Did Religious Universities Just Get a License to Discriminate?

The news that more than two dozen religiously affiliated colleges and universities had received exemptions from the anti-discrimination provisions of Title IX demonstrates how the “religious liberty” argument continues to morph and spread.

The Column reports that 36 religiously-affiliated institutions of higher learning have applied for the exemptions, 27 of which have been granted under a little used provision of Title IX that allows religiously controlled educational institutions to apply for exemptions from provisions “not consistent with the religious tenets” of the organization.

While the organizations primarily are seeking to be allowed to discriminate against transgender and gender non-conforming students in housing and enrollment, some of the waivers also seek permission to discriminate against gay students and staff and women who have had sex outside of marriage or an abortion.

For instance, Anderson University, a Christian college affiliated with the Church of God, was exempted from Title IX anti-discrimination 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.”

The effort appears to be driven by the Christian Legal Society and the Council for Christian Colleges and Universities in response to the Supreme Court decision legalizing same-sex marriage and the increasing prominence of transgender students on campuses. The organizations have hosted trainings on crafting exemption applications and the CLS created widely copied sample language for institutions to develop doctrinal statements to underpin their claims.

The effort can be seen as an extension of the Hobby Lobby and related decisions that have granted religiously affiliated organizations broad leeway to impose their religious tenets on staff and students, as organizations affiliated with religions that oppose same-sex marriage and gender nonconformity seek to create ever-widening oases of mid-twentieth century sexual morals that punish LGBT individuals and women who have sex outside of marriage.

In fact, one of the universities granted an exemption, Belmont Abby College, a Catholic institution, was one of the very first to file a lawsuit against the contraception mandate in the Affordable Care Act. In its request to the U.S. Department of Education, Belmont Abby said it didn’t support “the resolution of tension between one’s biological sex and the experience of gender by the adoption of a psychological identity discordant with one’s birth sex, nor attempts to change one’s birth sex by surgical intervention, nor conduct or dress consistent with an identity other than one’s biological birth sex.”

It affirmed the right to make “institutional decisions in light of this policy regarding housing, student admission and retention, appropriate conduct, employment, hiring and retention, and other matters.”

No word on how Belmont Abby intends to assess if one’s “conduct or dress” is consistent with one’s birth sex, but perhaps after kicking out any transgender students they will go after women wearing pants or being too assertive. The Column notes that total enrollment at the affected schools is 80,000 students and that the institutions received $130 million in federal research grants and student aid last year.

[An earlier version of this post incorrectly described Anderson University as a Baptist school. RD regrets the error. —The Eds.]

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