How Religious Educational Institutions Can Avoid Title IX Suits

Brigham Young University (BYU) requested an assurance of exemption from Title IX’s prohibition of discrimination on the basis of sex because a recent complaint alleged the school’s policy that prohibits same-sex romantic relationships violated Title IX. The Department of Education (DOE) affirmed the exemption and dismissed for lack of jurisdiction. 

The Complaint

In 2020, BYU removed its written ban on homosexual behavior from its Honor Code¹ which prompted some students to publicly come out as members of the LGBTQ community. Afterwards, however, BYU announced that same-sex dating was still not permitted² under the remaining language of the university’s honor code and that the ban would still be enforced.³

A complaint was filed in March 2020, but BYU was unaware of the complaint until October 2021.⁴ The Department of Education’s Office for Civil Rights (OCR) opened an investigation in October 2021 to determine whether BYU was in violation of its students’ civil rights.

BYU’s Response

In a letter to the DOE, BYU asserted its religious exemption under the US Constitution and Title IX.

In its letter, BYU stated that it welcomes and supports all students, including those who identify as LGBTQ, and acknowledges the “complicated realities that many of these individuals experience as they navigate issues surrounding sexual orientation, gender identity, and religious doctrine.”⁵ However, BYU asserts that it is controlled by the tenets of the Church of Jesus Christ and its position on marriage is that marriage between a man and a woman is ordained by God and that same-sex romantic behavior cannot lead to eternal marriage. Therefore, it is inconsistent with BYU’s Honor Code.

The DOE Dismisses the Complaint

OCR responded by affirming that BYU, as an educational institution that receives Federal financial assistance, is subject to the requirements of Title IX and is prohibited from discriminating based on sex. However, OCR continues, because BYU, as a religious organization, is exempt from certain regulatory provisions of Title IX “to the extant that application of those provisions conflict with [BYU’s] religious tenets . . . OCR lacks jurisdiction to address the complaint’s allegations.” Then OCR dismissed the complaint.

Takeaways from OCR’s Dismissal

Although OCR asserts in its letter that the position outlined in it is not a formal statement of OCR policy and should not be relied upon, a few points can help other religious educational institutions avoid future litigation.

First, BYU was able to assert that same-sex relationships violated the tenets of the Church of Jesus Christ, which controlled BYU. Therefore, under Title IX, what mattered was that the ban on same-sex relationships was part of the tenets of the controlling organization (the Church of Jesus Christ). The Church’s theology is clearly expressed.

The tenets of the controlling religious organization were what determined whether OCR had jurisdiction in this case, not just the Honor Code, which was the language on which the complaint seemed to focus.

OCR expressed that it did not have jurisdiction to investigate the complaint because it was clear from the outset that the Church of Jesus Christ viewed marriage (and romantic relationships leading to marriage) as strictly between a man and a woman and, therefore, BYU qualified for an exemption from Title IX requirements. Therefore, it helps if the position of the controlling institution is clear.

Second, it may help if the educational institution’s policies are clear. BYU, in this case, removed its literal ban on same-sex relationships from the Honor Code and this change prompted many students to publicly express they identified as LGBTQ, believing it was no longer prohibited. This confusion for LGBTQ students led to the complaint. So religious institutions may do better to keep their policies completely clear.

_________________________________________

¹ The original language stated that, although homosexual attraction is not a violation of the Honor Code, Homosexual behavior is. See: https://universe.byu.edu/2020/02/19/honor-code-changes-remove-explicit-ban-on-homosexual-behavior/

² Presumably because the Honor Code still stated students must abstain from sex outside a marriage between a man and woman.

³ See: AP, January 20, 2022; https://apnews.com/article/sports-lifestyle-us-department-of-education-brigham-young-university-education-41cf849a79eaaddf7f8d16e167646a67

⁴ See: BYU communications, February 10, 2022; https://news.byu.edu/us-doe-dismisses-complaint

⁵ Letter from BYU President Worthen to DOE, November 19, 2021; https://news.byu.edu/0000017e-e0ca-d896-a97e-f8eee73e0000/2021-11-19-letter-from-kevin-worthen-to-catherine-lhamon-pdf.

Featured Image by Rebecca Sidebotham.