Religious univ. seek waivers on trans students

Posted at 3:57 PM, Dec 18, 2015
and last updated 2015-12-18 16:57:35-05

SAN FRANCISCO (AP) -- Nearly three dozen religious colleges and universities in 20 U.S. states have received federal waivers allowing them not to accommodate transgender students in admissions, housing and other areas of campus life, according to a report by the nation's largest LGBT rights group and documents obtained by The Associated Press.

The church-affiliated schools that in 2014 and 2015 obtained exemptions to a law that prohibits sex discrimination in educational settings collectively enroll more than 73,000 students, the Human Rights Campaign said in a report published Friday.

"What we want students to know is schools are serious about this, that they have gone out of their way to make sure they have the legal ability to discriminate against LGBT students," said Sarah Warbelow, the campaign's legal director.

Eighteen of the 34 universities and colleges that told the U.S. Department of Education that giving transgender students access to single-sex restrooms and facilities that correspond with their gender identity would be inconsistent with their religious tenets are controlled by the Southern Baptist Convention, according to public records obtained by both the Human Rights Campaign and the AP.

The Department of Education has seen the surge in waiver applications because its Office for Civil Rights has "exceeded its legal authority" by taking the position since 2013 that the federal law that prohibits sex discrimination applies to transgender students,  Alliance Defending Freedom Senior Counsel Gregory Baylor said.

"The schools have reasonably concluded that they are quite likely to become the next target of OCR if they follow their religious convictions on these matters," said Baylor, whose Christian legal advocacy group has advised some colleges on how to seek the exemptions.

The tension mirrors disputes that have arisen over the refusal by Catholic hospitals and universities to offer contraception in their employee health plans and moves by local governments to stop contracting with religiously affiliated adoption agencies that refuse to place children in households headed by same-sex couples.

Higher education institutions that receive federal funds for research or financial aid are barred from discriminating on the basis of sex under Title IX, the 1972 law that originally was used to open men's colleges to women and to create more athletic opportunities for women at co-ed schools.

Colleges controlled by religious organizations always have been eligible to seek exemptions from Title IX. More than 190 representing both Christian and Jewish denominations received the waivers from the mid-1970s through the late 1990s, seeking permission, for example, to only hire male teachers for certain positions or to sanction students or employees who had sex outside marriage.

Catherine Lhamon, the Department of Education's assistant secretary for civil rights, said in a statement that the government would "vigorously enforce Title IX's prohibition against discrimination on the basis of sex, including gender identity, in every applicable school." But she noted that her office does not have discretion to deny waivers to colleges seeking a religious exemption.

"Congress did exempt from Title IX's protection institutions that are controlled by religious organizations, to the extent that Title IX conflicts with their religious tenets," Lhamon said in a statement. "We are committed to protecting every student Congress gave us jurisdiction to protect."

At least 24 of the 34 colleges and universities granted religious exemptions based on their beliefs about gender identity also received waivers allowing them to discriminate against gay and lesbian students and employees, citing faith-based prohibitions against homosexual sex, the Human Rights Campaign said.

The U.S. Supreme Court's decision at the beginning of 2015 to accept the case in which a court majority ruled in June that state gay marriage bans are unconstitutional was a likely trigger, Warbelow said.

"It's indicative of the progress that LGBT people have made, both in terms of social acceptance so there are more LGBT people willing to live openly, and developments in the law," she said.

The Department of Education says another 22 schools have exemption requests under review.