Case Particulars

Tribunal

Office of Management and Budget Public Comment

Date Filed

July 9, 2026

Docket No.

OMB-2026-0034-0001

Case Status

Public Comment Submitted

Case Overview

The Legal Insurrection Foundation’s Equal Protection Project and the Defense of Freedom Institute for Policy Studies submitted a public comment supporting the Office of Management and Budget’s proposed Regulation for Federal Financial Assistance and urging OMB to expressly address intersectionality in the final rule.

The submission supports OMB’s efforts to restore transparency, accountability, and merit-based decision-making in federal grantmaking. It argues, however, that the proposed rule’s prohibitions on unlawful identity-based diversity, equity, and inclusion policies, proxies for protected characteristics, and disparate-impact frameworks could be circumvented unless OMB also expressly addresses intersectionality.

The comment explains that intersectionality classifies individuals based on overlapping identity categories—including race, sex, sexuality, class, religion, and immigration status—and uses those composite classifications to assess purported marginalization and justify differential treatment. According to the submission, agencies and recipients of federal financial assistance may use terms such as “intersectional equity,” “priority populations,” or “communities experiencing intersecting forms of marginalization” to preserve identity-based preferences under rebranded or composite terminology.

The submission further argues that intersectionality can function as a proxy for protected characteristics in federal program design, eligibility requirements, funding priorities, merit review, reporting obligations, and compliance. For example, a federal funding opportunity might avoid expressly giving a preference based on race or sex while instead prioritizing categories such as “women of color,” “LGBTQ+ immigrants,” or “BIPOC persons with disabilities.” The comment urges OMB to make clear that identity-based classifications are prohibited not only when used explicitly, but also when protected characteristics are aggregated, relabeled, or operationalized through intersectional, composite, or multi-factor methodologies.

The comment also documents substantial prior federal spending on intersectionality-related research, programming, and training. A targeted search identified 245 federally funded projects involving intersectionality, representing approximately $300 million in federal investment since 2010. The submission states that funding was concentrated primarily within the Department of Health and Human Services and the National Science Foundation, with additional funding from numerous other federal agencies.

Finally, the submission recommends specific revisions throughout OMB’s proposed regulations to prevent intersectionality from serving as a mechanism for reintroducing unlawful identity-based preferences. The proposed revisions address federal program design, notices of funding opportunities, merit review, risk review, award conditions, disparate-impact methodologies, statutory and national policy requirements, and the allowability of costs. The comment urges OMB to ensure that federal agencies and funding recipients cannot use intersectional or other composite frameworks to provide preferential or adverse treatment based on protected characteristics.