My wife and I started dating during college. Eight years later, I can say without reservation that dating her was the best decision that I’ve ever made. I can’t imagine being expelled by my undergraduate institution for that decision.
But for many LGBTQ students at certain religious institutions, this is a very real, and very well-founded fear. The stories of students like Danielle Powell, Christian Minard, and Justin Massey, are well known in advocacy circles. Until very recently, courts consistently held that institutional discrimination on the basis of sexual orientation or gender expression alone was beyond the scope of Title IX protection. Under that interpretation, students have routinely been expelled from religious institutions for identifying as gay, lesbian, bisexual, transgender, or for otherwise existing outside of the binary scheme of conventional sexuality.
While legal and social developments in recent years appeared to be turning the tide for the LGBTQ community (e.g. guidance from the Department of Education; a landmark Supreme Court ruling; investigative findings from the Office of Civil Rights; and a fresh judicial perspective on the scope of Title IX), dozens of institutions are exploiting a federal loophole which was scarcely even acknowledged in its first four decades on the books. Media outlets ranging from Inside Higher Ed to the New York Times have reported on the explosion of applications for religious exemptions to Title IX, pursuant to a provision that exempts schools controlled by religious organizations from Title IX enforcement where its “application would not be consistent with the religious tenants of such organization” (See, 20 USC 1681 and 34 CFR 106.12). Because of the Department of Education’s limited discretion in whether to grant or deny such applications, most are being granted. To date, 59 institutions have applied for the exemption. While these schools are not substantially representative of all religious institutions in either ideology or number, their requests for exemptions impact the 120,000 combined students that they educate. Thus far, the exemptions have successfully been used to expel students for being transgender, to deny transgender students equal access to gender-appropriate housing, or to implement other policies that target LGBTQ students.
The response from many proponents of the exemption is that if students don’t wish to adhere to such institutional policies, then they need not apply. Even opponents of the exemption are seeking solutions to a similar end, urging the Department of Education to publicize the exemptions so that students can know which schools to avoid.
But as student affairs professionals, we must ask: should students who are already marginalized be burdened with the responsibility of dodging discriminatory institutions where those institutions are supported by federal tax dollars? Is this strategy effective or fair for students who may not identify as LGBTQ when they first enroll, but grow to discover more about themselves through their formative college years? While some of the proposed solutions are offered as a realistic and practical first step, they simply aren’t enough. They fail to emphasize that freedom of religious practice is not a license for oppression in the name of religion, and that students deserve the right to seek a religious education from federally-funded institutions without being persecuted for identifying as LGBTQ.
As a student affairs professional, a lawyer, and a Christian, I am of the radical belief that anti-discrimination compliance should not be an obstacle for institutions to circumvent, but rather, a byproduct of treating all people with dignity. Any provision of law that allows such disregard for the dignity of our students has no place in modern higher education. It is my hope that student affairs professionals who feel the same way would agree that the only adequate solution is a legislative repeal of the exemption in its entirety.
Repealing the religious exemption would not suppress the principles of religious freedom contained within the First Amendment. It would reinforce those principles by allowing our LGBTQ students to pursue a religious education without fear of facing consequences for being authentic in their identities. A repeal would send the much-needed message that Title IX does not exist to benefit only female athletes or survivors of sexual assault, but that it exists to create equal access to education for ALL students. A repeal would clarify, once and for all, that all students matter under Title IX. #TitleIXforALL
Should student affairs professionals feel the need to contact their respective federal legislators, the directory information can be found here for the U.S. House of Representatives, and here for the U.S. Senate.
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Podcast With Dean Kenneth Elmore on Student Engagement Efforts