Gender ideology comes to roost for foreign aid agencies

Two new proposed rules from the U.S. Department of State could prevent religious nonprofits that provide foreign aid from receiving federal grants. More than 70 nonprofits and legal organizations, including Compassion International, Samaritan’s Purse, and Alliance Defending Freedom International, have expressed concern that these rules violate constitutional rights.

In January, the State Department announced rules that added sexual orientation and gender identity to existing nondiscrimination requirements. The change could require foreign aid contractors and grant recipients to hire employees that disagree with employers’ beliefs on marriage and sexuality.

“The government should never force ministries to choose between helping those in great need or betraying our deeply held religious convictions,” Franklin Graham, president of Samaritan’s Purse, told me in an email. He added that the proposed rules would restrict the organization’s hiring practices, but the group already helps anyone in need regardless of their beliefs. While government grants provide only a small percentage of his organization’s funding, Graham said that money enables Samaritan’s Purse to help more people. “Ultimately, these new rules would hurt the people who need help the most—those who may be living in the midst of war, disaster, or other natural disasters,” he wrote.

In 2023, 50 of the largest religious foreign aid grant recipients received approximately $613 million in federal funding. These groups provide crucial aid such as water, hygiene, refugee support, and protecting against human trafficking in more than 100 countries.

The State Department’s proposed rules violate legally protected rights, said Steve McFarland, the director of the Center for Law and Religious Freedom at the Christian Legal Society, an organization that commented on the rules.

Title VII of the Civil Rights Act ensures that religious organizations can hire employees who share their religious beliefs. Additionally, the Religious Freedom Restoration Act prohibits the government from substantially burdening a person’s exercise of religion.

“It’s as if [the department is] completely oblivious to the explicit constitutional and congressional limits that are placed on how they distribute taxpayer money,” McFarland said. He added that the proposed rules are, at best, “disingenuous” and, at worst, “malicious.”

The rules are also vague, McFarland said, since they don’t include any mention of religious rights and exemptions. The Center for Law and Religious Freedom suggested in its comments that the department update its language to mention these rights to ensure all nonprofits are aware of them.

Without the additional language, McFarland said the new requirement could force organizations that know about their legal rights to fight for them and discourage organizations that don’t know their rights from applying for aid.

“I’m just concerned that they are shooting themselves in the foot because they are going to scare away a lot of otherwise very competent and qualified grantees,” McFarland said.

While the rules propose that nonprofits can potentially get around the discrimination requirements through a waiver, McFarland said requiring that step is illegal. A waiver makes the ability to receive funds dependent on the discretion of grant officers. But because of religious protections, this dependence shouldn’t even exist in the first place.

The department also gives very little guidance on how the waivers will be considered and approved, said Alliance Defending Freedom International in its comments. The waiver is granted on the basis of whether or not it’s “in the best interest of the U.S. government,” according to the proposal.

“The vagaries and uncertainties of the proposed . . . rules would make it very difficult for faith-based organizations to ensure compliance,” ADF International said.

The State Department could implement the proposed rules as soon as May, said Rachel N. Morrison, a fellow at the Ethics and Public Policy Center. She added that the department will try to get the rules finalized before the Congressional Review Act is enacted mid-May. If they are passed after this, Congress could potentially later reject them under the act. The proposed rules still have to go through several more revisions by various departments and another public comment period, she said.

These aren’t the only rules the Biden administration has created that target religious organizations, Morrison said, adding that the administration has a pattern of creating nondiscrimination requirements that essentially force religious organizations to comply with the government’s view of sexuality and gender. She pointed to nine federal agencies that have issued new regulations governing social service grants that do just that.

Morrison expressed concern that foreign aid could be decreased and foreign relations hurt under these latest proposed rules, as they directly affect the foreign aid assistance the United States regularly administers through grants and federal contracts.

“At the end of the day, this is harmful for those faith-based groups. It’s going to leave them out of these programs and it’s going to hurt the beneficiaries,” Morrison said. “It will have massive impacts for foreign aid and foreign relations.”