Federal Court Upholds Title IX Religious Exemption

CATEGORY: Private Education Matters
CLIENT TYPE: Private Education
DATE: Jan 27, 2023

Title IX prohibits educational programs or activities receiving federal funds from excluding, denying benefits to, or subjecting to discrimination any person on the basis of sex. One narrow exception to Title IX is when an educational institution is controlled by a religious organization with “religious tenets” inconsistent with the application of Title IX.

Regulations implementing Title IX set forth procedures for an educational institution wishing to invoke the religious exemption. In 2020, the Department of Education clarified that institutions are no longer required to submit a written statement to the Assistant Secretary for Civil Rights prior to invoking the religious exemption. Additionally, the Department of Education revised the regulations addressing how educational institutions may demonstrate that they are “controlled by a religious organization” within the meaning of the religious exemption. The revised regulation now sets forth a list of six criteria, any one of which is sufficient to establish that the institution is controlled by a religious organization.

Plaintiffs filed a class action lawsuit in federal court in Oregon against the Department Education on behalf of over 40 current and former LGBTQ+ students at more than 20 Christian colleges and universities that receive federal funding. The Plaintiffs allege these schools have discriminated against them by subjecting them to discipline, rejecting their applications for admission, and rescinding their applications for admission because of their sexual orientation or gender identity in violation of the Fifth and First Amendments of the U.S. Constitution.

The Plaintiffs requested a preliminary injunction to prohibit the use of the religious exemption. The Department of Education moved to dismiss the case, alleging the Plaintiffs’ claims fail to state a claim for relief. Three Christian universities and an association of Protestant Christian institutions intervened in the case and also joined the motion to dismiss the case with the Department of Education.

The trial court granted the Defendants’ motion to dismiss and denied the Plaintiffs’ request for an injunction. The trial court held that the Plaintiffs failed to allege claims that the Defendants violated the Equal Protection Clause and the Due Process Clause of the U.S. Constitution. Specifically, the trial court reasoned the Plaintiffs failed to provide any evidence of discriminatory motivation on the part of Congress or the Christian schools that requested and invoked the religious exemption. As such, the trial court held it could not conclude that “Plaintiffs’ assertion that Congress enacted the religious exemption to permit discrimination based on sex, sexual orientation, and gender identity” is sufficient to survive a motion to dismiss. Moreover, the court concluded that exempting religious institutions from Title IX only to the extent that a particular application of Title IX would be inconsistent with a specific tenet of the religious organization advances the government’s objective of accommodation of religious free exercise.

As for the due process claim, the court held that the Plaintiffs failed to allege facts supporting violations of due process by the Department of Education and only vaguely referenced due process principles in their complaint.

The trial court also rejected the Plaintiffs’ claim that the religious exemption violates the Establishment Clause of the First Amendment because it benefits religious educational institutions over non-religious educational institutions. The trial court found the Plaintiffs did not demonstrate that the federal government was motivated to discriminate against LGBTQ+ students with the Title IX religious exemption. Moreover, the trial court cited Supreme Court precedent which held that a law is not unconstitutional simply because it allows churches to advance religion. As such, the religious exemption did not have the “primary effect” of advancing religion or sponsoring targeted discrimination on the basis of sex, and the Plaintiffs did not provide any evidence that would explain how the Department of Education advanced religion through the religious exemption.

The trial court also rejected the Plaintiffs’ argument that the religious exemption creates “excessive entanglement” between the government and religion. Rather, the religious exemption prevents excessive entanglement because in the absence of the religious exemption, the Department of Education must scrutinize religious schools’ compliance with anti-discrimination policies of Title IX, even if such policies would conflict with the schools’ religious tenants.

The trial court also rejected the Plaintiffs’ claims that the religious exemption to Title IX creates a “chilling effect” on the Plaintiffs’ exercise of religion and speech, and prevents the Plaintiffs from expressing their beliefs about sexuality, gender identity and marriage. The trial court held that the Plaintiffs’ complaint in this regard lacked sufficient facts that support their claims. Moreover, the religious exemption does not aim to suppress speech because it does not discriminate on the basis of viewpoint, nor does it allow government entities (like the Department of Education) to administer the statute based on a Title IX complainant’s viewpoint on sexuality or gender identity.

Hunter v. United States Department of Education, et. al. (D. Or. Jan. 12, 2023) 2023 WL 172199 (slip. op.)


Title IX applies to most private colleges and universities, and in limited circumstances may apply to private and independent K-12 schools that accept certain federal financial assistance. In June 2022, the U.S. Department of Education released proposed changes to the Title IX regulations. The executive summary of the proposed regulations briefly mentions the religious exemption, but the regulations do not include any changes to the exemption. The Department of Education is currently reviewing public comments regarding the proposed changes before releasing the final regulations. 

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