Six months after the US Supreme Court legalized same-sex marriage, Dr. Randall O’Brien, president of Carson-Newman University in Jefferson City, Tennessee, told the local CBS affiliate that “in a changing world, we want to reaffirm who we are, who we intend to be, and establish our identity as a religious school, a Christian school.”
O’Brien was gleefully explaining that the 165-year-old college, established as Mossy Creek Missionary Baptist Seminary in 1851, had just been granted a US Department of Education (DOE) exemption from Title IX regulations, in effect allowing the university to continue to collect federal dollars for scholarships and sports programs despite banning unmarried, pregnant students; women who have had abortions; single mothers; and LGBTQ people from attending classes or working on campus.
This was not Carson-Newman’s first foray into regulating the behavior of students, faculty or staff, or in imposing a set of religious restrictions on those connected to it. Far from it. Prior to obtaining the Title IX exemption last December, the campus code of conduct prohibited “lewd, obscene or vulgar language” or expression that is contrary to “Christian values and principle,” and barred students and staff from engaging in or advocating engagement in “sexually immoral acts, including sexual relations outside of marriage.”
But the Title IX exemption was different from these provisions because it involves money: federal dollars in the form of Pell grants, Supplemental Educational Opportunity grants and subsidized student loans. It also allows Carson-Newman to continue to receive government funding for its athletic programs — despite its overt intent to discriminate against the aforementioned groups of people in admissions, retention and hiring.
And Carson-Newman is not anomalous. According to Human Rights Campaign, since 2013, 56 religiously affiliated colleges and universities in 26 states have been granted Title IX exemptions, and more applicants are in the pipeline. The majority belongs to Southern Baptist, Wesleyan, and Christian and Missionary Alliance sponsored programs, but numerous schools affiliated with the Catholic Church, Mennonite Church and Assemblies of God have also sought waivers. What’s more, one Quaker college, George Fox University in Oregon, applied for and was granted dispensation from anti-discrimination provisions.
But before we parse the reasons for the sudden rash of exemption applications, let’s step back and look at what Title IX says, does and was intended to remedy.
Protecting People From Discrimination Based on Sex
The webpage of the Office for Civil Rights of the Department of Education notes that Title IX was promulgated in 1972 to guarantee that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal funding or assistance.” The country’s 16,500 public school districts, 7,000 postsecondary institutions, and government-supported libraries, museums and vocational rehabilitation programs are covered by the statute. So are similar programs in the District of Columbia and in all US territories.
It is worth noting that during the first four decades after Title IX took effect, religious colleges and universities were silent about the law, and if there were any grumblings about it, they stayed private. Meanwhile, as a result of Title IX, women’s sports exploded, with the number of collegiate-level athletes increasing from 32,000 in 1972 to more than 166,000 in 2007.
Then, in July 2013, a decision was issued by the DOE’s Office for Civil Rights mandating that a transgender boy be allowed to use a male restroom — rather than a single stall in the nurse’s office — and be allowed to bunk with boys rather than girls on a school trip organized by a school district in Arcadia, California.
The decision sent shock waves through the religious right. Then, two years later, when the Supreme Court’s ruling in Obergefell v. Hodges legalized same-sex marriage, groups including The Heritage Foundation’s DeVos Center for Religion and Civil Society, the Alliance Defending Freedom, the Family Defense Council, the Christian Legal Society and the Council for Christian Colleges and Universities went into panic mode. As the soil under their feet began to shift, they reminded like-minded academic institutions that they could be impacted by these decisions and suggested that they exercise their statutorily protected “right of conscience” and apply for a Title IX waiver.
Kimberlee Colby, director of the Center for Law and Religious Freedom of the Christian Legal Society, told Truthout, “We are concerned that both the Department of Education and Department of Justice have redefined sex for the purpose of Title IX. No one realized that the government would take a more than 40-year-old statute and include gender identity or gender expression in the definition of sex. This was not anticipated even 10 years ago and is a radical departure from what we thought Title IX intended. Many religiously affiliated schools are standing up and taking notice of this shift and have decided that the best risk management approach is to invoke the exemption.”
And when religious schools apply for indemnity, they get it, as long as they can provide a theological rationale — the citation of biblical passages to support their position and/or denominational policy statements about behaviors they find unacceptable or offensive — to support the request. “DOE does not have a choice in this,” said Sarah Warbelow, the legal director of Human Rights Campaign. “The way Title IX is structured, religiously affiliated schools or programs can request an exemption based on their faith and DOE has to grant it.”
Human Rights Campaign’s concern, Warbelow continues, is transparency. “We worry that schools will receive an exemption and no one will know about it. We’re hoping the Office of Civil Rights will publish a list of colleges that have been given waivers because students sometimes don’t realize the extent to which religious doctrine will be invoked. For some students, going to a particular university fulfills a lifelong dream. Or maybe most of their friends are going there, or it’s the school their parents attended. Regardless of why they’re interested in a particular college, they should know if it has applied for, or has been granted, a Title IX waiver.” Human Rights Campaign is also demanding that the Department of Education require every college to post information about receipt of an exemption on their website, and specify exactly from what it is exempt. Lastly, they want College Navigator, a source of information about academic options that receives heavy web traffic, to include this data.
Not surprisingly, the Christian Legal Society’s Colby opposes such a requirement. “It’s troubling to me that the DOE would even consider a blackball list of schools,” she said. “It’s a McCarthyite tactic meant to shame colleges for exercising their rights under existing law.”
Different Worldviews, Different Conclusions
That said, it’s clear that the differences between people like Colby and Warbelow extend far beyond Title IX.
Frederick Clarkson, a senior fellow in religious liberty at Boston’s Political Research Associates, a progressive think tank that monitors the religious and secular right wing, cautions that the current theological brouhaha is not limited to LGBTQ issues.
“That this is a reaction to cultural and legal changes is only half the story,” Clarkson said. “One of the consequences of the granting of religious exemptions to Title IX is the growing religification of the US. The strategy is not to make secular organizations religious, but to make religious institutions more doctrinally specific. The big question is to what extent you can practice your religious views unmolested by the government, even if it conflicts with the civil rights of others. If a religious organization uses public funds, should federal law support or withdraw support for discriminatory behavior? If there was no government money involved, this would be a nonissue, but because this involves public funds, and the exemptions never expire, conservative Christians are going on the offense.”
Still, it is worth noting that several religiously affiliated universities — the most prominent are Georgetown and Fordham — have funded programs to benefit LGBTQ students and foster an atmosphere of acceptance and inclusion. Nonetheless, most faith-based campuses are unwelcoming, if not overtly hostile, to those who are out and proud.
Joy Ladin, director of the Stern College Writing Center and a professor of writing and American literature at the Orthodox Jewish women’s college, knows what this is like from firsthand experience. After transitioning in 2007, she says that registration for her once-popular classes plummeted. “I’m a problem for the institution,” the tenured professor said. “I’m not supposed to talk about being trans, or about being married to a woman. Actually, there’s no place within the institution to talk about LGBTQ issues. They’re considered beyond the pale.”
Nonetheless, Ladin has reason to be hopeful. Within the Orthodox community — if not at Stern itself — groups like Eshel have formed to promote religious acceptance of LGBTQ people, and books like Keep Your Wives Away From Them by Miryam Kabakov at least acknowledge that religiously observant lesbians exist. “The Orthodox community is in a state of change,” Ladin added. “When I came out as trans, one Orthodox rabbi went on record to say horrible things about me. He started a conversation that is still continuing.”
There is even less room for conversation among most Wesleyans, Southern Baptists and other fundamentalist Christians. “Gender identity is determined by biological sex and not by one’s self perception, which is often influenced by fallen human nature in ways contrary to God’s design,” Southern Baptists agreed at their national convention in June 2014. “We oppose efforts by any governing official or body to validate transgender identity as morally praiseworthy.”
Similarly, according to Wesleyan leaders, “gender assignment is a divine prerogative.”
According to a guiding document, called “A Wesleyan View of Gender Identity and Expression,” “There is no ‘third gender’ or multiple gender construct in the Bible. We affirm that sexual relationships outside of marriage and sexual relationships between persons of the same sex are immoral and sinful. We further affirm that heterosexual monogamy is God’s plan for marriage, and we regard sexual sin of the spouse, such as adultery, homosexual behavior, bestiality or incest, as the only biblical grounds for considering divorce, and then only when appropriate counseling has failed to restore the relationship.”
Still, despite this hunkering down, there is evidence to suggest that anti-LGBTQ messaging may be backfiring. The Barna Group, a fundamentalist Christian polling organization based in Ventura, California, found that many millennials are leaving the churches they grew up in. When questioned, they cited multiple, overlapping reasons for this decision: 91 percent stopped going because of anti-gay bias; 87 percent stopped going because of the harshness of church judgments; and 70 percent stopped going because they felt that the church was insensitive to people’s needs and desires. Barna researchers further report that dissatisfaction is also evident among those who have remained faithful: two-thirds see churchgoers as hypocritical; 52 percent feel present-day Christianity is overly aggressive and critical of others; and 46 percent feel the church should be more tolerant of people with different belief systems.
This is likely good news for those who want to promote gender inclusivity and human rights. Nonetheless, Human Rights Campaign and other pro-LGBTQ activists are watching this issue closely since the number of colleges and universities seeking exemptions from Title IX has continued to swell, a turn that has important consequences for LGBTQ students, faculty, staff and allies.
“We’re in a moment of great progress for LGBTQ people,” said Human Rights Campaign attorney Sarah Warbelow. “But this progress has spurred a backlash. The disagreement rests with the religious right’s interpretation of sex. The courts have found that it includes gender identity. All we’re asking is that schools lay out the issues so that prospective students and job applicants know that the school got an exemption to allow it to discriminate against gay people, or unmarried women who get pregnant, or married couples of the same gender, or will fire someone who says he or she plans to transition or comes out as queer.”
For professor Joy Ladin, there’s an even deeper issue at stake — one that gets to the heart of faith, spirituality and individual authenticity. “When religious colleges are permitted to discriminate against LGBTQ students via Title IX exemptions, both the government and the institutions are confusing religious beliefs, which define specific actions as sins, with homophobic and transphobic cultural norms that focus not on prohibiting particular actions but on stigmatizing and excluding people associated with those actions,” she wrote in an email to Truthout.
“It’s clear how this harms LGBTQ students, who are told by their colleges and religious communities that they are not worthy of inclusion and respect,” she added. “It’s also clear how this harms civil society, by institutionalizing and subsidizing hatred and prejudice. But Title IX exemptions harm religious colleges as well, enabling them to cut themselves off from students whose devotion to their faith is so great that they willingly endure prejudice and stigma to practice it. And Title IX exemptions harm the religion traditions these colleges represent, by identifying them with hatred and fear rather than love of God and all whom God has created.”
Eleanor J. Bader teaches English at Kingsborough Community College in Brooklyn, NY. She is a 2015 winner of a Project Censored award for “outstanding investigative journalism” and a 2006 Independent Press Association award winner. The coauthor of Targets of Hatred: Anti-Abortion Terrorism, she presently contributes to Lilith, RHRealityCheck.org, Theasy.com and other progressive feminist blogs and print publications.