Title IX of the Education Amendments Act of 1972 is the little statute inviting big controversy of late. And it is controversy that shows no sign of slowing, particularly when the interests of LGBTQ students and religious colleges collide. But a recent federal court ruling staked a flag in the ground for common sense, finding that Title IX’s longstanding religious exemption is not discriminatory.
Title IX‘s general prohibition is straightforward:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
But what was once a plain and ordinary understanding of “sex” as the biological distinctions between male and female has been informally revised (thanks to the Supreme Court’s 2020 decision in Bostock v. Clayton County and a whole-of-government approach from the Biden administration) to also encompass sexual orientation and gender identity. That interpretation has become a flashpoint for the culture wars and invited federal litigation.
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Education laws expanding the definition of “sex” to include sexual orientation or gender identity have already been enjoined in both federal trial and appellate courts. But until the right vehicle appears for the U.S. Supreme Court to weigh in, those rulings will have little practical and immediate effect for schools that refuse to expand their nondiscrimination policies in line with these new rules.
In the meantime, what’s a religious school to do when “sex”—at least for the time being—encompasses sexual orientation and gender identity, and following the new definitions would violate its beliefs on human sexuality?
May a religious college controlled by a religious institution with religious tenets contrary to this expanded definition of sex exercise its right to the Title IX religious exemption (found at 20 U.S.C. §1681 (a)(3)) and still receive federal funds?
In Hunter v. U.S. Department of Education, one federal judge has answered “yes.”
That answer comes from Judge Ann Aiken of the U.S. District Court for the District of Oregon who just ruled that the statute’s religious exemption—and the Education Department’s 2020 rule interpreting it—is not discriminatory as applied to a group of LGBTQ+ plaintiffs attending various religious colleges. The plaintiffs, a group of current and former students, had alleged that, by design, the exemptions permit religiously affiliated institutions to discriminate against students based on sex, sexual orientation, and gender identity.
The plaintiffs also asked for the fairly extraordinary remedy of prohibiting the Department of Education (“DoE”) from using the statutory religious exemption to dismiss any further Title IX complaints against religious educational institutions that receive federal funding, and requiring the DoE to rescind all prior religious exemptions granted to religious institutions as applied to “sexual and gender minority students.” This, of course, would have eviscerated the very purpose of Title IX’s statutory exemption.
In her opinion, Aiken wrote that the students had, in fact, “sufficiently alleged” that the law allows “religiously affiliated schools to use religious exemptions to deny federally funded educational services to current and prospective students.”
But then she turned her attention to the previous DoE’s 2020 Title IX rule and its guidance on the religious exemption. Among other things, the rule clarified that institutions were no longer required to submit a written statement to the Department before invoking the religious exemption. These regulatory changes, Aiken wrote, did not contribute to the harm plaintiffs experienced and therefore did not violate the Administrative Procedure Act as an “arbitrary and capricious” exercise of executive authority.
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In addition, Aiken wrote, when challenging the statutory exemption itself as a violation of the Equal Protection Clause, the plaintiffs had failed to prove any discriminatory intent when Congress enacted the exemption in the first place. Before dismissing the plaintiffs’ case, Aiken wrote that, “[t]o the contrary, Plaintiffs argue that when Congress enacted Title IX, protections for—or discrimination against sexual and gender minorities—were ‘of no concern.’”
In June 2021, the DoE issued a Notice of Interpretation claiming it would reinterpret and enforce Title IX pursuant to a definition of “sex” that includes sexual orientation and gender identity, and it promises to complete this expansive rulemaking sometime this year. But that interpretation has made compliance with the Administration’s Title IX edicts especially difficult for religious educational institutions.
The Department’s 2021 Notice of Interpretation on Title IX has already suffered one loss in federal court and is currently on appeal to the 6th Circuit. Future legal challenges are expected when the Administration releases its finalized Title IX rule.
Until then, religious colleges and universities will continue to enjoy the protections of Title IX’s religious exemption, thanks to a common sense ruling on the fundamental principle: religious schools must be free to live out their deeply and sincerely held religious beliefs.
This piece originally appeared in The Federalist Society