Can the Biden Administration Be Trusted to Defend Existing Religious Exemptions?

COMMENTARY: Catholic universities and schools have many reasons to doubt the current administration’s interest in defending Title IX’s religious exemption.

President Joe Biden.
President Joe Biden. (photo: Gage Skidmore / Wikimedia Commons)

We are less than five months into the Biden administration and it’s already clear that conservative religious groups have good reason to worry about the fate of religious freedom in our country. One group of Christian colleges, for example, has asked a federal court to let them defend the existing exemptions for religious schools from federal anti-discrimination laws. The Biden administration’s bizarre opposition to their request adds weight to the schools’ already compelling argument to be heard in court.

Title IX of the Education Amendments of 1972 prohibits discrimination based on sex in federally assisted education programs and activities. Last year the Supreme Court in Bostock v. Clayton County ruled that discrimination on the basis of sex for purposes of Title VII, the federal anti-discrimination employment law, included discrimination based on sexual orientation and gender identity. 

The Biden administration asserts that this expansive definition of “sex discrimination” should apply to all federal anti-discrimination laws including Title IX. That’s a starkly ideological stance that defies what Title IX was long understood to mean. 

What infuriates many LGBTQ activists is that Title IX’s prohibitions don't apply to any educational institution that is “controlled by a religious organization if the application … would not be consistent with the religious tenets of such organization.” The Department of Education has regulations for administering and enforcing Title IX, including the so-called “Religious Exemption.” 

Basically, these regulations clarify what is meant by the words “controlled by a religious organization” and the procedures for any school wishing to assert its entitlement to an exemption.

Earlier this year, a group of past and present LGBTQ students at faith-based schools filed a lawsuit against the Department of Education in a federal district court in Oregon. They claim that the Department of Education has a “policy and practice” of denying claims of discrimination under federal law brought by LGBTQ students against religious schools, citing this religious exemption. 

The students say this violates their constitutional rights. They also argue that the religious exemption violates the First Amendment's Establishment Clause. The Biden administration’s response is due to be filed with the court later this month. 

Rather than wait for this response, three Christian universities and the Council for Christian Colleges and Universities have asked the court to let them intervene in the lawsuit in order to defend Title IX’s religious exemptions.

The Ninth Circuit Court of Appeals, which includes Oregon, has interpreted the rules for intervention liberally, and the religious schools make strong arguments for being allowed to intervene in this lawsuit. 

The schools are worried that the Biden administration can’t be trusted to defend the schools’ interests and “may be openly hostile to them.” In their request, these schools explain that “none of the current parties face the loss of federal funding, intrusion upon their religious belief, or violations of their rights were Plaintiffs’ lawsuit successful. Religious Schools, however, have all this at stake. They are the direct beneficiaries of the Religious Exemption. Without it, Religious Schools — and their students — would lose access to vital federal educational funds.” 

The schools argue that “the Court should not assess the constitutionality of the Religious Exemption without hearing from the very religious educational institutions that the exemption was designed to protect.” 

There are many reasons to doubt the Biden administration’s interest in defending Title IX’s religious exemption. 

For starters, let’s remember the statements made by Joe Biden on the campaign trail that he would “take action using his executive authority” to “immediately reverse” what he asserted were discriminatory actions by the prior administration and “go further to end discrimination against LGBTQ+ individuals” and “end the misuse of broad [religious] exemptions to discriminate.” 

Unlike the Court in Bostock, President Biden appears disinterested in concessions for religious freedom. An executive order issued by the president immediately upon taking office — “Preventing and Combatting Discrimination on the Basis of Gender Identity or Sexual Orientation” — is another red flag. The order expands the definition of discrimination on the basis of sex in federal laws including Title IX to include sexual orientation and gender identity and directs all agency heads to implement the order in every civil rights law. Another executive order specifically addressed Title IX and “codified” the expanded definition of sex discrimination into Title IX’s prohibition of discrimination on the basis of sex in education programs or activities receiving federal financial assistance. That order also directed the Secretary of Education to “consider suspending, revising, or rescinding” any regulations or agency actions that are inconsistent with the administration’s policy. 

The schools also highlight a letter from the Secretary of Education this past April announcing that the Department’s Office of Civil Rights has begun a review of agency actions. And finally, they note a legal memorandum from the Department of Justice stating its agreement with an expanded definition of sex discrimination as applied to Title IX. 

In short, Biden’s statements, orders and directives to review Title IX regulations are enough to show that the government’s interests are — to put it mildly — not fully aligned with the notion of religious schools benefiting from the existing religious exemption. 

Not surprisingly, the Biden administration has opposed the schools’ request to intervene. In its initial submission to the court, the administration argues that the schools have failed to show that the federal government “will not adequately represent their interests.” It adds that the schools must make a “compelling showing” of inadequacy, arguing that the court should presume the government’s representation of the schools’ interests will be adequate. It suggests instead that religious schools can be sufficiently heard by participating in a more limited role as amicus curiae — a friend of the court. This is simply too clever by half. 

The administration showed its hand even more by amending its filing a day later to stress that, while it will defend religious exemptions in court, the policy surrounding the federal law is being reviewed by the Department of Education. It said: 

“The Department of Education is conducting a comprehensive review of its regulations implementing [the law], which sets forth the current administration's policy on guaranteeing an educational environment free from discrimination on the basis of sex.”

The additional filing added, “But until that process is complete, it would be premature to conclude that the government is an inadequate representative.”

This is a very worrying situation, and religious colleges and universities are responding to it by stepping up to defend their right to address internal complaints by their students rather than be subjected to the federal government’s Title IX oversight. Since it is abundantly clear that the Biden administration’s priorities are radically different from those of conservative Christian colleges, it shouldn’t be hard for the federal judge in Oregon to grasp that these groups must be involved in defending Title IX’s religious exemption. But nothing is certain. Watch this space.

Andrea Picciotti-Bayer is the director of the Conscience Project.