Washington D.C., Jun 9, 2021 / 16:01 pm

The Biden administration on Tuesday said it is required by law to uphold a Title IX exemption for religious colleges, in response to a lawsuit filed by students identifying as LGBT.

Filing in an Oregon district court, the Justice Department said that religious post-secondary schools seeking to intervene in a case to defend their Title IX religious exemption are not entitled to do so; the colleges have not made a “compelling” case that the federal government won’t defend their religious exemption in court, the Biden administration argued.

In the case of Hunter v. U.S. Department of Education, the pro-LGBT Religious Exemption Accountability Project in March filed a lawsuit on behalf of 33 current and former students from more than 20 colleges associated with evangelical Christianity and the Church of Jesus Christ of Latter-Day Saints.

The students, who identify as LGBT, said they experienced discrimination at the schools on the basis of their sexual orientation or gender identity. The schools, they argued, should be subject to the Title IX prohibition on sex discrimination – which the Biden administration interprets to include discrimination on the basis of sexual orientation and gender identity. Title IX includes an exemption for religious colleges and universities.

In response, two Christian universities and one seminary – as well as the Council for Christian Colleges & Universities – in April moved to intervene in the case to defend their religious exemptions. The three schools – Corban University, William Jessup University, and Phoenix Seminary – are represented by the group Alliance Defending Freedom.

In a court filing reported by the Washington Post on Tuesday, the Biden administration argued that the colleges should not be able to intervene in the case, because they have not proven that the administration would not adequately defend their religious exemption in court.

The Justice Department stated that “at this stage of the litigation, it is premature to conclude that the Federal Defendants would neglect to raise, or be ‘ill-equipped’ to develop, effective arguments in support of the Religious Exemption.”

The administration said that it has a “duty” to uphold the statutory religious exemption, and thus shares the same interests as the colleges “to uphold the Religious Exemption as it is currently applied,” and “to defend the statutory exemption and its current application by ED.”

Reached by CNA on Wednesday, Alliance Defending Freedom declined to comment on the government’s court filing.

Title IX of the Education Amendments of 1972 prohibits sex discrimination in federally-funded education programs and activities. It includes a religious exemption for colleges and universities that are “controlled by a religious organization.”

The Justice Department in March issued guidance interpreting Title IX to also apply to discrimination on the basis of sexual orientation and gender identity. The Biden administration on Tuesday acknowledged that it is in the process of reviewing Title IX regulations, but stated its duty to uphold existing legal statutes – namely, the religious exemption.

“But neither the Administration’s stated policy positions nor the Department’s review of existing regulations abrogate the government’s duty to defend federal statutes and regulations in court as a legal matter,” the Justice Department stated.

The president of the Council for Christian Colleges & Universities told CNA in May that if the court overturned the colleges’ religious exemptions, they could be forced to forego federal financial student aid.

This “would have a disproportionate impact on low-income and first-generation college students, as well as students from racial and ethnic minority groups,” the council’s president Shirley V. Hoogstra said.

In May, a lawyer for the Religious Exemption Accountability Project told Inside Higher Ed that the colleges’ motion to intervene was “premature” as the administration “has not indicated whether they will defend the Title IX religious exemption or whether they will be neutral or align with the plaintiffs.”

On his first day in office, President Biden stated his administration’s policy of applying federal civil rights protections against sex discrimination to sexual orientation and gender identity, in a sweeping executive order.

Biden cited the Supreme Court’s 2020 ruling in Bostock v. Clayton County, where the court majority said that Title VII prohibitions on sex discrimination in employment did apply to sexual orientation and gender identity as well.

In his majority opinion, Justice Neil Gorsuch acknowledged concerns of religious Americans about future conflicts pitting claims of LGBT discrimination against religious freedom claims. He said that religious employers could appeal to statutory religious protections such as those within Title VII, the First Amendment, and the Religious Freedom Restoration Act. How these statutes “interact with Title VII are questions for future cases too,” he said.

The Education Department has already begun implementing the order. While the agency previously supported female high school athletes in their lawsuit over Connecticut’s transgender athletics policy, the Biden administration withdrew that support.