Universities seek Federal right to trans discrimination

BY ANDY BIRKEY  |  Four private California universities are among three dozen nationally that have requested the federal government waive laws intended to protect LGBT students.  The California schools — Biola University in La Mirada, Fresno Pacific University in Fresno, William Jessup University in Rocklin and Simpson University in Redding — received a total of more than $20 million in federal education monies in 2014. The universities are affiliated with Christian denominations and are asking the U.S. Department of Education to waive portions of Title IX that might apply to students and staff who are transgender or who are in same-sex relationships.

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So far only one of the four schools in California, Simpson University, has been granted a waiver from Title IX by the Federal government.  26 others have been granted nationwide.

Title IX was implemented in 1972 to combat gender discrimination in education.  The law authorizes the Department of Education to waive Title IX requirements for educational institutions “controlled by a religious organization” if compliance “would not be consistent with the religious tenets of such organization.”

Issuance of these “right-to-discriminate” waivers was relatively rare until last year.  In 2014, however, the Obama administration issued guidance on Title IX discrimination prohibition that “extends [Title IX protection] to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.”   In response, an increasing number of colleges and universities have sought Department of Education permission to expel or otherwise discriminate against transgender and gender-nonconforming students.  Waivers have also been sought, and issued, to allow discrimination against gay, lesbian and bisexual students.

The Department of Education has granted waivers to 27 colleges and universities in 17 states over the past 18 months.  The institutions receiving the waivers enroll more than 80,000 students and received $130 million in federal research grants and student aid in 2014.  Nine petitions are pending as of August 2015.

Training schools to discriminate

The rapid increase in schools that have applied for Title IX exemptions comes at the same time conservative Christian groups are hosting trainings and providing documents that schools can use to prove their “sincerely held religious beliefs” about LGBT people.

On Sept. 3, 2015, the Christian Legal Society hosted a webinar with the Council for Christian Colleges and Universities, the Association of Christian Schools International, and the Association for Biblical Higher Education.

Jim Davids, a law professor at Pat Robertson’s Regent University, listed the perceived threats against Christian schools including “two former students dismissed for lesbianism” who sued a Christian school and “a young man who thought he was a woman sued California Baptist University, when the school dismissed him for lying on his admission application that he was female.”

“Within the last couple of years two students claiming to be a different gender than their anatomy have filed complaints against CCCU schools,” Davids added.

Shapri LoMaglio, Vice President for Government and External Relations at the CCCU, called the Supreme Court decision legalizing same-sex marriage “a sea change” for housing issues at Christian colleges, and noted the Department of Education’s extension of sex discrimination to include gender identity. She told attendees that the best offense is a good defense, and one defense is to gain exemption from Title IX.

“There is an ability for Christian colleges and universities to apply for an exemption from the Department of Education to this specific requirement of Title IX and the institution can do that by writing a letter to the Department of Education detailing the specific provision in Title IX they would like exemption from and their theological beliefs that create conflict with their ability to execute that specific provision.”

She added, “What’s most important to know is that there is an exemption and it is highly advisable to apply for one.”

Davids and LoMaglio, as well as Christian Legal Society’s Kim Colby and John Cooley of the CooleySublettPLC law firm, also provided guidance to college and universities on how to legally discriminate against LGBT students, faculty, and staff.

In addition to the webinar, the CLS has developed sample language for schools to include in their official policies; if a school hasn’t yet developed a student handbook policy about its “sincerely held religious beliefs” about transgender students, they can copy CLS’. Many schools have done just that.

Ohio Christian University, Belmont Abbey, Biola, Oklahoma Baptist University, and Oklahoma Wesleyan University have language either identical or remarkably similar to the CLS sample language.

In addition to CLS, the CCCU has been hosting trainings and conferences since late 2014 that delve into the issue of Title IX exemptions.

Entire denominations are issuing resolutions in order to keep LGBT students out of their affiliated colleges and universities. For example, Baptist General Convention of Texas adopted a resolution in February on the “transgender agenda.” That resolution was aimed directly at garnering schools a Title IX exemption.

“Some of our institutions may desire to seek a religious exemption to the Title IX requirement, and they asked that the convention speak specifically to the issue,” Ferrell Foster, director of ethics and justice for the Texas Baptist Christian Life Commission, said in statement at the time “The resolution approved by the Executive Board represents both the truth of the biblical testimony regarding gender and the love of Christ for all people.”

In fact, “the request to consider the resolution came from several Texas Baptist university presidents” who said they needed to apply for a Title IX exemption in order to deny accommodations for transgender students, the Convention website stated. That resolution stated “great concern with the emergence of the transgender agenda and the notion that one’s gender is determined psychologically, not biologically” and “some people today are expressing a desire to identify themselves with the gender, which differs from their biological gender… Some of these persons are seeking to function in the broader society as if they are members of the gender that differs from their biological gender.“

Responding to the Exemptions

“The trend of religiously affiliated, but publicly financed, colleges receiving exemptions from the U.S. Department of Education in order to discriminate against LGBTQ students and employees is disturbing,” attorney Paul Southwick, who has represented students expelled for being LGBT,  told The Column. “While we are seeing increased protections for transgender, intersex and LGB students through Title IX, we are also seeing the protections of Title IX gutted at the very institutions where students need those protections the most.”

Southwick has some advice for students who find themselves disciplined or expelled from any college or university simply because of their LGBT identity:

“Students should file an internal appeal of any decision to expel, suspend or discipline them,” he said. Most institutions have an appeal process. Southwick advises students to hire a lawyer for assistance with appeals.

“Additionally, students should file a Title IX complaint with the U.S. Department of Education’s Office of Civil Rights. Southwick said. “This is important and should always be done. Even if their college has a religious exemption from Title IX, the exemption may not apply or it may not stick after being challenged.”

He also suggests that students file a complaint with accreditation institutions, and to check state and local nondiscrimination laws.

Shane Windmeyer, Executive Director of Campus Pride, an organization that works with students and schools to create more LGBT-inclusive campuses, said that “anti-LGBTQ religion-based bigotry and intolerance is not a Christian teaching or belief.”

Windmeyer says of the nearly $130 million in annual taxpayer funds flowing to these schools through grants and student aid, that the money should come with strings attached.

“If a college receives public funding, it should have to follow public laws,” he said. “The government would be perfectly within its rights to make taxpayer funded aid to these colleges contingent on compliance with generally applicable nondiscrimination laws.”

He added, “If a college wished to continue discriminating against LGBTQ students and employees, it could do so on its own dime.”

—  Andy Birkey is an editor at The Column is a nonprofit LGBT media organization based in MN.

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