Freedom of Religion or Free to Discriminate?

When are religious institutions allowed to ignore federal laws that may conflict with their faith?

Since the Supreme Court's Hobby Lobby decision last month, which upheld the right of some closely held businesses owned by religious individuals not to finance contraception coverage for employees, the issue has been gaining additional attention. And Christian colleges (while not covered directly by that decision) are key places for this debate.

In a move being denounced by advocates for gay, lesbian and transgender students, the U.S. Education Department has granted George Fox University an exemption to parts of Title IX of the Education Amendments of 1972, which bars gender discrimination by educational institutions. And based on that exemption, the department rejected a Title IX complaint filed on behalf of a transgender student (who identifies as a man) whom the university refused to let reside in male student housing. The recent move by the Education Department to say that Title IX covers transgender students gave their advocates great hope -- and the George Fox decision now has many of them worried about the ability of religious colleges to discriminate against transgender (and possibly other) students.

And on Friday, a California judge ruled that California Baptist University was within its rights as a religious institution to kick out a transgender student who identifies as a woman and applied to the university as a woman. But the judge ruled at the same time that the university could not bar her from public spaces on campus or from its online educational programs. While the student's lawyers were disappointed that her expulsion was upheld, they said it was a victory that the court did not grant a religious university a blanket exemption from a state civil rights law.

The actions involving George Fox and California Baptist are both expected to be appealed as the legal and political debate heats up over the rights of transgender students, and of gay and lesbian students and employees, at religious colleges.

Request for Housing at George Fox

The George Fox student, who goes by the name Jayce, started to gather attention in April. He asked to live in male student housing, but was told he could be housed only in a single apartment -- separated from male students. His mother organized a petition that publicized his case and Jayce's lawyer filed a complaint with the Education Department. Title IX regulations stipulate that a recipient of federal funds "may not apply different rules or regulations, impose different fees or requirements, or offer different services or benefits related to housing." And last year, in a case involving a California school district, the U.S. Education and Justice Departments determined that schools and colleges cannot bar transgender students from facilities intended for one gender.

George Fox has said that its offer of a private room was appropriate, while Jayce has said that he should be entitled to live with male friends, just as other male students have that right.

Paul Southwick, Jayce's lawyer, said that he has had discussions with George Fox about ways to resolve the dispute, and that he was stunned when the Title IX complaint was rejected by the Education Department last week. The department cited an exemption it had granted in May to George Fox from Title IX regulations involving housing, facilities such as restrooms and locker rooms, and athletics. The exemption to these provisions applies "to the extent that they require a recipient to treat students consistent with their gender identity, but doing so would conflict with the controlling organization's religious tenets," according to a letter to George Fox from Catherine E. Lhamon, assistant secretary of education for civil rights.

In the letter, Lhamon quotes from the university's request for the exemption, which came in a letter from Robin Baker, the president. The letter notes that George Fox is affiliated with the Meeting of Friends (a branch of the Quaker movement), and that four of the university's seven trustees must be Friends. Further, Baker asserted that the university's commitment to a "Christ-centered community" means that it believes that all people are either male or female from birth and that George Fox "cannot in good conscience support or encourage an individual to live in conflict with biblical principles."

Southwick said that he respected the right of colleges that do not take federal funds and that educate only members of a single faith to follow their religious traditions. But he noted that George Fox does take federal aid and educates students from non-Quaker faiths, even if all employees must be Christian and a "lifestyle statement" applies to all.

"It's unfair to invite a student to apply and to extend aid and then to deny him appropriate on-campus housing," said Southwick. "It's not like the student has broken a rule. He's just being himself. The real crime here is that George Fox has requested an exemption that allows it to get public money while discriminating," Southwick said. He predicted that other colleges with religious ties would do the same, and use the exemptions to deny rights to gay, lesbian and transgender students. "They will do a lot of harm. They will be abused," he said.

Shane Windmeyer, executive director of Campus Pride, said via email that "what is frightening is that any private college is now encouraged to use 'religion’ as a means to justify discrimination. This is plain wrong -- and it’s a slippery slope with young people's lives as stake. Education should be a safe space for all students."

He said that the Education Department should have let the negotiations between Jayce and George Fox play out, perhaps to everyone's satisfaction, before providing an exemption that removed George Fox's incentive to compromise.

He said that because transgender students face threats of harassment and physical violence in their lives, their requests to live where they feel safe should be paramount. "At the end of the day we must remember this is an issue of safety for transgender young people."

Dorie Nolt, press secretary at the Education Department, released this statement: "The Department of Education enforces Title IX's prohibitions against discrimination on the basis of sex, including gender identity, in any education program or activity operated by a recipient of federal taxpayer dollars. However, Title IX also provides an exemption for institutions controlled by religious organizations where the institution asserts that its religious tenets conflict with the law. We are committed to protecting all students from unlawful discrimination consistent with these statutory requirements."

George Fox, in response to a request for comment, referred to a statement that said that the university was within its rights to seek the Title IX exemption. "Providing appropriate housing for transgender students continues to be a challenge at religious and non-religious institutions across the country," the statement said.

Kicked Out at California Baptist U.

The California Baptist case involves a student known as Domaine. She was admitted with a scholarship in the fall of 2011. But the university learned that she had appeared on a reality television program to discuss her transgender identity. Then, based on the idea that she was a "fraud," the university expelled her and banned her from the campus and all campus activities. Upon internal appeal, the university said she could attend public events on the campus, but otherwise did not change the finding.

Her lawsuit against California Baptist is based on the Unruh Civil Rights Act, which bars various forms of discrimination, including discrimination based on gender identity.

The California superior court judge's ruling focused on the extent to which the law applied, given that California courts had previously ruled that it did not apply to organizations whose primary mission is "the inculcation of a specific set of moral values." The judge ruled that the residential academic program fit that model and thus was exempt. He noted that the president and all trustees must be members of Southern Baptist churches, that all faculty must be Christian, and that students are expected to attend chapel and must abide by "a strict moral code." For these reasons, the judge found that the university's undergraduate, on-campus program was exempt from the law.

But the judge also said that some programs -- such as the library, counseling center, art gallery and online courses -- "have little or no values-based component. They do not require patrons or participants to adhere to any moral code of conduct. They are essentially indistinguishable from similar commercial activities in the community." So these programs are covered by the law, the judge ruled. Because California Baptist barred Domaine from those programs because she is transgendered, the university violated the civil rights law, and must pay her $4,000, the judge found.

California Baptist did not respond to a request for comment.

Southwick, also the lawyer in this case, said that Domaine would appeal the parts of the ruling that went against her. But he said that the findings against California Baptist were significant because a transgender student won a case against a religious university. "Today the court recognized that transgender people are not frauds and that any business that treats them that way, is in violation of the state’s antidiscrimination statute," he said. "The court refused to recognize a Hobby Lobby-type exemption for the university, at least with respect to online courses and parts of the university that are open to the public."

Broader Debate About Exemptions

The disputes at California Baptist and George Fox come at a time of intensifying debate about exemptions for religious colleges. Just days after the Hobby Lobby decision, the U.S. Supreme Court barred the government from requiring Wheaton College of Illinois to fill out a form to be exempt from the new federal requirement that employers provide health insurance coverage that includes contraceptive coverage.

Also a subject of debate is President Obama's planned executive order barring discrimination based on sexual orientation or gender identity by federal contractors. A group of leaders of evangelical organizations -- including Michael Lindsay, president of Gordon College -- wrote Obama asking that religious entities be exempt from the order. The letter said that such an executive order would prevent some religious organizations from working with the government. But the letter said that the issues were more than financial.

"While the nation has undergone incredible social and legal change over the last decade, we still live in a nation with different beliefs about sexuality," the letter says. "We must find a way to respect diversity of opinion on this issue in a way that respects the dignity of all parties to the best of our ability. There is no perfect solution that will make all parties completely happy."

Exemptions for religious colleges to civil rights laws have been controversial before gay civil rights issues received much attention at all. Bob Jones University, for example, maintained (unsuccessfully) in an argument to the U.S. Supreme Court in 1982 that it should be permitted to have tax-exempt status even though it at the time banned interracial dating. The university said that its ban on interracial dating was based on its view of Christian teachings.

As word has spread of Gordon College's participation in the letter, reaction has been intense -- much of it negative in Massachusetts, where Gordon is located and where attitudes are generally supportive of equal rights for gay people. (Gordon does not bar gay people from being students or faculty members, but they would have to be celibate, as would be the case as well for anyone who is not in a heterosexual marriage.) "[S]exual relations outside marriage, and homosexual practice, will not be tolerated in the lives of Gordon community members, either on or off campus," says the college's behavioral standards.

The City of Salem, Mass., citing the college's policies about gay people, killed a contract under which Gordon has operated the city's historic Old Town Hall. And now Gordon's accreditor, the New England Association of Schools and Colleges, is reviewing whether Gordon's policies violate NEASC's anti-bias rules. One of NEASC's standards states: "The institution adheres to non-discriminatory policies and practices in recruitment, admissions, employment, evaluation, disciplinary action, and advancement."

Patricia Maguire Meservey, president of Salem State University, was among those who spoke out against the religious leaders' letter. "As a university president, as a strong supporter of the LGBTQ community here at Salem State, the city of Salem and beyond, and as a person who believes that discrimination is wrong in all circumstances, I am deeply troubled by this request and the potential ramifications if approved," she wrote. "And while I can understand a religious organization’s wishes to uphold their core religious values, I do not believe those values trump the basic human right to be treated equally and fairly. If the history of Salem has taught us anything, it is the destructive power of intolerance."

Gordon officials could not be reached for comment. But President Lindsay published a letter on the Gordon website about the controversy.

"Be assured that nothing has changed in our position regarding admission or employment. We have never barred categories of individuals from our campus and have no intention to do so now. We have always sought to be a place of grace and truth, and that remains the case. As a Christian college, we are all followers of Christ. As long as a student, a faculty member, or a staff member supports and lives by our community covenant documents, they are welcome to study or work at Gordon," Lindsay wrote. "In general practice, Gordon tries to stay out of politically charged issues, and I sincerely regret that the intent of this letter has been misconstrued, and that Gordon has been put into the spotlight in this way. My sole intention in signing this letter was to affirm the college’s support of the underlying issue of religious liberty, including the right of faith-based institutions to set and adhere to standards which derive from our shared framework of faith, and which we all have chosen to embrace as members of the Gordon community."