Title IX of the Educational Amendments of 1972 (“Title IX”), which prohibits sex discrimination in educational programs and activities, provides, “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 financial assistance,” with certain exceptions. Title IX applies not only to direct federal funding of universities, but also to payments to students for educational pursuits that are used to pay a portion of their tuition, such as scholarships or loans.1
What Is a Title IX Waiver?
Title IX, like other civil rights laws, is not absolute.2 As explained by the U.S. Department of Justice:3
Title IX exempts from coverage any educational operation of an entity that is controlled by a religious organization only to the extent Title IX would be inconsistent with the religious tenets of the organization. For example, Title IX would not require a religiously controlled organization that trains students for the ministry to offer such training to women if the organization’s religious tenets hold that all ministers must be men. Title IX also exempts institutions that train individuals for the military or the merchant marine.
The Civil Rights Restoration Act of 1987 (CRRA)4 expanded the religious exemption to include not only educational institutions controlled by religious organizations, but also stated that “any educational operation of an entity may be exempt from Title IX due to control by a religious organization with tenets that are not consistent with the provisions of Title IX.”5 The process for obtaining religious waivers is as follows: 6
§ 106.12 Educational institutions controlled by religious organizations.
(a) Application. This part does not apply to an educational institution which is controlled by a religious organization to the extent application of this part would not be consistent with the religious tenets of such organization.
(b) Exemption. An educational institution which wishes to claim the exemption set forth in paragraph (a) of this section, shall do so by submitting in writing to the Assistant Secretary a statement by the highest ranking official of the institution, identifying the provisions of this part which conflict with a specific tenet of the religious organization.
A two-page letter to the U.S. Department of Education, Office for Civil Rights from Simpson University dated October 7, 2013, provides an example of a waiver request.7 The letter described Simpson University as a “Christ-
centered learning community committed to developing each student in mind, faith and character for a lifetime of meaningful work and service in a constantly changing world.” It describes the university as being owned by and affiliated with the Christian and Missionary Alliance denomination, and as believing “in the inerrancy and truth of Scripture as presented in the Holy Bible.”
The letter details the university’s and the denomination’s beliefs regarding heterosexuality and sexual identity and includes biblical citations. The letter also notes the Department of Education’s interpretation of Title IX’s ban on discrimination in education because of sex to include gender identity and seeks a waiver because of Simpson’s religious beliefs, limited to the interpretation of Title IX that “sex” includes gender identity.
The Department of Education Office for Civil Rights (OCR) responded to Simpson University by letter dated May 23, 2014.8 The OCR response summarizes the waiver request and interprets it as a request for exemption from 34 C.F.R. § 106.31(b)(4) (governing different rules of behavior or sanctions), § 106.32 (housing), § 106.33 (comparable facilities such as restrooms and locker rooms), and § 106.41 (athletics).
The OCR response letter then states: “The University is exempt from these provisions to the extent that they require a recipient to treat students consistent with their gender identity, but doing so would conflict with the controlling organization’s religious tenets.” The OCR response notes, “This letter should not be construed to grant exemption from the requirements of Title IX and the regulation other than as stated above.” The response letter also describes the process OCR will follow if a complaint is made against the university.
Although the Simpson University Title IX waiver referenced above focuses on gender identity, Title IX waivers are not limited to gender identity. Waivers can also be sought with respect to other faith-based beliefs on the basis of sex. For example, Carson-Newman University’s July 2015 waiver covers “marriage, sex outside of marriage, homosexuality, gender identity, pregnancy, and abortion.”9
Title IX Waivers in the News
One of the cases that attracted national attention involved the dismissal of a Title IX complaint brought against George Fox University, which obtained a Title IX waiver in 2014. The complaint was brought by a transgender male student who was denied housing in a male dorm at the university.
After the complaint, George Fox University developed a position statement on gender identity issues that allows, among other things, for “living in a room in a shared house (or appropriate apartment) on campus with [persons of] a student’s legally recognized gender, provided housemates/apartment mates have agreed to such an arrangement.”10
According to a recent report prepared by Human Rights Campaign,11 33 schools have received exemptions (commonly known as Title IX waivers) from protections that relate to gender identity and 23 have received exemptions relating to sexual orientation. These schools have a combined total enrollment of at least 73,000 students and receive more than 50,000 applicants each fall.12
On December 18, U.S. senators Ron Wyden, D-Ore.; Patty Murray, D-Wash.; Al Franken, D-Minn.; Jeff Merkley, D-Ore.; Edward J. Markey, D-Mass.; Barbara Boxer, D-Calif.; Tammy Baldwin, D-Wis.; and Bernard Sanders, I-Vt., directed a letter to the U.S. Department of Education seeking to have the names of all institutions seeking Title IX waivers published on a publicly accessible website.13
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