What is the religious exemption to Title IX and what's at stake in LGBTQ students' legal challenge

Kif Augustine-Adams, Brigham Young University

(THE CONVERSATION) — While federal law shields most U.S. students from gender and sexual orientation discrimination, an estimated 100,000 LGBTQ students at religious institutions do not have the same protections.

Under a religious exemption provision, scores of colleges and universities can – and do – discriminate on the basis of someone’s sexual orientation, gender identity or gender expression.

A class action lawsuit now challenges that discrimination. It alleges that the Department of Education’s acquiescence in Title IX’s religious exemption violates the students’ constitutional rights and causes them harm.

I am a professor of law at an institution that has claimed religious exemption to Title IX. I speak only for myself here, not for my institution.

As part of my academic research,  I have reviewed every Title IX religious exemption claim schools across the United States have made to the Department of Education. This review and other research suggests that the lawsuit’s chances of success are slim at best. Still, the suit will bring fresh attention to tensions between LGBTQ rights and religious exemption in education.

Here is an explanation of what is at stake.

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What is Title IX?

Title IX is a federal statute that prohibits discrimination “on the basis of sex” in education programs and activities that receive federal financial assistance. It formed part of a wave of federal civil rights legislation in the 1960s and 1970s.

With limited exceptions, Title IX applies to all educational institutions that receive federal funding, even indirectly through financial support to students. The Department of Education’s Office for Civil Rights enforces Title IX.

Since 1972, Title IX has significantly expanded educational opportunities for girls and women. For example, Title IX boosted their access to athletics. Title IX also helped more women and girls to study in science and obtain graduate degrees, areas traditionally dominated by men.

In 2010, the Obama administration issued guidance to schools to include LGBTQ people under Title IX’s protections. 

The Trump administration rescinded that guidance. But on June 16, 2021, the Biden administration restored the inclusive interpretation.

The inclusive interpretation remains guidance only. It is not law that schools must follow.

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Why are religious institutions exempt?

From the very beginning, Title IX allowed religious schools an exemption to its anti-discrimination provisions. The religious exemption in the statute formed part of a political compromise to pass the legislation.

The exemption has two parts. First, Title IX “does not apply to an educational institution which is controlled by a religious organization.” Title IX regulations define “control” very broadly. Potentially, the exemption could encompass the close to 1,000 colleges and universities in the U.S. that affiliate with a religion.

Second, the religious educational institution is exempt only to the degree its “religious tenets” conflict with Title IX. A religious educational institution has to state that its discrimination relates to religious principles.

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How has this exemption played out in practice?

From the late 1980s through 2013, only a very small number of religious educational institutions claimed exemption to Title IX.

But, with the Obama administration’s guidance regarding LGBTQ students, religious exemption claims burgeoned. Between 2013 and May 2021, more than 120 religious schools claimed exemption from Title IX. The schools sought to discriminate in areas such as admissions, housing, access to classes, financial aid, counseling, athletics and hiring.  

In 2014, the Office for Civil Rights garnered national media attention when it recognized religious exemption claims by three universities to discriminate against transgender students.

Included was the right for George Fox University to discriminate against a transgender man. The university refused to allow him to live in single-sex male housing. The Office for Civil Rights also recognized exemption claims for Spring Arbor University in Michigan and California’s Simpson University to discipline and expel transgender students.

In the nearly 50 years since enactment of Title IX, the Office for Civil Rights has never denied a claim to religious exemption.

As a result, religious educational institutions decide for themselves whether and to what degree they are exempt from Title IX.

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How have LGBTQ students reacted to use of the religious exemption?

With no remedy through the Office for Civil Rights, LGBTQ students have turned to federal court.

In November 2019, two students married to same-sex partners sued Fuller Theological Seminary. The seminary had expelled them for violating its sexual standards policy, which defines marriage as between one man and one woman. The policy also prohibits “homosexual forms of explicit sexual conduct.” 

The federal court in California agreed with the plaintiffs that Title IX included LGBTQ people. It nonetheless sustained the religious exemption claim and dismissed the complaint. The court ruled that Fuller satisfied both the requirements for religious exemption. It was “controlled by a religious organization” and it based its discrimination on religious principles.

For the first time, a federal court adjudicated the scope of the religious exemption to Title IX. LGBTQ students lost.

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What is different about the latest court challenge?

In March 2021, 33 LGBTQ plaintiffs brought a class action lawsuit against the Department of Education in federal court in Oregon.

A class action allows a group of people alleging similar harm to come together in one lawsuit. The 33 plaintiffs come from nearly 30 different religious colleges and universities across the U.S. 

In the complaint, each plaintiff describes discrimination they faced in their education. For example, one student claims that her school disciplined her for “refusing to disavow support for LGBTQ rights and relationships.” She says the university forced her into counseling and fined her.  

By suing the Department of Education, the class action lawsuit directly challenges the constitutionality of the religious exemption to Title IX.

The plaintiffs allege that Title IX’s religious exemption violates the Fifth and 14th Amendments to the Constitution. Specifically, they claim that the exemption deprives them of rights to due process and equal protection. 

The complaint also argues that the exemption violates the Establishment Clause of the First Amendment.  It alleges the exemption gives preferential treatment to religious institutions over secular ones.

If the Oregon court agrees with the plaintiffs, it could declare the religious exemption to Title IX unconstitutional – an outcome that would have broad ramifications.

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What chance of success does the lawsuit have?

The Oregon complaint presents 33 moving stories of personal suffering. Some plaintiffs describe suicidal thoughts because of their schools’ rejection. Others recount fear, shame and depression.

But the persuasive sway of the complaint’s legal arguments is less clear.

Lower federal courts must follow Supreme Court rulings in deciding cases. Recent decisions in the Supreme Court have significantly favored religious exemptions over other rights. The Supreme Court also has not ruled how fully due process and equal protection rights protect LGBTQ people. 

The plaintiffs face an uphill battle in federal court. Nonetheless, the lawsuit brings public attention to the discrimination that Title IX’s religious exemption allows. The plaintiffs may find more success there.