Bound and Gagged – Trump Administration Dramatically Expands the Reach of the Global Gag Rule to Hold Hostage What Remains of the U.S. Foreign Aid Program

Bound and Gagged – Trump Administration Dramatically Expands the Reach of the Global Gag Rule to Hold Hostage What Remains of the U.S. Foreign Aid Program

On January 27, just over one year after a newly-inaugurated Donald Trump reinstated the Global Gag Rule (GGR) to U.S. global health programs, the State Department began the process of implementing a dramatic expansion of the reach of the four-decade old restrictions beyond abortion to programs promoting diversity, equity, and inclusion (DEI) and protecting LGBTQI+ rights with the publication of three final rules in the Federal Register.  

The effect will be to hold hostage what remains of the U.S. government’s foreign assistance program to the authoritarian project of right-wing ideologues inside and outside government seeking to wage America’s culture wars beyond our shores. The policy may also lay waste to the network of civil society partners and multilateral organizations that have been instrumental in delivering U.S. investments in sustainable development, humanitarian relief, and global health in low and middle-income countries for the last six decades, which the Trump administration derides as the “aid industrial complex.” 

Now, under the umbrella of a perverse, Orwellian rebranding as “Promoting Human Flourishing in Foreign Assistance,” the three new rules, each about 50 double-spaced pages long, dramatically expand the reach of the policy restrictions to new funding, new prohibited activities, and new entities. 

• “Protecting Life in Foreign Assistance” on Abortion 
• “Combating Discriminatory Equity Ideology in Foreign Assistance” on Diversity, Equity, and Inclusion (DEI) 
• “Combating Gender Ideology in Foreign Assistance” on “Gender Ideology” 

Collectively, all three rules impose eligibility conditions—that is, a potential recipient would be rendered ineligible for U.S. foreign assistance if it engages in the prohibited activities, even if activities are supported with non-U.S. government funds. 

The Trump administration continues to refer to the funding restriction as the Mexico City Policy, as have previous Republican presidents. In contrast, U.S. advocates have long referred to it as the Global Gag Rule, reflecting how the restrictions stifle free speech and the provision of information, including counseling and referral, and interfere with the ability of citizens to advocate to their government on matters of public concern, and see no reason to change now. 

The three new rules went into effect on February 26th, 30 days after their publication in the Federal Register. But as in previous GGR iterations, the eligibility conditions will not be applied to a recipient of U.S. foreign assistance until a new funding action occurs, either in awarding a new grant or cooperative agreement or when new funding is added to an existing award. As a result, implementation will roll out over time, and current and potential funding recipients are advised not to modify their organization’s policies and activities prematurely. The rules do not apply retroactively to funding already obligated to recipients or a sub-recipient under an existing grant, cooperative agreement, or grant under contract. Contracts are not currently subject to the rules but will be the subject of future rulemaking to add the restrictions to this type of funding instrument. 

The dramatic expansion of the GGR is a recipe for chaos and confusion, with a raft of unanticipated and unintended consequences likely to become evident soon. On the effective date of the rules last Thursday, the State Department issued a policy implementation information and frequently asked questions (FAQ) document. Some—but not all—of the information in the State document is incorporated into this PAI summary of the three rules and the current status of their implementation as best as can be discerned now. 

An important disclaimer—PAI’s analysis is intended to convey general information and should not be considered to constitute legal advice. Get a lawyer. Pro bono legal help is available.   

New Funding  

Under the original iteration of the GGR during the administrations of President Ronald Reagan and George H.W. Bush (1984-1993) and George W. Bush (2001-2009), for example, a foreign nongovernmental organization (NGO) had to certify that it would not “perform or actively promote abortion as a method of family planning” using funds from any source—including non-U.S. government funds, as a condition of receiving U.S. bilateral family planning and reproductive health (FP/RH) funding. In recent years, that amounted to about $600 million annually. During Trump’s first term (2017-2021), the GGR was expanded to apply the abortion-related restrictions to U.S. global health assistance, amounting to over $7 billion annually. Now, the rules will be applied to all “non-military” U.S. foreign assistance, including health, development, and humanitarian assistance, amounting to at least $40 billion under early KFF estimates—orders of magnitude larger than in prior iterations. 

The three rules currently apply only to U.S. “non-military” foreign assistance, both bilateral and certain types of multilateral funding, furnished by the State Department. For other U.S. departments and agencies that dispense U.S. foreign assistance, separate sets of rules will need to be produced and finalized, not just the usual suspects like the Department of Health and Human Services (including the Centers for Disease Control and Prevention and National Institutes of Health), the Department of Agriculture, Department of Labor, and the Department of Defense (not War), but also perhaps unexpectedly for some other parts of the government not typically associated with foreign aid as a result of interagency transfers of remaining U.S. Agency for International Department (USAID) funds after the agency’s dissolution.  

New Prohibited Activities 

A recipient of U.S. “non-military” foreign assistance must agree to comply with all three new rules to remain eligible. A recipient must specifically agree: 

• Not to “provide or promote abortion as a method of family planning” 

• Not to “provide sex-rejecting procedures . . . . [or] promote gender ideology”  

• Not to “promote discriminatory equity ideology, engage in unlawful DEI-related discrimination” 

The key to trying to understand the scope of the dramatic GGR expansion is delving into the detailed definitions of what constitutes an effort to provide or promote the prohibited activities. As the State information and FAQ document in its own summary of the activity restrictions notes, the “best way to understand the policy requirements is to read the rules,” and more specifically, the standard provisions to be included in grants and cooperative agreements. A discussion of some of those detailed definitions follows below.   

New Entities  

International organizations (IOs), U.S. NGOs, and foreign governments (including parastatals) are newly subject to the rules under the dramatic GGR expansion, joining foreign NGOs affected under previous iterations of the policy. How the rules apply to each type of entity is unique and distinct with the activities of foreign NGOs (not organized under the laws of the United States) and international organizations being most restricted, U.S. NGOs (NGOs organized under the laws of the United States) being less restricted, and foreign governments and parastatals being least constrained.    

• Foreign NGO and IOs—Foreign NGOs and IOs are ineligible to receive U.S. foreign assistance if the organization provides or promotes prohibited abortion, DEI, or “gender ideology” activities using funds from any source or provides financial support to any foreign NGO or IO that conducts such activities. 

• U.S. NGOs—In order to remain eligible for U.S. foreign assistance, a U.S. NGO: 
  • Agrees not to provide or promote prohibited activities outside of the United States during the period of the award;
  •  Agrees not to use U.S. funds to provide or promote the prohibited activities, but is not prohibited from promoting the prohibited activities using non-U.S. government funds;
  • Agrees that U.S.-funded programs, projects, or activities are to be “physically and financially separate” from prohibited activities (consult the State implementation and FAQ document for additional guidance and illustrative examples); and
  • Can provide “financial support” using non-U.S. government funds to other organizations that provide or promote prohibited activities outside the United States.
• Foreign governments and parastatals—Foreign governments are not subject to the same eligibility conditions as NGOs and IOs in deference to “considerations relating to foreign policy.” A foreign government or parastatal receiving an award “may” be required to agree not to use U.S. foreign assistance to provide or promote the prohibited activities and to place any U.S. funds in a segregated account, none of which may be spent to support prohibited activities. 
  Language in the standard provision states, “The award term under this part may but need not be included in whole or in part, as applicable, in agreements with foreign governments and parastatals (e.g., government-to-government agreements, or other agreements with host governments), and agreements with bilateral governmental donors if the Department of State assesses such term is appropriate for that agreement.” 
  Given the flexibility available to the State Department under the rules with regard to foreign governments, the question of whether the rules will be attached to the bilateral agreements being negotiated right now to implement the America First Global Health Strategy remains to be seen. National security and foreign policy considerations may be a significant variable in the calculation of whether to include them, depending on the country in question. 

Flow-down Requirements 

Foreign NGOs, U.S. NGOs, and IOs will be required to “flow down” the eligibility conditions to their subrecipients of U.S. “non-military” foreign assistance and conduct “due diligence” to ensure that its subrecipients are not engaged in prohibited abortion, DEI, and “gender ideology” activities, even if supported by non-U.S. government funding sources. According to the State implementation information and FAQ document, foreign governments and parastatals are not subject to the same flow-down requirements as the other entities—foreign NGOs, U.S. NGOs, and IOs.  

The potential implications of the expanded GGR for non-U.S. government funders (bilateral donor agencies, private foundations, and others) is that the “flow down” requirement will limit the pool of potential recipients of funding for these non-U.S. government funding sources.​ It will force a potential recipient to decide whether to comply with the new rules in order to receive U.S. funds OR refuse to comply and render itself ineligible for U.S. foreign assistance.​ For a recipient that agrees to comply with the rules, a non-U.S. government funder will have to decide if it is willing to have its funding bound and gagged by U.S. restrictions on the abortion, DEI, and “gender ideology” activities of the recipient. ​ 

Waiver Process  

An important caveat was included in the executive summary of the three rules when they were published indicating that the Trump administration was seeking to preserve some flexibility in how the three rules were to be implemented. 

The executive summary stated that the Secretary of State or Under Secretary of State for Foreign Assistance, Humanitarian Affairs, and Religious Freedom may issue a waiver of the “policy or its elements” if the waiver is “necessary for national security or foreign policy purposes.” Guidance was to be developed and issued. The State information and FAQ document outlines the waiver process that has been designed. For an organization seeking a waiver or has been identified as needing a waiver by State, its “federal assistance team,” consisting of among others its grants officer, is to notify in a timely manner the rules implementation team at a dedicated email address (PHFFA_waiver@state.gov) and supply specific information from the requesting organization and from the relevant State assistance bureau, the justification for the waiver on foreign policy grounds. A waiver for the organization as a whole or from certain parts of the rules can be granted. The document states: 

“The Department is committed to expeditiously and fairly reviewing and, as appropriate, approving waivers (including partial waivers) to ensure that ongoing assistance activities continue . . . [in order] to mitigate implementation challenges for organizations making good faith attempts to comply with the policy as a whole, and for organizations who provide critical emergency relief or operate in time-sensitive disaster and crisis zones.” 

But notes that: 

“The standard for a waiver is high, however, and considers all relevant factors, including those related to the activity and organization. In general, successful waiver requests will demonstrate that a waiver is necessary to continue or provide an activity critical to the foreign policy of the United States, that the implementing partner at issue is the only or best provider of services within the scope of work, that the requested scope of the waiver is narrowly tailored to the justification, and that the partner has made a good faith effort to comply with the policy as a whole.” 

Secretary of State Rubio’s “life-saving humanitarian assistance” waiver process during the 90-day foreign aid pause, announced on January 28, 2025, explicitly excluded FP/RH services from coverage, branding them as “non-life saving” and stating that “this waiver does not apply to activities that involve abortions, family planning, conferences, administrative costs…, gender or DEI ideology programs, transgender surgeries, or other non-life saving assistance.” Moreover, the waiver process during that period was notably chaotic, with organizations reporting funds being frozen, unfrozen, cancelled, reinstated, then cancelled again. This administration has demonstrated a willingness to let birth control commodities expire, to force clinics to close and supply chains to crumble, and to risk people’s lives in the process. FP/RH was also targeted in the recission process of FY 2025 funding, with $500 million of the $575 million in bilateral appropriated funds being clawed back. Given this fact and with the earlier process blackballing the three activities that are the subjects of the expanded GGR rulemaking, one cannot help being a bit dubious about the likelihood of many waivers being granted. 

“Affirmative Duty” Exemption 

In the event of a conflict with a local law requiring an action that the rules would otherwise prohibit, an “affirmative duty” exemption may be sought by a prime recipient to avoid a violation of the rules by requesting an exemption from its grants officer “explaining the local legal requirement and how the specific activities funded by foreign assistance covered under this policy will be adapted to respect the local legal requirement while balancing compliance with the [rules] to the extent possible consistent with local law.”  If granted, the exemption is to be made at the activity level. Consequently, the other requirements in the rules remain in effect for that program. Approval of an affirmative duty exemption is at the discretion of the grants officer, who should memorialize the decision in their records. 

Under the GGR iteration during Trump’s first term, “passive referral” was allowed in cases where abortion was legal in a country for reasons broader than life endangerment, rape, or incest, but even then only on a very restricted basis in which all four of the following conditions were met—the women is already pregnant; the woman “clearly states that she has already decided” to have an abortion; the woman “specifically asks” where a safe, legal abortion may be obtained; and the health care provider has reason to believe that the country’s medical ethics require him or her to provide a referral for a safe, legal abortion. 

No more. Passive referral is not allowed under the new abortion-focused rule. However, the State implementation guidance states: “if local law requires medical providers to respond to patient requests for information about where a legal abortion can be obtained, the prime recipient can request an affirmative duty exemption.” Counseling and referral for abortion in cases of life endangerment, rape, or incest is permissible as they are not considered “promotion of abortion as a method of family planning” under the [abortion-focused] rule. 

Definitions of Provide and Promote for Prohibited Activities 

The key to understanding the scope of the prohibited activities under the three new rules is to examine the definition of terms contained in the standard provisions to be added to new funding awards to implement the dramatically expanded GGR beyond abortion to prohibitions on DEI and “gender ideology” activities. The definitions in the DEI and “gender ideology” are brand new and based on Trump’s domestic executive orders targeting DEI and LGBTQ+ rights. While there have been previous iterations of an abortion-related GGR, the definitions in the standard provisions are significantly expanded and revised.   

Abortion 

Under the “Protecting Life in Foreign Assistance” rule on abortion, depending on the type of entity, in general, a recipient “agrees that it will not, during the term of the award, provide abortion as a method of family planning . . . or provide financial support to any other foreign NGO or IO that conducts such activities.” 

Unlike the standard provisions used to implement previous iterations of the GGR during Trump’s first term, a detailed definition of “what is an abortion?” is included, the definition of “abortion as a method of family planning” more explicitly spells out the life, rape, and incest exceptions as included in the domestic Hyde amendment, and the definition of “provide abortion as a method of family planning” replaces a more restrained definition of “perform abortion” previously. The addition of new verbiage stating that to “provide abortion” is “any act of prescribing, dispensing, utilizing, selling, manufacturing, or distributing drugs, devices, or equipment for the purpose of performing or inducing abortion as a method of family planning” is a potentially worrisome formulation coming out of the Trump administration. 

Post-abortion care for “treatment of injuries or illnesses caused by legal or illegal abortions” is specified and continues to be allowed. The definition of what constitutes an abortion “makes clear that treatment of an ectopic pregnancy or spontaneous loss of pregnancy (a miscarriage) is not an abortion”—or as the standard provision states, it is allowable “to remove an ectopic pregnancy or a dead unborn child.” 

The definition of “to promote abortion as a method of family planning” is largely consistent with that in previous standard provisions, with the exception of a more expansive definition of impermissible public policy advocacy around abortion, specifically “lobbying, pressuring, or encouraging” abortion law liberalization. A new restriction on “using or teaching sex education materials (including books, curricula, media, etc.) that promote abortion as a method of family planning” has been added. 

“Gender Ideology” 

Under “Combating Gender Ideology in Foreign Assistance” on “Gender Ideology,” depending on the type of entity, in general, a recipient “agree[s] that, during the period of the award, it will not, outside the United States, promote gender ideology, or provide financial support to any other foreign NGO or IO that promotes gender ideology.” 

In the standard provision, “gender ideology” is defined in part as “an ideology that replaces the biological category of sex with an ever-shifting concept of self-assessed gender identity, permitting the false claim that males can identify as and thus become females and vice versa, and requiring all institutions of society to regard this false claim as true.”  

Among the eight restrictions on promotion of “gender ideology”, the following are included: 

• providing or promoting gender-affirming care, which the standard provisions label “sex-rejecting procedures or sex-rejecting social transition;” 

• “lobbying, pressuring, or encouraging” a foreign government for legal protections based on gender identity, to legalize or increase the availability of gender-affirming care, and lobbying for the continued legality of such activities or to change policies to “reflect gender ideology;” 

• conducting a public information campaign in foreign countries regarding acceptance of “gender ideology” or the benefits and/or availability of gender-affirming care; 

• using or teaching sex education materials that include “gender ideology,” such as “the idea that it is possible to change one’s sex, to be born in the wrong body, or instructing on the use of pronouns that do not correspond to an individual’s sex;” and 

• conducting drag queen workshops or performances. 

The State implementation information and FAQ document clarifies that the “gender ideology” rule does not prohibit the provision of health care to “certain subpopulations” and that lifesaving services (e.g., for HIV/AIDS, tuberculosis, and malaria) “can still be provided to all people on the same basis as they are available for all populations under a foreign assistance award subject to the policy.” Likewise, the “gender ideology” rule does not prevent programs targeting services to women and girls, noting that “if a program has been designed to address a specific need based on available information, for example, prevention of mother-to-child transmission of HIV, or conflict-related sexual violence against women, the program is not in violation of the policy if it is focused on services to women and girls.”  

DEI 

“Combating Discriminatory Equity Ideology in Foreign Assistance” on DEI, depending on the type of entity, in general, a recipient “agree[s] that it will not, during the term of this award, outside the United States (including its territories and possessions) promote discriminatory equity ideology, engage in unlawful DEI-related discrimination, or provide financial support to any other foreign NGO or IO that conducts such activities.” 

Under the rule, “unlawful DEI-related discrimination means discrimination on the basis of race, color, religion, or national origin if such discrimination violates U.S. federal antidiscrimination law or would violate U.S. federal antidiscrimination law if it occurred inside the United States, including the use of those characteristics as a selection criterion or preference for, or basis for exclusion from, employment, contracting, program participation, resource allocation, or similar activities, opportunities, or benefits.” To promote discriminatory equity ideology “includes using or teaching education materials (including books, curricula, and media) that advance this ideology.” Perhaps not surprisingly, the human resources policies and hiring practices of faith-based organizations are specifically exempted from the DEI rule.  

The DEI rule is viewed as the one among the three rules most ripe for a legal challenge by a U.S. plaintiff with standing to bring suit, given several cases winding their way through the federal courts challenging Trump’s domestic executive orders on the subject of DEI.  That is perhaps reflected in the State FAQ’s response to a question about whether the DEI rule applies to foreign assistance activities. The response—“Compliance with the rules is fact-specific. Recipients should consult legal counsel for additional guidance.” In other words, it depends; lawyer up, you’re on your own. 

What’s Next 

The understanding of the three rules that dramatically expand the GGR countries continues to grow. But the expansion beyond the prior iterations to new funding, new prohibited activities, and new entities introduces many additional layers of complexity. PAI will continue to monitor and analyze the implementation of the three rules as they roll out.