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McKenzie McCann, a former student at Liberty University and one of the students suing the Department of Education over Title IX's religious exemption.

Kevin Truong for the Religious Exemption Accountability Project

About 30 current and former students at evangelical colleges filed suit last week against the U.S. Department of Education, asking that the religious exemption to a federal law prohibiting sex-based discrimination at educational institutions be declared unconstitutional in how it is applied to LGBTQ students.

The students say the Education Department has failed to protect them from policies that discriminate against sexual and gender minority students at their colleges. The Title IX law, which dates to 1972, prohibits educational institutions that receive federal funding from discriminating on the basis of sex, but it includes an exemption for educational institutions “controlled by a religious organization” if the application of the law “would not be consistent with the religious tenets of such organization.”

“What we’re asking is the department be allowed to do its job and investigate discrimination complaints that are filed by LGBT kids instead of just closing them when there’s a religious exemption asserted,” said Paul Carlos Southwick, the lawyer representing the students and director of the Religious Exemption Accountability Project, a group that advocates for equality for LGBTQ students attending taxpayer-funded religious institutions.

“The government is actually giving its stamp of approval to the discrimination through its federal funding,” Southwick said. “That is a violation of the due process rights and equal protection rights of LGBTQ students. The Supreme Court has made clear that the government can no longer treat gay people in a manner that fails to recognize their dignity as human beings.”

A spokesman for the Education Department said, “The Biden-Harris administration -- and the Office for Civil Rights -- is fully committed to equal educational access for all students.”

The spokesman referenced a recent executive order from President Biden that stipulates "the policy of my Administration that all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity."

However, the spokesman noted that Title IX, which was referenced in the executive order, includes an exemption for institutions controlled by religious organizations.

Southwick said in many ways the department's hands are tied by that law.

"That’s why it’s so important for a judge in our case to make a constitutional ruling," he said. "If a judge says, 'that statute is unconstitutional,' then the department has a lot more freedom."

Christian colleges also see the exemption as a constitutional issue and a matter of religious liberty.

The Council of Christian Colleges and Universities, a group whose membership encompasses many (but not all) of the colleges named in the suit, said in a statement, “CCCU institutions subscribe to a number of biblical convictions, including a historic, biblical understanding of marriage as part of broader religious convictions around human sexuality and gender, and the right of our institutions to teach and instill those convictions in the next generation of believers is protected by the First Amendment.

“Faith-based higher education has always been an essential element of the diversity of the higher education system in the United States -- many of the first colleges and universities in the United States 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 group said.

The council added that "there is zero tolerance for bullying, harassment, and assault at CCCU institutions, and campus leaders understand their responsibility to ensure that all students believe and feel that they are created in the image of God and therefore possess full dignity, value, and worth."

The 33 students in the suit attended or sought enrollment at a variety of evangelical Christian colleges, all of which have policies restricting LGBTQ+ student life.

The institutions -- which are named but are not defendants in the suit -- represent the full political spectrum of evangelical colleges, ranging from those viewed as relatively progressive to those viewed as highly conservative. They include Azusa Pacific, Baylor, Bob Jones, Brigham Young, Cedarville, Clarks Summit, Colorado Christian, Dordt, Eastern, George Fox, Grace, Indiana Wesleyan, La Sierra, Liberty, Lipscomb, Messiah, Oklahoma Baptist, Seattle Pacific and Union Universities; Nyack, Toccoa Falls, Westmont and York Colleges; Fuller Theological Seminary; and Moody Bible Institute. (One of those institutions, Grace University, in Nebraska, has closed down.)

Some of the students suing the Education Department said their admissions offers were revoked or that they were expelled when officials at institutions they attended or hoped to attend learned they were gay.

Some students kept their sexual orientation or gender identity secret on campus and reported being deeply fearful they would be expelled or lose their student housing if found out. Some of the students reported suffering from anxiety or depression as a result.

Several of the plaintiffs indicated they were not comfortable reporting incidents of sexual assault to college officials -- while one student, from George Fox University, said she had reported it and the institution failed to act. (George Fox contacted the student and opened a Title IX inquiry last week in response to the lawsuit.)

Various plaintiffs describe facing harassment on campus.

“Students at Liberty behave in homophobic and anti-queer ways because they know they can do so with relative impunity,” one of the plaintiffs, McKenzie McCann, a former student at the Virginia university, says in the complaint. “Liberty’s culture enables such conduct and makes students feel like Liberty is backing them.”

Liberty officials did not respond to a request for comment.

Journey Mueller, a lesbian and a former student at Colorado Christian University, alleges in the suit that her roommates “locked her in a dorm room and forced her to confess to being attracted to women. Journey's roommates then reported her to the school for breaking the school's policy on sexuality.”

“The school did not discipline Journey's roommates for locking her in her room,” the complaint alleges. “Rather, the school instead severely punished Journey for her sexual orientation, eventually forcing her to leave for mental health reasons. Acting pursuant to its student policies, CCU disciplined Journey by forcing her to participate in conversion therapy with the goal of making her straight.”

Officials at Colorado Christian did not respond to a request for comment. The American Medical Association and the American Psychiatric Association both oppose conversion therapy, which aims to change an individual's sexual or gender identity.

Another plaintiff, Scott McSwain, a 2010 graduate of Union University in Tennessee, also alleges he was coerced into conversion therapy after university administrators learned he was gay.

“Union officials told Scott that he would be thrown out and all of his credits taken away if he did not attend sexual conversion therapy,” the suit alleges. “During his time in conversion therapy, Scott was sexually assaulted by his therapist.”

Union president Samuel W. Oliver issued a written statement in response to the suit.

“At Union University, we believe that all persons have inherent dignity and thus should be treated with kindness and respect,” Oliver said. “We exercise our legally-guaranteed religious freedom in a manner that upholds and reflects this bedrock principle. Faith-based colleges and universities are an indispensable part of America’s diverse higher education landscape. This dubious lawsuit is an ill-considered effort to erase religious schools by denying financially disadvantaged students the ability to attend the college of their choice. It’s a misguided attempt to discard a congressional enactment consistently respected and enforced by every presidential administration -- both Democrat and Republican -- for over four decades. We intend to vigorously protect our interests and encourage the Biden administration to fulfill its duty to defend a law that reflects the best traditions of American liberty.”

Union’s statement was nearly verbatim to one provided by Bob Jones University.

Two of the plaintiffs are current students at Baylor University in Texas, which has long declined to recognize a LGBTQ+ student club. One of the students, Veronica Bonifacio Penales, who identifies as queer, said she has been harassed on campus and online due to her sexuality.

“The school's common response to my reporting hate on campus is that I should go to counseling,” she says in the lawsuit. “As a result, I stopped reporting incidents.”

Baylor said in a statement that it “maintains certain rights to exercise its freedom of religion under the U.S. Constitution and other federal laws without interference by the government. This includes exemptions for religiously affiliated institutions that uphold traditional religious beliefs about marriage and sexuality. As part of our Christian mission, Baylor continues to strive to provide a loving and caring community for all students, including our LGBTQ students.”

Adam Laats, a professor of education at the State University of New York at Binghamton, who wrote a book, Fundamentalist U (Oxford University Press, 2018), about evangelical higher education, said Christian colleges face strong pressures from administrators, alumni and students who don't want the institution to recognize LGBTQ rights.

"I sympathize with the students, but it’s sort of this perfect storm of influences that makes it a very difficult issue," Laats said. "On the one hand, there are sincere, strongly held religious beliefs among the administration, the faculty, the alumni that for religious reasons they think this is a core part of their identity as an institution. So that’s a really tall hill to climb, and then even if you get more cynical or market-based in your thinking, even if that weren’t the case, the schools have a financial life-or-death issue with this.

"You take a school that has this distinctive thing that it offers students, a religious niche in the minds of potential tuition-paying families," Laats said. "A big part of that niche is that it trains students in what they call biblical sexuality. Why would a family shell out to go to Westmont or Azusa Pacific instead of going to a public university or a cheaper university if the school is no longer guaranteeing this important part of their niche appeal?"

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