Dept. of Education Uses Tricky Maneuver to Undermine Long-Standing Religious Exemption

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Rebecca Stewart: 513-479-3335

Dept. of Education Uses Tricky Maneuver to Undermine Long-Standing Religious Exemption

WASHINGTON / July 6, 2022 – Since its enactment in 1972, the federal Title IX law has provided an exemption for religious schools (1). But in stealthy manner, the recently released draft Title IX regulation (2) seeks to remove the regulatory basis for the long-standing religious exemption, without revealing the existence of that plan.

According to the original 1972 law, Title IX “does not apply to an educational institution which is controlled by a religious organization.” This exemption applies only to the extent that its “religious tenets” conflict with Title IX (3).

In 2010, the Obama administration issued guidance that included LGBTQ people within Title IX’s purview (4). As a result, many schools began to seek the religious exemption (5), and over the years, the Office for Civil Rights has never denied a religious exemption claim (6).

In 2019, two students married to same-sex partners sued Fuller Theological Seminary, which had expelled them for violating its sexual standards policy. Although the federal court agreed in principle that Title IX covered LGBTQ persons, it sustained the religious exemption claim and dismissed the complaint (7).

The long-standing religious exemption was re-affirmed in the 2020 Title IX regulation that states in part, “Assurance of exemption. An educational institution that seeks assurance of the exemption set forth in paragraph (a) of this section may do so by submitting in writing to the Assistant Secretary a statement by the highest ranking official of the institution, identifying the provisions of this part that conflict with a specific tenet of the religious organization.” (8)

So Title IX’s religious exemption is firmly grounded in statutory law and has been affirmed in both case law and regulatory law.

But in secretive manner, the recent draft Title IX regulation removes the 2020 regulatory provision without alerting the regulated community to the action, or providing justification for the proposed change.

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