University's No-Contact Orders To 3 Christian Students Violate Free Speech Rights

In Perlot v. Green, (D ID, June 30, 2022), an Idaho federal district court issued a preliminary injunction requiring the University of Idaho to rescind no-contact orders issued to three law students who are members of the Christian Legal Society and a limited-contact order issued to a faculty member who is the CLS advisor. Defendants were also barred from issuing future no-contact orders based on pure speech alone. The action, taken by the University because of its interpretation of Title IX provisions, were based on conversations or remarks by the students to a female LGBTQ student on the Christian biblical view of marriage and sexuality. The parties dispute the exact content of those remarks. The female student told university officials that she felt targeted and unsafe. The court said in part:

Defendants issued the no-contact orders to Plaintiffs because Plaintiffs discussed their sincerely held religious beliefs about marriage and because they discussed religious discrimination. Thus, it appears the no-contact orders apply to Plaintiffs because of the “message expressed.” ...

Similarly, Defendants’ orders targeted the viewpoint of Plaintiffs’ speech. Both students and professors expressed opposing viewpoints to the views expressed by Plaintiffs without any type of intervention, let alone punishment..... Thus, while all of these parties’ speech was on the same topic, only one viewpoint—Plaintiffs—was deemed worthy of intervention and discipline.....

Instead of focusing on sexual harassment, Defendants focus on harassment in general and argue that people have a right to be free from being bothered. Title IX does not provide such a right....

... The Court in Hill made a clear distinction between the right to attempt to persuade others to change their views and offensive speech that is so intrusive that the unwilling audience cannot avoid it. The right to free speech cannot be curtailed simply because the speaker’s message may be offensive to his audience....

In a footnote, commenting on a faculty member's statement that religious beliefs are not an excuse to deprive others of their rights, the court said:

Phrases such as this have taken root in recent years and paint an overtly negative picture of religious liberty. The assumption such phrases implicate is that people use their religion to mask discriminatory conduct and then try to “hide” from any legal consequences by invoking religious protection. The Court will not dissect why this assumption is a shallow look at religion, and fails to provide any substance to numerous individual constitutional rights. Suffice it to say, in a pluralistic society, people should honor differing viewpoints and build bridges of understanding instead of arguing that opposing viewpoints are inherently discriminatory and must be punished or excluded from the public square.

Proposed Rule Amendments Say Title IX Bars LGBT Discrimination

Last Thursday, the Department of Education issued a 700-page Release (full text) proposing amendments to the regulations implementing Title IX which bars sex discrimination in education programs or activities that receive federal funding. Among other things, a new rule, 34 CFR 106.10, would provide:

Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.

CLS Members Sue University Of Idaho Over No-Contact Orders

Three members of the Christian Legal Society at the University of Idaho filed suit against University administrators on Monday contending that the University's Title IX Policy and Conduct and Discipline Policies, facially and as applied to them violate their free speech, free exercise and due process rights.  The complaint (full text) in Perlot v. Green, (D ID, filed 4/25/2022) alleges that the University's Office of Civil Rights and Investigations issued "no contact" orders against the three students barring the from having contact with another student with whom they had had a discussion about Christian views on sexuality and marriage. ADF issued a press release announcing the filing of the lawsuit.

Department of Education Reaffirms BYU's Exemption From LGBTQ Anti-Discrimination Requirements

The U.S. Department of Education, Office of Civil Rights, issued a determination letter (full text) on Feb. 8, 2022, dismissing a complaint filed by LGBTQ students at Brigham Young University.  The University bans same-sex romantic relationships among its students.  The OCR letter affirms that the University is exempt from the non-discrimination provisions of Title IX:

to the extent that the application of those provisions would conflict with the religious tenets of the University's controlling religious organization that pertain to sexual orientation and gender identity.

The University issued a press release announcing the OCR determination. Salt Lake Tribune reports on the determination and reactions to it.

9th Circuit: Seminary Is Exempt From Title IX In Applying Its Sexual Standards

In Maxon v. Fuller Theological Seminary, (9th Cir., Dec. 13, 2021), the U.S. 9th Circuit Court of Appeals held that Fuller Theological Seminary falls within the religious organization exemption in Title IX even though the school is controlled by its own board rather than an outside religious organization. Plaintiffs sued under Title IX after they were dismissed from the Seminary because, in violation of the school's Sexual Standards, they were in same-sex marriages. The court said that it cannot second-guess the seminary's interpretation of its own religious tenets. Courthouse News Service reports on the decision.

Transgender Students Sue Their High School For Gender Recognition

Suit was filed in an Indiana federal district court this week by two transgender male high school students against their school. The complaint (full text) in B.E. and S.E. v. Vigo County School Corp., (SD IN, filed 11/8/2021) alleges in part:

Defendants’ failure to recognize the plaintiffs as male and to allow them to use male restrooms and the male locker room and to require that they be addressed by the names and pronouns consistent with their male gender violates both the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Title IX of the Education Amendments Act of 1972....

Los Angeles Blade reports on the lawsuit.

20 State AG's Sue Feds Over LGBTQ Anti-Discrimination Interpretations

A 20-state coalition led by Tennessee Attorney General Herbert Slattery filed suit in a Tennessee federal district court challenging interpretations of anti-discrimination laws by the Department of Education and the EEOC. In response to an Executive Order issued by President Biden, these two agencies issued interpretations protecting against discrimination on the basis of sexual orientation or gender identity. The complaint (full text) in State of  Tennessee v. U.S. Department of Education, (ED TN, filed 8/30/2021), contends in part:

[T]he Department of Education ... and Equal Employment Opportunity Commission ..., each flouting procedural requirements in their rush to overreach, issued “interpretations” of federal antidiscrimination law far beyond what the statutory text, regulatory requirements, judicial precedent, and the Constitution permit.

The relief requested by plaintiffs particularly focuses on concerns over transgender rights under Title VII and Title IX. 

Tennessee's Attorney General issued a press release announcing the filing of the lawsuit. 

School Board Cannot Remove Teacher's Suit To Federal Court

In Vlaming v. West Point School Board, (4th Cir., Aug. 20, 2021), the U.S. 4th Circuit Court of Appeals held that a school board defendant cannot remove a former teacher's suit against it to federal court.  The teacher filed suit in a Virginia state court after being fired for refusing to call a transgender student by pronouns consistent with the student's gender identity. The teacher asserted only state law claims. At issue in the case were two federal statutory provisions on removal of cases to federal court. As to one of those provisions, the court's majority opinion said in part:

28 U.S.C. § 1443, the civil rights removal statute ... provides for removal of a civil action ... commenced in state court “[f]or any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.” The Board argues ... they either fired Vlaming in order to comply with Title IX, or they refused to permit Vlaming to discriminate, or to grant him an exception to their policies because of his religious beliefs, on the grounds that doing so would be inconsistent with Title IX. Precedent, however, precludes Title IX from being the type of “law providing for equal rights” referenced in § 1443(2).

The Supreme Court has limited the meaning of a “law providing for equal rights” in § 1443 to only those concerning racial equality....

Judge Floyd filed a concurring opinion, disagreeing in part with the reasoning of the majority. [Post revised to reflect concurring opinion.]

Transgender Students Sue Over Tennessee Public School Bathroom Law

Suit was filed this week in a Tennessee federal district court challenging the Tennessee Accommodations for All Children Act. The suit was brought on behalf of two transgender students. The complaint (full text) in A.S. v. Lee, (MD TN, filed 8/3/2021) alleges that the effect of the law is to force transgender students in public schools to either use a multi-occupancy bathroom inconsistent with their gender identity or ask for a "reasonable accommodation" such as use of a single-occupancy or a teacher's restroom or changing room. Use of a multi-occupancy restroom or changing room consistent with their gender identity is not an option. The complaint charges that the law violates the equal protection clause and Title IX. CNN reports on the lawsuit.

Court Enjoins Enforcement of West Virginia's Ban On Transgender Girls Being On Girl's Sports Teams

In B.P.J. v. West Virginia State Board of Education, (D WV, July 21, 2021), a West Virginia federal district court granted a preliminary injunction to an 11-year old transgender girl who was kept off the girl's cross country and track teams under a West Virginia statute that bars students whose biological sex is male from girls' teams. The court found a likelihood of success on plaintiff's equal protection and Title IX claims, saying in part:

B.P.J. has not undergone endogenous puberty and will not so long as she remains on her prescribed puberty blocking drugs. At this preliminary stage, B.P.J. has shown that she will not have any inherent physical advantage over the girls she would compete against on the girls’ cross country and track teams....

As applied to B.P.J., Section 18-2-25d is not substantially related to protecting girls’ opportunities in athletics or their physical safety when participating in athletics. I find that B.P.J. is likely to succeed on the merits of her equal protection claim.

Courthouse News Service reports on the decision.

DOE Says Title IX Bans LGBT Discrimination

The U.S. Department of Education Office for Civil Rights yesterday issued a Notice of Interpretation (full text) extending Title IX's non- discrimination provisions to discrimination on the basis of sexual orientation or gender identity. This reverses a DOE interpretation issued by the Trump Administration just days before the change in Administrations. (See prior posting.) The new Interpretative memo states in part:

[T]he Department has determined that the interpretation of sex discrimination set out by the Supreme Court in Bostock—that discrimination “because of . . . sex” encompasses discrimination based on sexual orientation and gender identity—properly guides the Department’s interpretation of discrimination “on the basis of sex” under Title IX and leads to the conclusion that Title IX prohibits discrimination based on sexual orientation and gender identity....

Consistent with the analysis above, OCR will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department.

The Interpretation notes in a footnote, however:

Educational institutions that are controlled by a religious organization are exempt from Title IX to the extent that compliance would not be consistent with the organization’s religious tenets. See 20 U.S.C. § 1681(a)(3).

Deseret News reports on the DOE's action.

DOJ's Memo In Title IX Litigation Raises Controversy

As previously reported, in a class action filed in April, LGBTQ+ students enrolled at religious colleges that receive federal financial assistance sued the Department of Education challenging the constitutionality of the exemption for religious organizations from anti-discrimination requirements of Title IX.  Subsequently, three Christian universities filed a motion to intervene as defendants, contending that the Department of Education would not adequately defend the exemption. The government's memo in opposition to the motion to intervene (full text) in Hunter v. U.S. Department of Education, (D OR, filed 6/8/2021) has created controversy.  As reported by the Washington Post:

Some LGBTQ advocates were disturbed by the filing...,  saying its wording went further than necessary, further than just an obligation to defend an existing law. They want the administration to agree with them that it’s unconstitutional for federally-funded schools to discriminate against LGBTQ people....

To others, including Biden supporters, the administration had no other option, since ... Title 9 ...exempts religion..... 

However, in a possible sign of the pressure on the administration, the Justice Department amended the document Wednesday, taking out the word “vigorously” to describe its defense of the religious exemption and retaining multiple uses of the word “adequate.” It removed wording that said the Department of Education and the Christian schools “share the same ‘ultimate objective’ … namely, to uphold the Religious Exemption as it is currently applied.”

... Slate legal writer Mark Joseph Stern said the Justice Department was “trying to prevent a Christian organization from . . . mounting extreme arguments." Stern said the religious exemption to Title 9 isn’t “blatantly, invidiously unconstitutional” and thus the administration has no choice but to defend it.

LGBTQ+ Students Challenge Title IX Religious Institution Exemption

In a class action lawsuit filed earlier this week in an Oregon federal district court, 33 LGBTQ+ students enrolled at religious colleges that receive federal financial assistance challenge the constitutionality of the exemption in Title IX for educational institutions controlled by religious organizations.  The exemption applies if the non-discrimination provisions of Title IX would conflict with the organization's religious tenets. The complaint (full text) in Hunter v. U.S. Department of Education, (D OR, filed 3/29/2021) alleges that the Department of Education's refusal to enforce non-discrimination provisions against religious colleges:

leaves students unprotected from the harms of conversion therapy, expulsion, denial of housing and healthcare, sexual and physical abuse and harassment, as well as the less visible, but no less damaging, consequences of institutionalized shame, fear, anxiety and loneliness.

Alleging equal protection and Establishment Clause claims, plaintiffs contend:

[W]hile the statutory religious exemption to Title IX may permit, or even require, the Department to refuse assistance to sexual and gender minority students like the Plaintiffs, the Constitution forbids such inaction.

NBC News reports on the lawsuit.

UPDATE: An amended complaint (full text) was filed on June 7, 2021).

DOE Says Bostock Decision Does Not Apply To Title IX

 As reported by Education Week, the U.S. Department of Education has released a Jan. 8, 2021 Memorandum (full text) on the impact of the U.S. Supreme Court's Bostock decision on Title IX. While Bostock held that the ban on sex discrimination in Title VII includes discrimination on the basis of sexual orientation and gender identity, the DOE Memo concludes that Bostock does not apply to Title IX, saying in part:

[T]he Department’s longstanding construction of the term “sex” in Title IX to mean biological sex, male or female, is the only construction consistent with the ordinary public meaning of “sex” at the time of Title IX’s enactment.

The memo goes on to provide that some kinds of discrimination based on a person's homosexuality or transgender status may violate Title IX because the discrimination takes into account the person's biological sex.  Examples are employment discrimination and sexual harassment. However, in other educational situations, Title IX does not protect against sexual orientation or gender identity discrimination:

We believe the ordinary public meaning of controlling statutory and regulatory text requires a recipient providing separate athletic teams to separate participants solely based on their biological sex, male or female, and not based on transgender status or homosexuality, to comply with Title IX.

Under Title IX and its regulations, a person’s biological sex is relevant for the considerations involving athletics, and distinctions based thereon are permissible and may be required because the sexes are not similarly situated.

Disagreeing with two Circuit Court opinions, the memo states:

[W]e believe the plain ordinary public meaning of the controlling statutory and regulatory text requires a recipient providing “separate toilet, locker room, and shower facilities on the basis of sex” to regulate access based on biological sex.

The Memorandum also recognizes that religious exemptions under Title IX and RFRA still apply.

Ministerial Exception Applies To Title IX Hostile Work Environment Claims

In Koenke v. Saint Joseph's University, (ED PA, Jan. 8, 2021), a woman employed by a Catholic university sued under Title IX claiming sexual orientation discrimination.  The court held that the Supreme Court's Bostock decision should be read to apply to sexual orientation discrimination under Title IX as well as under Title VII. All the parties agreed that plaintiff's position as Assistant Director for Music and Worship was a "ministerial" position for purposes of the ministerial exception. However plaintiff claimed that the ministerial exception does not apply to non-tangible employment discrimination claims such as hostile work environment.  The court disagreed, saying in part:

[H]ostile work environment claims, particularly those brought pursuant to Title VII or Title IX, clearly fall within the scope of cases banned by the ministerial exception.... The Supreme Court has not cabined the ministerial exception to tangible or intangible employment actions, and it is not for this Court to create such an exception to binding precedent.

SCOTUS Denies Review In Transgender Bathroom Case

The U.S. Supreme Court today denied review in Parents for Privacy v. Barr, (Docket No. 20-62, certiorari denied 12/7/2020). (Order List). In the case, the U.S. 9th Circuit Court of Appeals upheld an Oregon school district's policy of allowing transgender students to use school bathrooms, locker rooms and showers that correspond to their gender identity. (See prior posting.) The petition for certiorari had raised privacy, religious and parental rights, and Title IX claims.

Seminary May Expel Students For Entering Same-Sex Marriages

In Maxon v. Fuller Theological Seminary, (CD CA, Oct. 7, 2020), a California federal district court held that the Religious Organization Exemption in Title IX applies to a seminary controlled by its own board of directors rather than by an outside religious organization. Thus, while Title IX was interpreted by the court to include a ban on discrimination on the basis gender stereotypes, the exemption allowed it to expel two students because they had entered same-sex marriages. Washington Times reports on the decision.

Court Enjoins Two Portions of Trump Administration's New Health Care Anti-Discrimination Rules

 In Whitman-Walker Clinic, Inc. v. U.S. Department of Health and Human Services, (D DC, Sept. 2, 2020), the D.C. federal district court, in a 101-page opinion, issued a nationwide injunction barring enforcement of two of the changes to health care anti-discrimination rules made by the Trump Administration earlier this year.  (See prior posting.)  The court summarized its holding:

The Court ultimately concludes that Plaintiffs have standing to level challenges to certain provisions of the 2020 Rule, but not others, and that they are likely to succeed (and will suffer irreparable harm) on two central claims: first, that the 2020 Rule arbitrarily and capriciously eliminated “sex stereotyping” from the prior Rule’s definition of “discrimination on the basis of sex”; and second, that it improperly incorporated Title IX’s exemption of certain religious organizations from the statute’s nondiscrimination mandate. 

11th Circuit Invalidates School's Rule On Transgender Bathroom Assignments

 In Adams v. School Board of St. Johns County, Florida, (11th Cir., Aug. 7, 2020), the U.S. 11th Circuit Court of Appeals by a 2-1 vote held that a Florida high school's policy that prevented a transgender male from using the boy's bathroom violates the Equal Protection Clause as well as Title IX. The court said in part:

[W]e assume the government may promote its interest in protecting privacy by maintaining separate bathrooms for boys and girls or men and women. Mr. Adams, for his part, does not question the ubiquitous societal practice of separate bathrooms for men and women. Instead, Mr. Adams argues the School Board’s bathroom policy singles him out for differential treatment on the basis of his gender nonconformity and without furthering student privacy whatsoever. The record before us has persuaded us to his view.

The majority noted that the school relies on the student's sex designation on school enrollment forms, and not on their birth certificates. The majority went on:

 A public school may not punish its students for gender nonconformity. Neither may a public school harm transgender students by establishing arbitrary, separate rules for their restroom use. The evidence at trial confirms that Mr. Adams suffered both these indignities.

Chief Judge Pryor dissented, saying in part:

By failing to address head-on the lawfulness of sex-separated bathrooms in schools, the majority recasts the school policy as classifying students on the basis of transgender status. And based on this recasting, it reaches the remarkable conclusion that schoolchildren have no sex-specific privacy interests when using the bathroom. The majority opinion purports to allow only plaintiff Drew Adams, a female who identifies as a male, to use the boys’ bathroom, but the logic of this decision would require all schoolchildren to use sex-neutral bathrooms.

Lambda Legal issued a press release announcing the decision.

23 States Sue HHS Over Rollback of Anti-Discrimination Protections In Health Care

Attorneys general representing 22 states and the District of Columbia filed suit yesterday challenging the Trump Administration's recently-adopted rules under the Affordable Care Act and under Title IX which roll back anti-discrimination provisions protecting, among others, transgender individuals and those who have accessed abortion services. The complaint (full text) in State of New York v. U.S. Department of Health and Human Services, (SD NY, filed 7/20/2020), contends that the new rules deny equal protection of the laws and that their adoption was in violation of various provisions of the Administrative Procedure Act. Courthouse News Service reports on the lawsuit. New York's Attorney General issued a press release announcing the filing of the lawsuit.