Last month the Biden administration issued final rules related to Title IX, the federal law that prohibits discrimination on the basis of sex in education, to include — you guessed it — sexual orientation and gender identity. 

It’s yet another example of the administration’s obsession with pushing gender ideology at the expense of women and girls. Fortunately, religious colleges and universities can respond to this madness by restating church teaching in their demand to be exempt.

Some background: Title IX is a federal civil rights law that bans sex discrimination against students, employees and others affiliated with schools or any other education program that receives federal funding. But it says nothing about sexual orientation or gender identity, so how can the administration justify this overreach?

The government points to a 2020 Supreme Court decision dealing with a different federal law. In Bostock v. Clayton County, a sharply divided Court interpreted discrimination “because of sex” under Title VII, the law prohibiting discrimination in the workplace, to encompass discrimination because of an individual’s sexual orientation and gender identity. 

Justice Neil Gorsuch, writing for the Court’s majority, justified the sweeping expansion of the law by asserting that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Dismissing concerns that the Court’s decision would “sweep beyond Title VII to other federal or state laws that prohibit sex discrimination,” Gorsuch wrote that “none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.”

Ignoring the expressed limits of the Bostock ruling, on his first day in office President Biden instructed all government agencies to consider Bostock’s reasoning as applying to any law prohibiting sex discrimination. Title IX and its implementing regulations were specifically listed in the executive order. 

Lawsuits have already been filed by several states and a school district contesting the new rule. Attorneys with Alliance Defending Freedom, counsel for the Rapides Parish School Board in Louisiana, assert that “[t]he Department of Education’s fundamental and radical rewriting of federal law forces schools across the country to embrace a controversial gender ideology that harms children — including the very children it claims to help.” The group adds that the lawsuit is “the first of multiple lawsuits ADF plans to file challenging the rule.” 

Religious colleges and universities that receive federal funding can also push back by insisting they are exempt. You see, Title IX does not apply to an educational institution that is controlled by a religious organization to the extent that its application would be inconsistent with the religious tenets of the organization. This objection offers an added benefit: the opportunity for these schools to offer religious instruction to their students.  

There are two ways to go about doing this. One is for a school to inform the Department of Education’s Office for Civil Rights (OCR) that it is claiming a religious exemption by submitting a written statement for assurance that OCR acknowledges the institution’s exemption.

Last year, for example, Baylor University, a private Baptist university in Waco, Texas, requested and was granted an exemption. It sought the exemption in response to civil rights complaints from an LGBTQ+ student accusing Baylor of not responding to sexual harassment claims. In its request for assurances, Baylor explained:

The University does not discriminate on the basis of sexual orientation or gender identity or expression per se, but it does regulate conduct that is inconsistent with the religious values and beliefs that are integral to its Christian faith and mission. Since Baylor ‘affirms the biblical understanding of sexuality as a gift from God’ and requires ‘purity in singleness and fidelity in marriage between a man and a woman as the biblical norm,’ any asserted Title IX requirement that Baylor must allow sexual behavior outside of marital union between a man and a woman, or that contradicts the Baptist doctrine of marriage and the created distinction between men and women, is inconsistent with Baylor's religious tenets, and the University is exempt from such requirement.

As exempt status under Title IX is not dependent on a school submitting a written statement to OCR, another approach is to defend exempt status. This is the route taken by Franciscan University of Steubenville. 

In response to questions about the new Title IX regulations, President Father Dave Pivonka wrote a letter to students, faculty and staff. He said, “As a passionately Catholic institution, we believe in and follow the teachings of the Catholic Church that consider ‘sex’ to refer to the objective reality of a human person as a man (male) or as a woman (female), grounded in and determined by a person’s biology.”

He added that, in light of the exemption available to religious institutions, “whatever effect the new Title IX regulations might have on public institutions or secular institutions, the University will not apply the regulations in any way that is inconsistent with the Catholic Church’s teaching on ‘sex.’” 

The university has put together a compendium for the entire school community that makes good on its promise to provide “much-needed resources as we seek to live the life-giving teaching of the Catholic Church on human sexuality in truth and love.”  

The Catholic University of America agrees with Franciscan.

“The Catholic University of America is closely monitoring changes to the Title IX regulations,” a university spokesman told me. “As a faith-based institution, we are exempted by law from having to comply with any element of Title IX that would violate our beliefs. We also anticipate that aspects of the regulation will be challenged in court and might be enjoined before it can ever take effect."

Baylor, Franciscan and CUA are distinguishing themselves from secular institutions of higher learning by describing who they are, as they refuse the government’s demand to transmit messages that distort their religious mission. As violent chaos disrupts many of our nation’s campuses, Catholic and other religious colleges and universities shouldn’t shy away from defending the truth about human nature and sexuality.