Today the New York Times reports that a growing number of Christian colleges are exercising their statutory rights to opt out of Title IX, partly because the Obama administration is lawlessly expanding its scope — stretching a statute designed to prohibit sex discrimination in educational programs or activities and transforming it into the mighty hammer of the sexual revolution. Thanks to a series of memoranda and letters from the Department of Education, Title IX is now being read to prohibit discrimination on the basis of gender identity while also dramatically restricting free speech and due process on campus. Any sane college would opt out, if it could.
Naturally, the LGBT left is outraged:
“What these universities are seeking is a license to discriminate while still receiving taxpayer money, and they are doing it out of an animus toward transgender people,” said Victoria M. Rodriguez-Roldan, a lawyer at the National L.G.B.T.Q. Task Force, an advocacy group for lesbian, gay, bisexual and transgender people.
No, actually, these universities aren’t “seeking a license to discriminate,” they’re exercising their right to exercise their religious faith, a right so clear that the language of Title IX doesn’t even apply to these schools. Here’s the relevant language from the statute:
(3) Educational institutions of religious organizations with contrary religious tenets
this section shall not apply to any educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.
Oddly enough, here’s how the Times described the colleges’ rights:
Schools “controlled by a religious organization” have always been permitted to apply for exemptions from parts of the law whose application “would not be consistent with the religious tenets” of their institution.
That’s an interesting way of phrasing a clear statutory exemption, but it’s certainly helpful for advancing narrative that the schools are somehow getting away with something. And in case you wonder why schools are alarmed, consider this:
Activists and some applicants for Title IX exemptions said the government began to include transgender students under the law in 2013.
That year, a federal investigation into a discrimination complaint made by a transgender male student in Arcadia, Calif., ended with a school district agreeing to treat him like other male students. The district said it would “amend its policies and procedures to reflect that gender-based discrimination, including discrimination based on a student’s gender identity, transgender status and nonconformity with gender stereotypes, is a form of discrimination based on sex,” the Justice Department said in a statement at the time . . . In 2014, the Education Department produced a document on sexual assault on college campuses that also stated that Title IX protections covered transgender students. Both the California case and the Education Department’s 2014 statement appear in many of the exemption applications filed by school administrators.
The Times neglects to mention that these changes violated federal law. The government does not amend statutes by producing documents but by passing laws. Nor does the Obama administration have the regulatory authority to arbitrarily re-interpret the statute. Under the Administrative Procedure Act, the Obama administration should have pursued a notice-and-comment rulemaking process that would have allowed the public to weigh in on a breathtaking expansion of federal power. Instead of following the law, however, the Obama administration wrote memoranda.
But don’t tell that to the LGBT Left. It’s trying to use Obama administration lawlessness to shame the colleges’ lawfulness:
“It is disheartening that people are manipulating religion to discriminate against others,” Ms. Rodriguez-Roldan said. “It is what it is: discrimination and the unfair treatment of transgender people.”
No, Ms. Rodriguez-Roldan, what’s “disheartening” is your disregard for America’s first freedom and for the people of faith who sincerely and without rancor seek to live out their deeply-held beliefs.