Title IX: Religious Institutions’ Right to Discriminate Against Same Sex Marriages


The Ninth Circuit Court of Appeals agreed with a California District Court that a theological seminary is exempt from federal prohibitions of sex discrimination and was therefore permitted to expel two students for being in same-sex marriages, because the behavior violated the seminary’s religious tenets.

Essential Facts

Fuller Theological Seminary expelled two students for violating school policies against same-sex marriage. Fuller is a California nonprofit corporation that offers degrees in theology, intercultural studies, and psychology. Although it admits students and hires faculty from a variety of faiths, it is religious in nature and functions as a seminary. It is not affiliated with any specific religious denomination or church.

Plaintiff N, a male, was accepted to Fuller in 2017 shortly before classes started. Fuller received federal student loan funds which he used to pay tuition. Soon thereafter, he requested his name be changed, because he married a man. Thereafter, he was dismissed from enrollment because he violated Fuller’s Sexual Standards Policy.

Plaintiff J, a female, enrolled in Fuller in 2015. She attended classes online and at Fuller’s Houston, TX campus. Then she divorced her husband, changed her marital status and name, then married a woman. She acknowledged to Fuller she was in a same-sex marriage. She was dismissed for violating the Sexual Standard Policy of the Community Standard.

Both Plaintiffs filed suit against Fuller for violations of Title IX, but the California District Court granted Fuller’s motion to dismiss on the grounds that it was exempt from Title IX’s prohibitions against discrimination. The Ninth Circuit Court of Appeals affirmed.

Unpacking Title IX Discrimination

Title IX prohibits any educational program, institution, or organization from discriminating against a person on the basis of sex. The District Court agreed with Plaintiffs that discrimination on the basis of sex includes discrimination based on sexual orientation because, if the Plaintiffs were of the opposite gender they would not have been dismissed from Fuller. Therefore, they were treated differently than similarly situated people of the opposite sex.

However, the prohibition against this discrimination does not apply to educational institutions “controlled by a religious organization” if such discrimination is consistent with the organization’s religious tenets. Plaintiffs argued that Fuller did not meet the elements for statutory exemption because it is not “controlled by a religious organization,” but rather it is controlled by its board of directors. However, the District Court disagreed and determined that the term “religious organization” was a broad term and included the board of directors. Thus, Fuller was controlled by a “religious organization” even though it was not controlled by a church or denomination, and was therefore exempt from Title IX’s prohibition against sex discrimination.

Additionally, the Court determined that Fuller was not required to submit a claim of exemption with the Department of Education (DOE) in order to be exempt because the plain language of Title IX exempts religious institutions regardless of whether a claim for exemption is filed. Thus, there is no mandatory process that an educational institution must follow in order to claim the exemption. Exemption is automatic.

Lastly, Plaintiffs asked the court not to dismiss because, although Fuller may be exempt, the discovery process may show that Fuller expelled them due to personal animus rather than genuine adherence to its religious tenets. The court disagreed and held that it was not in a position to scrutinize the interpretation Fuller gives its own religious beliefs. Moreover, Plaintiffs did not plead a retaliation claim.  

Ninth Circuit Court of Appeals Affirms

The Ninth Circuit affirmed the District Court’s ruling in an unpublished opinion. The Court agreed that the term “organization” is broad enough to include an entity that is contained within another entity and, the court should rely on the DOE’s interpretation which has been, for over thirty years, to not require the controlling religious organization be a separate entity from the educational institution. Additionally, the appellate court agreed that a written claim for exemption is not required by the plain language of Title IX, nor has the DOE ever required educational institutions request religious exemption in writing.  Thus, exemption is automatic.

Takeaways from This Case

What do religious educational institutions need to take away from this case? First, it is discrimination to treat people in similar situations differently because of their gender, and they should not do so unless the distinction is theologically based.  According to this court, religious institutions are automatically protected by Title IX if they meet the elements of the exemption. There is no procedure to follow or documents that need to be filed in order to qualify for the exemption. All that is necessary is that the educational institution 1) is controlled by a religious organization, and 2) prohibiting discrimination based on sex would require the institution to violate its religious tenets. This may help inform the decision of whether religious educational institutions should even apply for an exemption to Title IX.


Featured Image by Rebecca Sidebotham.

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