As a result of recent guidance from the Department of Justice to federal agencies and a recent decision of the United States Supreme Court, LGBT students at educational institutions are protected from discrimination by Title IX’s prohibition on sex-based discrimination. https://www.coloradolawteam.com/blog/2021/04/title-ix-now-protects-lgbt-students-from-discrimination/
A recent article by Inside Higher Ed details new efforts from LGBT students who are seeking to extend that protection to LGBT students at religious schools. https://www.insidehighered.com/news/2021/04/06/lgbt-students-sue-education-department-over-title-ix-religious-exemption
Title IX prohibits discrimination on the basis of sex, including gender identity and sexual orientation, in educational institutions that receive federal funds. Title IX however exempts institutions that are controlled by a religious organization from this prohibition if compliance would be contrary to the religious tenets of the religious organizations. 20 U.S.C. § 1681(a)(3). This exemption has left students, especially LGBT students, at religious schools vulnerable to harassment and discrimination. Now, LGBT students at several religious colleges have brought a lawsuit against the Department of Education arguing that Title IX’s exemption violates the Constitution’s guarantee of equal protection and due process. These LGBT students describe homophobia, harassment, being reluctant to report sexual assault, colleges’ indifference when they do report sexual assault, and even being forced into conversion therapy. The students bringing the lawsuit argue that the federal government is approving such discrimination when it gives funds to religious schools who are then exempt from Title IX’s prohibition on discrimination and that this violates the equal protection clause of the Constitution. The colleges argue that their religious freedom rights under the Constitution entitle them to carve out their own rules. Courts will have to decide how to balance these competing claims, but in the meantime, LGBT students at religious colleges will continue not to enjoy the protections of Title IX.