December 31, 2015 at 10:09 am EST | by Adele Kimmel
The alarming trend of Title IX waivers
Supreme Court, gay news, Washington Blade, Title IX

The Supreme Court’s decision in Hobby Lobby raised the specter of a religious exemption from anti-discrimination laws. (Washington Blade file photo by Michael Key)

In the name of religion, 27 colleges and universities across our nation have received a “blessing” to discriminate against students and employees based on their sexual orientation or gender identity. Pardon me, but how the hell did this happen?

Several news outlets, including the New York Times, have recently uncovered that, since 2014, the U.S. Department of Education has granted these schools exemptions from Title IX, the federal civil rights law that prohibits sex discrimination in all schools that receive federal funds. And nine more waiver applications are currently pending.

Title IX permits schools “controlled by a religious organization” to claim an exemption from parts of the law that “would not be consistent with the religious tenets” of the organization.  Waiver applications were relatively rare in the last several decades, but increased dramatically in the last year, after the federal government began to interpret Title IX’s prohibition against sex discrimination as applying to discrimination against LGBT individuals. And the Supreme Court’s decision legalizing same-sex marriage earlier this year undoubtedly added fuel to this growing fire.

The uptick in waiver applications is a concerted effort by Christian schools to ban LGBT students and staff without fear of legal liability. The Column, a non-profit LGBT media group, recently found that conservative Christian groups are also hosting trainings and providing sample documents for schools to use when seeking exemptions from Title IX based on their “sincerely held religious beliefs” about LGBT people. These schools want to expel transgender and other people who don’t conform to gender stereotypes. And they do not want to house legally married same-sex couples.

Though LGBT individuals are the primary target, they are not the only group in the conservative Christian crosshairs. Other targets include unmarried pregnant women and women who have had an abortion.

And our federal tax dollars are subsidizing this targeted discrimination. The 27 schools that have obtained waivers from Title IX’s nondiscrimination mandate received nearly $130 million in federal research grants and student aid last year.

The whole point of Title IX is to ensure that schools receiving federal funds provide equal educational opportunities regardless of sex. No federally funded school should get a license to discriminate. If a school plans to exclude students and staff based on gender identity, sexual orientation, or pregnancy status, it should do so on its own dime. Not mine. Or yours.

To fix this problem, Congress would have to amend Title IX to remove the exemption for educational institutions controlled by religious organizations. In the meantime, discrimination victims should be challenging religious schools’ efforts to obtain exemptions from Title IX when the schools aren’t really “controlled” by religious organizations, where the exemption sought is overly broad, or where the school can’t show a conflict with the “specific tenets” of the religious organization.

Religious liberty is not an excuse to discriminate. The Supreme Court’s decision in Hobby Lobby—which held that the Religious Freedom Restoration Act required giving Hobby Lobby a religious exemption from the contraceptive coverage mandate of the Affordable Health Care Act—raised the specter of a religious exemption from anti-discrimination laws. But the majority decision attempted to quell those concerns and did not provide businesses with a free pass to flout anti-discrimination laws in the name of religion.

More recently, when the Supreme Court held in Obergefell that same-sex couples have an equal protection right to marry, local government officials—like the now infamous county clerk, Kim Davis—had to enforce that right regardless of whether it was consistent with their personal religious beliefs.

Schools that receive federal money should likewise be required to enforce Title IX’s nondiscrimination mandate regardless of their religious tenets.

And, if you ask me, discrimination is not a Christian tenet.

Adele Kimmel is senior attorney at Public Justice. She is a national expert on school bullying litigation and spearheaded Public Justice’s Anti-Bullying Campaign.

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