A federal judge in Oregon has dismissed a lawsuit from LGBT activists challenging the religious exemption that faith-based schools enjoy under Title IX of the Education Amendments of 1972. Title IX generally requires schools receiving federal taxpayer funds (e.g., federal student loans and grants) not to discriminate on the basis of sex, but the law also contains a religious exemption so that faith-based schools can operate according to the tenets of their faith.

Forty current and former LGBT-identified students of faith-based colleges and universities sued the U.S. Department of Education (DOE) which is charged with enforcing Title IX, in an effort to have the religious exemption declared unconstitutional or in violation of various federal laws. The plaintiffs alleged that Title IX allows faith-based colleges that adhere to biblical standards on marriage and sexuality to “discriminate” against LGBT students.

Several faith-based colleges and one association of faith-based colleges intervened in the lawsuit to help defend Title IX’s religious exemption.

In her order, U.S. District Judge Ann Aiken summarized the LGBT students’ claims.

“In this case, [LGBT] Plaintiffs ask the Court, inter alia, to enjoin [ the DOE] Defendants from funding religious schools which discriminate; refrain from issuing further religious exemptions; and rescind prior religious exemptions. In other words, Plaintiffs seek a mandate of equal treatment with respect to participation in educational institutions,” Judge Aiken wrote.

But, the judge ruled, the claims didn’t merit any further consideration because the religious exemption contained in Title IX violates no constitutional provision or federal law.

“Defendants contend that Plaintiffs fail to state a claim for violations of their rights to equal protection; substantive due process; the Establishment Clause; freedom of speech; freedom of assembly and association, and freedom of religion; or [ the Religious Freedom Restoration Act]. The Court agrees,” the judge said simply.

The lawsuit is part of a larger effort by an LGBT organization called the Religious Exemption Accountability Project (REAP) to force Christian and other religious colleges to either abandon Scripture’s teachings on marriage and sexuality, or force them out of business by limiting their student applicants to those not receiving federal loans or grants.

Faith-based colleges have, for decades before Title IX and afterwards, set apart men’s and women’s dormitories, restricted married couples’ housing to opposite sex unions, and in general created policies and an educational atmosphere reflective of biblical commands and principles.

This lawsuit would have been unthinkable even a few years ago, because “sex,” as that term was understood when it was included in Title IX in 1972, clearly meant male and female, which no one would have argued included homosexuality or gender identity.

Congress, recognizing that faith-based colleges are protected by the First Amendment from interference from the federal government, included the religious exemption in Title IX.

However, in the Supreme Court’s 2020 Bostock v. Clayton County decision, the high court redefined “sex” under a different federal statute to include homosexuality and gender identity for the first time. And despite the Bostock majority opinion expressly disclaiming any applicability of its holding beyond Title VII – an employment discrimination statute – some federal agencies and a few federal courts have nevertheless expanded Bostock to redefine the word “sex” in other federal statutes, including Title IX.

That slippery slope quickly led to this case, which was initiated in 2021.

Yet, Judge Aiken found nothing in the evidence and history of Title IX indicating that Congress had a discriminatory intent when it included a religious exemption in Title IX, and religious exemptions easily pass constitutional muster, according to numerous U.S. Supreme Court decisions.

“Exempting religiously controlled educational institutions from Title IX [. . .] is substantially related to the government’s objective of accommodating religious exercise,” Aiken concluded.

Alliance Defending Freedom Senior Counsel and Vice President David Cortman represents the three faith-based colleges who intervened in the lawsuit. He celebrated the victory in a press release.

“A federal district court today rightly rejected an unfounded assault on the religious freedom of faith-based educational institutions. Title IX, which applies to schools receiving federal financial assistance, explicitly protects the freedom of religious schools to live out their deeply and sincerely held convictions.

“A group of activists asked the court to strip that protection away from schools that educate the next generation and advance the common good. The court correctly concluded that Title IX’s religious liberty exemption doesn’t violate any of the plaintiffs’ claimed rights.”

The case is Hunter v. United States Department of Education.


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