Catholic Broadcasters Appeal EEO Order Over Nonbinary Gender Addition to EEO Forms

Catholic broadcasters and groups filed two petitions for reconsideration against the FCC’s equal employment opportunity order in part because it updates Form 395-B to account for nonbinary employees.

The EEO order “compels Catholic broadcasters to affirm and endorse ‘non-binary’ categories of ‘gender identity,’” said a joint filing from the Catholic Radio Association, the Sanctus Josephus Society and 19 Catholic broadcasters, including Christendom College and Atlanta Catholic Radio. The filing repeatedly characterizes nonbinary gender as a "mental health condition." The Diagnostic and Statistical Manual of Mental Disorders fifth edition says “gender non-conformity is not in itself a mental disorder.”

Broadcasters La Promesa Foundation, Armor of God Catholic Radio Apostolate and Ave Maria Communications jointly filed the second petition. The EEO order “would advance the interests of the LGBTQ lobby” and chill their freedom of speech, the three broadcasters said.

The FCC EEO order, which in February reinstated the collection of broadcaster workforce diversity data using Form 395-B, said “it is appropriate that the Form 395-B include a mechanism to provide further specificity about broadcaster employees’ gender identities” and delegated specific implementation to the Media Bureau. The FCC didn’t comment on the progress of that implementation, but the agency hasn’t released an updated form. The order describes the change as "an option for employees to identify as nonbinary, if they so choose, but does not impose any new requirement on stations that did not exist under the prior version of Form 395-B, which already required reporting on gender."

The addition of a mechanism for reporting nonbinary gender came at the request of numerous public media broadcasters represented by law firm Foster Garvey. Updating the form is in line with congressional directives to the FCC to collect “accurate data about the workforce for broadcasters, including the number of underrepresented individuals working in broadcast positions,” Foster Garvey said.

The Catholic Radio Association joint filing repeatedly said nonbinary gender doesn’t exist and is premised on a “mental health condition,” a characterization that advocacy groups such as GLAAD widely oppose. The petition argues that filing the form as the FCC requires would compel Catholic broadcasters to affirm the “falsehood” of an employee’s nonbinary gender, which is a burden on the broadcasters’ religious liberties, and calls the form update “the Gender Ideology Mandate.” The FCC lacks “either the authority or the discretion to insert itself (and broadcasters) into the field of mental health,” said the petition, which is accompanied by a motion to stay the order. “Many licensees are unable to comply with the mandate; pending reconsideration, the FCC must stay the effectiveness of its Order,” the Catholic Radio petition said.

“The filing is deeply hurtful and transphobic and feeds into the terrible attacks on trans people around the country,” said Cheryl Leanza, who represented The United Church of Christ Media Justice Ministry in pushing for the EEO.

The petition’s arguments are the flipside of Foster Garvey’s for adding the nonbinary option, said Foster Garvey attorney Brad Deutsch in an interview. Several of his public media clients have board members who don’t identify as male or female, which would complicate the accurate filing of Form 395-B, he said. The firm has argued that a similar change should be made to FCC biennial ownership reports. “In addition to the rigidity reflected in the form and the disregard for the truth and reality of gender diversity, it is impossible to file the biennial ownership report unless one of the binary options is chosen,” said Foster Garvey in comments filed in the EEO docket. It’s extremely unlikely that a situation would arise in which the Catholic broadcasters opposing the order would employ someone who insisted on being classified as nonbinary, Deutsch said. The EEO order notes that the agency didn't receive opposing comments to Foster Garvey's request to add a nonbinary option, said Matt Wood, Free Press vice president-policy:

The FCC should reconsider the order because it's outside the agency’s authority, both petitions said. Addition of a nonbinary category to Form 395-B didn’t receive sufficient notice under the Administrative Procedure Act because it wasn’t specifically proposed in the NPRM, said the Catholic Radio Association filing. The FCC said in the EEO order that the Communications Act gives it latitude to adjust rules to reflect changes in terminology. Though it didn’t file a petition for reconsideration, The Heritage Foundation made similar arguments to the Catholic Radio Association's petition in comments filed on the proposed extension of EEO reporting requirements to cable companies. “The FCC did not claim or explain that this change was a nonsubstantive technical or clerical revision, and therefore acted outside of its Congressional authority,” the Heritage filing said.

The joint petition from the three broadcasters argued that the FCC lacks the authority to resurrect Form 395-B without specific congressional authorization. The agency also can’t rely on Chevron deference for authority to resurrect the form because pending U.S. Supreme Court rulings on Chevron will likely “limit the ability of the FCC to legislate and will recognize the primacy of Congress in this area,” the trio said. The Catholic Radio Association's joint petition also questioned the FCC’s authority concerning the form, arguing that it should be decided by Congress under SCOTUS’ major questions doctrine. “We have already demonstrated that the Gender Ideology Mandate is a substantive expansion of the quantitative and qualitative regulatory burden, and not a mere updating in terms,” the filing said.