The recent proliferation of news stories about transgender students facing discrimination has brought an increased focus on universities and colleges claiming religious-based exemptions to excuse their compliance from Title IX as it applies to transgender students.
In December 2015, the Human Rights Campaign (HRC) reported that “[s]ome religious educational institutions . . .are relying on a little-known provision in Title IX to seek waivers that exempt them from treating LGBT students equally. The Human Rights Campaign has investigated this practice and found 33 schools in states across the country have obtained waivers that allow them to discriminate against LGBT students in admissions, housing, athletics, financial aid, and more. . . This is an alarming trend that puts thousands of students at risk, and HRC believes there is more the government can do to hold these schools accountable and ensure students, parents, employees, and the public have all the facts.” (Hidden Discrimination: Title IX Religious Exemptions Putting LGBT Students at Risk.) At HRC’s urging, the Department of Education (DOE) published a list in 2016 of religiously affiliated colleges and universities seeking assurance that they are exempt from certain Title IX provisions, as well as DOE’s responses.
The only list currently available on DOE’s website is an archived list with information through December 2016. In a June 2017 Congressional hearing, the Secretary of Education, Betsy DeVos, testified that perhaps a public list was not necessary and indicated she was open to ending the publication of the list. As of this writing, the archived list (with information through December 2016), is still available on DOE’s website. While the “list” has not been updated since December 2016, the requests for assurances of religious exemptions and responses thereto made after December 2016 are currently publicly available on DOE’s website Thus, a prospective student can consult DOE’s website to determine whether a school has sought and been granted an assurance that it is exempt from Title IX based on religious grounds.
According to DOE’s website, an institution does not have to “apply for” the exemption to be exempt; rather, the institution applies for an assurance that it is exempt: “An institution’s exempt status is not dependent upon its submission of a written statement to OCR.” The practical implication is that an institution may have adopted discriminatory policies against transgender students based on the religious exemption, but is not listed on DOE’s website because the institution has not yet informed the DOE that is claiming a religious exemption. This means that an unsuspecting transgender student might apply to an institution because it is not listed on DOE’s website as having applied for an assurance of religious exemption, only to find out after enrolling that the institution, based on religious grounds, does not consider itself subject to the anti-discrimination regulations in Title IX as applied to gender identity issues.
The waiver/request for assurance provision to which HRC refers is not new (although DOE’s publication of the exemption list was). The exemption from having to comply with specific aspects of Title IX is contained in a DOE regulation issued in 1979. 44 FR 17168, Mar. 21, 1979; 34 C.F.R. Part 106, Subpart B, §106.12. The regulation states that an institution seeking assurance that it is exempt must submit the request “in writing to the Assistant Secretary . . . identifying the provisions of this part which conflict with a specific tenet of the religious organization.” 34 C.F.R. §106.12(b). Since the late 1970s and 1980s, hundreds of religious institutions have received assurance that they are exempt from specific provisions of Title IX. Now, as noted by HRC, with the increase in the advancement of the rights of transgender students, there appears to be a growing list of religiously affiliated institutions seeking assurance from DOE that they are exemption from complying with the aspects of Title IX that are inconsistent with their religious tenets regarding gender identity, including with respect to admission, accommodations housing and educational programs for these students. Between 2015, when the HRC published its report and February 19, 2018, twelve more institutions have requested an assurance that they are exempt, on religious grounds, from complying with Title IX regulations.
The Human Rights Campaign’s Report raised public awareness of this important issue. It is also worth noting, however, that there are several hundred religiously affiliated universities and colleges in the United States which have not sought an assurance of exemption with respect to the Title IX rights of transgender students (although, it is possible that some may be claiming exemption and just have not yet sought an assurance). Many religiously-affiliated institutions have taken concrete actions to support their transgender students. In fact, Campus Pride, the organization serving LGBTQ students, has noted that “[r]ecent studies by Campus Pride reveal . . . that more and more Catholic and Protestant universities are actively seeking to improve the campus climate for their LGBT students.” On the other hand, some religiously-affiliated institutions, while supportive of their LGBTQ communities in many respects, do not go as far as some students would like or believe the schools are legally obligated to go.
The more information available to transgender students regarding which religiously-affiliated institutions have sought and been given assurance of an exemption from Title IX compliance, and which religiously affiliated institutions are proactively putting resources into place for them, the better. If a prospective student does not see an institution listed on DOE’s website (either on the archived list or among the requests for assurance made after December 2016), the student will have to find out directly from the school whether the school considers itself exempt from Title IX regulations barring discriminatory treatment of transgender students.