By Nikki Wilson Crary, of Jackson Lewis
The interplay of Title IX, which prohibits discrimination on the basis of sex, and transgender rights has been an explosive subject over the last few months, even seemingly putting some State Legislatures at odds with the Federal Government. While public institutions receiving federal funds may be forced to provide equal access to transgender individuals, there remains one sector of education that may not be affected by the recent changes mandated by the U.S. Department of Education’s Office for Civil Rights (OCR) — institutions that qualify for a religious exemption under Title IX.
Since its inception, Title IX has allowed religious exemptions. Title IX does not apply to an educational institution that is controlled by a religious organization to the extent that the application of Title IX would be inconsistent with the tenets of the organization. The test is admittedly not an onerous one. An educational institution that wishes to claim the religious exemption simply submits in writing to the Assistant Secretary a statement by the highest ranking official of the institution identifying the religious organization that controls the educational institution and specifying the provisions of Title IX or its regulations that conflict with the tenets of the religions organization. As of January 2016, a total of 253 religious exemptions have been recognized and zero requests had been denied since the first exemption was recognized in 1976 (to Brigham Young University), with approximately 22 requests currently pending.
At the inception of Title IX, educational institutions flocked to request religious exemptions, primarily for issues dealing with extra-marital sex, abortion, and unwed mothers. However, from approximately 1989 to 2013, requests for religions exemptions to Title IX remained largely dormant. Then, in 2013, the resolution agreement between Arcadia Unified School District and the Office of Civil Rights regarding transgender students gave transgender students the same rights and privileges as all other students. In addition, the OCR’s April 2014 “Dear Colleague” letter expressly included gender identity within Title IX’s sex discrimination prohibitions. These changes have led an increasing number of religious institutions to request an exemption from the OCR.
One institution associated with the Free Methodist Church specifically sought an exemption dealing with issues of admissions, behavioral rules, housing, access to restrooms, and athletic participation. In 2014, the OCR granted the exemption allowing the university to enforce specific rules against gay and transgender students, including not admitting them.
Until recently, the identity of religious institutions that held an exemption was largely unknown. However, in 2015, the Human Rights Campaign published “Hidden Discrimination: Title IX Religious Exemption Putting LGBT Students at Risk.” The article called for the Department of Education to publish a list of educational institutions that applied for and received religious exemptions under Title IX. This request was met with resistance from some educational institutions that believed the publishing of the list amounted to a witch-hunt, meant to persecute institutions for practicing their religions tenets.
In 2016, the Department of Education made public its list of institutions receiving a religious exemption to Title IX. Interestingly, this has led a few institutions to withdraw their exemption status. One in particular, Pepperdine University, said, “Pepperdine requested religious exemption from Title IX of the Education Amendments of 1972 in 1976, and it was granted by the Department of Education in 1985. Early this year, the university withdrew from the previously granted exemption because it does not fully reflect Pepperdine’s values today. We believe that Pepperdine’s mission and the goals of Title IX are aligned, and we are committed to complying with Title IX in its entirety.”
Despite the OCR’s widening definition of gender and protected categories, religious exemptions are liberally granted to educational institutions that request them. At present the Department of Education has been able to walk the tightrope between expanding the rights of the lesbian, gay, bisexual, and transgender community, while preserving the religious freedoms of religious educations institutions. It is clear these issues will not be resolved anytime soon, but, at present, the Department of Education maintains an uneasy truce between both communities.
