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.