February 19, 2020

Murray, Democrats Push Departments of Education and Labor to Withdraw Rules Allowing for Federally Sanctioned Discrimination

Departments of Education and Labor propose rules allowing for federally funded service providers to discriminate against members of the LGBTQIA+ community and women

WASHINGTON U.S. Senator Ben Cardin (D-Md.), joined his Democratic senate colleagues on two letters urging the Education Secretary Betsy DeVos and Labor Secretary Eugene Scalia to withdraw proposed rules that would expand federally funded discrimination against members of the LGBTQIA+ community and women. Both rules would eliminate crucial protections that would leave eligible people at risk of losing access to vital taxpayer services–from college readiness programs at the Department of Education to job training programs at the Department of Labor –simply because of their sex, sexual orientation, or gender identity. The proposed rules are part of the Trump Administration’s roll-out of similar proposed rules that would allow for federally sanctioned discrimination at six other federal agencies.

Both rules would expand federally funded discrimination by eliminating requirements to alert beneficiaries of their rights; eliminating requirements to refer beneficiaries to alternate providers in cases where beneficiaries may feel uncomfortable with the religious belief of the provider; and explicitly allowing federally funded service providers to include mandatory religious elements as part of their services. The rules also greenlight employment discrimination by allowing federally funded service providers to make employment decisions based on “acceptance of or adherence to the religious tenets of the organization,” allowing people to be hired or fired on the basis of their sex, including sexual orientation, gender identity, or pregnancy status.

In the letter to Secretary DeVos, the senators outlined how these rules could prevent students from accessing vital services that provide healthcare screenings, transportation, shelter, clothing, new immigrant services, and more. Under the proposed regulations, service providers could subject LGBTQIA+ students to anti-LGBTQIA+ hostility or force them to participate in religious activities against their beliefs. Additionally, the Department of Education rule expands religious exemptions for educational institutions and student organizations, giving them license to discriminate against members of the LGBTQIA+ community and women.

“LGBTQIA+ students often feel unsafe during their first year on college campuses,” the senators wrote to Secretary DeVos. “By creating carve-outs for religious educational institutions to avoid creating equitable environments for LGBTQIA+ students and women, the Department is effectively encouraging institutions to turn away from their legal obligations to serve all students.” 

In the letter to Secretary Scalia, the senators highlighted how the rule would create barriers to services like job training programs for members of the LGBTQIA+ community and women and make existing forms of workplace harassment and discrimination against those communities worse.

“We are deeply concerned that by expanding religious exemptions, the Administration’s proposed rule would allow faith-based organizations to discriminate against employees because of their sex, sexual orientation, or gender identity,” wrote the senators in the letter to Secretary Scalia. “This proposed rule will exacerbate ongoing forms of discrimination and harassment against the LGBTQIA+ community.”  

In addition to Senator Cardin, other Senators who signed the letter to Secretary Scalia include Senators Patty Murray (D-Wash.), Tammy Baldwin (D-Wis.), Chris Van Hollen (D-Md.), Sheldon Whitehouse (D-R.I.), Richard Blumenthal (D-Conn.), Bernie Sanders (I-Vt.), Elizabeth Warren (D-Mass.), Jeff Merkley (D-Ore.), Kamala Harris (D-Calif.), Amy Klobuchar (D-Minn.), Ron Wyden (D-Ore.), Mazie Hirono (D-Hawai’i), Dick Durbin (D-Ill.), Cory Booker (D-N.J.), and Kirsten Gillibrand (D-N.Y.).

In addition to Senator Cardin, other Senators who signed the letter to Secretary DeVos include Senators Patty Murray (D-Wash.), Tammy Baldwin (D-Wis.), Chris Van Hollen (D-Md.), Sheldon Whitehouse (D-R.I.), Richard Blumenthal (D-Conn.), Bernie Sanders (I-Vt.), Elizabeth Warren (D-Mass.), Jeff Merkley (D-Ore.), Kamala Harris (D-Calif.), Amy Klobuchar (D-Minn.), Ron Wyden (D-Ore.), Mazie Hirono (D-Hawai’i),  Sherrod Brown (D-Ohio), Ed Markey (D-Mass), and Jack Reed (D-R.I.).

Senator Cardin also opposed a similar rule at the Department Health and Human Service, in a letter to Secretary Azar.

 

The full text of the letter to the Department of Education is below and HERE.

February 19, 2020

 

The Honorable Betsy DeVos

Secretary of Education

U.S. Department of Education

400 Maryland Avenue, SW

Washington, DC 20202

Dear Secretary DeVos:

We write to strongly oppose the U.S Department of Education’s (the Department) proposed regulation, “Uniform Administrative Requirements, Costs Principles, Audit Requirements for Federal Awards, Direct Grant Programs, State-Administered Formula Grant Programs, Developing Hispanic-Serving Institutions Program, and Strengthening Institutions Program,” which was published in the Federal Register on January 17, 2020. The proposed regulation—developed under the guise of religious liberty—is actually an attack on religious freedom and would open the door to federally-funded discrimination. The proposed rule drastically expands religious exemptions that could provide federally-funded faith-based institutions and student organizations a license to discriminate against students, employees, and beneficiaries who are LGBTQIA+, as well as women. In addition, it would lift protections designed to ensure beneficiaries of programs funded by the Department are not forced to participate in a religion not their own. We demand the Department immediately withdraw this proposed rule.

  1. The Proposed Rule Undermines Title IX

The proposed rule would grant a significant expansion of the limited exemption for education institutions in Title IX of the Education Amendments Act of 1972 (Title IX). Title IX creates an exemption for educational institutions “controlled by a religious organization.” In the proposed rule, the Department proposes the Office of Civil Rights use a series of seven factors to evaluate requests from educational institutions for a religious exemption. Several of these factors are overbroad, including: a statement that the educational institution subscribes to specific moral beliefs or practices, and a statement that members of the institution community may be subjected to discipline for violating those beliefs or practices; a statement that is approved by the governing body of an educational institution and that includes, refers to, or is predicated upon religious tenets, beliefs, or teachings; or other evidence establishing that an educational institution is controlled.[1]

The Department’s proposed factors are so broad that religious exemptions could be given not just to educational institutions controlled by religious institutions—as is provided for by the statute—but also colleges and universities with a tenuous relationship to religion. Enforcing the proposed factors as written would allow virtually any college or university to claim an exemption. If an educational institution simply subscribes to a certain set of “moral beliefs or practices,” even if those beliefs and practices have no connection with religion, and “members of the institution may be subjected to discipline for violating those beliefs,” the college or university could claim an exemption. [2] Similarly, educational institutions that submit a statement “predicated upon religious tenets, beliefs, or teachings,” or statements based on “other evidence” that do not even mention religion, could establish other harmful carve-outs to non-discrimination laws.[3] The Department should not propose a regulation that is contrary to the statutory language of Title IX and would provide colleges and universities with a blanket license to discriminate at the expense of students.

2.      The Proposed Rule Fails to Protect Students from Discrimination

We are deeply concerned that expanding the religious exemption for educational institutions controlled by religious organizations would allow faith-based organizations to discriminate against employees and beneficiaries because of their sex, sexual orientation, or gender identity. The proposed rule would allow employers to make decisions based on the “acceptance of or adherence to the religious tenets of the organization,” which is an expansion of the religious exemption rule under Title VII.[4] This means individuals could be fired or not provided resources on the basis of their sex, including sexual orientation, gender identity, pregnancy, childbirth or related medical conditions, all based on an organization’s self-defined religious tenets. Accordingly, the proposed rule effectively allows entities that receive federal support to discriminate. This is particularly discouraging given the high rates of discrimination and barriers faced by women and LGBTQIA+ students on college campuses.

LGBTQIA+ students often feel unsafe during their first year on college campuses. According to a survey taken in 2019 of first-year students, 38 percent of first-year LGBQ students felt unsafe compared to 22 percent of their heterosexual classmates.[5] Around 52 percent of transgender students felt unsafe compared to 23 percent their non-transgender classmates.[6] The survey also found 24 percent of LGBQ students reported being verbally threatened between 2018 and 2019 compared to 16 percent of their heterosexual classmates.[7] Twenty-six percent of transgender students reported being verbally threatened between 2018 and 2019 compared to 17 percent of non-transgender students.[8]

Women also face a number of additional barriers to equity and inclusion at school. While Title IX has made it easier for women to participate in education programs, discrimination and harassment still make it harder for women seeking to get an education. Studies have shown women are less likely to enter fields of study that are perceived to discriminate against women,[9] and in a recent campus climate survey, over one quarter of undergraduate women reported experiencing nonconsensual sexual contact during college.[10] Among students enrolled in a community college, two-thirds of women who have children after they enroll do not end up finishing their degree.[11]

By creating carve-outs for religious educational institutions to avoid creating equitable environments for LGBTQIA+ students and women, the Department is effectively encouraging institutions to turn away from their legal obligations to serve all students.  Rather than expand the ability of colleges and universities to discriminate against women and LGBTQIA+ students, the Department should encourage and work with religious educational institutions to combat discrimination, while also preserving their faith-based educational missions.

3. The Proposed Language Undermines Institutions’ Ability to Enforce Non-Discrimination Protections

The proposed rule prevents educational institutions from ensuring that religious student groups are subject to the same expectations of inclusivity and non-discrimination as other student groups on their campus.  Some colleges and universities across the country have sought to ensure students are not required to fund student groups that actively discriminate against them.  For example, these schools have determined that student groups funded with activity fees should not have restrictive membership requirements that would prevent students from joining because of the color of their skin, their sexual orientation, gender identity, sex, religion, or other factors. 

The proposed rule undermines this goal by requiring that “[a] public institution shall not deny to a religious student organization at the public institution any right, benefit, or privilege that is otherwise afforded to other student organizations at the public institution (including full access to the facilities of the public institution and official recognition of the organization by the public institution) because of the beliefs, practices, policies, speech, membership standards, or leadership standards of the religious student organization.”[12] On its face, this language would require LGBTQIA+ students, women, and educational institutions to continue to support and fund religious student organizations that refuse to allow LGBTQIA+ students or women who access reproductive health care to become members.

Such a proposal flies in the face of the Supreme Court case Christian Legal Society v. Martinez[13]  in which the Court affirmed the right of public universities to require student clubs seeking official recognition and funding to be open to all registered students. In affirming this right, the Court rejected the student organization’s claim that it could restrict the membership of LGBTQIA+ students.[14] 

4.      The Proposed Rule Eliminates Requirements to Protect the Religious Liberty of Beneficiaries

The proposed rule eliminates the requirement that religious providers receiving direct grant program funding from the Department must explain peoples’ religious liberty and other rights in writing.  Currently, these religious providers must provide prior written notice to any beneficiaries of their Department–funded programs explaining they are not required to attend or participate in any explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization) or participate in activities that are voluntary.[15] Similarly, the proposed regulation eliminates protections for people who may be uncomfortable or unable to receive services from religious providers, implicating the religious liberty of these beneficiaries. In the Department’s existing regulation, if a beneficiary objects to the religious nature of an organization, “that organization must promptly undertake reasonable efforts to identify and refer the beneficiary or prospective beneficiary to an alternative provider to which the beneficiary or prospective beneficiary has no objection.”[16] The Department’s proposal abandons the referral requirement and provides no substitute to protect beneficiaries’ ability to go to a non-religious provider. 

Eliminating these requirements from the current rule will create unnecessary, harmful barriers for beneficiaries seeking access to important services. For example, a student who identifies as LGBTQIA+ or who is a child of LGBTQIA+ parents could experience open anti-LGBTQIA+ hostility from a Department-funded program partnering with their public school to provide healthcare screening, transportation, shelter, clothing, or new immigrant services. Additionally, a low-income LGBTQIA+ student participating in an Upward Bound program for college readiness preparation could be forced to participate in additional religious activities against their personal beliefs. The Obama administration promulgated this rule, in part, to ensure those seeking aid from federally-funded programs in the Department could be aware of their religious liberty rights and not experience taxpayer-funded discrimination. No one should have to choose between their beliefs and accessing the services they need. We urge you to withdraw this proposed rule.

Sincerely,

 

The full text of the letter to the Department of Labor is below and HERE. 

February 19, 2020

 

The Honorable Eugene Scalia

Secretary of Labor

U.S. Department of Labor

200 Constitution Ave. NW

Washington, DC 20210 

Dear Secretary Scalia:

We write to strongly oppose the Department of Labor’s (DOL or the Department) proposed regulation, “Equal Participation of Faith-Based Organizations in the Department of Labor’s Programs and Activities: Implementation of Executive Order 13831,” which was published in the Federal Register on January 17, 2020. The proposed regulation—developed under the guise of religious liberty—is actually an attack on religious freedom that would open the door to federally-funded discrimination. The proposed rule drastically expands religious exemptions that could provide organizations that receive federal funds a license to discriminate against employees and beneficiaries who are LGBTQIA+ and women, and lifts protections designed to insure beneficiaries are not forced to participate in a religion not their own. We demand the Department immediately withdraw this proposed rule.

1.      The Proposed Rule Would Allow Religious Organizations to Use Federal Funding to Discriminate Against Beneficiaries

We are deeply concerned that by expanding religious exemptions, the Administration’s proposed rule would allow faith-based organizations to discriminate against employees because of their sex, sexual orientation, or gender identity. The proposed rule would allow faith-based entities to make employment decisions on the “basis of [their employees’] acceptance to or adherence to the religious requirements or standards of the organization, but not on the basis of any other protected characteristic.” There appear to be no guardrails to ensure faith-based providers receiving taxpayer funds do not use religion as a pretext to discriminate when making employment decisions.

This proposed rule will exacerbate ongoing forms of discrimination and harassment against the LGBTQIA+ community. In a 2017 nationally representative survey reporting harassment in the LGBTQ community, 20 percent of LGBTQ people said they were discriminated against when applying for jobs.[17] In the same survey, nearly 60 percent of LGBTQ people agreed with the statement, “LGBTQ people where I live have fewer employment opportunities.”[18] In a March 2018 report on LGBTQ poverty and economic justice, between 15 percent and 43 percent of LGBTQ workers reported having experienced discrimination on the job.[19] In the 2015 U.S. Transgender Survey, 30 percent of survey respondents who had a job the previous year reported being fired, were denied a promotion, or experienced some form of mistreatment.[20]

The proposed rule will make it easier for employers to discriminate against women and pregnant workers. Women already face significant discrimination in the workplace, which this rule would further embolden.[21] In a 2017 survey, approximately four out of ten women reported facing discrimination in the workplace.[22] Historically, some of this discrimination has resulted from women exercising reproductive health decisions. For example, pregnancy discrimination cases filed with the EEOC have risen substantially over recent decades,[23] while a 2014 survey estimates nearly a quarter million women are denied requests for accommodations related to pregnancy each year.[24] Some employers have threatened to fire employees for using contraception, while others have fired workers for being unmarried and pregnant,[25] or for having an abortion.[26] The proposed rule could allow faith-based entities to exacerbate existing challenges facing women and discriminate against those employees who do not share the same beliefs of the employer.

 

2.      The Proposed Rule Eliminates Requirements to Protect Religious Liberty for Beneficiaries

The proposed regulation also eliminates protections for people who may be uncomfortable or unable to receive services from religious providers, implicating the religious liberty of those beneficiaries. In the existing Department regulation, if someone who is seeking services objects to the religious character of an organization that provides services under the program, that organization must promptly undertake reasonable efforts to identify and refer the beneficiary or prospective beneficiary to an alternative provider to which the beneficiary or the prospective beneficiary has no objection.”[27] The Department’s proposal abandons the referral requirement and provides no substitute to protect beneficiaries’ ability to go to a non-religious provider.

The current referral requirement stems from the recommendations of the Advisory Council on Faith-Based and Neighborhood Partnerships (the Council), which President Obama initiated to strengthen and assess the relationships among faith-based entities, community-serving organizations, and the government.[28] The Council members believed the referral requirement was critical to providing adequate protection for the “fundamental religious liberty rights of social service beneficiaries.”[29] The Department offers no reasonable explanation for its decision to abandon this careful, consensus-based effort by a diverse group of grassroots leaders and other religious experts to protect religious liberty.

Similarly, the proposed rule eliminates the requirement that religious providers receiving taxpayer funding must explain peoples’ religious liberty and other rights in writing.  Currently, religious providers must provide prior written notice to a beneficiary explaining they are not required to attend or participate in any explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization) or activities that are voluntary. The notice also makes clear they can report suspected violations to the DOL’s Civil Rights Center.[30]  The proposed rule eliminates this notice requirement.

People cannot exercise their rights if they have no understanding of the scope and nature of those rights. Eliminating the requirement risks exposing beneficiaries to, and leaving them unable to effectively object to, discrimination or religious coercion from a provider. These protections are vital to ensuring people never have to make the decision between accessing services, often critical, and retaining their religious freedom. Eliminating notice of these protections unfairly elevates the interests of entities over the needs and rights of people seeking vital services. 

Sincerely, 

###

 



[1] https://www.govinfo.gov/content/pkg/FR-2020-01-17/pdf/2019-26937.pdf

[2] Id.

[3] https://www.govinfo.gov/content/pkg/FR-2020-01-17/pdf/2019-26937.pdf

[4] Id.

[5] https://tcc-j2made.s3.amazonaws.com/uploads/2019/04/Campus_Climate-FINAL-1.pdf

[6] Id.

[7] Id.

[8] Id.

[9] https://www.brookings.edu/blog/brown-center-chalkboard/2018/04/23/how-our-education-system-undermines-gender-equity/

[10] https://www.aau.edu/sites/default/files/AAU-Files/Key-Issues/Campus-Safety/Revised%20Aggregate%20report%20%20and%20appendices%201-7_(01-16-2020_FINAL).pdf

[11] http://powertodecide.org/sites/default/files/resources/primary-download/make-it-personal.pdf

[12] https://www.govinfo.gov/content/pkg/FR-2020-01-17/pdf/2019-26937.pdf. Emphasis added.

[13] In this case, the Court held “Hastings' all-comers requirement draws no distinction between groups based on their message or perspective. An all-comers condition on access to RSO status, in short, is textbook viewpoint neutral.” 561 U.S. 661, 694-95 (2010).

[14] Id. at 697.

[15] 34 CFR § 75.712

[16] 34 CFR § 75.713

[17] https://www.npr.org/documents/2017/nov/npr-discrimination-lgbtq-final.pdf

[18] Id.

[19] https://socialjusticesexuality.com/intersecting_injustice/

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

[21] https://www.cnbc.com/2017/12/19/one-fifth-of-american-adults-have-been-sexually-harassed-at-work.html

[22] https://www.pewresearch.org/fact-tank/2017/12/14/gender-discrimination-comes-in-many-forms-for-todays-working-women/

[23] https://www.americanprogress.org/issues/women/news/2018/11/02/460353/efforts-combat-pregnancy-discrimination/

[24] http://www.nationalpartnership.org/our-work/resources/workplace/pregnancy-discrimination/listening-to-mothers-experiences-of-expecting-and-new-mothers.pdf

[25] https://www.huffpost.com/entry/tom-price-women-fired-reproductive-rights_n_587fca54e4b00d44838ca8a5

[27] 29 CFR § 2.35

[28] The Advisory Council recommended the government “assure the religious liberty rights of the clients and beneficiaries of federally funded programs by strengthening appropriate protections.” One of the protections included affirming “that a beneficiary who requests an alternative service provider, due to that beneficiary’s objection to the religious character of the initial service provider, shall have his or her objection redressed either by referral to an alternative provider which is religiously acceptable to the beneficiary, or an alternative provider which is secular.”

[29] https://obamawhitehouse.archives.gov/sites/default/files/microsites/ofbnp-council-final-report.pdf

[30] 29 CFR § 2.34