The DOJ told a Federal Court Tuesday that it will “vigorously” defend religious schools being sued by students for discriminating against them on the basis of their sexual orientation and gender expression.
This filing came as three of those religious schools filed a brief to intervene in Hunter v. Department of Education saying that the Biden Administration wouldn’t defend their rights citing President Biden’s promises to “have our backs”.
At first glance this is devastating.
The pro-LGBT Religious Exemption Accountability Project (REAP), which submitted the lawsuit in March on behalf of the dozens of current and former students, blasted the DOJ’s latest filing.
“We are disappointed that the Biden Administration has chosen to align itself with anti-LGBTQ extremist groups like Alliance Defending Freedom. The administration did not need to defend this unconstitutional religious exemption. My clients feel betrayed by an administration that promised to protect them,” Paul Southwick, REAP’s director, told The Hill.
The Council for Christian Colleges & Universities (CCCU), which counts many of the schools named in the lawsuit as members, said in May that they could not trust the Biden administration to fully defend them and pushed to get involved in the case, The Washington Post noted.
However, the Justice Department — which is charged with upholding federal law — opposed such a move, saying in its filing Tuesday that it shares the same “ultimate objective” as the schools in the case “to uphold the Religious Exemption as it is currently applied.”
But as Slate points out this Wiley silver fox isn’t a bumbling tweeter like the former guy.
The Justice Department is not only following its general obligation to defend federal laws; it’s also trying to prevent a Christian organization from taking over the defense and mounting extreme arguments that could lead to a devastating subversion of civil rights law.
Hunter involves Title IX, the 1972 law that bars discrimination “on the basis of sex” at educational institutions that receive federal funds. In 2020’s Bostock v. Clayton County, the Supreme Court held that sex discrimination encompasses anti-LGBTQ discrimination, so the law protects gay and transgender students as well. But Title IX contains an important exemption: It does not apply to any institutions “controlled by a religious organization” if adherence to the law is inconsistent with the organization’s “religious tenets.” In other words, religious colleges and universities may still discriminate against LGBTQ students without imperiling their federal funding.
Read the Slate article “No, the Biden Administration Isn’t Betraying Its Support for LGBTQ Rights” to get an in-depth understanding of what is going on.
While the Slate article is comforting the fact remains that the DOJ hasn’t yet intervened in any of these draconian anti-LGBT laws. The Biden Administration must act soon or the only option will be to send in federal troops to protect trans students in states that are violating our civil rights. Given Biden’s proclivity to take a centrist stand that isn’t likely.