Title IX Complaint Dropped for Religious Exemption

The Office of Civil Rights (OCR) has dismissed a Title IX complaint alleging Brigham Young University’s (BYU) discipline policy for same-sex couples equated to sexual discrimination. OCR dismissed the complaint based on the private Mormon institution’s religious exemption.

Title IX prohibits sexual discrimination at all educational institutions that accept any federal funding. However, the law exempts private schools controlled by a religious organization from aspects of Title IX that are contrary to their religious tenets.

OCR said due to the university’s religious exemption the office didn’t have jurisdiction to address the complaint.

Title IX Complaint Against BYU

The complaint was filed on March 9, 2020, with the Department of Education formally opening an investigation on Oct. 21, 2021.

BYU discriminates against students in same-sex relationships, according to the complaint. Until February 2020, the university’s Honor Code included a ban against “all forms of physical intimacy that gives expression to homosexual feelings.”

Some saw the code change as permission for LGBTQ students to begin dating. The church commissioner of education issued a letter on March 4, 2020, clarifying that “same-sex romantic behavior” was “not compatible with the principles in the honor code.” Protests erupted outside BYU and the church headquarters. The complaint was filed five days after the commissioner’s clarification.

BYU President Kevin J. Worthen wrote a letter responding to OCR on Nov. 19, 2021, asserting the university’s religious exemption from 15 regulatory provisions under Title IX.

The exemptions asserted by BYU are the following:

  • Admission
  • Preference in Admission
  • Recruitment
  • Education Programs or Activities
  • Housing
  • Comparable Facilities
  • Access to Classes and Schools
  • Counseling
  • Financial Assistance
  • Employment Assistance to Students
  • Health and Insurance Benefits and Services
  • Marital or Parental Status
  • Athletics
  • Standards for Measuring Skill or Progress in Physical Education Classes
  • Employment

Worthen requested OCR’s assurance that BYU was exempt from any requirements under Title IX that relate to sexual orientation or gender identity, including same-sex romantic behavior.

Assistant Secretary for Civil Rights Catherine Lhamon confirmed in a Jan. 3, 2022, letter that BYU is exempt. The official dismissal of the case came about one month later. Lhamon did also alert the university that there were no other exemptions granted beyond the 15 listed in the letter.

Future of Religious Exemptions in Question

The Religious Exemption Accountability Project filed a class-action lawsuit in March 2021 in the United States District Court for the District of Oregon to invalidate Title IX’s religious exemption as unconstitutional.

Hunter v. Department of Education has dozens of plaintiffs, including three students from several BYU campuses as well as Bob Jones University, Baylor University, and other schools from coast to coast. The lawsuit contends that the Department of Education is required to protect LGBTQ+ students from discrimination at all federally funded colleges, including religious colleges.

The Council of Christian Colleges and Universities filed a motion in May 2021 to intervene in the lawsuit that seeks to overturn a religious exemption to Title IX, the federal law that prohibits sex-based discrimination in education.

The Department of Justice has stated that it would defend the religious exemption under Title IX “to uphold the Religious Exemption as it is currently applied.” The case is continuing through the court process.

The religious exemption is part of the Title IX statute, but what the exemption covers is found in the Code of Federal Regulations (CFR). Presidential administrations can amend CFR. A narrower definition of what is eligible for a religious exemption is possible. The Biden administration has already signaled it would support changes that provided more protections for LGBTQ+ students.

Defending the Accused in Title IX

Anyone accused of violating any provision in Title IX needs a strong defense. At Parisi, Coan, & Saccocio, PLLC, our attorneys have decades of combined experience focused on Title IX. We support students, faculty, and staff members who face the Title IX disciplinary process.

If you are accused of Title IX violations, protect your rights by contacting us right away. Reach us online or call (737) 200-2332 to schedule a consultation.