The Limits of Free Exercise: Examining the Constitutionality of Title IX’s Religious Exemption

The Department of Education (ED)’s recent proposed changes to Title IX regulations are missing a critical element: any mention of its controversial religious exemption. 

Title IX is a federal civil rights law passed in 1972 that prevents sex-based discrimination, including recent expansions to include discrimination on the basis of sexuality and gender. [1] The religious exemption to Title IX, codified by Congress in the Civil Rights Restoration Act of 1988, states that religiously affiliated schools are exempt from some Title IX protections that oppose their religious beliefs, regardless of whether or not they receive federal funds. Religious exemptions are common in American law — notably, an exemption to Title VII of the Civil Rights Act (CRA) allows religious organizations to discriminate on the basis of religious belief in hiring — but federal courts have yet to rule on the constitutionality of Title IX’s exemption. [2] However, the religious exemption creates a little-discussed loophole that allows religiously affiliated schools to legally discriminate, most notably against transgender students. Currently Elizabeth Hunter et. al. v. The US Department of Education, a class action lawsuit on behalf of LGBTQ plaintiffs who faced discrimination at religiously affiliated schools, is under consideration in Oregon District Court, potentially leading to a Court’s analysis of the constitutionality of the exemption. [3] On its face, a religious exemption to Title IX is likely constitutionally protected because of long-standing precedent allowing exemptions from neutrally-applied law that can limit religion. However, the broad exemption developed by ED is unconstitutional because it breaches the government’s commitment to neutrality, which effectively establishes legalized discrimination against LGBTQ students in parochial schools.

The Court examined the constitutionality of religious exemptions under the Establishment Clause in 1987’s Corporation of the Presiding Bishop of the Church of Latter-Day Saints et. al. v. Amos, where they upheld an expansion of the exemption to Title VII of the CRA. [4] The appellee worked at a gymnasium owned by the Latter-Day Saints Church but was fired for not being a member of the church. [5] The Court held that the religious exemption had a secular legislative goal of ensuring that the government did not interfere in the activities of religious groups and that the statute did not advance religion because the Framers saw establishment as “sponsorship, financial support, and active involvement of the sovereign in religious activity,” which is a standard not reached by a statute that simply allows religious groups to advance religion. [6] Like with Title VII’s exemption, Title IX’s exemption was established to prevent government involvement in the exercise of religion at religiously affiliated schools. Since Supreme Court precedent establishes that religious exemptions are constitutional under the establishment clause — and sometimes required under the free exercise clause —  it is likely that some form of exemption to Title IX is constitutional. [7]

However, Corporation of the Presiding Bishop of the Church of Latter-Day Saints et. al. v. Amos highlights a constitutional conflict: under the First Amendment, the government must protect the free exercise of religion without establishing adherence to a particular set of beliefs at the expense of others. [8] Although religious exemptions intend to protect the ability to practice religion freely, it is difficult to determine when free exercise accommodations bleed into preferential treatment for certain religious groups, which push the bounds of the neutrality principle. [9] Justice White began to address this conflict in the Opinion, writing, “There is ample room under the Establishment Clause for ‘benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.’” [10] The holding in Presiding Bishop established that there is a gray area that allows the government to be involved in religious activities without actually establishing religion, and reaffirmed that government financial support or active involvement in religion could push a statute outside of that neutral gray area. [11] Additionally, A Michigan Law Review note, The Constitutionality of the 1972 Amendment to Title VII’s Exemption for Religious Organizations analyzed the clash between the Free Exercise and Establishment clauses in religious exemptions, concluding that in cases of clash, the case law shows that the free exercise clause will nearly always take precedence. [12] The free exercise clause is the stronger prong of the religious provisions; however, both the decision in Presiding Bishop and the Michigan Law Review note illustrate that statutes meant to protect free exercise can, in fact, lean too far towards the direction of an establishment clause violation. 

Indeed, the broad form that Title IX’s exemption has taken over the past decades goes beyond constitutionally protected accommodations and provides clear financial incentive to religious institutions. Title IX centers government money — schools are required to follow Title IX if they receive federal funding and are at risk of losing funding if they violate Title IX — and three aspects of the statute indicate a financial benefit for religiously affiliated institutions rather than passive financial involvement. [13] First, ED has never rejected a religious exemption to Title IX and responded to only seven out of two hundred requests from 1975-1980, effectively allowing schools to “self-report” their inherent exemption to Title IX. [14] Second, ED does not conduct any scrutiny over whether the Title IX provisions highlighted by a school  requesting an exemption actually contravene a stated religious belief of a university, which is why Amanda Bryk in the Cardozo Law Review states that Title IX’s exemption is far more liberally applied than Title VII’s exemption. [15] Third, under the 2020 Title IX rule, religiously affiliated schools are able to claim a religious exemption even after being found of violating Title IX, meaning they are provided a quick way out to maintain their federal funding and avoid costly administrative fees tied to undergoing a federal investigation. [16] A school can be confident that even the most broad and far-reaching requests will be accepted, because there is no precedent of ED turning down requests — thus, schools can effectively still “self-report” an inherent exemption. With an exemption, religiously affiliated schools can receive federal funds (financial support) without the financial burden of following Title IX (including hiring and training Title IX coordinators, conducting Title IX investigations, etc.) and keep their money even after being found to have violated federal law. Recall, the Court held in Presiding Bishop that the Framers defined “establishment” as government financial support for religion. [17] The ease with which schools can access an exemption to any aspect of Title IX without scrutiny from ED and coupled with the financial benefit that comes with an exemption pushes the religious exemption into the area of an establishment clause violation. 

Protecting the free exercise of religion does not mean the government must exercise complete deference to the religiously affiliated institution. Title VII’s exemption is a more limited example: religious institutions are only exempt to the religious employment discrimination portions of the Civil Rights Act, as Congress specifically decided not to extend the exemption to other manifestations of discrimination (including sex and race). [18] Religious institutions can apply for “bona fide occupational qualification” or “ministerial exemptions” for cases where discriminating on the basis of sex or race is absolutely necessary in order to align with stated religious tenets, but these exemptions are subject to intensive government scrutiny. [19] Scrutiny of requests and limitations on exemptions are not only constitutionally protected — the Court has upheld Title VII’s exemption on several occasions — but are also necessary because the expansive privileges provided to schools with religious exemptions have the potential of becoming a financial benefit to these schools if applied too liberally. [20] 

This analysis of the religious exemption has implications on current jurisprudence and the future of LGBTQ rights under the law, particularly with Hunter v. DOE’s consideration in District Court. Although it is unlikely that the Oregon District Court will rule that the religious exemption is inherently unconstitutional, it is possible that they will require a more limited exemption. It is critical that the Court address the religious exemption because of the harm wrought by an expanded and easily accessible exemption. Religiously affiliated schools use their religious exemptions to punish or expel LGBTQ students, retaliate against them for reporting harassment, and push them into harmful conversion therapy. [21] These environments produce dangerous effects:  A UCLA Law analysis of the 2015 U.S. Transgender Survey found that 51% of respondents who experienced four or more instances of discrimination in a year attempted suicide that year. [22] Rampant discrimination has clear effects on the mental health and livelihood of transgender students and the government has an interest in ensuring they have a safe educational environment. Title IX has provided life-changing benefits for generations of young people in the United States, but the broad and unconstitutional religious exemption is the final roadblock to ensuring that every student is able to access an education free from gender-based violence or discrimination. 

Edited by Ashfah Alam

Sources:

[1] Enforcement of Title IX of the Education Amendments of 1972 With Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County, 86 Fed. Reg. 32637 (June 22, 2021)

[2] 20 U.S.C. § 1687 (2020); and Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30573 (May 19, 2020); and  Amanda Bryk, “Title IX Giveth and the Religious Exemption Taketh Away,” Cardozo Law Review 37, no. 2 (December 2015): 764, 773; and Kif Augustine-Adams, “Religious Exemptions to Title IX,” University of Kansas Law Review 65 no. 2 (December 2016): 327

[3] “Landmark Lawsuit Challenges Discrimination Against LGBTQ Students At Religious Colleges,” Religious Exemption Accountability Project, REAP, Accessed August 8, 2022, https://www.thereap.org/lawsuit 

[4] Corp. of Presiding Bishop v. Amos, 483 U.S. 327 (1987)

[5] Corp. of Presiding Bishop v. Amos, 483 U.S. 327 (1987)

[6] Corp. of Presiding Bishop v. Amos, 483 U.S. 335 (1987)

[7] Corp. of Presiding Bishop v. Amos, 483 U.S. 336 (1987)

[8] U.S. CONST. AMEND. 1, §3

[9] Corp. of Presiding Bishop v. Amos, 483 U.S. 335 (1987)

[10] Corp. of Presiding Bishop v. Amos, 483 U.S. 334 (1987)

[11] Corp. of Presiding Bishop v. Amos, 483 U.S. 335, 337 (1987)

[12] “The Constitutionality of the 1972 Amendment to Title VII’s Exemption for Religious Organizations,” The Michigan Law Review 73, no. 3 (January 1975): 557, 558

[13] “Title IX Legal Manual,” U.S. Department of Justice, Updated August 12, 2021, https://www.justice.gov/crt/title-ix#VII.%C2%A0%20Federal%20Funding%20Agency%20Methods%20to%20Enforce%20Compliance 

[14] Augustine-Adams, “Religious Exemptions to Title IX,” 327; and Augustine-Adams, “Religious Exemptions to Title IX,” 351; and Augustine-Adams, “Religious Exemptions to Title IX,” 352

[15] Amanda Bryk, “Title IX Giveth,” 778

[16] Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30573 (May 19, 2020)

[17] Corp. of Presiding Bishop v. Amos, 483 U.S. 337 (1987)

[18] Amanda Bryk, “Title IX Giveth,” 773-775

[19] Amanda Bryk, “Title IX Giveth,” 774

[20] Amanda Bryk, “Title IX Giveth,” 773

[21] The Religious Exemption Accountability Project/College Pulse, The LGBTQ+ Student Divide: The State of Sexual and Gender Minority Students at Taxpayer Funded Christian Colleges (San Francisco, CA, College Pulse, 2021): 2 https://www.thereap.org/_files/ugd/0ae2d2_9b01481f670f45819315aac806b14336.pdf  

[22] Jody L. Herman et. al., Suicide Thoughts and Attempts Among Transgender Adults: Findings from the 2015 U.S. Transgender Study (Los Angeles, CA, UCLA School of Law Williams Institute, 2019): 27 https://williamsinstitute.law.ucla.edu/wp-content/uploads/Suicidality-Transgender-Sep-2019.pdf