Its perfectly legal for schools to expel transgender students or bar them from housing thanks to religious freedom exemptions from Title IX.
Nearly 60 colleges have applied for a license to discriminate from the Obama administration under the guise of religious freedom.
Conservative Christian colleges have been applying like crazy for religious exemptions to Title IX, the federal law prohibiting discrimination based on sex in any federally funded education program or activity. In 2014, the Department of Education expanded Title IXs protections to transgender people.
Since then, 56 schools have applied for a religious exemption. Thats compared to 247 schools who applied for waivers since 1972 when Title IX became law. Previously, religious waivers were granted, for instance, to let all-male seminaries not hire female instructors, or to allow religious schools to only hire co-religionists. But now exemptions are being used to expel transgender students, bar them from housing, and restrict access to facilities.
George Fox University in Oregon did not allow a transgender male student to live with his male friends. Instead, the conservative Quaker school offered Jayce Marcus single housing or off-campus alternatives that wouldnt violate the schools beliefs about separating men and women.
They were willing to use the correct pronouns and correct name when referring to Jayce, his lawyer, Paul Southwick said. However, they refused to allow him to be housed with the other male students.
His male friends, though, knew about Marcuss transgender status and had no problem living with him.
The university argued it wasnt discriminating against Marcusas evidenced by his desire to stay there, they saidbut simply following its religious beliefs. When Marcus and his attorney threatened to file a Title IX complaint against George Fox, the school applied for, and received, a waiver from the Department of Education.
The college subsequently changed its policy to allow students housing based on their current anatomical status. The most recent change allows students housing based on their legal gendermeaning Marcus can live with his male friends after all.
Despite Marcuss victory, Southwick said the case spooked other Christian colleges and sent them running to ask for waivers.
The George Fox case was really the instigator of these legal exemptions. None of [these schools] really had policies on what to do with transgender students.
While many exemptions from several decades ago concerned sex outside of marriage, women in all-male seminaries, and divorce, newer exemptions talk is focused on sexual orientation or gender identity.
This is kind of the second wave, now that Title IX means more than just sex and gender in the marital sense, Southwick said.
The process of obtaining a waiver is stunningly simple: A college or university president writes a letter to the Department of Education explaining the colleges religious beliefs and how Title IXs requirements conflict.
A lot of these letters look the same because theyre forms, Southwick said.
Many schools find examples from advocacy groups, like the Christian Legal Society and the Alliance Defending Freedom, which held a webinar to teach Christian colleges how to protect themselves.
But first, there was a prayer.
Thank you for each of these panelists, thank you for each of these listeners, Lord, the leader said. Please be with us today, give us your wisdom and help us here what you need us to hear. In Jesus name we pray, amen.
Though webinar organizers are quick to tell schools they can always claim a right to discriminate if a lawsuit arises, an exemption from the Department of Education makes the threat of a successful lawsuit less likely.
The Christian Legal Societys Kim Colby said that shes not even sure the Department of Education can withhold an exemption from a school that requests it. Indeed, not a single application for an exemption has ever been denied by the Department of Education, according to statistics provided by the department.
An Department of Education official referred The Daily Beast to a three-part test the department uses to approve exemptions. The testallows for exemptions for institutions that are a school or department of divinity, that requires students or employees to adhere to its religious beliefs, or one that is controlled by an external religious organization.
When non-denominational schools apply for waivers, the Department of Education asks them for more information regarding their religious character. Colorado Christian University, for instance, was sent a letter asking it clarify the specific religious organization that controls the university. Several such waivers are pending but none have been turned down.
But why not just take no federal money and avoid Title IX altogether?
Because federal money keeps these schools afloat. Federal aid, in the form of student loans, work-study programs, and grants to low-income students, has allowed these schools to expand rapidly, including through online offerings.
Liberty University, founded by Jerry Falwell, discriminates against LGBT students while bringing in more than $800 million in federal money from students who qualify for financial aid. Federal aid to Libertys students has grown so high that it now exceeds the revenue collected by the university, The Washington Post reported. Libertys Title IX exemption was approved in April 2014.
If they lose Title IX funding, they will no longer be able to operate in the way they have historically, Southwick said.
And most of Libertys students dont even attend classes in person. Seventy-five percent of undergrads and 97 percent of grad students are online learners at Liberty.
With online students, there can be lower religious standards, at least with respect to chapel attendance, Southwick said. Moreover, it is impossible to police the religious or sexual practices of thousands of online students who are enrolled in online programs from all across the country.
In the background of all of these actions is also the fear of becoming the next Bob Jones University. The university famously lost its tax-exempt status in the 1970s because of its racially segregated admissions policy: They didnt allow interracial dating, initially denying black students admission altogether, and then only allowing them in if they were married.
A 1983 Supreme Court decision found that the federal government has a fundamental, overriding interest in eradicating racial discrimination in educationone that outweighs a religious schools interest in racist beliefs.
The conservative schools cling to the hope that the Supreme Courts Obergefell decision practically legalizing gay marriage didnt find that the highest level of scrutiny applied to discrimination against gay and lesbian peopleyet, at least. The Internal Revenue Service has told conservative religious schools that they shouldnt expect these actions in the next two or three years.
Colby told The Daily Beast that Solicitor General Donald Verrilli dodged a question about whether these schools tax-exempt status might be at risk during the Obergefell oral arguments.
Bob Jones was really an outlier institution, she said. [This is] a much more core belief than the Bob Jones outlier view was.
Both Southwick and Christian advocates, though, agree that initial challenges are likely to come on the basis of state laws that might affect funding or accreditation. The Department of Educations exemption wont necessarily protect schools from stronger state-based non-discrimination laws.
Twenty-one states have existing Religious Freedom Restoration Act laws, the webinar reminded participants. Twenty-two consider sexual orientation a protected class, along with many more municipalities. Seventeen of those also cover gender identity. Only four states have both.
Southwick represented a former California Baptist University nursing student in one such caseheard even before Title IX expanded to covering transgender people. The school accused Domaine Javier of committing fraud on her application form by identifying herself as a woman. Because she is transgender, the school argued, she should have listed herself as maledespite her long-term identity. The college firmly claimed that it wasnt discriminating against her because of her transgender status. It said it was simply upset over fraud.
Cal Baptist expelled Javier and barred her from campus. Californias non-discrimination law includes gender identity and does not have an explicit religious exemption.
A court later found that as a private, religious school, Cal Baptist could exclude Javier from classes, where Christian values are supposed to be at the core of the curriculum. But it also said she would be allowed on other parts of campuslike the library or shops. Southwick said the court also left open the possibility of Javier attending the schools online courses.
And so, schools are acting now to protect themselves against such future cases.
If I was thinking strategically, like I imagine they are, five to 10 years from now its probably not going to be as easy to get an exemption, Southwick said. Support for LGBT equality, and legal protections, are expanding at a rapid rate. So I bet theyre trying to get them now, before its too late, he added.