Religious exemptions to Title IX on trial again in appeals case against US Dept of Ed

(RNS) — In late March of 2021, the Religious Exemption Accountability Project filed a class action lawsuit charging the U.S. Department of Education as complicit “in the abuses that thousands of LGBTQ+ students endured at taxpayer-funded religious colleges and universities.” The case, Elizabeth Hunter, et al v. US Department of Education, was thrown out by the Oregon federal district court.

Three years later, the Hunter plaintiffs are back in court to make their case. In August 2023, the Hunter plaintiffs appealed the decision, filing their opening brief before the 9th Circuit Court of Appeals. Appealing the case are a mix of current students, recent alumni and recently expelled students. With the case now fully briefed, the legal team will appear before the Court of Appeals on July 16 at 9:50 a.m. (PST) for oral argument. The event will be streaming live.

At the center of the case is the issue of religious exemption from Title IX, an exemption the plaintiffs argued has allowed religious schools to discriminate against LGBTQ+ students. Although the students bringing the case are connected to a number of religious institutions, including Brigham Young University (BYU), they coalesce around one point: that schools that violate LGBTQ+ nondiscrimination protections should lose access to federal education funds. 

Religious liberty groups applauded the case’s original dismissal, arguing that the lawsuit was an attempt to subvert the constitutional right of religious freedom. Following the lawsuit’s dismissal in 2023, the Ethics and Religious Liberty Commission of the Southern Baptist Convention stated, “No student of any faith should be deprived of their right ‘to attend a school that shares their beliefs’ and no educational institution should be stripped of its freedom to ‘live out their deeply and sincerely held convictions.’” 

But in the aftermath of the dismissal, the case also received strong support, with 19 state attorneys general filing friends of the court briefs in the Ninth Circuit Court of Appeals in the Hunter v. U.S. Department of Education case in favor of the plaintiffs.

Oregon Attorney General Ellen Rosenblum said in a statement, “During the Trump administration, his Department of Education gutted protections for women, members of the LGBTQ+ community and other classes of students that had been in place for decades.” Adding, “Title IX needs to be strengthened, not systematically weakened. Students ought to know before they get to campuses whether their academic institutions will protect their rights or undermine them.” 

The original lawsuit argues that the Department of Education is responsible under the federal civil rights law Title IX to “protect sexual and gender minority students at taxpayer-funded” schools, including “private and religious educational institutions.” It alleges that in violation of Title IX, LGBTQ+ students have endured abuses, including “conversion therapy, expulsion, denial of housing and health care, sexual and physical abuse and harassment,” as well as the “less visible, but no less damaging, consequences of institutionalized shame, fear, anxiety, and loneliness.” 

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During the two years the original case was being considered, a broader reckoning spread among religious higher education institutions across the U.S. as their students became increasingly vocal about experiences of discrimination at the schools. Students at a number of religious schools engaged in a range of protests, including at Seattle Pacific University, a private school with ties to the Free Methodist Church, against a policy that forbids the hiring of LGBTQ+ people; and at Baylor University, which affirms marriage between a man and a woman as the “biblical norm” and refused to officially recognize an LGBTQ+ student advocacy group. 

In October 2022, students organized at more than 100 campuses to walk out of school in protest of religious exemptions to Title IX, which they argued leave loopholes for LGBTQ+ discrimination, harassment and erasure. 

When Hunter v. US Department of Education was dismissed in January 2023 by Federal District Court Judge Ann Aiken of the U.S. District Court in Eugene, Oregon, Aiken ruled the plaintiffs had “satisfactorily alleged” their injury by religious exemption. However, Aiken also ruled that the “Plaintiffs do not plausibly demonstrate that the religious exemption was motivated by any impermissible purpose — let alone that Congress was ‘wholly’ motivated by such an impermissible purpose.”

The decision left the 40 students and former students responsible for filing the lawsuit with recognition of the harms committed but no legal recourse. 

In a press release from REAP, Plaintiff Kalie Hargrove, former student at Lincoln Christian University, was quoted saying, “I am disappointed in the ruling. The actions of the U.S. Department of Education and the U.S. Department of Justice have shown once again that human dignity is optional. I was publicly dehumanized, kicked out of school, received death threats, and had people call for my execution for being a Christian student at a Christian school who happened to be trans, and my government refused to protect me then, and refuses to protect me now.” 

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