LGBTQ activists react to Justice Department defense of Title IX religious exemption

Advocates say LGBTQ students deserve protection -- even in religious schools.

June 11, 2021, 3:45 PM

LGBTQ advocates are criticizing the Justice Department for a court filing in which the DOJ wrote it would "vigorously" defend a religious exemption that allows federally funded religious colleges and universities to discriminate against minorities.

The DOJ also said, in relation to the Hunter v. the U.S. Department of Education case, that the Department of Education and Christian schools "share the same 'ultimate objective' ... to uphold the Religious Exemption as it is currently applied."

The wording has since been amended in the court filings. The Department of Justice is responsible for defending federal statutes in court, and the filing now reads that it will "adequately" defend the case.

LGBTQ activists have said that the language initially used implied that the DOJ condoned and supported discrimination against LGBTQ students, which goes against President Joe Biden's past statements on protections for this community.

"There's a difference between doing their job in a professional, appropriate way ... and expressing it as an enthusiastic commitment to achieving a particular result," said Jennifer Pizer, the law and policy director for Lambda Legal, a legal organization that focuses on LGBTQ rights.

She said that there's a misunderstanding about what it means to provide equal justice under the law for LGBTQ people, saying that the foundations of religious freedom shouldn't encourage or allow discrimination against marginalized persons.

"It's not a religious freedom to hurt other people," she added. "The legal question is how do we find the right relationship between freedom to exercise one's religious beliefs and where that freedom stops when it would start to cause harm to other people, to create inequality for other people."

The U.S. Department of Justice seal is displayed following a news conference with Rod Rosenstein, deputy attorney general, not pictured, in Washington, D.C., Dec. 20, 2018.
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Shannon Minter, the legal director for the National Center for Lesbian Rights, an LGBTQ rights advocacy group, said the language from the DOJ wasn't concerning.

Instead, he said he's focused on the damaging effects of discrimination against students and the positive efforts some religious schools have made to be more inclusive.

"It's a process of education for these schools to understand the impact of their policies," Minter said. "They have to learn that, and they have to hear that directly from students, but it is very distressing -- the harm that is caused to students at some of these schools is really profound."

He said it's time that these schools address the discriminatory policies within their systems -- and he said many of these schools are headed in the right direction.

"It's actually one of the most significant social developments of our time," Minter said. "It's part of a larger process of conservative faith communities really having to come to grips with the reality that they have LGBTQ children and young people in their midst."

The Justice Department declined ABC News' request for comment on the filing or on the lawsuit.

In Hunter v. the U.S. Department of Education, which was filed in March, 40 LGBTQ students sued the government for providing funding to conservative religious educational institutions with discriminatory policies.

The argument from the students reads: "The Plaintiffs seek safety and justice for themselves and for the countless sexual and gender minority students whose oppression, fueled by government funding, and unrestrained by government intervention, persists with injurious consequences to mind, body and soul."

The lawsuit also claims that students may be subject to conversion therapy, expulsion, harassment and misconduct, and denial of housing and health care from institutions that claim protection under claims of religious exemption.

Title IX, which is invoked in the case, prohibits students from sex-based discrimination.

However, the civil rights law says that religious institutions, even if they accept federal funding, do not have to abide by the law if it "would be inconsistent with the religious tenets of the organization," according to the Office for Civil Rights on the DOE's website.

The Council of Christian Colleges and Universities represents many of the schools listed as defendants in the lawsuit. In a court filing, the organization said the religious exemption "has proven indispensable as contemporary notions of sexuality and gender depart, often substantially, from the religious beliefs that animate every aspect of Christian campus life."

The Department of Justice building in Washington, D.C., Dec. 4, 2020.
Bloomberg via Getty Images, FILE

The schools involved in the lawsuit claim that it's their First Amendment right to promote traditional religious beliefs about sexuality and gender, even if it's perceived by students to be discriminatory.

Though the Justice Department is obligated to defend the Department of Education, activists said they hope this case can lead to a larger conversation about the impact of discrimination on students and the advancements that have been made by some religious institutions to amend or do away with harmful codes of conduct.

The backlash comes as the Equality Act makes its way through Congress. President Joe Biden has openly applauded the bill, which would prohibit discrimination based on sex, sexual orientation or gender identity.

"Full equality has been denied to LGBTQ+ Americans and their families for far too long," Biden said in a February statement just before the House passed the bill. "Despite the extraordinary progress the LGBTQ+ community has made to secure their basic civil rights, discrimination is still rampant in many areas of our society."

The Equality Act is now awaiting its turn in the Senate.

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