SAN FRANCISCO - A federal appeals court has ruled Title IX, a federal civil rights law which prohibits sex-based discrimination in education, can't be used to force Christian colleges and universities and other religious schools to violate their religious beliefs concerning human sexuality and gender if they accept federal educational funding.
On Aug. 30, a three-judge panel of the U.S. Ninth Circuit Court of Appeals rejected the arguments of a group of 40 LGBTQ students that Title IX's exemption for religious schools should be declared unconstitutional, allowing the federal government to enforce anti-discrimination rules against Christian colleges and universities.
The lawsuit was filed in Oregon federal court in 2021 in the wake of a rule change by the Department of Education under former President Donald Trump, altering the process by which religious schools could claim the exemption.
Enacted in 1972, Title IX was intended to prohibit U.S. colleges and universities from discriminating on the basis of sex. At the time, the law was primarily intended to ensure schools could not prefer men over women in admissions, educational and extracurricular advancement opportunities, and hiring, among other aspects of educational administration and operations.
Title IX has been particularly interpreted to apply to any schools that accept federal education funding. That includes hundreds of schools across the country.
However, in more recent years, while the law has not been changed, courts have reinterpreted federal civil rights law to expand the definition of sex discrimination to include discrimination against those who are lesbian, gay, bisexual and transgender, among other sex or gender classifications.
The fight over such LGBTQ protections under Title IX has landed in the courts in force in recent months. A federal judge in Kansas, for instance, imposed a far-reaching injunction in July blocking the Biden administration from enforcing a raft of new regulations under Title IX, which could, for instance, prohibit the use of gender-specific restrooms and locker rooms on college campuses, among other impacts.
However, nearly from its inception, Title IX included a special carveout for religious schools, preventing the federal government from forcing them to abide by the federal positions concerning sex and gender.
To qualify for the exemption, the institutions must show that they are owned and operated by a church or other religious organization and that to submit to the federal Title IX standards would violate their religious beliefs and tenets.
For more than four decades, religious schools were required to file a letter with the Department of Education explaining why they qualify for the exemption.
However, in 2020, the Trump administration changed that rule to state the schools "may" file such a letter of explanation.
Critics of the rule change, including Democratic attorneys general from 19 states, including California, Oregon, Washington, Illinois, New York, Nevada, Pennsylvania, Michigan and others, said the rule change makes it more difficult for LGBTQ students to know if religious schools to which they may wish to apply have claimed the Title IX exemption.
However, the lawsuit filed by the students did not only seek to force the federal government to reverse the rule change.
The lawsuit sought a ruling declaring the entire exemption for religious schools to be unconstitutional. In the action, the LGBTQ students asserted the exemption violates the First Amendment by allowing the religious schools to receive taxpayer money through federal educational funding, without abiding by federal law.
They argued this trespasses the First Amendment's prohibition on the establishment of religion, favoring the religious schools over non-religious ones.
They also claimed the Title IX exemption for religious schools violates LGBTQ students' rights to due process under the Fifth Amendment, because it “targets Americans for disfavored treatment based on their sex, including targeting based on sexual orientation and gender identity.”
A federal judge in Oregon, however, refused to block the exemption or declare the exemption unconstitutional.
And on appeal, the Ninth Circuit judges agreed, finding the religious exemption in Title IX doesn't violate either the First or Fifth Amendments.
The decision was authored by Ninth Circuit Judge Milan D. Smith Jr.
Judges Mark J. Bennett and Anthony D. Johnstone concurred in the decision.
The judges compared the exemption to tax exemptions granted to churches and other religious organizations, which courts have long deemed constitutional.
To disallow Title IX's religious exemption on the grounds that it favors "religion over irreligion" would require ending all religious exemptions, including those which date to the adoption of the Constitution and the so-called Establishment Clause at the nation's founding.
The judges further rejected plaintiffs' claims under due process, saying that allowing the religious schools to exercise their beliefs freely doesn't implicate the Fifth Amendment rights of the plaintiffs.
"The exemption substantially relates to the achievement of limiting government interference with the free exercise of religion," the judges wrote. "... The exemption does not give a free pass to discriminate on the basis of sex to every institution; it contains limits that ensure that Title IX is not enforced only where it would create a direct conflict with a religious institution’s exercise of religion."
The judges included a statement explicitly denouncing "the ostracism that LGBTQ+ students may face because of certain religious views...," calling it "invidious and harmful."
But they said that doesn't mean the government has the power to force religious institutions to violate their beliefs, "even if they may not be found by many to be 'acceptable, logical, consistent, or comprehensible," quoting from the U.S. Supreme Court's 2021 decision in Fulton v City of Philadelphia.
The action drew attention from a range of observers, including the Democratic attorneys general, who asked the court to strike down the rule change, and from supporters of the rule change, including the Council for Christian Colleges & Universities, who intervened to defend the exemption and urge the court to dismiss the lawsuit.
"The Council for Christian Colleges & Universities is grateful to the Court for the decision that follows the law established for centuries," the CCCU said in a statement following the ruling. "The case was briefed thoroughly and the U.S. Court of Appeals ruled wisely."