Exempt and Secret

56 religious colleges have asked Education Department to let them discriminate on basis of sexual orientation or gender identity, and most requests have been approved. Should the exemptions be publicized?

December 21, 2015

Last year, many advocates for gay and transgender students were surprised to learn that the Education Department had granted exemptions to first one and then a few religious colleges from parts of Title IX of the Education Amendments of 1972 that, in theory, bar discrimination in areas such as housing, admissions and educational opportunities.

Title IX is well known for requiring colleges and universities to provide equal opportunities in athletics to male and female students, and for requiring colleges to take steps to prevent and punish sexual assaults. But the law covers many other forms of discrimination -- at least if colleges aren't exempt. Title IX has a specific exemption for religious colleges if they say the law requires them to violate their religious beliefs. Generally, colleges must tell the Education Department that they are religious and that certain practices violate their beliefs, and the Education Department grants an exemption.

On Friday, the Human Rights Campaign released a report saying that, since 2013, 56 colleges and universities -- which together educate nearly 120,000 students -- have requested religious exemptions under Title IX. Most of the requests have been granted or are in the process of being granted. The most common requests are for exemptions related to housing, athletics and facilities. One of the earliest exemptions, for example, came in the case of George Fox University, which wanted to preserve its right to deny a transgender student the right to live in men's housing, consistent with his gender identity.

According to the report, the largest group of religious colleges requesting exemptions are those affiliated with Southern Baptists, but exemptions have been sought by a variety of other groups as well. Campus Pride, a group that advocates for gay and transgender students, maintains a "shame list" of colleges that have requested or received exemptions. The colleges seeking exemptions have generally not publicized their requests, but when asked have pointed to a clear Title IX exemption that they say respects their religious freedom.

The report from the Human Rights Campaign doesn't dispute that the Education Department has "little discretion" in granting the exemptions. But the report argues that there is danger in these exemptions granted without public knowledge of them. While the Education Department has released documents granting exemptions when it has received Freedom of Information Act requests from journalists and others, it hasn't made efforts to broadcast its actions or required colleges to do so.

The Human Rights Campaign is calling on the department to start announcing when it grants exemptions, to issue annual reports on the topic and to require colleges receiving exemptions to publicize them as well -- and also to indicate the parts of Title IX that still apply to these colleges and their students.

Such moves are important to protect students, the report argues. "Many LGBT students may find themselves enrolled at schools that are granted the legal right to discriminate against them partway through their degree program," the report says. "Students should have the opportunity to make determinations about school attendance based on full information regarding a university’s ability to legally discriminate against the student."

The Education Department said it is considering at least one of the steps being sought by the Human Rights Campaign.

Early next year, the department said, it may start posting on its website exemption requests and responses. But that may be contingent on the availability of funds.

Where Congress and the courts have given clear directions to the department, officials said, they will push as hard as they can. "Congress did exempt from Title IX’s protection institutions that are controlled by religious organizations, to the extent that Title IX conflicts with their religious tenets. We are committed to protecting every student Congress gave us jurisdiction to protect, to the fullest extent of the law," said a statement from Catherine Lhamon, assistant secretary of education for civil rights.


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