HRC report on anti-LGBT religious exemptions under Title IX ignores most obvious solution

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:

Wheaton College, via Stevan Sheets / Flickr

Wheaton College, one of the colleges that recently requested a religious waiver under Title IX, via Stevan Sheets / Flickr

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.

And…that’s it.

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.”


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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  • Butch1

    Exactly so; if you like “privatization” so much, then let’s start with your religious school and let you fund them and not the taxpayer. Perhaps you can place that money in the “stock market” and show us how that works before we ever trust you to ever handle our Social Security. ;-) When the insider traders decide to crash the market and grab your money we’ll be there to pat your hands and say, “There, there.” Very sorry, but we cannot bail out any more people; we stopped doing that the last time the banks suckered us into it.”

    Actually, we haven’t changed a damn thing since the last time and it isn’t a matter of “if” the stock market crashes again, but “when.” It also means that they will be back with their hat in hand and the other one out asking to be bailed out once again since our government didn’t do a thing to fix this. Perhaps we need to vote Sanders into office so he can at least try and start breaking up these behemoth banks asap! I guarantee that we are going to see this again!

  • Butch1

    I have always agreed with your points. They are just like AIPAC when it comes to twisting the arms of the Senators and Representatives into blocking any person who even suggests that they get rid of the tax-exemption for churches. They would ruin your career in both cases; you would be anti-christian and anti-Semitic just for suggesting to not want to support or give millions of dollars away.

    I think it’s past time that we drag these two thugs out into the light of day and expose them for the criminals that they really are.

  • emjayay

    I suspect that there’s a big difference between Liberty U or other similar colleges and any Jesuit university. OK, more than suspect. Very different things.

  • Don Chandler

    So in order to bring christians together (ecumenism) you need something to discriminate against: namely gays. Trump is right, it’s all about losing your power…but it’s the power to discriminate against others that you lost. You can still go to your jobs. You can still congregate without any issues. You can still speak your minds. You can still find a place to live. Surely your religion is based more than on discrimination against gays?

  • nicho

    You can never say this enough: “Without religion, good people will do good things and bad people will do bad things. But to get good people to do bad things, you need religion.”

  • Christian colleges are the only colleges in the country that are allowed to expel students for being gay while taking those same students’ Pell Grant money. That is privilege, and the loss of that privilege is not discrimination.

  • nicho

    Christians? You mean the most pampered group in the US? The people who are filled with hate and want to discriminate against everyone? Those people? If Christians don’t want to follow the law, they should stop taking taxpayer money. Oh, and they should become taxpayers themselves. No more tax exemptions for religions.

  • NWaff

    Another piece that promotes discrimination against Christian as a demonstration of “non-discrimination”

  • The_Fixer

    I think church-sponsored schools should get no tax money, especially if they want to go against the principles of equality and fair play. They should have to fend for themselves.

    What ever happened to the miracle of God here? Surely if the government no longer sends them money, then God will make up the difference, right?

    Oh wait, the reason why they went on the government dole is because their God didn’t provide.

    But I am sure he can, just like the prosperity gospel dictates, if they’d only wish for it and pray for it with enough fervor. I hear speaking in tongues helps.

    Quit perpetuating these frauds by funding them. If they feel so passionately about their beliefs, scripture and all that, then they will be motivated to provide for themselves. They can pull themselves up by their bootstraps as well as anyone.

    Start pulling, all of you institutions of supposed higher learning. Prove what you believe.

  • dave3137

    Excellent! Maybe you can’t stop bigotry, but you definitely do NOT have to fund it. And the defeatism of “oh, a stronger measure wouldn’t pass Congress” is just that — defeatism. Wouldn’t want to rock the boat, would we?

  • Don Chandler

    It’s about funding religious propaganda. It’s part of how government controls people…it creates ‘nice’ obedient and devoted people. Lot of families want their kids to have a religious background to impede unruliness. But government often sees the masses as something that needs a bit of religion or control through fear and coalescence. So folks like Cruz and Huckabee and GWB might have some sway. And with sway, the folks in religion get more handouts in the form of faith-based initiatives or tax exempt status… money in the coffers. It’s tough for legislators to stand up to these hungry religious organizations when they have been giving them money to bring in the followers or voter power. The religious organs tend to grow very powerful with the votes they can bring or deny. You’ll know the warning signs, county clerks shouting out “gods authority” and calls for state laws protecting the right to discriminate and the growing challenge against science through divine knowledge…maybe rising seas or record setting annual warmth. I don’t know. Non-believers need to stand their ground ;)

    I had an argument with a friend in the Classics. I said, “shouldn’t biblical studies be considered part of the classics since mankind has used it forever to control the masses?” “NOOOO! They get too much money. Fuck that!” [something like that] He’s right, they know no limits. I guess the HRC thinks religious organizations are shy little wallflowers and if they have to shout out their agendas, they will feel the public pressure against their obvious discriminatory intent. But Cruz doesn’t seem shy. Huckabee doesn’t seem shy. Rubio isn’t shy. Kim ain’t shy. Liberty Counsel isn’t shy

    [Liberty Counsel is a tax-exempt[1] legal organization that specializes in evangelical Christian litigation. Liberty Counsel was founded in 1989 by its chairman, Mathew D. Staver, together with its president, Anita L. Staver, his wife. Both are attorneys. In October 2015, the Southern Poverty Law Center listed Liberty Counsel as a hate group–wiki]

    Transparency? I think they are quite transparent and making a living at transparency.

  • Acceptance of taxpayer funding ought to be the bright line. Want to be a ‘religious school’? Fine, no taxpayer money, because doing so is a violation of the 1st Amendment’s prohibition against government supporting any religion.

    Honestly though, I begin to wonder if any self-proclaimed religious school should be granted accreditation if they are as much as admitting they allow bronze and iron age mythology to dictate their curriculum and cultural practices. I mean, presumably some or most of these so-called religious colleges and universities are teaching their students the Earth is only 6000 years old and that the sun shines because Jesus. That isn’t education; it’s indoctrinating anti-reality ignorance.

    But really, Title IX is clear enough. It’s long past time for these places that want to be exempted from anti-discrimination laws to then be exempted from receiving a single penny of federal funding.

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