Nearly three dozen religious institutions of higher learning have asked the federal government to waive laws that protect LGBT students, according to government documents obtained by The Column. The schools are asking the U.S. Department of Education to waive portions of Title IX that might apply to students and staff who are transgender or who are in same-sex relationships. Twenty-seven schools have been granted a waiver from Title IX by the department in the last year, many with the help of conservative religious organizations. Another nine have applications pending.
When Title IX was passed in 1972 to combat discrimination based on sex, Congress added a small but powerful provision that states that an educational institution that is “controlled by a religious organization” does not have to comply if Title IX “would not be consistent with the religious tenets of such organization.”
These “right-to-discriminate” waivers were relatively rare until the last year. A handful were requested in the 1980s and 1990s, many by religious schools who wanted to ensure they could prevent women from being hired in leadership roles without running afoul of discrimination laws.
That changed in 2014 when the Obama administration issued guidance that the Title IX discrimination prohibition “extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity,” meaning that entities receiving federal funding could not discriminate against transgender and gender nonconforming people.
In response to that guidance, and several lawsuits, conservative Christian leaders have begun positioning the schools to expel transgender students.
Add to the mix the Supreme Court decision that effectively legalized same-sex marriage in 2015. Leadership at Christian schools have begun to worry that they will be forced to house legally married same-sex couples, and have been positioning themselves to withstand discrimination challenges.
The Department of Education has granted a waiver to 27 religious colleges and universities in 17 states over the last 18 months. The total enrollment of these schools tops 80,000 students, and nearly $130 million in federal research grants and student aid flowed to these institutions of higher learning in 2014. Those waivers are coming in at a rapid clip, and another 9 are pending as of August 2015. Though they span the United States, almost all are in the South or West.
Click on the interactive map for in-depth information for each college and university.
Thus far 36 schools have asked for the waiver. According to documents obtained in response to a Freedom of Information Act request filed by The Column in July, these schools have asked the federal government for these waivers not only to deny enrollment to or expel transgender students, but the broad-based waiver requests have also targeted gay, lesbian, and bisexual students and staff. In some cases schools have even asked for, and been granted, a waiver to allow them to expel women who have been pregnant outside of marriage.
Banning transgender students
News that schools were requesting such waivers first surfaced in July 2014, when Inside Higher Ed reported that three Christian colleges — George Fox University in Oregon, Spring Arbor University in Michigan, and Simpson University in California — had requested and received a waiver from the federal government’s Title IX.
In the case of George Fox University, a transgender student had been denied housing at the Quaker school, and subsequently filed a complaint with the Department of Education’s Office of Civil Rights. That complaint was dismissed as George Fox had already been granted a waiver to Title IX, and could discriminate against transgender and gender nonconforming students. But, the case generated headlines and petitions, and the university made some small concessions including allowing transgender students who had undergone gender affirmation surgery to live in gender segregated housing. The university has since softened its stance to provide “housing units with private restrooms and living spaces will be provided for students identifying as transgender where possible.”
In 2013, Biola University in La Mirada, Calif., began crafting language barring transgender students at the same time a fellow Christian college, California Baptist University, was facing a lawsuit after expelling a transgender student. Biola’s new ban on transgender students read, in part, “In employment and in student life, we regard sex at birth as the identification of the given biological sex of each member of our constituency. We will not accept as valid alterations of one’s sex at birth based on experiential variation or medical intervention.” The school reached that theological conclusion because “Jesus Christ himself affirmed this in his teaching correcting abuses of divorce stating at the beginning the Creator ‘made them male and female.’”
Biola then filed its request for a waiver on Nov. 14, 2014. “Our request for exemption is limited to the recent interpretation that ‘sex’ under Title IX also includes gender identity to the extent that such matters conflict with Biola’s religious tenets,” Biola wrote to the U.S. Department of Education. Biola’s waiver was not approved by the department, however. The school did not prove that it was controlled by a religious entity. Biola has the option of providing more information to DOE.
But Biola didn’t craft the discriminatory language it used for the anti-transgender portions of its handbook nor for the application for the waiver. Those were crafted by the Christian Legal Society as a “sample policy” and used by Biola verbatim.
Though Biola’s waiver still pending, dozens of other schools have had waivers approved. Anderson University based in South Carolina sent a letter to the U.S. Department of Education on January 7, 2015 asking the department to waive “provisions of Title IX to the extent application of those provisions would not be consistent with the Convention’s religious tenets regarding marriage, sex outside of marriage, sexual orientation, gender identity, pregnancy, and abortion.”
The department granted that request in full. “The University is exempt from these provisions to the extent that they prohibit discrimination on the basis of marital status, sex outside of marriage, sexual orientation, gender identity, pregnancy, or abortion and compliance would conflict with the controlling organization’s religious tenets,” the response, dated Feb. 11, 2015, stated.
Anderson University used language in its waiver that is similar to 15 other schools affiliated with the Southern Baptist Convention. Those schools used nearly identical language that says they are seeking exemption from Title IX “to the extent application of those provisions would not be consistent with the Convention’s religious tenets regarding marriage, sex outside of marriage, sexual orientation, gender identity, pregnancy, and abortion.”
Several Catholic schools are among those that have been granted waivers. Belmont Abbey College wrote in its request: “Our request for exemption is limited to the recent interpretation that “sex” under Title IX also includes gender identity.” Belmont was approved a waiver along with fellow Catholic colleges Franciscan University of Steubenville and St. Gregory’s University.
Bethel College, part of the Christian Missionary Church denomination, even appears to want to be able to tamper with maternity leave.
The Indiana-based school requested an exemption from Title IX if it “would require the College to allow males and females to reside in the same housing, to visit within the housing of the opposite sex without restrictions, to allow an unmarried male and female to live together, or to allow a person with gender identity issues to be treated as a member of the sex which they have assigned to themselves…” or “would require that the College not discriminate in discipline, admissions, hiring, and employment decisions, in matters such as employment leaves for pregnancy, childbirth, and elective termination of pregnancy, or on the basis of pre-marital sex, unmarried pregnancy, extramarital sex, or homosexual activity.”
Training schools to discriminate
The rapid increase in schools that have applied for Title IX exemptions comes at the same time conservative Christian groups are hosting trainings and providing documents that schools can use to prove their “sincerely held religious beliefs” about LGBT people.
On Sept. 3, 2015, the Christian Legal Society hosted a webinar with the Council for Christian Colleges and Universities, the Association of Christian Schools International, and the Association for Biblical Higher Education.
Jim Davids, a law professor at Pat Robertson’s Regent University, listed the perceived threats against Christian schools including “two former students dismissed for lesbianism” who sued a Christian school and “a young man who thought he was a woman sued California Baptist University, when the school dismissed him for lying on his admission application that he was female.”
“Within the last couple of years two students claiming to be a different gender than their anatomy have filed complaints against CCCU schools,” Davids added.
Shapri LoMaglio, Vice President for Government and External Relations at the CCCU, called the Supreme Court decision legalizing same-sex marriage “a sea change” for housing issues at Christian colleges, and noted the Department of Education’s extension of sex discrimination to include gender identity. She told attendees that the best offense is a good defense, and one defense is to gain exemption from Title IX.
“There is an ability for Christian colleges and universities to apply for an exemption from the Department of Education to this specific requirement of Title IX and the institution can do that by writing a letter to the Department of Education detailing the specific provision in Title IX they would like exemption from and their theological beliefs that create conflict with their ability to execute that specific provision.”
She added, “What’s most important to know is that there is an exemption and it is highly advisable to apply for one.”
Davids and LoMaglio, as well as Christian Legal Society’s Kim Colby and John Cooley of the CooleySublettPLC law firm, also provided guidance to college and universities on how to legally discriminate against LGBT students, faculty, and staff.
In addition to the webinar, the CLS has developed sample language for schools to include in their official policies; if a school hasn’t yet developed a student handbook policy about its “sincerely held religious beliefs” about transgender students, they can copy CLS’. Many schools have done just that.
Entire denominations are issuing resolutions in order to keep LGBT students out of their affiliated colleges and universities. For example, Baptist General Convention of Texas adopted a resolution in February on the “transgender agenda.” That resolution was aimed directly at garnering schools a Title IX exemption.
“Some of our institutions may desire to seek a religious exemption to the Title IX requirement, and they asked that the convention speak specifically to the issue,” Ferrell Foster, director of ethics and justice for the Texas Baptist Christian Life Commission, said in statement at the time “The resolution approved by the Executive Board represents both the truth of the biblical testimony regarding gender and the love of Christ for all people.”
In fact, “the request to consider the resolution came from several Texas Baptist university presidents” who said they needed to apply for a Title IX exemption in order to deny accommodations for transgender students, the Convention website stated. That resolution stated “great concern with the emergence of the transgender agenda and the notion that one’s gender is determined psychologically, not biologically” and “some people today are expressing a desire to identify themselves with the gender, which differs from their biological gender… Some of these persons are seeking to function in the broader society as if they are members of the gender that differs from their biological gender.“
Responding to the Exemptions
“The trend of religiously affiliated, but publicly financed, colleges receiving exemptions from the U.S. Department of Education in order to discriminate against LGBTQ students and employees is disturbing,” attorney Paul Southwick told The Column. “While we are seeing increased protections for transgender, intersex and LGB students through Title IX, we are also seeing the protections of Title IX gutted at the very institutions where students need those protections the most.”
Southwick has represented students who have filed action against Christian schools after having been expelled for being LGBT.
For students that do find themselves being disciplined or expelled from a college or university simply because of their LGBT identity, there are actions those students can take.
“First, if there is still time, students should file an internal appeal of any decision to expel, suspend or discipline them,” he said. Most institutions have an appeal process, but Southwick notes that some students may want to hire a lawyer for assistance with appeals.
“Additionally, students should file a Title IX complaint with the U.S. Department of Education’s Office of Civil Rights. Southwick said. “This is important and should always be done. Even if their college has a religious exemption from Title IX, the exemption may not apply or it may not stick after being challenged.”
He also suggests that students file a complaint with accreditation institutions, and to check state and local nondiscrimination laws.
Shane Windmeyer, Executive Director of Campus Pride, an organization that works with students and schools to create more LGBT-inclusive campuses, said that “anti-LGBTQ religion-based bigotry and intolerance is not a Christian teaching or belief.”
“Discrimination is never okay,” Windmeyer told The Column. “For these schools to espouse that their religion sanctions discrimination against any young person is careless and life-threatening. This list needs to be made public every time a school files for a Title IX exemption. It is shameful and wrong.”
He said exposing schools that apply for the Title IX exemptions is important for families and prospective students. “Families deserve to know that this list of schools are not loving, safe spaces for any young person to live, learn and grow — and taxpayers should definitely not have to pay for a private college to openly discriminate against anyone.”
Windmeyer was referring to the nearly $130 million in annual taxpayer funds flowing to these schools through grants and student aid, something Southwick says that money should come with strings attached.
“If a college receives public funding, it should have to follow public laws,” he said. “The government would be perfectly within its rights to make taxpayer funded aid to these colleges contingent on compliance with generally applicable nondiscrimination laws.”
He added, “If a college wished to continue discriminating against LGBTQ students and employees, it could do so on its own dime.”
Correction: A previous version of this referred to Anderson University in Indiana as having applied for a Title IX waiver. Another Anderson University, one in South Carolina, applied for a waiver to Title IX. We regret the error.
Here’s the entire data set obtained from the U.S. Department of Education: