Abortion and gender ideology in the National Defense Authorization Act
By / Sep 15

Abortion and gender ideology have once again become a topic of discussion on Capitol Hill, this time in relation to the National Defense Authorization Act (NDAA) for Fiscal Year 2024. 

The NDAA is an annual piece of federal legislation that authorizes the budget and expenditures for the Department of Defense (DOD) and other affiliated agencies. The NDAA serves as the principal mechanism through which Congress exercises its constitutional authority to “raise and support Armies” and “provide and maintain a Navy,” as stipulated in Article I, Section 8 of the U.S. Constitution.

Some of the key components of the legislation in which abortion and gender ideology play a factor are the budget authorization, policy guidelines, and personnel matters. The NDAA specifies how much money can be spent in various categories. Beyond budgetary matters, the NDAA often includes policy provisions that guide the military’s conduct and regulations. The act also frequently addresses issues related to military personnel, such as payment or reimbursement for specific medical procedures.

National Defense Authorization Act Amendments related to abortion and gender ideology

In July, the House of Representatives passed a bill that included amendments related to abortion and transgender surgeries. The amendments include the following:

  • Prohibits the secretary of Defense from paying for or reimbursing expenses relating to abortion services.
  • Undoes the Pentagon’s policy of allowing service members to have access to abortion services.
  • Bans the Pentagon from paying for or reimbursing service members for abortion-related expenses.
  • Additional restrictions on abortion. 
  • Prohibits TRICARE from covering and the DOD from furnishing sex-reassignment surgeries and gender hormone treatments for transgender individuals.
  • Prohibits provision of gender-transition procedures, including surgery or medication, through the Exceptional Family Member Program.
  • Recinds the Pentagon’s policy of allowing service members to have access to gender-transition procedures. 

The Senate also passed a version of the bill in July that avoided making any changes to current abortion and gender-identity funding or policies. The two versions of the bill await a formal conference in the fall to reconcile these differences. The amendments on abortion and gender identity aren’t expected to survive the reconciliation process. No Democrat in the Senate supports those amendments, which means they cannot pass in the Senate. Even if they made it into the final bill, though, President Biden would likely veto the bill.

Other cultural issues addressed by House amendments are: 

  • a prohibition on drag shows and drag queen story hour, 
  • a prohibition on the display of unapproved flags (such as the LGBTQ+ Pride flag), 
  • and a requirement that DOD Education Activity schools are prohibited from purchasing and having pornographic and radical gender ideology books in their libraries.

Congress will begin negotiations this month and must complete the final version of the NDAA before the end of the year. In the meantime, the ERLC will continue advocating on behalf of Southern Baptists at every opportunity. 

We invite our fellow Southern Baptists to join us in praying for godly wisdom to permeate these negotiations, for lives to be saved through maintaining the current restrictions on abortion, and for opportunities to clearly articulate God’s design for gender and sexuality.

What parents should know about school gender identity policies
By / Sep 8

Do parents have a right to know if their child is socially transitioning to a transgender identity in school? The issue of gender identity policies in schools has become increasingly contentious, with parents correctly feeling they have a right to know when their child socially transitions at school, and many public schools arguing that schools have a responsibility to “protect” students by keeping that information from parents.

Social transition describes the process by which children or adolescents adopt the name, pronouns, and gender expression, such as clothing and haircuts, that aligns with a transgender identity. 

Social transition in school districts

Increasingly, school districts across the country are attempting to keep parents from discovering when such social transitioning is occurring at school—and they’re being supported by the federal courts. 

Maryland: In August 2023, the 4th U.S. Circuit Court of Appeals panel ruled 2-1 that three parents in Montgomery County, Maryland, lacked standing to challenge the school’s gender identity policy because they had not alleged their children were transgender in the first place.

The policy, which the Montgomery County Board of Education adopted for the 2020-2021 school year: 

  • permitted schools to develop gender support plans for students to ensure they “feel comfortable expressing their gender identity”; 
  • directs school personnel to help transgender and gender nonconforming students create a plan that addresses their preferred pronouns, names, and bathrooms; 
  • and bars staff from informing parents of those plans without a student’s consent. 

Lawsuits are pending challenging similar policies in other states. 

California: In July, a federal court dismissed a similar case brought against a California school district by a parent who alleged the district had violated her constitutional rights by failing to tell her that her child had asked to use a different gender pronoun. U.S. District Court Judge John Mendez said in his ruling: 

“The issue before this court is not whether it is a good idea for school districts to notify parents of a minor’s gender identity and receive consent before using alternative names and pronouns, but whether the United States Constitution mandates such parental authority. This Court holds that it does not.”

The states that do—and do not—require parental notification

School gender identity policies on informing parents about students who are transgender or social transitioning vary widely among school districts and states. Here are some states that have issued guidance on this issue:

  • Alabama: State law requires that no school staff shall “withhold from a minor’s parent or legal guardian information related to a minor’s perception that his or her gender or sex is inconsistent with his or her sex.” 
  • Arizona: State law promotes parental involvement, though does not require school staff to notify parents. 
  • California:  While policies vary by school district, the state issued legal guidance issued by the California Department of Education, which expressly states schools may not disclose a student’s gender identity without the student’s permission. The California legislature also passed a law which makes the state of California a “safe haven” for minors to receive irreversible, sterilizing surgeries and treatments. The bill allows minors to act against their parents’ wishes and travel out of state for these procedures without parental consent.
  • Florida: State law promotes parental involvement, though does not require school staff to notify parents. 
  • Idaho: State law promotes parental involvement, though does not require school staff to notify parents. 
  • Indiana: State law requires schools to notify parents if the child changes their gender identity. 
  • Iowa: State law requires schools to notify parents if the child changes their gender identity. 
  • Kentucky: State law promotes parental involvement, though does not require school staff to notify parents. 
  • Montana: State law promotes parental involvement, though does not require school staff to notify parents.
  • North Carolina: State law requires schools to notify parents if the child changes their gender identity. 
  • Utah: State law promotes parental involvement, though does not require school staff to notify parents.

In states not listed, there is no state-level requirement to notify parents. 

What every concerned parent can do

Even in states that require notification, concerned parents should make a direct effort to determine whether their child secretly identifies as transgender at school. A simple way to do this is to access the student’s records and see if the child is using a different name or pronoun. Two federal regulations—the Family Educational Rights and Privacy Act and the Protection of Pupil Rights Amendment—require schools to provide parents with access to student records and federally funded instructional material until a child turns 18. 

Unfortunately, this is one of the few options available to all parents in the U.S. As Ryan Womack of Alliance Defending Freedom observes, “Parental rights are not always protected in every state or federal court as carefully as are other fundamental rights.” 

Eventually, the Supreme Court will have to determine whether public schools will be required to respect parental rights. 

Christian parents, in particular, ought to be vigilant and take the initiative to directly protect their children from the confusing and harmful gender ideology touted by the prevailing culture. The Bible is clear that parents should be the ones primarily responsible for instructing their children in the Word of God (Deut. 6), and this includes what Scripture teaches about sexuality. As Christian parents help their children walk in the way of wisdom, they point to the goodness of God’s design and encourage the flourishing of their families and communities. 

Explainer: How bans on transgender athletes protect fairness in women’s sports
By / Aug 25

In recent years, there has been a growing debate surrounding the participation of transgender athletes in girls’ and women’s sports. After a wave of initial support for making such accommodations, the tide is turning. A Gallup poll finds that a larger majority of Americans now (69%) than in 2021 (62%) say transgender athletes should only be allowed to compete on sports teams that conform with their birth gender. Likewise, fewer endorse transgender athletes being able to play on teams that match their current gender identity—26%, down from 34%.

During this same time period, an increasing number of sports associations and states have recognized that bans on transgender athletes are necessary to protect the integrity and fairness of women’s sports. Here is what you should know about the issue.

What are bans on transgender athletes in sports?

Bans on transgender athletes in sports refer to policies that prevent people who identify as transgender from participating in sports that are consistent with their gender identity. The bans are most commonly applied to biological males who identify as transgender (transgender women). Few biological women who identify as transgender (transgender men) have sought access to competitions against male athletes. 

Why are such bans on transgender athletes necessary?

There are four primary reasons such bans are needed. 

To uphold biological reality.

God created male and female as distinct and complementary sexes. Biological differences between males and females are to be honored and cherished rather than used to gain an unfair advantage. By upholding biological reality, we can ensure that women’s sports remain a space for female athletes to compete on equal footing.

To ensure fair competition.

A key reason why such bans are needed is because biological differences between males and females can provide an unfair advantage in certain sports. Male puberty can result in physiological advantages such as increased muscle mass, bone density, and lung capacity, which can impact athletic performance. By allowing biological males to compete in women’s sports, it is argued that the level playing field for women is compromised. Maureen Collins, writing for Alliance Defending Freedom, has highlighted about a dozen examples of how women have been disadvantaged by competing against men.

To protect women’s opportunities.

Girls and women should have equal opportunities to excel in sports without facing unfair competition. Title IX, a federal law in the United States, was designed to ensure equal athletic opportunities for women. Allowing biological males to compete in women’s sports limits the opportunities available to women, as scholarships, records, and other achievements may be dominated by transgender athletes.

To preserve the integrity of women’s sports.

Maintaining separate categories for males and females is essential to preserve the integrity and essence of women’s sports. Women’s sports have historically provided a platform for female athletes to showcase their skills and achievements, and allowing transgender women to compete undermines this tradition.

Bans on transgender athletes in girls and women’s sports are necessary measures to protect the sanctity, fairness, and opportunities of women’s sports. Christians should uphold biological reality, protect women’s opportunities, and preserve the sanctity of women’s sports by supporting such bans.  

Where are such bans on transgender athletes currently in place?

As of August 2023, 23 states in the United States have enacted laws to ban transgender athletes from participating in sports aligned with their gender identity

These bans apply to both K-12 and collegiate level sports teams. The states with bans on transgender athlete participation in college sports include:

Alabama, Arkansas, Arizona, Florida, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.

The Supreme Court has declined to intervene in enforcing bans on transgender athletes in West Virginia, affirming the constitutionality of such restrictions.

In April, the U.S. House of Representatives approved legislation that would bar transgender women and girls from participating in athletic programs designated for women. The bill has no chance of passing the Democratic-controlled Senate or being signed into law by President Biden. 

However, Biden’s Department of Education proposed a rule change that—while not allowing a blanket ban—would give universities and K-12 schools the discretion to limit the participation of transgender students if they conclude that including transgender athletes could undermine competitive fairness or potentially lead to sports-related injuries.

Which sports organizations ban biological males from competing against girls and women?

In 2022, the Union Cycliste Internationale, the governing body for cycling, announced a testosterone limit of 2.5 nmol/L for biologically male cyclists who want to compete with women.

Around that same time, FINA, the governing body for swimming, barred biological males from competing in women’s events.

World Rugby also has a complete ban on biological males competing in international women’s rugby “because of the size, force- and power-producing advantages conferred by testosterone during puberty and adolescence, and the resultant player welfare risks this creates.”

Earlier this year, World Athletics (WA), the governing body for track and field and other running competitions, implemented a policy that biological males who went through male puberty can no longer compete in women’s events at international competitions. WA also ruled that to compete as a woman, athletes with differences of sexual development (DSD), who have congenital conditions that cause atypical sex development, must have a testosterone level below 2.5 nanomoles per liter (nmol/L) for at least 24 months before an international competition.

What is the Equality Act?
By / Jun 27

Last week, the Equality Act was once again introduced into the House of Representatives and the Senate for consideration. This legislation intends to expand the definition of “sex” to include “sexual orientation” and “gender identity” (SOGI) and would revise every title of the Civil Rights Act of 1964 to add these categories as new protected classes in the federal code. Last Congress, the Equality Act passed in the House, but the bill died in the Senate. 

The ERLC affirms the full dignity of every human being. At the 2018 Annual Meeting of the Southern Baptist Convention, the Messengers passed a resolution to “reaffirm the sacredness and full dignity and worthiness of respect and Christian love for every single human being, without any reservation.” But the Equality Act does not advance the cause of human dignity. 

If passed, the Equality Act would punish faith-based charities for their core religious beliefs about human dignity and marriage and would undermine decades of civil rights protections for women and girls. The alarmingly detrimental consequences of the bill pose a significant threat to the deeply held religious beliefs of millions of Americans who honor God’s design for sexuality.

What does this bill mean for religious liberty?

This bill would substantially undermine religious liberty protections in the United States. America has long been a place where people with different views and beliefs have lived at peace alongside each other. Though America has not perfectly lived up to this ideal of a shared nation, it was central to our founding as persecuted religious minorities sought safe harbor in this land. Though cleverly named, the Equality Act is out of step with that American ideal. Equality cannot be achieved while eliminating other basic, fundamental freedoms. Of particular note, the bill would essentially gut the 1993 Religious Freedom Restoration Act (RFRA), a bill which passed with broad bipartisan support and was signed by President Clinton.

By undermining RFRA, the Equality Act would force faith-based child welfare organizations to abandon their deeply held religious beliefs or be shut down by the state. The state-forced closures of such agencies is especially detrimental at a time when multiple crises—including the post-pandemic effects and the ongoing opioid epidemic—have led to increases in the number of children in need of services.

What does the bill mean for women and girls?

Most strikingly, the Equality Act undermines decades of hard fought civil rights protections for women and girls. Single gender spaces, such as locker rooms or shelters, would no longer be protected by law. This departure from a legal understanding of gender as male and female makes women and girls vulnerable to biological males being in their private spaces. For example, shelters for those women and girls escaping domestic abuse or homelessness would be forced to house biological men who identify as female. This legislation disregards the privacy and safety concerns women rightly have about sharing sleeping quarters and intimate facilities with the biological opposite sex.

Another example of the harm this legislation poses to women and girls is in athletics and academics. Since 1972, Title IX has advanced women’s sports and scholarship in remarkable ways. If enacted, the Equality Act would threaten female competition as both areas would then be open to biological males as well.

Are there pro-life concerns in the Equality Act?

Yes. The Equality Act would be the most pro-abortion bill ever passed by Congress. It would redefine the term “sex” to also include “pregnancy, childbirth, or a related medical condition.” This language would roll back federal law that protects the consciences of pro-life nurses and physicians who object to participating in abortions because of their deeply held religious or moral beliefs. These conscience protections carry decades of bipartisan consensus—a consensus that no person should be compelled to participate in an act they believe to be gravely immoral. The Equality Act would also jeopardize the longstanding Hyde Amendment that protects federal taxpayer dollars from funding abortion. There is nothing equalizing about forcing Americans to fund abortion through taxpayer dollars.

How has the ERLC been involved?

The ERLC has worked tirelessly to defeat this bill. We have partnered with a broad coalition of more than 85 faith-based nonprofits, religious entities, and institutions of higher education to highlight the dangers of the Equality Act. We have raised these concerns with members of Congress and the administration through coalition letters and countless meetings with members, administration officials, and their staff. We have also engaged in public advocacy against the bill by producing a suite of resources to inform Christians and the broader public about the pernicious threat of the so-called “Equality” Act.

What’s next?

In the prior Democrat-led House, the Equality Act passed 224-206, with three Republicans joining all 221 Democrats. In the 118th Congress, Republicans narrowly hold the majority seats, but the bill is unlikely to make it to the floor for a vote. Two of the three Republicans who voted in favor of the bill are no longer in Congress, which makes it even more difficult for Democrats to force a vote on the bill. Another obstacle is Speaker McCarthy’s commitment to unifying the Republican majority’s voice in the House to present a strong front before the American people. 

While it is unlikely the bill will be passed in this Congress, its continued appearance presents a larger, on-going threat to human dignity and religious liberty. The ERLC will continue to highlight how the Equality Act erodes fundamental freedoms and undermines the ability of Americans of diverse beliefs to work together for the common good.

Explainer: The Biden administration backs down from transgender mandate
By / Jun 26

On June 21, the Biden administration passed on its final opportunity to appeal the Eighth Circuit Court of Appeal’s ruling that struck down the “transgender mandate” in Sisters of Mercy v. Becerra. Counsel in the case, Luke Goodrich, said, “after multiple defeats in court, the federal government has thrown in the towel on its controversial, medically unsupported transgender mandate.”

The case was brought by the Sisters of Mercy, the University of Mary, and the SMP Health System in 2016 challenging the mandate that would require them to provide gender transition care against their religious convictions and medical expertise. The court struck down the mandate in December.

A similar case named Franciscan Alliance v. Becerra also succeeded in challenging the transgender mandate in August after the Fifth Circuit Court of Appeals ruled that it violated religious freedom. The group represented an association of over 19,000 healthcare professionals, eight states, and two religious hospitals. The Biden administration declined to appeal this decision, as well. 

In response to the decision, ERLC President Brent Leatherwood said,

The Biden administration’s decision to back down from the transgender mandate marks a significant victory in safeguarding the rights of medical professionals to operate in a manner consistent with their deepest held beliefs. This is an important development we should take note of because it not only represents a win for conscience rights but also furthers efforts to shield vulnerable individuals who should never become pawns in the sexual revolution.

What is the transgender mandate?

In 2016, as a part of the implementation of Section 1557 of the Patient Protection and Affordable Care Act (ACA), the Obama Administration’s Department of Health & Human Services (HHS) promulgated a rule requiring medical providers to perform and insure abortions and gender-transition procedures or face penalties. Section 1557 of the ACA is the nondiscrimination provision of the ACA, and the scope was broadened by redefining “sex” to include sexual orientation and gender identity.

The regulations came to be called the transgender mandate because they would require physicians to provide gender reassignment surgeries and administer hormones to facilitate gender reassignment, including to children, even if the doctor believed the procedure would be harmful.

In 2021, upon taking office, Biden reversed the Trump administration’s conscience protections by continuing to amend the language in the ACA to force doctors to perform gender-transition surgeries. The litigation was still in the courts pending a final decision, both of which came in 2022. The expiration of the appeal deadline terminates the Biden administration’s attempts to force the transgender mandate through the ACA. 

How has the ERLC been involved?

From the beginning, the ERLC has been an outspoken opponent of the transgender mandate because of its harmful implications for those undergoing these procedures as well as its flagrant violations of religious liberty and conscience protections for healthcare professionals.

Opposing the transgender mandate has been a top public policy priority for the ERLC, and in 2022, the ERLC filed public comments opposing the Department of Health and Human Services’ (HHS) most recent attempt to steamroll the consciences of these medical professionals. Today’s failure to appeal is a final victory after many years of dedicated advocacy from the ERLC and religious liberty allies.

Why does this matter to Southern Baptists?

As Southern Baptists, we believe that God, in his good design, has created us to be male and female to promote our flourishing. Despite how culture’s views of sexuality and gender may change over time, our commitment to this truth remains steadfast. 

Similarly, religious liberty and the protection of conscience is a bedrock principle for Baptists. As the Baptist Faith and Message describes, “God alone is Lord of the conscience.” Mandates from the government that force individuals to choose between their deeply held beliefs and their duties in the workplace must be opposed. The ERLC will always work to promote the dignity of all people and protect the religious liberty of all people of faith.

Following the decision, ERLC President Brent Leatherwood said, “Whether it is championing the preservation of individual consciences rooted in faith or defending the well-being of all image-bearers, the ERLC stands resolute, advocating tirelessly on behalf of our SBC churches. In doing so, we will not yield in our mission to protect and defend those who need it most.”

ERLC joins in supporting parental rights and opposing radical gender ideology in schools
By / Jun 2

Who should decide whether a child should be allowed to identify as transgender? 

In numerous locations across the country, school administrators are saying that they should be the ones to decide—and that they can keep such information from parents. That’s why over the past year, the ERLC has signed onto three different amicus briefs relating to issues of parental rights, transgenderism, and radical gender ideology in schools. 

Two of the cases are currently in federal appeals courts while one is being heard by the Wisconsin Supreme Court. In all three cases—

—the school districts violated parental rights by allowing students to use names and pronouns at school different from those they were assigned at birth, without providing parental notification absent a student’s consent.

Amicus briefs

The ERLC is joining with other groups in contending that such policies violate the rights of parents in two principal ways.

  1. First, their fundamental right to direct the care and education of their children includes the right to decide where the child will attend school, but the school policy improperly denied them critical information to inform that decision.  
  2. Second, by withholding such sensitive information when school officials, in their judgment, suspect parents might be insufficiently supportive, the school effectively labels those parents as abusive of their children, without affording them any due process protections as provided by both statutory and constitutional law.   

The amicus brief is a way to introduce concerns ensuring that the possibly broad legal effects of a court decision will not depend solely on the parties directly involved in the case. An amicus brief is a learned treatise submitted by an amicus curiae (Latin for “friend of the court”), that is, someone who is not a party to a case who offers information that bears on the case but that has not been solicited by any of the parties to assist a court. 

While it’s impossible to know how any particular amicus brief influences a justice or their decisions, such briefs are frequently cited in court rulings, showing that they can have an effect on legal outcomes. 

Joining with state conventions

In two of the cases, the ERLC is joining the amicus with, among other groups, the Minnesota-Wisconsin Baptist Convention.

In the third case, we are joining with the Baptist Convention of Iowa.

When appropriate, the ERLC wants to come alongside our state conventions and bolster their work promoting sound public policy and pushing back on policies that are harmful to our communities. What happens in these three cases can have national implications, so we want to advocate on an issue—transgenderism—where the SBC has clearly spoken.

How the SBC has spoken

In 2014, messengers of the SBC passed a resolution on transgenderism. That resolution

  • noted that “Some public schools are encouraging parents and teachers to affirm the feelings of children whose self-perception of their own gender is at variance with their biological sex”;
  • expressed the SBC’s opposition to efforts to alter one’s bodily identity (e.g., cross-sex hormone therapy, gender reassignment surgery) to refashion it to conform with one’s perceived gender identity;
  • and stated the SBC’s opposition to “all efforts by any governing official or body to validate transgender identity as morally praiseworthy (Isaiah 5:20).” 

The position was taken out of love of neighbor and a concern for human dignity. As the resolution states, “we love our transgender neighbors, seek their good always, welcome them to our churches and, as they repent and believe in Christ, receive them into church membership (2 Corinthians 5:18-20; Galatians 5:14)” and “we regard our transgender neighbors as image-bearers of Almighty God and therefore condemn acts of abuse or bullying committed against them.”

While all children, including those struggling with gender dysmorphia, should be treated compassionately, parents should be providing that counsel and care—not school administrators. Unfortunately, radical gender ideology is often being furthered in schools without the consent or in conflict with the wishes of parents. We believe that parents should have the right to know what is being taught to their children and any decisions that their child is making in regards to gender and sexuality.

ERLC calls on the Department of Education to reject transgender proposal
By / May 19

Recently, the U.S. Department of Education (ED) proposed a rule change concerning education programs and school activities that receive federal financial assistance.

On April 6, the ED released a proposed rule under Title IX anti-discrimination laws to “clarify” the participation of transgender students in school sports. The proposed rule focuses on sex-related eligibility criteria for male and female athletic teams, specifically advocating for the recognition of gender identity rather than biological sex in determining team eligibility.

ERLC has joined several organizations and scholars in voicing opposition to the proposed rule change, arguing that it undermines the original intent of Title IX, a federal civil rights law that prohibits sex discrimination in education.

Title IX of the Education Amendments of 1972 states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 

The intention of Title IX was to provide equal opportunities for both men and women seeking to participate in educational institutions and extracurricular activities that receive federal funding.

The law has been instrumental in advancing athletic opportunities for girls and women. As  Hannah Daniel, ERLC’s policy manager, said, “Since the passage of Title IX over 50 years ago, women and girls have been afforded new opportunities for advancement in education and athletics.”

However, this new rule establishes that federally-funded schools may violate Title IX if they categorically ban transgender students from participating on sports teams consistent with their claimed gender identity, but it also offers some vague and narrow circumstances where banning transgender athletes could be acceptable.

The ERLC’s letter

In response to the rule change, ERLC President Brent Leatherwood submitted a letter to the U.S. Department of Education expressing concerns about the proposed rule. Leatherwood argues that the rule violates the original intent of Title IX, which was enacted to provide equal opportunities for women and girls. ERLC believes that the proposed rule, which would require schools and universities to adopt gender identity as the student’s sex for purposes of athletic competition, will undermine the purpose of Title IX. This change will also force women to compete against and share bathroom and changing facilities with biological males.

In the letter, Leatherwood raises concerns the ERLC has about the proposed rule’s impact on the biblical truth of binary sexes and biological realities. He argues that the rule would expand beyond these truths and conflate “sex” with “gender,” a shift that hinders the good and flourishing of our neighbors and discounts the human dignity of their fellow citizens. Leatherwood notes,

A refusal to account for biological, sex-dependent differences will legally enshrine inequality in sports by changing the very law that sought to achieve equality in the first place. If the proposed change is accepted, the law created to protect women from discrimination and provide them equality would discriminate against them and make them more unequal than ever before, as they would now be forced to compete and share facilities with biological males, who have distinct physical differences than females.

ERLC is urging the ED to retract the proposed rule so that the original intent of Title IX—to protect women and girls in athletic endeavors—may be realized. The ED is obligated by federal law to respond to each comment before finalizing the rule.

The proposed rule change has sparked a significant concern about the Biden administration’s efforts to undermine the original intent of Title IX. As the discussion continues, it will be crucial for Christians to pray that such efforts will be thwarted and to lobby ​​the federal government to consider the potential effects on all students and the future of athletics in educational institutions.

Explainer: New Title IX rule expands transgender athlete participation in school sports
By / May 16

On April 6, the Department of Education (ED) released a proposed rule under Title IX anti-discrimination laws to “clarify” the participation of transgender students in school sports. This new rule establishes that federally-funded schools may violate Title IX if they categorically ban transgender students from participating on sports teams consistent with their claimed gender identity, but it also offers some vague and narrow circumstances where banning transgender athletes could be acceptable.

On April 15, the ERLC filed public comments in opposition to the change. ED is obligated to respond to each comment before finalizing the rule.

 What is Title IX?

Title IX of the Education Amendments of 1972 prohibits sex-based discrimination in education, stating: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 

Title IX law is intended to provide equal opportunities for both men and women seeking to participate in educational institutions and extracurricular activities that receive federal funding.

How would this proposed rule change Title IX policies?

The proposed changes from ED would bar schools from implementing categorical bans on the participation of transgender students in sports inconsistent with their biological sex. The rule would force schools to implement policies unfair to athletes competing on teams consistent with their biological sex, placing female athletes at high risk of losing their personal privacy, competitive balance, and scholarship and award opportunities.

The stated intention of this proposed rule is to provide “clarity” for federally-funded schools, coaches, and parents on the participation of transgender students in grade school and high school sports. Under the proposed reinterpretation of Title IX, 

  • “schools would not be permitted to adopt or apply a one-size-fits-all policy that categorically bans transgender students from participating on teams consistent with their gender identity.” 
  • Any scholastic efforts to restrict participation based on gender identity must establish criteria “substantially related to the achievement of an important educational objective.” 
  • The criteria must also “minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.” 

Little attention is given to any harms that could be placed onto biological female athletes through less fair and safe competition.

Contrary to ED’s statement, this rule fails to provide clarity on this issue and punishes schools who disapprove of Title IX’s ever-expanding definition of gender identity. To satisfy the department’s new criteria, local school districts may need to disregard policies that require disclosure of gender identity, as well as policies that require transgender students to participate on a sex-specific team matched with their biological sex. 

Why is this problematic?

ED’s proposed change would have sweeping effects that would significantly undermine the original intent and purpose of Title IX. By refusing to account for biological, sex-dependent differences, this regulation would legally enshrine inequality in sports, undermining the very law meant to secure gender equality in the first place.

Not only would this regulation work directly against decades of successful efforts to ensure equal athletic opportunity for men and women, but it would also completely blur the distinctions between men and women and their corresponding team sports. It is clearly unfair and demeaning to female athletes for our nation’s policies to proceed as if biological males are the standard by which they must evaluate their athletic performance.

Additionally, the proposed regulation constructs arbitrary criteria that only considers potential harms to transgender students, wrongly excluding deserving female athletes from the equation. The doctrine of the image of God must compel our leaders to protect dignity, rights, and opportunities for all people, including female athletes. This is not an either-or situation: schools can secure privacy and athletic opportunity for female athletes while still seeking to serve and love transgender students. Sadly, this proposed regulation fails to empower schools to achieve fully inclusive solutions that are right for their local community. 

The new interpretation of rules relevant to transgender athletic participation would penalize academic institutions that choose to protect female athletes. 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. Though the rule does provide some exceptions and circumstances where it could be deemed acceptable to ban transgender athletes, the exceptions are too vague and subjective to provide real guidance and protections to schools and administrators.

As we argued in our comments:

The exceptions articulated by the Department are as vague as they are hollow. The three factors enumerated are broad and highly subjective, open to vast interpretations from school to school. Yet, the Department’s subsequent commentary about the use of these factors renders the exception virtually useless. Any school or institution seeking to ensure that girls are physically protected as well as have equal access to fair athletic competition enshrined in Title IX, will undoubtedly face criticism and massive litigation costs for any exception they employ. It will be untenable for most schools to protect girls. Additionally, students themselves will be bounced around from team to team as school administrators, forced to comply with these untenable regulations and contend with impending lawsuits, do their best to navigate the subjective murkiness of this guidance.

How has the ERLC responded?

The ERLC has submitted public comments expressing these concerns about the proposed rule and urging ED to retract its policy. The ERLC will continue to monitor these changes and advocate for the recognition of God’s good design for biological sex and the flourishing of all our neighbors.

Explainer: HHS rescinds conscience protections for healthcare providers
By / Mar 7

On Jan. 5, 2023, the Department of Health and Human Services (HHS) issued a proposed rule that would rescind and modify much of a 2019 Trump-era rule that expanded conscience protections for healthcare providers. Following the announcement, HHS allowed 60 days for organizations and individuals to comment with concerns. As that comment period closed Monday, HHS is obligated to respond to each of these comments before putting forward a finalized rule. The ERLC filed comments outlining our opposition to the change.

What does this rule do?

At its most basic level, this action by HHS is an attempt to overturn the wide ranging and strongly enforced conscience protections issued under the Trump administration. In 2019, President Trump issued regulations that covered all HHS laws protecting conscience. These regulations were enjoined in three federal courts before being fully implemented. That litigation is now on hold as the plaintiffs wait for President Biden’s new regulations. Because of that enjoinment, HHS is currently operating under a 2011 Obama-era rule.

The 2019 regulations covered all HHS laws protecting conscience and had clear enforcement measures. This means that HHS was required to investigate complaints, and if a violation was found, to take appropriate action. There were clear remedies spelled out for violations and also clearly defined penalties. 

Significant changes: The new rule proposed by the Biden administration makes several significant changes. First, it should be noted that this new rule maintains recognition of all the conscience protections that were mentioned in the Trump administration law. However, where the 2019 regulations required enforcement and investigation, this new regulation does not. Further, it removes definitions of discrimination and explanation, which are necessary for those who wish to lodge a complaint. 

What it means: Thus, an individual may file a complaint that their conscience rights have been violated because they were, for example, forced to participate in a sex-reassignment surgery or an abortion procedure, but the Office of Civil Rights (OCR) within HHS is not required to actually act on that complaint and investigate. Further, because the definitions of discrimination have been gutted, individuals have a weaker case because they cannot point to specific ways in which they were targeted.

Why is it problematic?

The regulations were written under the guise of balancing the rights of conscience protection and those of ensuring access to “health care” (a euphemism for abortion access and SOGI procedures). 

The problem is that the new regulation does not balance so much as tilt the scales toward the preferred position of the Biden administration. If individuals have no ability to seek resolution or accommodation for a violation of their rights, then they are compelled to provide these services or leave their jobs. That is not balance.

If the Biden administration truly cares about balancing these rights (though they ought not be in tension), then it must recognize that there will be individuals and organizations who will choose not to participate in or provide the services mentioned above, even as others do. 

However, on a principle level, the actions of the Biden administration in issuing new HHS regulations overstep a fundamental limit of the authority of the government. We have long recognized as a society the rights of individuals to not violate their consciences by providing medical procedures that run afoul of historic and reasonable religious objections. Southern Baptists have rejected this sort of government coercion and spoken clearly in their resolutions, decrying the actions of a government seeking to trample the consciences of faithful Christians serving in healthcare industries.

How has the ERLC responded?

The ERLC has submitted public comments laying out these concerns with the proposed rule and urging HHS to reconsider making these changes. As the Baptist Faith and Message states, “God alone is Lord of the conscience.” It is imperative that Southern Baptists and other people of faith who work as healthcare professionals be allowed to continue serving their communities without compromising their deeply held beliefs.

The ERLC will continue to monitor these changes and look for additional opportunities to raise our concerns and advocate for the protection of religious liberty.

Explainer: Christian baker loses appeal on transgender-celebrating cake case
By / Feb 3

A Christian baker in Colorado lost an appeal last week in his legal fight in the case involving his rejection of a request for a birthday cake celebrating a gender transition.

What’s the background?

In June 2017, Autumn Scardina called Masterpiece Cakeshop to order a birthday cake, which would, according to the court filings, also reflect and celebrate Scardina’s transgender identity. Jack Phillips, the owner of Masterpiece Cakeshop, refused to make the cake. 

Phillips is a devout Christian who has repeatedly said that he seeks to operate his bakery consistently with his religious beliefs. He wants to live his life, do his business, and engage everyone in a way that honors Jesus Christ, notes the lawsuit. Phillips even named the bakery “Masterpiece” based on Jesus’ words in the Sermon on the Mount, where he said no man can serve two masters.  

Scardina filed a lawsuit against Phillips and Masterpiece Cakeshop in state court claiming illegal discrimination because of his transgender identity. Phillips countered that the decision was not because of the person who requested it, and that he would not create a cake celebrating gender transition no matter who asked for it.

What’s the problem?

The case shows how LGBT activists are willing to use the courts to harass Christians in an attempt to coerce them to violate their consciences. 

Scardina, an attorney, contacted Masterpiece Cakeshop on the day that the Supreme Court agreed to hear Masterpiece Cakeshop v. Colorado Civil Rights Commission. In that case, a same-sex couple had sued Phillips because he refused to create a cake for a same-sex wedding. (On June 4, 2018, the U.S. Supreme Court ruled in a 7-2 decision that the actions by the Colorado Civil Rights Commission violated Phillips’ rights under the Free Exercise Clause.)

A few months later, Scardina also asked for a cake with Satan smoking a joint, which Phillips also declined to make. Scardina later admitted to making these cake requests to “test” Jack and to “correct the errors of [his] thinking.” The attorney had also contacted Phillips multiple times calling him a hypocrite and bigot, and saying that if the current case was dismissed for any reason, Scardina would come back the next day with a new cake request and sue Phillips again.

As Alliance Defending Freedom notes, “The relentless harassment of Jack Phillips – nearly a decade of litigation – has had a significant impact on Jack Phillips’ business. He once had ten employees and now it’s down to four. He has lost a big part of his business, in addition to the severe emotional toll.”

Why did Phillips lose the appeal?

In ​​its ruling, the Colorado Court of Appeals said that because the form of the cake, which was to be pink with blue frosting, was not inherently a form of speech because it did not convey any particular message. Since Phillips could not claim, according to the court, that his speech was protected, he was in violation of discrimination laws. Colorado state law makes it illegal to refuse to provide services to people based on protected characteristics like race, religion, or sexual orientation.   

The appeals court also noted that Phillips’ shop had initially agreed to make the cake and only refused after Scardina explained it was to celebrate his gender transition.

What happens now?

Attorneys for Alliance Defending Freedom (ADF), the nonprofit law firm that is representing Philiips and Masterpiece Cakeshop, said it will appeal the decision of the state court of appeals. 

“The same law being used to punish Jack is also at issue now at the U.S. Supreme Court in 303 Creative v. Elenis,” says ADF Senior Counsel Jake Warner. “The Court there should reject Colorado’s attempt to mandate orthodoxy and drive views it disfavors from the public square and affirm that graphic artist Lorie Smith and all artists—writers, painters, photographers, filmmakers, calligraphers, cake artists, and more—have the right to create freely without fear of government punishment.”

The ERLC is urging the court to rule in favor of 303 Creative and will be preparing Christians and churches to respond to this important decision later this year.