The most difficult legal issues relating to LGBTQ students arise in the subset of conservative religious schools (sometimes called “covenantal” schools) that seek to create a community of people who share particular beliefs. For example, some schools prohibit students from having sex outside of heterosexual marriage or—in some cases—engaging in “homosexual behavior.” As transgender people have become more visible, some conservative religious schools have amended their conduct codes to prohibit students from undergoing a gender transition. Students who violate these codes can be disciplined or even expelled.
Increasingly, these conflicts are giving rise to litigation and legal and political debates about how best to preserve the competing goals of equality for LGBTQ students and religious freedom. Many of these legal battles center on Title IX, a federal law that prohibits discrimination based on sex at any school receiving federal financial assistance. Title IX applies to any school that accepts federal money even indirectly through the use of federal loan dollars to pay for tuition and expenses. A few religious colleges and universities avoid having to comply with Title IX by relying solely on private funds. Most religious schools, however, are subject to Title IX because they accept federal funding.
For some religious schools, this creates a conflict between the requirements of Title IX and the school’s beliefs about human sexuality and gender. Since Congress enacted Title IX in 1972, it has included a broad 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.” Schools that seek a religious exemption must submit a written request, identifying which parts of Title IX compliance conflict with their religious tenets. As a practical matter, such requests are universally granted. In the 50 years since Congress enacted Title IX, the Office for Civil Rights has never denied a school’s request for a religious exemption.
In the past, very few colleges or universities invoked Title IX’s religious exemption. But that changed in 2010 when the U.S. Department of Education issued guidance stating that Title IX protects LGBTQ students from discrimination. Following that decision, which reflected a growing body of federal court rulings, the number of schools seeking religious exemptions under Title IX increased dramatically. From 2013 through 2021, more than 120 religious schools obtained exemptions from Title IX that allow them to discriminate against LGBTQ students in areas such as admissions, housing, access to classes, financial aid, counseling, and athletics.
In 2015, the Human Rights Campaign called attention to this troubling development in a report entitled Hidden Discrimination: Title IX Religious Exemptions Putting LGBT Students at Risk. Other LGBTQ groups have also shined a spotlight on this issue and called for public action to address it. For example, every year, Campus Pride, an organization dedicated to protecting LGBTQ college and university students, publishes a list of “the worst, most unsafe” campuses for LGBTQ youth. Seeking a religious exemption is the most common reason for Campus Pride to include a school on its list, which expanded to include 180 colleges and universities in 2021.
In 2020, the U.S. Supreme Court increased the pressure on religious schools that discriminate against LGBTQ students to either change their policies or seek exemptions when it held that Title VII, a federal law that prohibits sex discrimination in the workplace, prohibits discrimination because a person is gay or transgender. The Court’s decision in Bostock v. Clayton County applied only to Title VII; however, many federal courts have held that the same analysis applies to Title IX. These rulings have encouraged LGBTQ advocates who seek to hold religious schools legally accountable for treating LGBTQ students unequally.
In response to this growing public attention and pressure from students and faculty within their own schools, some religious schools have revised their student codes of conduct to eliminate rules that penalize students for being in same-sex relationships. For example, in 2019, Azusa Pacific University removed language banning same-sex relationships from its official code of conduct. Others, such as Brigham Young University, have eliminated language that was perceived as unduly harsh and condemning of LGBTQ students while maintaining an underlying prohibition on same-sex affection or intimacy. Still others, such as Baylor University, continue to affirm traditional teachings that reject same-sex intimacy as sinful but do not discipline students for engaging in same-sex relationships or undergoing a gender transition. And many religious schools have sought to provide support for LGBTQ students in other ways, such as allowing support groups for LGBTQ students, adopting policies that prohibit anti-LGBTQ bullying and harassment, and generally searching for ways to support LGBTQ students within the boundaries of their faith.
In the same vein, conservative religious leaders and scholars are seeking new ways to protect LGBTQ students while preserving the autonomy of religious schools. Robin Fretwell Wilson, a conservative legal scholar, has urged religious schools to avoid damaging legal controversies by adopting codes of conduct that apply equally to gay and straight students. Shirley Hoogstra, president of the Council for Christian Colleges & Universities (CCCU), has urged policymakers and others to reconcile “deeply held religious beliefs and equal treatment of persons under the law.”
CCCU has also joined with other conservative religious organizations, including the National Association of Evangelicals, the Church of Jesus Christ of Latter-Day Saints, and the Orthodox Union Advocacy Center, to support a proposed federal law known as Fairness for All. This proposed bill would establish federal anti-discrimination protections for LGBTQ people, including students, while also creating new protections for religious liberty. Some LGBTQ groups have criticized the bill for proposing religious exemptions that are too broad. At the same time, they have recognized the historic significance of groups such as CCCU and others supporting the need for federal protections for LGBTQ people.
Very recently, these tensions between equality and religious liberty have spilled over into federal litigation. In 2021, 33 LGBTQ students at religious colleges filed a federal class action lawsuit challenging the constitutionality of Title IX’s religious exemption. The suit, Hunter v. U.S. Department of Education, details the harms these students experienced at their schools, including some students who were forced to choose between expulsion or undergoing conversion therapy. The U.S. Department of Justice is defending the exemption. While the plaintiffs face an uphill legal battle, the suit has shone a spotlight on the hardships that many LGBTQ students face at religious schools.
As the case has progressed, it has also led to competing claims and evidence about the experiences of LGBTQ students at religious schools. Some research indicates that these students experience more harassment and discrimination at conservative religious schools. Other research has suggested that, in some respects, LGBTQ students may have more positive experiences at faith-based schools than those at secular schools. More broadly, many studies have shown that participating in religion benefits young people in many significant ways, including their long-term physical and emotional health and educational achievements.
The complexity of this case underscores the complexity of this issue. On the one hand, LGBTQ students deserve, and benefit from, equal treatment and respect. On the other, they may also benefit—as do other students—from the opportunity to attend school with others who share a deeply held religious faith. LGBTQ people and religious communities have a common interest in democratic pluralism and a shared stake in the legal and political institutions that enable us to value—and protect—both freedom and equality. As courts and legislatures grapple with the treatment of LGBTQ students in religious colleges and universities, let us hope they do so in a way that honors and strengthens both.