally funded services are specifically prohibited.

Seventh,

the Agencies disagree that removing the requirement of the notices (regarding nondiscrimination rights and the like) would inhibit beneficiaries from reporting violations. As discussed, there is no indication that beneficiaries need notice of how to report violations of these rights. In fact, as discussed, beneficiaries have not received such notice from many other providers. Rather than relying on beneficiaries to safeguard their own rights, the Agencies prefer to put the onus on the providers, by giving them express notice of their obligations and making clear that the Agencies will enforce those obligations.

Eighth,

the Agencies disagree that the referral requirement should be retained because the need for referrals will increase due to provisions in this final rule that allow for certain accommodations to faith-based organizations. Any request for an accommodation will be assessed based on a context-specific analysis that will balance all of the relevant considerations, including whether the particular provider receiving the accommodation will be required to provide notice and referrals. For example, if a Sabbath-observant food pantry sought an accommodation to participate in a food pantry program while remaining closed on its Sabbath, the Agency would consider—as part of its inquiry into the burden on the food pantry weighed against the Government's justification and ability to accomplish its goals through means less restrictive of religious exercise—whether the pantry should give notice of this practice and should make referrals to ensure that beneficiaries can receive services on the pantry's Sabbath. The Agencies believe this case-by-case approach will better serve both providers and beneficiaries.

Finally,

the Agencies understand that invidious discrimination can be harmful to beneficiaries and can result in their forgoing services. The Agencies are committed to fighting such illegal discrimination and ensuring that all beneficiaries have equitable access to benefits from the federally funded programs and services governed by this final rule. This final rule reaffirms each Agency's rule prohibiting providers from discriminating against beneficiaries based on religion.

However, the Agencies disagree that eliminating the notice requirements as well as the referral requirement threatens to increase discrimination based on sex, sexual orientation, gender identity, and race. This final rule does not roll back any such existing protections or allow faith-based organizations receiving direct aid to condition the receipt of benefits on acceptance of their religious beliefs. Moreover, other laws will continue to dictate the balance between providers' rights and beneficiaries' rights, including the right to be free from discrimination on the basis of sex.

For example, in USDA's program to fund facilities for public use, regulations prohibit grant recipients from discriminating against beneficiaries on several grounds, including on the basis of sex.

See, e.g.,

7 CFR 1942.17(e), 3570.61(f), 3575.20(e).

See, e.g.,

Bostock

Clayton Cty.,

140 S. Ct. 1731, 1753-54 (2020) (acknowledging the potential applications of the “express statutory exception for religious organizations” in Title VII; of the First Amendment, which “can bar the application of employment discrimination laws” in certain cases; and of RFRA, “a kind of super statute,” which “might supersede Title VII's commands in appropriate cases,” and noting that “how these doctrines protecting religious liberty interact with Title VII are questions for future cases too”);

Masterpiece Cakeshop, Ltd.

Colo. Civil Rights Comm'n,

138 S. Ct. 1719, 1732 (2018) (recognizing that many such disputes “await further elaboration in the courts”).

The prior rule did not touch on those issues at all. It did not require informing beneficiaries that they could not be subject to discrimination based on sex, nationality, or any other protected classification. If anything, singling out religious discrimination in the notice could have implied that beneficiaries would not receive protection from other forms of discrimination. This final rule will touch on such issues only when a provider seeks a religious accommodation under the First Amendment or RFRA, in which case the Agencies will carefully review and balance the competing claims and apply relevant law, as discussed in Parts II.C.2, II.E, and II.F. This is the appropriate legal and policy choice to ensure that these rights are appropriately balanced and that religious liberty protections are not swept away by categorical rules. The Agencies have no reason to believe the notice requirements are necessary to promote the goals of reducing poverty, empowering low-income populations, and providing services to all who need them.

Changes:

None.

Affected Regulations:

None.

b. Specific Examples, Studies, and Hypotheticals

Summary of Comments:

Commenters offered a number of examples in an effort to show the harms discussed in Part II.C.2.a, based on court cases, surveys, studies, and personal experiences—either by the commenter or reported directly to the commenter. Although most of the examples cited by commenters were hypothetical, some relied on actual instances or studies. The most significant actual instances were provided in a comment by a national legal organization that represents LGBTQ people in litigation, policy advocacy, and public education. It cited actual instances of LGBTQ people experiencing discrimination or denial of service when “accessing services of the sort provided by federally funded social service programs.” It cited one of its transgender clients who was scheduled for a hysterectomy at a religious hospital but had the procedure cancelled due to the hospital's religious objection. It also described actual instances of beneficiaries feeling uncomfortable receiving services from faith-based organizations. Many of this commenter's examples involved religious individuals with no indication that they were affiliated with any faith-based organizations, much less a faith-based organization receiving Federal funding. This commenter's examples, amicus briefs, and studies also cited comparable examples of discrimination by secular organizations, without indicating which secular organizations may have received Federal funding.

Another commenter cited court cases involving concrete examples of discrimination or denial of service that transgender people have faced in programs that offer alternatives to incarceration, such as probation. The commenter cited an example where, as part of a guilty plea, a transgender person was placed in a residential substance abuse treatment program; the person believed they were placed with the wrong sex and were ultimately transferred out of the program. As a result, this person failed to meet the terms of the plea agreement and was sentenced to another two and a half years in prison.

See Wilson

Phoenix House,

No. 10-cv-7364, 2011 WL 3273179 (S.D.N.Y. Aug. 1, 2011);

Wilson

Phoenix House,

978 N.Y.S.2d 748 (Sup. Ct. 2013). The commenter also cited the case of a person who was denied eligibility by a halfway house in 2010 due to transgender status.

Kaeo-Tomaselli

Butts,

No. 11-cv-00670, 2012 WL 5996436 (D. Haw. Nov. 30, 2012). Without citation, another commenter claimed actual instances of transgender people being sent back to prison when re-entry programs refused to serve them.

Some commenters cited surveys and studies chronicling actual instances of discrimination against specific vulnerable groups. Several commenters relied on a 2015 survey of transgender people in the United States, conducted by the National Center for Transgender Equality.

Commenters relied on this 2015 survey's examples of actual claimed instances of transgender people being misgendered intentionally, made to feel unsafe, and made to forgo further medical care. Commenters added that one transgender person who had been sexually assaulted reported in the 2015

survey that their case was not investigated; they were denied a rape kit; and authorities, including a university, threatened them with punishment for reporting the assault, which caused them to live in fear. Commenters highlighted that some of the survey respondents stated that they were admonished that they deserved to be raped or should return to their birth gender to receive services. One commenter also noted the 2015 survey's finding that, of transgender people who had visited a public assistance or government benefits office in the past year, 11 percent reported being denied equal treatment or service and 9 percent reported being verbally harassed.

Sandy E. James, et al., National Center for Transgender Equality, The Report of the 2015 U.S. Transgender Survey (Dec. 2016),

https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report-Dec17.pdf.

One commenter also provided specific reports that it collected of medical errors and misdiagnoses due to transgender status, transgendered people being turned away by doctors who claimed religious reasons, or being treated in a “hateful” way that included embarrassing the person in front of others due to transgender status. The commenter relayed other reports of medical mistreatment, including medical examinations halted in the middle when transgender status was revealed and hospitals placing transgender people in isolation. The commenter also described an older transgender adult who reported to a social worker having experienced sexual abuse and verbal harassment from nurse aides but did not want to report the incidents out of fear of retaliation and disclosure of transgender status to the patient's family.

Some commenters cited surveys and studies indicating that experience with discrimination leads to other harms. One commenter said that HHS had identified discrimination against beneficiaries as harmful to the health of vulnerable populations, citing a study entitled Healthy People 2020.

Others applied this general point to the LGBTQ community, noting that LGBTQ people report being or feeling unwelcome at social service providers, being subjected to discrimination, and forgoing care and services as a result. One of these comments pointed to a Center for American Progress national survey of LGBTQ adults published in 2017 that found 17 percent of respondents who had experienced anti-LGBTQ discrimination in the past year reported avoiding getting services that they or their family needed out of fear of facing further discrimination.

By removing the requirement that providers take reasonable steps to refer beneficiaries to alternative providers, the commenters argued, this final rule would expose many LGBTQ people who use human services programs to discrimination and apprehension of discrimination, which will in turn lead to many forgoing care and services for which they are qualified. Other commenters made the similar point—based on experience rather than studies—that the LGBTQ community has faced a history of discrimination, denial of service, harassment, and pressure to compromise their authentic selves in order to receive equal access to social programs. Without a proactive referral requirement, they argued, this community would rely on its past experience to inform the relationship with service providers.

Office of Disease Prevention and Health Promotion, Healthy People 2020 (last updated Oct. 8, 2020),

https://www.healthypeople.gov/2020/topics-objectives/topic/social-determinants-health/interventions-resources/discrimination.

Sejal Singh and Laura E. Durso, Center for American Progress, Widespread Discrimination Continues to Shape LGBT People's Lives in Both Subtle and Significant Ways (May 2, 2017),

https://www.americanprogress.org/issues/lgbtq-rights/news/2017/05/02/429529/widespread-discrimination-continues-shape-lgbt-peoples-lives-subtle-significant-ways/.

Some of these commenters cited studies showing people had negative experiences in certain sectors or with certain categories of service providers. A commenter cited a then-unpublished 2019 American Atheists national survey of 34,000 nonreligious individuals, many of whom reported “negative experiences” due to their secular or nonreligious beliefs within the previous three years: 17.7 percent reported such negative experiences when receiving mental health services, 15.2 percent in substance abuse services, 10.7 percent in other health services, 6.2 percent in public benefits, and 4.5 percent in housing.

American Atheists, Reality Check: Being Nonreligious in America 23-24 & fig.14 (2019),

https://static1.squarespace.com/static/5d824da4727dfb5bd9e59d0c/t/5ec6d6d8e8da850b30521353/1590089442015/Reality+Check+-+Being+Nonreligious+in+America.

Several commenters cited studies showing LGBTQ people had difficulty finding medical care providers. A commenter pointed to a 2018 Center for American Progress Survey (“2018 CAP Survey”) that, it asserted, demonstrated the difficulties LGBTQ individuals face in receiving services, including 17 percent of respondents (and 31 percent of non-metro respondents) saying it would be “very difficult” or “not possible” to find the same type of service they were seeking from a different community health center or clinic at a different provider.

Another commenter relayed reports of one transgender person's taking years to find a primary care physician willing to treat them and another transgender person's residing in a rural and lower-income area, struggling to attain basic healthcare.

Shabab Ahmed Mirza and Caitlin Rooney, Center for American Progress, Discrimination Prevents LGBTQ People from Accessing Healthcare (Jan. 18, 2018),

https://www.americanprogress.org/issues/lgbt/news/2018/01/18/445130/discrimination-prevents-lgbtq-people-accessing-health-care/.

Some commenters cited studies showing certain groups experience increased negative health outcomes that, these commenters claimed, would be exacerbated by removing the notice requirements and the referral requirement while providing for religious accommodations. A commenter cited studies indicating that LGBTQ individuals have negative health outcomes that have been termed “minority stress.” This commenter relied on studies indicating that gender-based discrimination against transgender people, especially in health care settings, is associated with increased rates of negative health outcomes, including depression, attempted suicide, and substance use. This commenter then argued that removing the notice and referral protections (as well as providing new accommodations) could contribute to significant health costs based on the direct medical and mental health impacts of discrimination alone. Similarly, another commenter claimed that older LGBTQ adults face pronounced health disparities and higher poverty rates compared to their peers, due in large part to historical and ongoing discrimination.

See

Karen Fredriksen-Goldsen et al., The Aging and Health Report: Disparities and Resilience Among Lesbian, Gay, Bisexual, and Transgender Older Adults (November 2011),

www.lgbtagingcenter.org/resources/resource.cfm?r=419.

A commenter focused on medical care for Bhutanese Hindu refugees. This commenter said that people in this group have already suffered immense trauma from forcible eviction from their home country due to their culture and religion, and they have experienced particular difficulty retaining their cultural and religious identity in the United States. The commenter claimed that removal of the notice-and-referral requirements would strip this vulnerable group of protections against discrimination, proselytization, or religious coercion in government-funded social services. The commenter claimed that Bhutanese Hindu refugees have a particular need to know their rights fully and to access health services, including mental health

services, because their rates of suicide and mental health conditions are higher than those of the rest of the population. Additionally, without being informed of their rights, the commenter expressed concern that these refugees may feel pressured to convert to Christianity or attend Christian religious services because they incorrectly believe those actions are required to continue receiving services. The commenter claimed that these outcomes would risk exacerbating the group members' already-concerning health trends.

Some of these commenters cited studies indicating that certain groups are more likely to receive government services, from which the commenters inferred that these groups are more likely to be harmed by removal of the notice-and-referral requirements. One commenter cited the 2018 CAP Survey to demonstrate that LGBTQ people are more likely to participate in a wide range of public programs. That commenter claimed this 2018 CAP Survey found that LGBTQ people with disabilities were especially likely to rely on government benefit programs, such as Supplemental Nutrition Assistance Program (“SNAP”), Medicaid, unemployment, and housing assistance. As a result, this commenter argued that ensuring access to federally funded social services programs by mandating referrals to alternative providers is vital for members of this vulnerable population. Another commenter stated that LGBTQ youth are at a higher risk of homelessness, citing Chapin Hall, Missed Opportunities: Youth Homelessness in America (2017), which reported LGBTQ youth at a 120 percent higher risk of homelessness than other young adults.

Other commenters made similar statistical claims without providing the basis for their claims. Commenters claimed that 20-40 percent of homeless youth are “LGBT-identified” and that LGBT youth disproportionately represent 40 percent of the homeless youth population in New York City. One of these commenters also said that most homeless families are headed by unmarried women and that these families are not well situated to absorb the burdens from the changes in this final rule. Another commenter claimed that people with disabilities and their families face a national shortage of accessible and affordable housing, particularly the lowest-income people with disabilities, and that removing these requirements could impose another barrier to housing programs for this population, such as Section 811 Supportive Housing for Persons with Disabilities.

One commenter argued that LGBTQ senior citizens have a particular need for the notice-and-referral requirements to access long-term services and supports because they do not have traditional support systems in place and are therefore more likely to rely on personal care aides or enter care facilities.

This commenter also conducted a survey that found LGBT older adults experienced discrimination in long-term care facilities ranging from verbal and physical harassment, to visiting restrictions and isolation, to denial of basic care such as a shower or being discharged or refused admission. They also cited examples of LGBT older adults being “prayed over” without their consent or being told they would go to hell. This commenter attached its report to the comment.

This commenter was concerned that eliminating the notice-and-referral requirements would make these types of discriminatory actions more common and make it harder for victims to seek recourse.

See

SAGE and Movement Advancement Project, Improving the Lives of LGBT Older Adults (March 2010),

https://www.lgbtmap.org/file/improving-the-lives-of-lgbt-older-adults.pdf.

Justice in Aging, LGBT Older Adults in Long-Term Care Facilities: Stories from the Field (updated June 2015),

www.justiceinaging.org.customers.tigertech.net/wp-content/uploads/2015/06/Stories-from-the-Field.pdf.

Additionally, a retired physician commented that she had experience with end-of-life issues and that patients and families who do not wish to receive “futile or heroic treatments” from religious doctors should be referred for another opinion.

Numerous commenters provided hypothetical examples of the harms they claimed would befall beneficiaries following removal of these notice-and-referral requirements. For example, two commenters to ED cited their extensive experience representing students in Federal court cases and administrative cases but claimed only that removing the notice-and-referral requirements “would likely make it harder for beneficiaries to access programs serving marginalized young people,” without citing any actual instances.

The Council Chair insisted that the alternative-provider referral requirement was essential. She asked the Agencies to “imagine” a victim of human trafficking who does not speak English, is in an unfamiliar location, is a single parent, and does not have reliable internet, yet has to research an alternative provider while working and caring for young children. This commenter claimed it is “insufficient to assume” that this beneficiary would be given assistance, just as, the commenter claimed, it is insufficient to assume that the rights of faith-based organizations would be protected.

Some of these commenters claimed removing the notice-and-referral requirements would especially harm beneficiaries in medical contexts. Multiple commenters expressed concern that critical care, including medical care, would be delayed or denied without a referral upon request. Commenters argued that removal of the referral requirement would impede access to medical care for beneficiaries who do not feel comfortable obtaining care from religious providers in rural areas that have medical care shortages and that often require farther travel, on poorer roads, with less access to public transportation than in urban areas. Commenters also highlighted concerns for children in the foster care, child welfare, and juvenile justice systems.

Commenters highlighted other social service areas as well, as outlined in the bullet points below. One commenter argued that discrimination in access to social services would reduce timely access to critical social services. It provided the hypothetical example of discrimination that delays shelter for someone experiencing homelessness or housing insecurity, which would cause prolonged homelessness, poor health, victimization, and negative interactions with law enforcement. The commenter noted that a day in a shelter costs less than a day in jail or an emergency room visit, citing a study on the costs of homelessness.

Some of these commenters claimed removing the alternative provider notice-and-referral requirements would harm beneficiaries from specific groups, which the commenters identified as vulnerable populations. Commenters argued that removing referrals would limit access and would disproportionately affect low-income communities, themselves already disproportionately made up of women, immigrants and refugees, LGBTQ people, and people with disabilities. These commenters argued that access is particularly important for these groups, which benefit from programs that help increase employment, alleviate poverty, and alleviate homelessness. According to these commenters, removing the referral requirement will only increase the likelihood of negative outcomes for these groups and will perpetuate the cycle that ties discrimination to an increased likelihood of unemployment and poverty.

Many commenters claimed that removal of the referral requirement

would particularly burden LGBTQ beneficiaries. Some of these commenters claimed that referrals are “vital” for LGBTQ beneficiaries because they have unique difficulty obtaining secular or welcoming alternative service providers. Some of these commenters also argued that LGBTQ people may not be comfortable fully accessing the services they need in a religious environment. A comment on behalf of a local government suggested that LBGTQ people who already have concerns about their physical and emotional safety in accessing services—even in relatively welcoming communities, like San Francisco—will face further inequities because, the commenter believes, the proposed rules will encourage discrimination against LGBTQ people. Another commenter suggested that “a job-training organization could refuse to assist a transgender individual with resume editing or professional wardrobe development consistent with their gender identity.” That commenter argued that removing the notice and referral protections would empower organizations operating critical social services to refuse to fully serve LGBTQ people if those providers believe that recognizing an individual's gender identity or same-sex relationship violates their religious belief. That commenter also argued that people in the LGBTQ community have faced a history of discrimination and, without proactive notice of their rights, they would rely on their past experience to inform relationships with service providers. This commenter added that unwillingness of an organization to recognize and respect LGBTQ identities is tantamount to a denial of care altogether, with the same negative outcomes.

Commenters also argued that eliminating the notice-and-referral requirements would especially burden beneficiaries with disabilities who rely on service providers such as a case manager to coordinate necessary services, a transportation provider to attend appointments, and a personal care attendant to help with medications and managing daily activities. These commenters were concerned that such beneficiaries' access to services would be eliminated if such providers refused to provide a service and then refused to provide a referral for the beneficiary to obtain the service. These commenters were also concerned that beneficiaries with disabilities who are also in other historically disadvantaged groups were most likely to be refused service and would face greater challenges to receive accommodations.

Some commenters hypothesized that faith-based organizations could deny services outright based on sex; could claim religious interpretations to avoid providing services based on prejudice, bias, or stigma (a point addressed in Part II.E); and could delay or deny services during emergencies. Others crafted more specific hypothetical examples:

• LGBTQ individuals might not have the same opportunities to return to their communities if they are denied access to a Second Chance Reentry Initiative program due to their sexual orientation or gender identity, and they might not be given referrals to alternative providers.

• A same-sex couple could be refused family housing in the wake of a natural disaster, or a transgender shelter seeker could be refused gender appropriate housing by a FEMA grantee. The shelter could also be empowered to refuse access to medically necessary care.

• A FEMA grantee could claim a right to refuse to assist a same-sex couple in requesting Federal disaster-relief benefits.

• A transgender woman could risk being turned away from a woman's emergency shelter or a same-sex couple could be refused family housing at a HUD-funded provider.

• People seeking treatment for opioid use disorder might be prevented from receiving such treatment.

• A woman seeking safety for herself and her family from domestic violence could be prevented from finding a shelter.

• A veteran re-entering the civilian workforce could be prevented from receiving job training.

• A woman could be denied benefits based on a provider's religious belief that women should not work outside the home.

• LGBTQ homeless teenagers might not seek housing, food, or counseling services they need, including from a facility funded with HUD's Emergency Shelter Grant (“ESG”) program, because they know the religion of the faith-based provider condemns them for being gay.

• A single mother or same-sex couple could be turned away from assistance with buying their first home or preventing foreclosure.

• A pregnant or parenting teenager who is unmarried or divorced might avoid a faith-based provider or leave a faith-based group home that she thinks will condemn her or because she is uncomfortable in the religious setting.

• Muslim people might forgo affordable housing funded by HUD's Housing Opportunities for Persons with AIDS (“HOPWA”) program because they feel uncomfortable at a facility with Christian iconography throughout, even though receipt of HOPWA funds requires that program content be secular.

• A “kid” or “young adult” seeking HHS's Transitional Living for Homeless Youth program services like a bed, educational opportunities, or job training might be forced to receive services from a faith-based provider and have no way to access an alternative provider.

• Unaccompanied minors might have no recourse to seek an alternative provider if they were denied services because of the provider's opposition to those services on religious grounds, such as denial of transportation or interpretation services to attend a medical appointment contrary to the provider's religious beliefs.

• A nonreligious veteran at risk of homelessness seeking help with case management who also wants services, including education, crisis intervention, and counseling might feel “very uncomfortable” at a faith-based provider and not be aware of alternatives.

• A homeless veteran seeking job training to gain employment might be forced to receive those services from a faith-based provider but feel uncomfortable because the program takes place in a room adorned with religious banners, Bible verses, and religious symbols.

• Victims of human trafficking seeking vital services to build lives away from their traffickers, like housing or financial assistance, might feel uncomfortable getting services from a faith-based provider and drop out of the program, putting their safety at risk.

• An older LGBTQ person receiving food packages under the USDA Commodity Supplemental Food Program could be forced to pick them up in a church that he knows labels him as a sinner, when LGBTQ seniors already struggle to access culturally-competent support services.

• A student who identifies as LGBTQ or who is a child of LGBTQ parents might be confronted with open anti-LGBTQ hostility by an ED-funded social service program partnering with their public school to provide healthcare screening, transportation, shelter, clothing, or new immigrant services.

• Local food distribution agencies, such as food pantries or soup kitchens, might seek to deny services to vulnerable populations, including atheists, transgender people, single mothers and their children, and immigrants.

• An atheist required to attend a substance use disorder program might be compelled to attend a 12-step program that requires the recognition of a higher power and, without notice of her rights, might attend the program unsuccessfully, or forgo services, because she thinks all programs will require adherence to a higher power.

Response:

The Agencies believe that all people should be treated with dignity and respect and should be given every protection afforded by the Constitution and the laws passed by Congress. The Agencies do not condone the unjustified denial of needed medical care or social services, and they are committed to fully and vigorously enforcing all of the nondiscrimination statutes for which Congress has granted them jurisdiction. The Agencies take seriously the examples commenters have cited, both real and hypothetical, as well as the studies commenters referenced.

The Agencies, however, disagree that harms discussed in these examples and studies overcome the reasons not to retain the notice requirements and the referral requirement. None of these harms, actual or hypothetical, arose in circumstances where those requirements would necessarily have had, or did necessarily have, any effect. The examples fail to show that these harms, if and when they occur, will necessarily increase in the absence of, or have been appreciably reduced because of, the notices and referrals required by the 2016 final rule. It will always be possible to imagine a circumstance where these requirements might have an effect, but the empirical data do not demonstrate that the requirements had any measurable impact in actual cases in which beneficiaries sought federally funded social services from religious providers.

Commenters' most direct examples came from the national legal organization that cited its clients and several studies. But even those cases and studies do not involve the precise issues here. They do not show harm unique to faith-based organizations receiving direct Federal financial assistance attributable to beneficiaries' (1) not receiving notice of a prohibition on discrimination based on religion (nor on other grounds), (2) not receiving notice regarding explicitly religious activities, (3) not receiving notice regarding referrals based on objections to the provider's religious character, or (4) not receiving a referral from the faith-based organization if the beneficiaries object to the organization's religious character. The vast majority of commenters' examples did not even involve faith-based organizations providing services in connection with direct Federal financial assistance. The cited harms are far beyond the scope of this final rule and would not have been prevented by the notice requirements and the referral requirement. Also, to the extent that these examples raise conflicts between beneficiaries' rights and the religious liberties of faith-based providers, resolution will depend on context-specific analyses of those underlying rights, as discussed in Parts II.C.3, II.E, and II.F.

For example, the national legal organization cited a case in which one of its transgender clients was scheduled for a hysterectomy at a religious hospital but had the procedure cancelled due to the hospital's religious objection. The client did not allege that the surgery was going to be provided through a

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