LGBTQ+ Students Lose Appeal Over Title IX Religious Exemption

An exemption to Title IX for religious colleges and universities is consistent with historical allowances for such organizations and doesn’t violate the US Constitution, the Ninth Circuit said Friday, rejecting an appeal by 40 LGBTQ+ current, former, and would-be students.

A lower court applied an outdated test when it dismissed the students’ lawsuit, a unanimous appellate panel said. But under the US Supreme Court’s new test for determining when a law runs afoul of the First Amendment prohibition against religious endorsement, a carve-out from Title IX of the 1972 Education Amendments Act’s ban on LGBT+ bias for religious institutions whose tenets require gender-based bias still passes constitutional muster, the panel said.

The appeal addressed “the question of whether Congress’s attempt to balance the important interests of religious freedom and gender-based equality violated the Constitution,” the US Court of Appeals for the Ninth Circuit said.

The bias LGBTQ+ individuals face “is invidious and harmful,” but the free-exercise-of-religion clause protects faith-based viewpoints even if they aren’t acceptable, logical, or comprehensible, the court said.

At issue was an exception to Title IX’s requirement that institutions receiving federal funding refrain from sex discrimination, Judge Milan D. Smith Jr. said. The Education Department adopted a regulation in 1975 stating that religious schools need to submit something in writing to invoke the exception, but that requirement wasn’t always enforced and the regulation was amended in 2020 to clarify that the exception can be raised orally and after a bias investigation is launched, the judge said.

The students alleged the exception violates the First Amendment’s establishment clause and the equal protection and due process clauses of the Fifth Amendment, Smith said. Their First Amendment claim failed under the historical-practices-and-understanding test set by Kennedy v. Bremerton School District, he said.

Kennedy abandoned the test set by Lemon v. Kurtzman, which the lower court wrongly relied on in dismissing the students’ suit, the Ninth Circuit said. But the Title IX carve-out and regulation don’t violate the First Amendment because they’re similar to exemptions religious organizations have long received, include from real property tax, it said.

Tax exemptions were the “most analogous” comparison given the lack of “historical equivalents” and have been permitted since near the time of the US’s founding, Smith said. Other religious exceptions have continued to be recognized more recently, including to accommodate prisoners, indicating a “tradition of great salience,” he said.

Because the exception only exempts institutions that have a faith-based tenet requiring gender bias, it doesn’t give religious schools a free pass to discriminate and doesn’t violate the equal protection clause, the court said.

The students lacked standing to challenge the 2020 amendment under the Administrative Procedure Act, Smith said. They were equally likely to be discriminated against under the exemption prior to the amendment, he said.

Judges Mark J. Bennett and Anthony D. Johnstone joined the opinion.

Perkins Coie LLP and Paul C. Southwick of Portland represented the students. The Justice Department represented the US. Alliance Defending Freedom, Schaerr Jaffe LLP, and Herbert G. Grey of Beaverton represented the Council for Christian Colleges & Universities and other intervenor-defendants.

The case is Hunter v. U.S. Dep’t of Educ., 9th Cir., No. 23-35174, 8/30/24.