The Obama administration and the courts have recently expanded Title IX’s non-discrimination protections to include sexual orientation, gender identity and gender nonconformity. In response, a slew of religious colleges and universities have filed for religious exemptions under Title IX — exemptions that were originally included to allow religious institutions to discriminate against women — in order to save their federal funding while continuing to discriminate.
Last month, the Human Rights Campaign came out with a report on this recent wave of Title IX exemptions. The report does a fantastic job of diagnosing the problem and pointing out the holes in accountability and oversight, but comes up painfully short in the policy recommendations it offers as a solution.
First, the good:
As the report notes, religious institutions of higher education began applying for Title IX exemptions in earnest following a settlement that the Arcadia Unified School District agreed to with a transgender student who had been prohibited from using restrooms and locker rooms consistent with his gender identity. The settlement did not require the school district to admit fault, but it did require the district to “implement school-and district-wide measures to prevent gender-based discrimination based on an individual’s gender identity.” The district was also required to updated its non-discrimination policies and procedures to include gender identity and nonconformity.
As the report reads, this settlement and related court decisions seem to have alerted these schools that they could soon face similar complaints:
Prior to the Arcadia Settlement in July 2013, there were no requests to discriminate on the basis of gender identity. After the settlement, 10 of the schools that received exemptions for gender identity cited the Arcadia Settlement. When the Supreme Court declined to review marriage equality cases from three circuit courts in October 2014,40 the trend expanded to include requests to discriminate on the basis of sexual orientation. Only one educational institution, Spring Arbor University, requested permission to discriminate on the basis of sexual orientation before October 2014.
In short, religious colleges and universities previously didn’t feel the need to request religious exemptions giving them the license to discriminate against LGBT students, but now the writing is on the wall: If they want to keep their right to discriminate, they’ll need a waiver from the government.
HRC’s report goes on to note, as others have, that the waiver requests these colleges submitted to the Department of Education used identical language, having been workshopped in order to maximize their chances of approval. The report also highlights cases of anti-LGBT discrimination that are affected by these exemptions — cases that would amount to illegal discrimination were it not for the waivers these schools are being granted under Title IX.
So there’s clearly a problem, and HRC’s clearly laid it out: There is a coordinated effort on the part of religious colleges and universities to exploit an obscure and weakly-established exemption in longstanding non-discrimination law for the sole purpose of shielding themselves from the legal consequences of discrimination that they’re already engaging in.
But when you scroll down to the policy recommendations section, the report comes up short. In particular, it omits the most obvious solution to the problem it’s identified.
The HRC recommends that the Department of Education require schools to publish information about the scope and characteristics of the exemptions they receive, and that the Department publish its own data on which schools are exempt from what. Currently, no such transparency requirements are in place; information on the volume and scope of exemptions are only available through Freedom of Information Act requests. The HRC also recommends that Congress step in to require the Department of Education to “submit an annual report…on [the Office of Civil Rights’] compliance and enforcement activities.” This, too, would include the volume and nature of exemptions, along with any major compliance problems.
The HRC didn’t bother to recommend that Congress close the loophole that’s allowing for this kind of discrimination at federally-funded institutions to continue in the first place. They just want more transparency regarding how big the loophole is and who’s exploiting it for what. They want us to be able to point and shake our heads at religious schools that insist on discriminating against their LGBT students and faculty, but they offer no suggestions as to how to prevent such discrimination from taking place. Or at least wash the federal government’s hands of it. This is especially frustrating when a simple, obvious solution is staring them square in the face.
As I’ve written before, the case for Title IX’s religious exemption clause rests on astonishingly weak interpretations of the First Amendment’s religious freedom protections. The government can’t interfere with religious organizations’ abilities to exercise their particular faith, but it doesn’t have to fund it. So Wheaton College and Grace University and California Baptist University and the rest of the 56 schools that have requested religious exemptions from Title IX’s non-discrimination requirements can maintain their rights to discriminate based on sexual orientation and gender identity, but the government would be well within its own rights to stop giving them money. In fact, you could make the argument that they’re legally required to cut them off.
So even if getting rid of the religious exemption stands no chance of passing in this Republican-controlled Congress, it’s at least worth recommending that it be discarded, isn’t it? Feasibility aside, is closing this religious loophole a good idea in and of itself?
The Human Rights Campaign doesn’t seem to think so. Instead of taking a stand against federally-funded discrimination, the Human Rights Campaign offered a series of extra regulations and requirements that accept its premise.
If there’s one thing we re-learned this week, it’s that the Human Rights Campaign is “as mainstream as gays can get.” They don’t get to make timid recommendations like this and then get defensive when they’re described as “establishment.”