A Jan. 20 Federal Times article noted that the federal Office of Personnel Management is planning extensive changes to the Combined Federal Campaign. The proposed changes are intended to increase the charitable contributions raised via the CFC but include as well a troubling revision of its anti-discrimination requirements.

The draft proposed regulation is currently under regulatory review at OMB. There is no announced time when it will be published in the Federal Register for comment.

The section on “prohibited discrimination” in the CFC rules is being changed–or as the proposed new rule calls it, it is being “[u]pdated to meet current legal standards.” Discrimination on various bases, including religion, is already banned in “all aspects of the management and the execution of the CFC.” The wording of the prohibition is unclear, but it is currently applied not only to the CFC program itself but also to participating charities, with the wording interpreted to permit the participation of religious organizations, even if they, for example, hire based on religion.

The revised section would add additional prohibited bases of discrimination, including gender identity, sexual orientation, pregnancy, genetic information, and “any other non-merit-based factor.”

If the regulation is changed in this way, what will the consequences be for the eligibility of faith-based charities? At the least the change portends closer scrutiny of allegedly discriminatory practices. Worse, without clear protective language for the religious identity of faith-based charities, CFC officials might well decide that an applicant that requires its employees to agree to abide by traditional sexual conduct standards is for that reason ineligible to participate.

Also troubling is the rationale for the change: the change is allegedly required to “meet current legal standards.” And yet Congress has adopted no new legislation adding, for example, gender identity and sexual orientation to the list of protected characteristics in federal employment law. Instead, this appears to be another case of bootstrapping: promulgating a new rule–ostensibly because “current legal standards” require it, but in fact with the intent of creating exactly such changed “current legal standards.” For if the legal standards have in fact changed, then the executive branch can act on the basis of the changes, even if Congress has not legislated. Recall the IRS action in the early 1970s stripping 501(c)(3) status from Bob Jones University because BJU’s policies on race relations were incompatible with “established public policy” (the IRS was vindicated by the Supreme Court in a 1983 decision).

The Obama administration has taken and encouraged a long series of steps that activists will say are creating a new legal standard or public policy that equates LGBT discrimination with racial discrimination. The draft new regulations for the CFC can be seen as an additional step in this deliberate process of creating a new legal reality.