Judge Dismisses Challenge to Title IX Religious Protection

A federal judge recently dismissed a class action lawsuit threatening religious liberty protections in Title IX of U.S. education law. While Judge Ann Aiken of the U.S. District Court in Eugene, Oregon, suggested LGBT plaintiffs had proved subjection to unequal treatment at religious institutions of higher education, she did not find that they had presented an adequate case to throw out the statute’s religious exemption.

In the early months of the Biden administration, an LGBT advocacy organization filed this lawsuit against the U.S. Department of Education. The group — the “Religious Exemption Accountability Project” — wanted the government to toss a decades-old religious exemption in Title IX, which prohibits discrimination on the basis of sex in education programs benefiting from federal financial aid. The exemption has been of particular importance to faith-based colleges and universities as “sex” has been reinterpreted by progressives to include “sexual orientation and gender identity.”

Because the schools who would be affected by the case were not actually named in the original lawsuit, they could not defend themselves until Alliance Defending Freedom, wary of the Biden administration, successfully petitioned for Corban University, William Jessup University, and Phoenix Seminary to intervene in the case. The Council for Christian Colleges and Universities (CCCU) similarly acquired intervenor status.

"No court should grant a radical request to rewrite federal law and strong-arm religious colleges by stripping their students of much-needed financial aid,” said ADF Senior Counsel David Cortman in October 2021.

CCCU highlighted its members sincerely held beliefs on human sexuality and gender, as well as their transparency on such matters with students who freely choose to participate in their school communities. The association warned that a ruling against the religious exemption would threaten federal financial aid for their members’ students — 70 percent of whom receive such assistance — and the brunt of such a blow would fall disproportionately on low income, minority, and first generation college students.

“Faith-based higher education has always been an essential element of the diversity of higher education in the United States — many of the first colleges and universities in the country were religious — and it is crucial that students continue to be given the opportunity to choose and access the college of their choice in a diverse educational landscape,” the CCCU said.

As Hunter v. U.S. Department of Education progressed, the district judge studied a “voluminous briefing” detailing alleged harms against LGBT students at faith-based schools that ranged “from academic exclusion and denial of student housing, to coerced conversion therapy, to prohibition from forming LGBTQ+ support groups on campus.” She recognized “injuries” but also found that the plaintiffs had “not alleged the elements necessary to state a legal claim on the merits of their action.”

“Exempting religiously controlled educational institutions from Title IX… is substantially related to the governments objective of accommodating religious exercise,” Judge Aiken ruled.

ADF’s Cortman welcomed the ruling noting that Title IX “explicitly protects the freedom of religious schools to live out their deeply and sincerely held convictions.” Meanwhile, the LGBT plaintiffs are considering options for appeal.

ECFA will continue to monitor developments in this case and others critical to our members’ religious liberty.


This text is provided with the understanding that ECFA is not rendering legal, accounting, or other professional advice or service. Professional advice on specific issues should be sought from an accountant, lawyer, or other professional.

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