Religious schools face critiques over discrimination of LGBTQ students
Nearly 400 religious colleges are exempt from Title IX on the basis that gender equity “would not be consistent with the religious tenets of such organization,” according to federal law.

When Nyack College rejected Zayn Silva over the phone, he was so upset he had to cut his Uber ride short. In Silva’s family, Nyack was a highly respected school. His family — who attended church daily — encouraged him to apply. But sitting on a street corner in Williamsburg, disheartened, he had questions for the admissions office. Why did they call him instead of sending a letter? Why was he rejected by a school with a 97% acceptance rate?

The reason for his rejection, they told him, was because he had stated on his application that he was proud to be transgender.

Nyack College is one of nearly 400 religious colleges that claim religious exemption from Title IX — a 1972 federal civil rights law that prohibits discrimination on the basis of sex in education programs that receive federal funding. Title IX does not apply to religious institutions if gender equity “would not be consistent with the religious tenets of such organization,” according to federal law.

“Originally, religious exemption was utilized mainly by schools who wanted to discriminate against women who had had abortions or had children out of wedlock,” said Joe Baxter, legal fellow with the Religious Exemption Accountability Project (REAP).

Now, 50 years after Title IX was passed, “discrimination on the basis of sex” looks a lot different. Many in the LGBTQ community and elsewhere view gender identities and sexual orientations as more fluid than binary. At the same time, Baxter said, religious institutions are now using their Title IX exemptions to target LGBTQ students.

The Supreme Court ruled in Bostock v. Clayton County (2020) that anti-LGBTQ prejudice is discrimination on the basis of sex for the purposes of Title VII of the Civil Rights Act. Title IX, which has similar language to Title VII, is presumed to provide the same protections. made some adjustments to standing laws in respect to today’s changing gender landscape, such as Title VII of the Civil Rights Act of 1964, which was created to prevent employment discrimination on the basis of sex. In Bostock v. Clayton County (2020), the Court held that in Title VII, discrimination on the basis of sex includes sexual orientation and gender identity.

“It determined that if you discriminate against somebody because they are gay, or because they are transgender, that is discrimination on the basis of sex,” Baxter said. “That legal reasoning applies to Title IX of the Education Amendments as well.”

In 2010, the Obama administration delivered guidance to universities affirming that Title IX “does protect all students, including lesbian, gay, bisexual, and transgender (LGBTQ) students, from sex discrimination,” including “gender-based harassment.” While this guidance was revoked during the Trump administration, Biden has revived the interpretation.

Standing in Solidarity Nationwide

This map illustrates the location of the religious schools, all of which have claimed religious exemption from Title IX, that the REAP plaintiffs either attended or currently attend.

Silva is one of over 40 plaintiffs in a class action lawsuit that REAP has filed against the Department of Education. The suit, which challenges the constitutionality of the religious exemption in Title IX, began in Oregon federal court in March 2021, with 33 LGBTQ plaintiffs from nearly 30 different religious schools across the country.

In their complaint, plaintiffs argue that while the U.S. Department of Education is duty-bound by Title IX and the U.S. Constitution to protect sexual and gender minority students at federally funded colleges and universities, the religious exemption to Title IX “seemingly permits the Department to breach its duty as to the more than 100,000 sexual and gender minority students attending religious colleges and universities where discrimination on the basis of sexual orientation and gender identity is codified in campus policies and openly practiced.”

Although the lawsuit was filed against the Department of Education rather than the schools themselves, three schools have intervened in the lawsuit to defend their rights to practice and speak about their religious beliefs. Alliance Defending Freedom (ADF), the Christian legal group representing the schools, argues in court filings that these institutions are “exempt from Title IX and its accompanying regulations to the extent those laws are interpreted to curtail religious schools’ freedom to act in accordance with their religious convictions.” ADF denies that the Department of Education is duty-bound by Title IX to protect sexual and gender minority students, stating that “religious schools’ sincere religious beliefs conflict with application of Title IX to the extent that Title IX’s definition of ‘sex’ is interpreted to include ‘sexual orientation’ and ‘gender identity.’”

The students maintain that religious exemption violates the Establishment Clause of the First Amendment by giving a free pass to faith-based establishments, but not to secular ones, even though they are all federally funded.

“The Establishment Clause prohibits the government from endorsing the religious beliefs of certain faith groups,” said Mark Lippelmann, senior counsel for ADF. “Punishing people and institutions of faith because they exercise their religious beliefs is unconstitutional.”

However, Lippelmann argued that a 2020 Supreme Court decision, Espinoza v. Montana Department of Revenue, reaffirmed his position. Chief Justice Roberts ruled that a state program that excluded religious K-12 schools from funding given to private schools was unconstitutional.

“The government cannot discriminate against religious schools in the funding context,” Lippelmann said. Millions of students at religious schools receive federal benefits in the form of Pell Grants.

While ADF defends the freedoms of religious schools, the students who attend these colleges say they have rights too, including to be protected from bias in student housing, athletics, financial aid, health services and on-campus jobs. Another plaintiff, Ashtin Markowski said they were fired from their on-campus job at Brigham Young University when a new hairstyle was considered too masculine.

“At that same time, they hired a male employee who had [prohibited] bleached hair, so I felt like it was total gender discrimination, because I had short hair,” Markowski said. “And they kept asking me why I did it, almost like they wanted me to out myself.”

At a secular school, termination of an on-campus employee for gender-related reasons would be eligible for investigation by Title IX offices. as the Title IX Legal Manual provided by the U.S. Department of Justice states that “Title IX reaches employment discrimination in the educational programs or activities of recipients without limitation.”

At Brigham Young University, students must renew what’s known as an “ecclesiastical endorsement” every year. In other words, a church official must sign off on a students’ worthiness to attend. Students are required to abide by an honor code, which compels students to “live a chaste and virtuous life, including abstaining from any sexual relations outside of a marriage between a man and a woman.”

In order to continue her education, Markowski kept her relationship with her now-wife secret in conversations with her bishop. The bishop instructed her to be more feminine, questioned if her sexual attraction amounted to a “sex addiction,” and attempted to persuade her to reject “temptation.”

George Fox University, in Oregon, has a lifestyle agreement similar to the honor code of BYU. According to Audrey Wojnarowisch, student and plaintiff, the agreement prohibits alcohol, drugs and same-sex relationships.

Wojnarowisch says the lifestyle agreement doesn’t keep students safe. During their freshman year, they were sexually assaulted by another student. Although the incident fit all the criteria necessary to be reviewed under Title IX, the administration did not treat it as such.

“They don’t really know how to respond to our [LGBTQ students’] concerns,” Wojnarowisch said. “So when we feel unsafe, they don’t really know. I think people are afraid that it’s going to look like they’re supporting us if they protect us.”

Wojnarowisch says they are not alone in their safety concerns. They recalled a transgender student who was repeatedly harrassed in his neighborhood by other students’ shouting slurs and other LGBTQ students at George Fox who were marginalized by other students.

“That’s a big reason why I decided to be part of the lawsuit,” they said. “ It feels like such an easy fix. And I don’t want anybody else to experience that.”

Baxter, who represents the LGBTQ students in the suit, maintained that a major problem is that a lot of honor codes at religious institutions are tied to their Title IX offices. He said that it is not uncommon for a student at a religious school to not want to report an assault, because if the assault were perpetrated by someone of the same sex or gender, they may get reported for an honor code violation and get kicked out of school.

“So they have this extra layer of risk, an inability to be transparent and to utilize the rights that they do have on campus, because this exemption just puts them in such a vulnerable position,” he said.

Ironically, safety concerns drew plaintiff Faith Millender to Eastern University in suburban Philadelphia three years ago, as the Christian university marketed itself as a liberal institution that celebrates diversity. Now a senior, Millender sees a different side to the story.

“Eastern students, prior to experiencing the campus, are told that Eastern is safe and that it’s affirming and that everybody is welcome,” said the nursing student. “There are a lot of ambiguous answers. As you become integrated into the campus, you start to see the ugly parts of it.”

During a clinical seminar Millender attended, an instructor notified students that a couple of the patients in the unit that day were in a same-sex relationship. She told the students to let her know if anyone didn’t feel comfortable treating them.

“I didn’t know how to report her, because I didn’t know whether or not my school was going to back me up,” Millender said.

When Millender asked what the patients’ pronouns were, the instructor chastised her and said that gender and sex were the same thing. Millender is interested in emergency nursing, an area of medicine where she said vulnerable patients may be subjected to bias. If students are taught in their college nursing programs that marginalized people do not deserve equitable care, she fears these beliefs will reflect in the medical field.

When she went to the dean of the College of Health Sciences, she felt that although she was empathized with, her concerns were addressed in a “gaslighting manner.”

“Something I’ve said about Eastern is that it’s very geared towards the money,” she said. “It’s like: ‘We’re gonna show up and do the dance that you want us to do. If it’s a conservative dance that day, we’re gonna do that, but if it’s a liberal dance that day, we’re gonna do that—as long as it gets us money.’”

With the possibility of losing federal funding looming over religious schools, attorney Lippelmann said that opponents want to strip students of their federal financial aid unless their schools renounce core beliefs.

“Targeting religious schools hurts the students and families who desire to pursue their education in places that share their faith and values,” he said. “It sends a message to students who attend religious universities: change schools or miss out on public benefits. That’s a decision no student should be forced to make.”

Baxter, however, argued that if private universities wish to partner with the federal government to provide educational programs to youth, and if they want to receive taxpayer money to provide those services, they have to provide equal access to all students. If a school receive federal funding then the school must adhere to federal law entirely, including Title IX, and cannot cherry-pick the decrees that suit its religious beliefs.

“These programs are taxpayer subsidized,” he said. “If you want to partner with the government, you can’t have straight-only schools that have LGBTQ-free zones. If you want to privately fund that, that’s a separate legal question. You want to do that totally isolated with your own money? That’s a different legal question. We’re saying at the very least, you can’t use government funding to do it.”

According to data from Eastern University, nearly two-thirds of the first-year cohort in 2014 took out some form of loan from the federal government, funds unavailable if the school were found in violation of Title IX. Millender, who is co-president of a gay-straight alliance group on campus, hopes that these consequences will pressure the school to reform its policies.

“I don’t think that you can be safe without being explicitly told that you are safe, and without creating protocols to protect students when they’re harmed because of a specific thing,” she said.

Plaintiffs are channeling their energy into raising awareness of discrimination they have faced at religious institutions and the policies that have caused them to fall through the cracks in Title IX protection, garnering public support from celebrities such as Alan Cumming and Dominique Jackson. And these religious institutions, in exchange, continue to defend themselves.

“Generations of America’s finest students have attended religious colleges and universities,” Lippelmann said. “These institutions have been part of our nation’s fabric since its founding. Religious colleges and universities are motivated by their faith in everything they do. It motivates them to serve their communities and to provide their students with an excellent education. Punishing people and institutions of faith because they exercise their religious beliefs is unconstitutional.”

There is precedent, however, for limiting religious exemptions in higher education. In 1983, the IRS revoked Bob Jones University’s charitable tax status for banning interracial couples from attending. The university like the universities involved in the current lawsuit, argued the ban abridged the religious freedom guaranteed by the First Amendment. But the Supreme Court in Bob Jones University v. United States found that “the state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest,” in this case, racial discrimination.

“The Supreme Court, in that case, said that religious liberty does not give you a right to discriminate against interracial couples on the basis of race,” Baxter said. “So, there is a precedent in that regard of the religious exemption having been tried to be utilized to discriminate against individuals.”

Today’s lawsuit could take years to be resolved, Baxter noted. In the meantime, the plaintiffs and REAP are continuing their work with civil rights litigation, storytelling, oral history, research and education about Title IX protections.

After he was rejected from Nyack, Silva was hesitant to apply elsewhere — even a secular school — and face rejection again. He credits the other plaintiffs for pulling him out of a low place as they continue working together to make sure that every LGBTQ+ student can receive any type of education they want.

“We went through a lot to get here, but it feels like this VIP club that I’ve been in,” he said. “Everyone is just so friendly to each other, so understanding and so considerate, and it’s really nice to know that if I’m having a down day, there are 40-plus people that I can call and lean on.”