A US federal appeals court confirmed Friday a 2023 decision to uphold a Title IX exemption for sex-based discrimination at religious post-secondary institutions that receive federal funding.
Judge Milan D. Smith, Jr. of the US Court of Appeals for the Ninth Circuit agreed with the lower court’s dismissal of the suit and held that Congress, “within its constitutional boundaries,” balanced the interests of religious freedom and gender-based equality, both of which are protected under the American Constitution.
The plaintiffs put forward two constitutional challenges. They argued that the exemption violates the freedom of religion under the Establishment Clause of the First Amendment because it means the state effectively subsidizes religious beliefs by funding discriminatory practices. In their words, the state thus “prefers religion to irreligion.” After a historical analysis of this constitutional right, the appeals court found that “statutory exemptions that operate as a subsidy to religious institutions do not violate the Establishment Clause according to its original meaning.” Historically, the government has accommodated religious institutions, and “sometimes must” do so.
The second challenge was a violation of the Fifth Amendment, which guarantees equal protection. The plaintiffs argued the exemption was facially discriminatory because it “targets Americans for disfavored treatment based on their sex, including targeting based on sexual orientation and gender identity.” The court found, however, that “exemption does not give a free pass to discriminate on the basis of sex to every institution; it contains limits that ensure that Title IX is not enforced only where it would create a direct conflict with a religious institution’s exercise of religion.” The court recognized the experiences of LGTBQ+ individuals but found that the limited religious exemption does not violate the Fifth Amendment while respecting the First Amendment.
Title IX of the Education Amendments of 1972 prohibits federal funding to institutions that discriminate “on the basis of sex.” The particular issue in this case was a religious exemption from these rules if they were “not consistent with the religious tenets of such organization.”
This is the most recent lawsuit regarding Title IX, which has been the impetus for numerous state lawsuits in recent years. Currently, 26 states have completely blocked the expansion of recent Title IX protections to LGBTQ+ students. Litigation is ongoing after the US Supreme Court allowed lawsuits to proceed at federal appeals courts. Given that more than half of US states have rejected these Title IX protections, the issue of Title IX’s nationwide application may eventually require a final decision by the Supreme Court.
