New regulations were proposed a year ago for the Combined Federal Campaign (CFC-the program that encourages federal workers to designate part of their salary to charities of their choice. The changes are meant to streamline the program and to encourage greater giving–but many nonprofit leaders said that the proposed changes would complicate and reduce giving, instead.

The final regulations were published on April 17–and critics are still concerned that the changes will depress rather than accelerate giving.

And another concern also remains. The proposed rules expanded the program’s nondiscrimination requirement, whose scope was uncertain and worrying. A short list of prohibited bases for discrimination, including religion, was expanded by the addition of sexual orientation, gender identity, and several other characteristics, with only a minimal justification offered for the change.

As before, the prohibition was said to apply “in all aspects of the management and the execution of the CFC,” which would seem to exclude participating charities, for many of which, of course, religion and sexual conduct are important matters. And yet the next sentence in the same paragraph specifically discusses the eligibility of charities to participate in CFC. So would the new prohibitions in some way apply to those charities, unless they were exempt from the prohibitions because they matched the unclear further description in the paragraph about charities that are “organized by, on behalf of, or to serve persons of a particular” race or religion or gender identity or genetic background, etc.? How would that work? Would a charity that objected on moral or religious grounds to sexual activity outside of man-woman marriage be eligible to receive federal employee contributions through the CFC even though it is organized and operated not with regard to sexual orientation at all and yet excludes from its residential facilities for married people cohabiting or same-sex-married couples?

The final rule keeps the expanded section on prohibited discrimination, including the confusing second sentence of the paragraph. The final rule just blandly says that commentators who are worried that the expanded prohibitions might affect the eligibility of charities are “misreading the regulations” because the regulation “clearly states” that the prohibitions do not affect the eligibility of charities “merely because such organization is organized . . .” etc., etc., –repeating the confusing second sentence. However, the final rule does say that the prohibited discrimination policy “is only with regard to the execution of the campaign in the federal workplace (i.e., the Central Campaign Administrator).” It is the federal officials administering the program who are subject to the prohibitions and not the charities that seek eligibility to gain donations from federal employees through the CFC. But if so, why not simply drop the confusing second sentence, or state that the sentence on prohibited discrimination does not apply to charities at all?

As to the legal justification for the expanded nondiscrimination requirement, the final rule states that the Office of Personnel Management (the federal agency in charge of the CFC) interprets federal law concerning discrimination involving federal employees (i.e., discrimination is not permitted if its basis is “conduct which does not adversely affect the performance of the employee”) “in a way that justifies” the expanded set of characteristics. We can do it and so we are doing it.

Missing in the final rule is any explanation of how an expanded set of prohibitions–justified by a rule concerning only federal employees and said not to apply to charities–can be applied in a separate section of the regulations to charities that offer Family Support and Youth Activities or Programs in military installations. The proposed regulations and the final rule apply to such charities a new prohibition on discrimination on the bases of sexual orientation and gender identity in serving people. The only justification comes in the earlier discussion about the prohibited discrimination in the operations of the CFC itself. But now an expanded definition of nondiscrimination is applied to charities and not just to federal officials administering the CFC and it appears to apply not only when those charities serve federal employees (members of the military) but also families of those employees. No justification is given, and no response to commentators who questioned this part of the proposed new regulations.