This article has been updated.
Some LGBTQ advocates were disturbed by the filing, which came Tuesday in U.S. District Court in Oregon, saying its wording went further than necessary, further than just an obligation to defend an existing law. They want the administration to agree with them that it’s unconstitutional for federally funded schools to discriminate against LGBTQ people, and that the exemption isn’t defensible.
“What this means is that the government is now aligning itself with anti-LGBTQ hate in order to vigorously defend an exemption that everyone knows causes severe harm to LGBTQ students using taxpayer money,” Paul Carlos Southwick, director of the Religious Exemption Accountability Project, which filed the case in March on behalf of dozens of current and past students at conservative religious colleges and universities, told The Washington Post on Tuesday. “It will make our case harder if the federal government plans to vigorously defend it like they have indicated.”
To others, including supporters of President Biden, the administration had no other option, since federal civil rights law regarding education — called Title IX — exempts religion. They noted the purpose of the department’s filing, which was to block conservative religious groups from becoming parties to the lawsuit, arguing the agency can defend the exemption on its own.
However, in a possible sign of the pressure on the administration, the Justice Department amended the document Wednesday, taking out the word “vigorously” to describe its defense of the religious exemption and retaining multiple uses of the word “adequate.” It removed wording that said the Education Department and the Christian schools “share the same ‘ultimate objective’ … namely, to uphold the Religious Exemption as it is currently applied.”
In a Wednesday piece entitled “No, the Biden Administration Isn’t Betraying Its Support for LGBTQ Rights,” Slate legal writer Mark Joseph Stern said the Justice Department was “trying to prevent a Christian organization from … mounting extreme arguments.” Stern said the religious exemption to Title IX isn’t “blatantly, invidiously unconstitutional” and thus the administration has no choice but to defend it.
Regardless of the change in wording, the legal matters at the crux of the lawsuit remain the same. At issue in Hunter v. the U.S. Department of Education are 40 LGBTQ students at conservative religious colleges and universities who are suing the government for its role in providing funding to schools with discriminatory policies. The schools say they have a First Amendment right to promote traditional religious beliefs about sexuality and gender.
“The Plaintiffs seek safety and justice for themselves and for the countless sexual and gender minority students whose oppression, fueled by government funding, and unrestrained by government intervention, persists with injurious consequences to mind, body and soul,” reads the March suit, filed in U.S. District Court in Oregon. “The Department’s inaction leaves students unprotected from the harms of conversion therapy, expulsion, denial of housing and healthcare, sexual and physical abuse and harassment, as well as the less visible, but no less damaging, consequences of institutionalized shame, fear, anxiety and loneliness.”
Billions of dollars in federal money for things such as scholarships and grants flow through the Education Department.
But the Council of Christian Colleges and Universities, whose members include many of the schools named, said in a May motion that the Biden administration couldn’t be trusted to adequately defend the schools’ beliefs, and “may be openly hostile to them.” Its motion asked to intervene and be part of the case.
The Justice Department and the Education Department on Wednesday declined to comment. However, in a March blog item, Suzanne B. Goldberg, acting assistant secretary of the Education Department’s Office for Civil Rights, wrote in recognition that LGBTQ students suffer discrimination, harassment and violence.
“It also underscores our responsibility to ensure that educational institutions are providing appropriate support for students who have experienced sex discrimination; and to ensure that their school procedures are fair and equitable for all,” Goldberg wrote.
It wasn’t immediately clear what the Biden administration’s thinking is on the issue that is at the center of several major recent Supreme Court cases: tensions between religious liberty and anti-discrimination laws. Biden is also in the midst of pressing for passage of the Equality Act, a sweeping measure that would add gender identity and sexuality to the groups protected under the Civil Rights Act, while significantly weakening exemptions for religious groups and people.
The filing said in a note that “To be sure, the Federal Defendants have not yet filed any pleading or motion setting forth their legal position in this case.”
Also, the Justice Department is expected to defend federal laws.
The amended filing Wednesday also noted that the Education Department is undergoing a “comprehensive review of its regulations ... until that process is complete, it would be premature to conclude that the government is an inadequate representative.”
The country is in the thick of hashing out legal rights around religion, sex, sexuality and gender identity, and the Biden administration has presented itself as an unwavering ally for full equality.
A March letter from the Justice Department’s Civil Rights Division says the administration believes Title IX (the civil rights law banning sex-based discrimination in federally funded education) provides that no “person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Shirley Hoogstra, president of the CCCU, said Tuesday night that while she was relieved to see the administration say it wants to defend religious exemptions, Christian schools impacted by the case should have a representative at the table.
