Over the past month, the Biden administration has finalized numerous problematic rules that undermine religious liberty, widen access to abortion, and harm children and families. Some rules, such as the rule implementing the Pregnant Workers Fairness Act, directly conflict with direction from Congress. Others, such as the rule for Designated Placement Requirements for LGBTQ-identifying children, claim that faith-based families are unable to provide “safe and appropriate” care for children without affirming their self-identified gender identity. The ERLC is pushing back against these harmful federal regulations.

By filing public comments, the ERLC seeks to inform agencies of some of the unforeseen consequences associated with proposed rules, request that changes are made before the rule is finalized, and represent Southern Baptists’ beliefs expressed through the Baptist Faith and Message and the numerous resolutions passed by messengers each year. Additionally, these comments assist our partners, who may reference public comments when engaging in litigation.

Below are summaries of five of those proposed rules that the ERLC has filed public comments on:

Enforcement Guidance on Harassment in the Workplace

Agency: Equal Employment Opportunity Commission (EEOC)

Purpose: Broadens the definition of what is considered “sex-based harassment” to require that employers consider gender orientation and sexual identity alongside biological sex.

Effective date: April 29, 2024

Key Points: 

• The EEOC redefines “sex-based harassment” in its enforcement of Title VII of the Civil Rights Act to include sexual orientation and gender identity as types of harassment.

• Additionally, the rule amends what is considered “sex-based harassment” to include, for example, cases where harassment would include an employee using pronouns that align with an individual’s biological sex instead of gender identity and requiring that employers allow employees to utilize restrooms aligned with their gender identity instead of biological sex.

• The EEOC bases these changes on the Supreme Court’s Bostock decision in 2020, which extended Title VII protections to include discrimination based on sexual orientation and gender identity for employees who work at an organization of 15 or more employees. However, in doing so, the EEOC exceeded the scope of Title VII as interpreted in the decision by the Supreme Court in Bostock, which was limited in scope and didn’t address sex-segregated bathrooms.

ERLC comments/concerns: 

In November 2023, ERLC submitted comments expressing concern with the expanded guidance, which will likely be treated as a typical rule, and citing the theological basis for Southern Baptist beliefs and deep concern for the ability of private employers to retain religious liberty in the workplace. 

It is impossible to claim to protect both free expression of religion and simultaneously require employees to support “gender transitions” and abortion. Though the final rule did include an addendum nodding to existing religious freedom and conscience protections, it’s likely that this enforcement guidance will lead to litigation and violations of the consciences of religious individuals by requiring them to affirm factually untrue and deceptive beliefs to the detriment of their conscience and personal safety.

HIPAA Privacy Rule To Support Reproductive Health Care Privacy

Agency: Department of Health and Human Services (HHS)

Purpose: Modifies the HIPAA Privacy Rule to limit the sharing of reproductive health information, establishing that healthcare providers and other related entities may violate HIPAA if they comply with investigations into illegal abortion and gender transition procedures. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) was passed to protect sensitive health information from disclosure without the patient’s consent.

Effective date: June 25, 2024

Key Points: 

• Clarifies that the HIPAA Privacy Rule applies to the disclosure of reproductive health information, including information related to abortion, contraception, and fertility treatments.
  
• In doing so, HHS effectively halts future investigations into illegal abortions, gender transition surgeries, and other dangerous procedures in violation of some states’ laws. Such prohibitions encompass certain disclosures of reproductive health information without the individual’s authorization, such as to law enforcement or the individual’s family members in some cases.

• The rule also requires healthcare providers to give individuals notice of their privacy rights and how their reproductive health information will be protected.

• HHS states these changes are necessary to ensure individuals can access reproductive healthcare without fear of their sensitive information being “improperly disclosed.”

ERLC comments/concerns: 

In June 2023, the ERLC filed public comments in opposition to the change, which would enact further HIPAA restrictions that limit the disclosure of information related to “reproductive healthcare.” The rule would prohibit healthcare providers from giving investigators access to abortion-related information and information regarding other reproductive issues.

Contrary to HHS’ stated intent, this rule fails to protect vulnerable women and children and punishes healthcare providers for complying with investigations into illegal abortions and related procedures. By limiting investigators’ access to reproductive health information, the rule overrides state abortion laws and protects those who commit criminal healthcare activities as well as abusers.

In addition to our concerns related to life, the ERLC specifically pushed back on the ability of this rule to provide a safe haven for abusers. Specifically, domestic abusers would benefit from the regulation’s newfound protections, as healthcare providers could not report suspected child abusers or limit their access to their dependent’s sensitive health records if the finding of abuse is primarily evidenced by reproductive health information, directly conflicting with Congress’ intent in HIPPA.

Implementation of the Pregnant Workers Fairness Act

Agency: Equal Employment Opportunity Commission

Purpose: Implements the Pregnant Workers Fairness Act, which passed Congress during the 117th Congress in December 2022 and requires employers to provide common-sense accommodations for pregnant workers. However, this rule has been co-opted by the Biden administration to require employers to provide paid leave to obtain an abortion and has raised strong religious liberty concerns.

Effective date: June 18, 2024

Key Points: 

• The Pregnant Workers Fairness Act (PWFA) amended the Americans with Disability Act in federal law to require employers with 15 or more employees to provide reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation would cause undue hardship. The EEOC was given rulemaking authority to implement this act once signed into law.
  
• While debating the bill in Congress, sponsors of the legislation explicitly stated that this bill was not about expanding access to abortion and abortion-related travel but about assisting expectant mothers.

• The EEOC then rejected Congress’ intent and redefined “pregnancy-related medical condition” as used in the PWFA to include abortions. This is the first time abortion would be covered under the Americans with Disabilities Act, an expansion the Biden Administration has sought repeatedly.

• The rule also outlines five prohibited practices under the PWFA, including failing to provide reasonable accommodations and taking adverse action against an employee for seeking an accommodation. These accommodations were intended to include life-affirming accommodations such as a stool or bottle of water for pregnant workers. It did not also include accommodations for abortion such as paid leave.

ERLC comments/concerns: 

In October 2023, ERLC filed comments calling for the removal of abortion language from the Pregnant Workers Fairness Act regulations.

“We urge each sponsor of the Pregnant Workers Fairness Act to file an official comment on this proposal and demand abortion be dropped from this regulation,” said Brent Leatherwood, ERLC president and the signatory of the letter. “Failure to do so will only empower a radical agency to completely disregard clear congressional intent and, more alarmingly, turn a law meant to help mothers and children thrive into the abortion regime’s newest tool to destroy life.”

Though some considerations of Title VII’s religious liberty protections were given in the final rule after concerns were raised, this rule still fundamentally misrepresents the law passed by Congress in such a way that harms religious liberty and the cause of life. The ERLC affirms the important objective of the bipartisan PWFA to ensure women are given accommodations in the workplace to ensure their health and the health of their preborn children.

Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance

Agency: Department of Education

Purpose: Amends the regulations implementing Title IX of the Education Amendments of 1972 (Title IX) to redefine “sex” to include sexual orientation and gender identity.

Effective date: Aug. 1, 2024

Key Points: 

• The rule specifies how recipients of federal financial assistance, such as elementary/secondary schools and postsecondary institutions, must comply with Title IX’s prohibition on sex discrimination to also include discrimination on the basis of sexual orientation and gender identity.
  
• Organizations and schools under the jurisdiction of Title IX would no longer be able to define sex as a person’s biological sex from birth, but instead would be forced to adopt gender identity as the student’s sex for purposes of Title IX and its implementing regulations.

• Effectively, this change would remove protections typically allocated for women in institutions of higher education, including impacting women’s sports by allowing men to compete and prohibiting sex-segregated spaces on the basis of biological sex, such as bathrooms and locker rooms.

ERLC comments/concerns: 

The ERLC has submitted public comments laying out our concerns with the proposed rule and urging them to reconsider making these changes. Title IX directly affects a host of other regulations across agencies making the effects of this change sweeping.

This proposed rule is another attempt by the executive branch to extend the bureaucratic application of the Supreme Court’s ruling in Bostock v. Clayton County (2020). In Bostock, the court held that Title VII of the Civil Rights Act of 1964 protects gay and transgender employees against unlawful discrimination—logic that various executive agencies including the Equal Employment Opportunity Commission, the Department of Agriculture, and now the DOE have applied to Title IX.

Additionally, though we were glad to see Title IX’s robust religious exemption maintained, it does not include protections for people of faith at nonreligious institutions, and the DOE has indicated that they may take further action limiting the religious exemption in the future.

Reproductive Health Services

Agency: Department of Veterans Affairs (VA)

Purpose: Allows the VA to provide abortion counseling and, in cases involving rape, incest, or concerns for the life of the mother, to perform abortions to pregnant veterans and VA beneficiaries in states where abortions are prohibited by state law.

Effective date: April 3, 2024

Key Points: 

• The rule authorizes the VA to provide abortions when the life or health of the pregnant veteran would be endangered if the pregnancy were carried to term or when the pregnancy is the result of rape or incest.

• The VA will determine whether the life or health of the veteran would be endangered based on the clinical judgment of the VA health care provider. In cases of rape or incest, the veteran’s self-reporting will constitute sufficient evidence.

• The rule also clarifies that VA employees can provide these authorized abortion-related services regardless of state restrictions, as they are acting within the scope of their federal employment.

ERLC comments/concerns: 

In 2022, the ERLC submitted comments opposing the rule along with other pro-life and religious liberty organizations. The ERLC objected to the way that the rule would force taxpayers to fund abortions and force healthcare officials to violate their beliefs about the value of life. The ERLC and Southern Baptists have long affirmed that every life is worthy of protection, including the preborn. Because life begins at conception, abortion denies human life and dignity. 

Further, the ERLC condemned the rule as unlawful because it was attempting to override the explicit statutory prohibition against the VA providing abortion services. The ERLC also called the administration to recognize that the rule did not provide exceptions for those who object to performing abortions because it violates their conscience rights and deeply held religious beliefs. It is encouraging to note that while the finalized rule did not address many of our concerns, it did improve processes for conscience objections in response to our comments.

Conclusion

The ERLC continues to participate and lead in our coalitions by submitting public comments. These comments represent the interests and concerns of Southern Baptists, expressed time and again through the Baptist Faith and Message and numerous resolutions.

While federal rulemaking is a complicated and often discouraging process under some executive administrations, we retain an overarching confidence in the sovereignty of the Lord throughout the ever-changing political attitudes of our day. In the short term, there are also many small gains we are seeing as a direct result of our public comments; multiple rules have been improved in their final version to accommodate and respond to the concerns of faith-based organizations.

Your ERLC continues to proclaim God’s design for human flourishing and promote the protection of vulnerable lives. 

View part one of this three-part series on the federal rulemaking process, the Biden administration’s proliferation of harmful federal rules, and how the ERLC has been active on each of the regulations mentioned.

Watch for part three next week when we’ll go into more detail about five additional regulations and why Southern Baptists should be concerned. As always, the ERLC will continue to work with a coalition of organizations that will challenge these rules in court.