Discriminating in the Dark

Title IX of the Civil Rights Act prohibits taxpayer-funded schools from discriminating on the basis of sex when it comes to (among other things) admissions and employment. The government, and increasingly the courts, interpret sex discrimination to include discrimination on the basis of sexual orientation and gender identity (both of which are forms of impermissible sex stereotyping). Yet over the last few weeks, we've learned that applications for exemptions from Title IX have proliferated, and that the Obama administration has granted exemptions prolifically—and largely in secret.

Sixty institutions have sought Title IX exemptions from the Obama administration. According to Patricia Miller in Religion Dispatches, these applications "appear[] to be driven by the Christian Legal Society and the Council for Christian Colleges and Universities.... The organizations have hosted trainings on crafting exemption applications and the CLS created widely copied sample language for institutions to develop doctrinal statements to underpin their claims."

Surprisingly, the Obama administration has granted these exemptions readily: 27 religious entities have received exemption in the last 18 months. In 2015, 43 exemptions applications have been filed, and 22 have already been approved; the rest are pending. Most of these applications have sought permission to discriminate against LGBT students or employees. Many of these institutionsreceive millions of dollars in taxpayer funds.

Today, BuzzFeed's Dominic Holden reports that eight U.S. Senators have sent a letter to the Department of Education, requesting more transparency about the Title IX exemptions that have been requested and granted. The letter warns that "these waivers allow for discrimination under the guise of religious freedom" and that "we have seen this same path used in our legal system to undermine benefits for women, and used to facilitate discrimination on the basis of sexual orientation or gender identity." The Senators ask the Department of Education to "publish, on a publicly available website and in a searchable format, the Title IX waiver requests sent by institutions of higher education as well as the Department of Education's responses."

Better transparency would definitely be a start. But the Obama administration's willingness to allow so many schools to discriminate against LGBT individuals would be troubling even if it were being done in the open. These dozens of exemptions not only harm the victims of discrimination who lose the protections of Title IX, but they risk making it harder for the government to defeat the inevitable free-exercise defenses to discrimination cases that the government does decide to pursue—"if they get an exemption, then we get an exemption" will be the inevitable refrain from would-be discriminators. With more and more discrimination cases looming in the wake of marriage equality, the administration has started off on the wrong foot.

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There's a lot more to read about this issue, so I've collected links to more coverage. Kudos to Minnesota-based The Column for breaking the story earlier this month.

Andy Birkey, Dozens of Christian Schools Win Title IX Waivers to Ban LGBT Students, The Column (Dec. 1, 2015)

Liam Stack, Religious Colleges Obtain Waivers to Law That Protects Transgender Students, N.Y. Times (Dec. 10, 2015)

Patricia Miller, Did Religious Universities Just Get a License to Discriminate, Religion Dispatches (Dec. 16, 2015)

Dominic Holden, Waivers Allowing Christian Schools to Ban LGBT Students Spike in 2015, BuzzFeed (Dec. 17, 2015)

Dominic Holden, Government Should Publish Info on Schools Allowed to Discriminate, BuzzFeed (Dec. 18, 2015)

Greg Lipper (@theglipper) is Senior Litigation Counsel at Americans United.