What USAID's new LGBTI anti-discrimination policy means for implementers

Contractors and implementers receiving funding from the U.S. aid agency cannot discriminate against lesbian, gay, bisexual, transgender, and intersex people when providing services, according to a new U.S. Agency for International Development policy. The policy, which officially came into effect on Oct. 25, updated the USAID Acquisition Regulations to include a new clause on “nondiscrimination against end users of supplies or services.” On Nov. 7, the agency updated the regulation so it also applies to USAID-funded grants and cooperative agreements. The new policy will be included in all contracts moving forward, allowing USAID to halt funding for organizations it deems to be excluding LGBTI groups from receiving services. It doesn’t cover employees of USAID contractors or grantees, only beneficiaries. The U.S. aid agency says the move is intended to make explicit USAID’s general approach to promoting inclusive development and also builds on President Barack Obama’s “commitment to social inclusion around the world,” according to a statement from Administrator Gayle Smith. Some have speculated the policy change was rushed due to concerns of a more conservative agenda under a Trump administration. Still, the policy changes represent an “important and symbolic step” and one that gives “teeth” to the previous USAID nondiscrimination vision that was only guidance, according to Randal Mason, an independent gender and LGBTI adviser who trains organizations on gender and LGBTI mainstreaming issues. However, Mason is concerned the updated policy could lead to a “heavy handed” rush by implementers to show conformity, which could have negative implications for LGBTI people and in-country activists. “Do contractors have relationships with in-country LGBT activists, and expertise to implement in nuanced ways, understanding the key distinctions between gender identity issues and sexual orientation issues?” Mason said. For example, overzealous implementers could — with the best intentions — inadvertently reveal someone’s sexual orientation, which could cause them to lose their job or be targeted for violence, he warned. Furthermore, Mason said it’s possible the new LGBTI stance could feed into an “ongoing narrative that LGBTI is a Western import,” which he said some leaders in developing countries are using to make themselves “look strong against the West.” This could make LGBTI people more vulnerable than ever, he said. In order to avoid these problems, Mason recommended implementing organizations build their expertise in the area, understand the complexities involved and then contextualize them for where they operate. He suggested organizations create working groups and communities of practice around gender and LGBTI issues to make sure there is reach across the company — and that LGBTI issues don’t just fall to one employee who, he said, “can’t embody all the needs of LGBTI groups.” Kate Zimmerman, co-founder of the networking organization LGBT Aid Workers, said that while she applauded the new regulations, clearer guidance was needed from USAID to help contractors navigate “gray areas” in terms of working with implementers in countries where local laws and customs allow discrimination against LGBTI groups. “USAID will have to be more explicit about their standards,” she said. “Often discrimination is not active discrimination, it’s local and customary, and if this is the case then what steps should we take to combat it? This is a gray area,” she said. She advised program managers to speak to their USAID contacts to get clarification. “You need to work with USAID to make sure you understand where they think discrimination is a problem,” she said. The regulation, while a positive step, does not go far enough since it doesn’t extend to U.S.-based implementers, she added. There are regulations protecting federal employees, but not currently employees of contractors or implementers. “We are glad for the change in protecting LGBTI discrimination in beneficiaries, but there is still no rule barring discrimination in U.S.-based employment for implementers," Zimmerman said. "That is something we would like to see changed.” Timi Gerson, director of government affairs at the American Jewish World Service said the organization has been working to support anti-discrimination regulation for two years and called the new regulation “fantastic.” The new policy serves two purposes, according to Gerson: “This policy should make it clear to providers that they are not allowed to discriminate in services, but it is also a tool that so that when we hear about those things happening, we can address them. It provides some recourse.” While she said it’s unlikely USAID contractors will have to change their practices, since she is “hopeful” none are actively discriminating against LGBTI beneficiaries, Gerson thinks the new rules are making the nondiscrimination explicit instead of implicit, and that this should make implementers “actively ensure programs are accessible to all.” “This is another step toward creating a foreign aid system that is inclusive and reaches everyone,” she said. “We see these rules as about enshrining good behavior as opposed to punishing bad.” However, the biggest challenges will be around ensuring the next administration upholds the new rules, she added. She also wants to see other U.S. government agencies adopt the same rules: “The rest of the government is still pretty patchwork on anti-discrimination rules and so this could be a standard to which all agencies could move toward to give a more comprehensive and unified approach.” Stay tuned to Devex for more news and analysis of U.S. aid, and subscribe to The Development Newswire to receive the latest from the world’s leading donors and decision-makers — emailed to you FREE every business day.