Religious Freedom versus Religious Exemption

February 3, 2022

Since the Department of Education announced the expansion of Title IX to include discrimination based on gender identity, many plaintiffs are challenging Title IX’s “religious exemption.” This exemption shields educational institutions that are “controlled by a religious organization” from Title IX if enforcing it would be inconsistent with the school’s “religious tenets of the organization.” Under Title IX, a school that has a “department of divinity” is also considered a religious organization. To claim this exemption, the school must demonstrate that it is under the control of a religious organization. The regulations specify that a school must state in writing that its eligible for the exemption because:

(1) The institution is either a school or “department divinity,”

(2) The faculty, staff, and students are required to engage in a particular personal belief or religion,

(3) The institution provides documentation that the school is controlled by a religious organization,

(4) There is sufficient evidence that the institution is controlled by a “religious organization.”

As our cultural conversations surrounding gender identity and sexuality evolve, Title IX’s religious exemption and the First Amendment’s freedom of religion have continued to clash. On the one hand, plaintiffs claim that this exemption allows religious institutions to consistently discriminate against LGBTQ students. On the other hand, schools argue that their school qualifies as a “religious institution” and is exempt from Title IX and any legal challenge infringes on their freedom of religion.

In Hunter et al v. U.S Department of Education et al, several students joined a class action suit against their schools and the Department of Education claiming that the religious exemption allows their school to “abuse and oppress” LGBTQ students. The students claim that they have been subjected to conversion therapy and various forms of harassment and abuse in school. Since the initial complaint, several schools have filed to intervene as defendants in the class action. Recently, in Maxon v. Fuller Theological Seminary, a court of appeals dismissed the plaintiff’s claim and upheld the school’s religious exemption because the school was controlled by a “religiously affiliated” board of trustees.

So far in 2022, the Office for Civil Rights began formally investigating Clarks Summit University after accusations of anti-LGBTQ bias surfaced last year. Brigham Young University (BYU), is also under investigation by the Department of Education after it instituted an “LGBTQ dating ban” in 2020. Just last month, BYU defended its policy, stating that applying Title IX poses a direct conflict to the religious tenets of the Church of Jesus Christ of Latter-day Saints.

As more cases develop, it is likely that schools will have more questions about this exemption and how to prevent potential litigation. We anticipate that these rulings and upcoming Title IX regulations will provide concrete guidance to schools regarding the boundaries of this exemption.

ICS provides a wide range of Title IX services, including its Community Access program and its live interactive trainings. Contact us for more information.