In a highly anticipated decision earlier this month, OCR reaffirmed the broad discretion that religious institutions may have under the religious exemption in Title IX.
Title IX provides that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” However, Title IX allows religious educational institutions, including those accepting federal funds, to claim a religious exemption to the extent that an application of a Title IX provision is inconsistent with the tenets of the religious organization that “controls” the institution.
On February 8, OCR dismissed a Title IX complaint against Brigham Young University, a private Mormon institution, that alleged that the university discriminated against students who were in same-sex relationships. The OCR complaint arose from a controversy over a provision in BYU’s Honor Code. Until February 2020, BYU’s Honor Code included a ban against “all forms of physical intimacy that gives expression to homosexual feelings,” which would be subject to disciplinary action. Initial relief within BYU’s LGBTQ+ community regarding the deletion of the ban quickly gave way to protest when Mormon leadership clarified its position, stating in a follow-up letter that despite its removal, same-sex “romantic behavior” remained incompatible with the principles enshrined in the Honor Code. In a Q&A accompanying the announcement, BYU Honor Code Office Director Kevin Utt failed to confirm whether students would continue to be disciplined for displays of affection in same-sex relationships despite the change in the Honor Code.
An OCR complaint was filed in March 2020 against BYU, prompted by the confusion over the Honor Code changes. On October 21, 2021, OCR formally notified BYU that an investigation was underway. BYU President Kevin J. Worthen wrote a letter responding to OCR on November 19, 2021, asserting the university’s religious exemption from 15 regulatory provisions under Title IX, including provisions covering issues from student admission and recruitment to educational programs, housing, financial aid, athletics, benefits, and employment. Worthen requested OCR’s assurance that BYU was exempt from any requirements under Title IX that relate to sexual orientation or gender identity “to the extent that those requirements are inconsistent with religious tenets of the Church of Jesus Christ, as reflected in the Honor Code,” including “any Title IX requirement that BYU must allow same-sex romantic behavior.” Interestingly, the full text of the Honor Code appended to the President’s letter contained the pre-amended version that restored the “Homosexual Behavior” section at issue.
In a letter dated January 3, 2022, Assistant Secretary for Civil Rights Catherine Lhamon assured BYU that it was exempt from the 15 provisions of Title IX relating to discrimination based on sexual orientation or gender identity. OCR officially dismissed the complaint in a final letter on February 8, concluding that due to BYU’s religious exemptions, OCR lacked the jurisdiction to address the complaint’s allegations. However, both letters reminded BYU that OCR’s assurance did not grant the university exemptions outside of the 15 provisions, nor was the OCR decision intended to have a chilling effect on complaints to OCR based on Title IX.
While OCR’s confirmation of the religious exemption for BYU reaffirms its longstanding tradition of granting religious institutions such exemptions, the OCR decision comes on the heels of Hunter v. Department of Education, a federal class-action lawsuit first filed in March 2021 in which dozens of plaintiffs, including 3 students from several BYU campuses, alleged the Department’s “complicity in the abuses and unsafe conditions thousands of LGBTQ+ students endure at hundreds of taxpayer-funded, religious colleges and universities” by way of Title IX’s religious exemption. In June 2021, the Department of Justice filed a reply in court stating that it would “vigorously defend” the religious exemption under Title IX and that the Biden Administration shared the same “ultimate objective” with religious colleges and universities: “namely, to uphold the Religious Exemption as it is currently applied.” However, within 24 hours the DOJ amended the filing, replacing the word “vigorously” with “adequately” and removing the language regarding sharing the same objective with religious institutions.
With the Hunter case still making its way through the courts, together with the Biden Administration’s renewed commitment to restoring Obama-era definitions protecting LGBTQ+ students under Title IX, it is clear that the issue of Title IX’s religious exemption is far from settled, particularly as it relates to discrimination based on sexual orientation and gender identity.
Please contact our Title IX attorneys if you have any questions. We will continue to keep you posted on new developments in Title IX, including those related to the religious exemption and the responsibilities of private and religious institutions under Title IX.
*Also authored by Jenny Lee, a third-year law student at Loyola University Chicago School of Law, currently a law clerk at Franczek P.C.