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The Council of Christian Colleges and Universities filed a motion to intervene in a lawsuit that seeks to overturn a religious exemption to Title IX, the federal law that prohibits sex-based discrimination in education.

The lawsuit, filed in March by a group of LGBTQ+ current and former students at a variety of Christian institutions, argues that an exemption for religious colleges included in the Title IX statute is unconstitutional. It contends that the Department of Education is duty-bound to protect LGBTQ+ students at all federally funded colleges, including religious colleges, from discrimination.

“The religious exemption to Title IX, however, seemingly permits the Department to breach its duty as to the more than 100,000 sexual and gender minority students attending religious colleges and universities where discrimination on the basis of sexual orientation and gender identity is codified in campus policies and openly practiced,” the lawsuit states.

The lawsuit names only the Department of Education and a department official as defendants, but Christian colleges are asking to join the suit so they can defend the religious exemption. Three Christian colleges already filed a motion seeking to intervene as defendants, and the CCCU filed a similar motion this week.

“CCCU comprises a wide variety of religious colleges, many of which have core religious tenets that conflict with Plaintiffs’ understanding of Title IX,” the motion states. “Thus, to CCCU’s member colleges, the Title IX religious exemption has proven indispensable as contemporary notions of sexuality and gender depart, often substantially, from the religious beliefs that animate every aspect of Christian campus life. Because it contests the constitutionality of that exemption, this case presents an existential threat to religious higher education: Removing Title IX’s religious exemption, as applied to LGBT students or otherwise, will deprive religious colleges of the oxygen that gives them life by forbidding them, on pain of losing federal assistance for their students, from teaching and expecting adherence to their core religious beliefs.”

The CCCU motion further argues that the Biden administration is unlikely to adequately represent the Christian colleges’ interests "because the current Administration has already promised to ‘reverse’ what it calls the ‘misuse of broad exemptions’ to ‘discriminate against LGBTQ+ people’ -- a characterization of religious exemptions that the proposed intervenor categorically rejects.” 

Paul Southwick, a lawyer for the LGBTQ+ students who sued, called CCCU's motion "premature" and noted "The Department of Education has not indicated whether they will defend the Title IX religious exemption or whether they will be neutral or align with the plaintiffs. I do hope that the CCCU is right and that the Department of Education chooses not to defend the religious exemption. But we don't know the answer to that yet.

"Regarding the merits of the CCCU motion, other religious colleges and institutions raised many of the same First Amendment issues in the 1980s when they defended their racist policies on the basis of sincerely held religious beliefs," Southwick added. "The U.S. Supreme Court rejected those arguments in 1983 in the case of Bob Jones University v. United States, and courts should reject them again now. The government is not required to subsidize discrimination, whether the discrimination is on the basis of race or on the basis of sexual orientation or gender identity."