40 Davids Challenge 3 Goliaths in Battle for Queer Rights at Religious Schools

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November 12, 2023

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(ATLANTA) — Before Kalie Hargrove even enrolled in Lincoln Christian University, a recruiting team from the college frequently visited Christian summer camps across the country, including the one she attended as a teenager. According to the now 36-year-old Hargrove, these teams, made up of slightly older “attractive students,” employed what she views as manipulative tactics to campers. She remembers that these church camps were “emotionally charged environments” designed to end the week with a big, life-changing moment. During this time, attendees would commit their lives to Jesus.

“Committing your life to Christ” entails taking a lifelong pledge to embrace the values and teachings of Christianity, attending church regularly, and following the guidance of pastors, all while dedicating yourself to a life of service and servitude per Christian principles. 

But for Hargrove, the recruiting team wasn’t only fishing for converts. These kids would often pledge to pursue careers in ministry by attending a religious college.

“In my framework, there were gay people and normal people,” she said. “That is the only language that I had. But because I didn’t feel like this straight male, I thought there was something wrong with me.” At bible camp, it was portrayed as a sexual problem you must conquer, and Jesus was the only one who could help you. 

But by the time Hargrove accepted her identity as a transgender woman over a decade later, she was accused of violating college rules at Lincoln Christian University for being “sexually immoral,” she was forced to either face discipline or leave the school. She chose the latter. 

Her story is one of the many examples of discrimination that more than 40 other people cite in their lawsuit against the Department of Education. The suit not only questions the religious exemptions but also puts at stake the finances of faith-based educational institutions, offering a glimpse into the legal and economic dynamics of Christian universities. 

Goliath 1 – The Department of Education

The U.S. Department of Education grants religious exemptions to the federal anti-discrimination law Title IX, which allows certain religious institutions to bypass regulations protecting LGBTQ+ students while still receiving federal funding. The law explicitly says, “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. All federal agencies that provide grants of financial assistance are required to enforce Title IX’s nondiscrimination mandate.” In 2021, the U.S. Department of Education’s Office for Civil Rights clarified that it will enforce Title IX to include discrimination based on sexual orientation and gender identity.

But the law has a loophole. Title IX doesn’t require religious schools to follow its rules if doing so goes against their religious tenets.

Since Christian colleges do not have to follow Title IX regulations to receive funding, they can discriminate based on sexual orientation and gender identity if they claim it is inconsistent with their religion.

While some might wonder why queer students even go to these religious colleges, Joe Baxter, an attorney serving as a legal advocate for the Religious Exemption Accountability Project (REAP), the nonprofit backing the plaintiffs, believes that is the wrong question to ask.

“The better question is why are we asking queer students to leave their identities at the door?” he stated. “This is textbook systemic discrimination because it has become institutionalized and invisible. Rather than assuming that schools should provide equal access, we burden students and ask why they are there. Why shouldn’t they be there?”

Even if queer students weren’t there, they would still be funding these schools.

“I pay taxes. I funded my discrimination.” Hargrove expressed. “That is something that isn’t being picked up, is the fact that the US government is forcing queer people to fund their discrimination through their taxes. Just think about that. They’re forced to give their money to the government who then funds discriminating places. We are funding our own discrimination and have no choice in it.”

The government makes money on student loans through the interest charged on these loans. 

But students don’t just take out these loans to get an education. Often students go to college for what is outside of class too. 

Lucas Wilson, another plaintiff in the suit, initially chose to attend Liberty University in pursuit of an evangelical education and as an attempt to “change his sexual orientation.” 

Wilson was drawn to an ad in “chapel,” which offered guidance for those “struggling with same-sex attraction” from “Pastor Dane.” In sessions with Pastor Dane, he discussed his intimate experiences, and Dane, in turn, would put his hand on Wilson’s shoulder and pray. Pastor Dane probed into Lucas’s family dynamics, friendships, and sexual experiences. Wilson was told to change his mannerisms, including how he sat and stood, and to play more sports to achieve more manliness.

This experience involved constant self-monitoring, shaping Lucas’s speech and interests to align with “Christian expectations.” There was no physical violence, but the relentless pressure to conform deeply affected Lucas, fostering guilt with each perceived “slip-up.”

“It’s in the classes. It’s taught,” he said. “You’re literally taught homophobic beliefs. You’re allowed to talk really poorly about queers. So I think if there were not a religious exemption, I think that there wouldn’t be the same opportunity and invitation to be homophobic and transphobic.” 

But this lawsuit isn’t a mere uphill battle between queer students and their government. The religious exemptions to Title IX are profoundly important not just to the individual colleges that receive federal funding. The influence of two Christian non-profits also looms large. The Council for Christian Colleges and Universities (CCCU) and Alliance Defending Freedom (ADF) both have intervened in this case. 

An intervenor in a lawsuit is a person or organization who wants to become a part of the legal case, even though they weren’t initially involved. They do this because they have a significant interest in the case’s outcome and want a say in it.

According to court records, ADF intervened to defend Title IX provisions that permit students to use federal financial aid at private religious schools, specifically representing Corban University, William Jessup University, and Phoenix Seminary. CCCU intervened to advocate for the preservation of Title IX’s religious provisions, asserting that faith-based higher education institutions play a significant role in a diverse U.S. education system.

Goliath 2 – Alliance Defending Freedom

Alliance Defending Freedom (ADF) claims to “advance the God-given right to live and speak the Truth.”

But the Southern Poverty Law Center designates ADF as a hate group, specifically accusing them of advocating for the recriminalization of sexual acts between consenting LGBTQ adults in the U.S. and criminalization abroad. They also are accused of defending state-sanctioned sterilization of trans people, contending that LGBTQ people are more likely to engage in pedophilia, and claiming that a “homosexual agenda” will destroy Christianity and society.

“ADF’s records are quite public, they’ve been quite focused on making attacks, specifically against transgender people,” said Joe Baxter. “I don’t think it is accidental that they are involved in this case.”

ADF has been involved in some of the most important Supreme Court cases of recent years, including 303 Creative, Masterpiece Cakeshop’s, and Dobbs v. Jackson Women’s Health Organization. In these cases, ADF has argued that religious freedom should be protected from government intrusion, even when it comes into conflict with gender equality and reproductive rights.

The ADF has not responded for comment. 

In this lawsuit, cultural critiques often come to the surface. Elizabeth Hunter, whom the lawsuit is named after, was a student at Bob Jones University (BJU). According to court records, she was grilled by administrators about her sexuality and forced to admit she was “not straight” after tweeting “Happy Pride” in support of LGBTQ+ rights and writing a book with lesbian characters. She refused to disavow her support for LGBTQ+ rights, and BJU disciplined her by fining her, sending her to anti-gay counseling, and removing her from her job at the campus TV station.

Hargrove, Wilson, and Hunter all have compelling stories. But with the involvement of these two intervenors, financial resources speak volumes.

Goliath 3 – Council of Christian Colleges and Universities

It’s not just the individual colleges that profit off the religious exemption to Title IX. 

According to the Guidestar database, CCCU, relies on membership dues from these colleges and educational conferences, raking in revenue of more than $50 million since 2018, In contrast, ADF reported it raked in more than $100 million in revenue in the last fiscal year, primarily from donations. REAP is one of several sizable projects primarily sponsored by the nonprofit Soulforce, which has generated only approximately $3 million in revenue over the past five fiscal years. 

By these numbers, for every 60 cents the queer students might scrape together, CCCU has at least $10, and ADF $100.

This money problem is a big challenge for queer students. They’re not just suing the government, but their nonprofit also has less money than the Christian ones. And if the religious exemptions go away, so does revenue for the government. 

In CCCU’s “National Impact Report,” they claim their institutions generate billions in total economic output annually, including $25.9 billion from institutional expenditures and $34.6 billion from the increased earning power of CCCU alumni. In other words, CCCU is claiming that these schools are integral to the U.S. economy. One part comes from the money they spend, and the other part comes from their graduates earning more money.

The report also mentions $18 billion in earnings and approximately $10 billion in federal tax revenue per year. 

To put this in perspective, they claim that for every $1 in federal grant money a student receives, CCCU institutions generate more than $20 in federal tax revenue through their activities, investments, and alumni’s increased earning power. In simpler terms, for every dollar spent on students, they give back much more to the country.

However, figuring out CCCU’s actual impact is quite complex. They calculated these numbers using surveys and self-reporting to estimate how much money their member institutions generate for the economy. This method, which is also used in economic studies, isn’t foolproof. It involves making educated guesses, such as linking higher education to higher income or believing that when people spend money locally, it boosts the economy in indirect ways. While the report boasts a big economic impact number, there’s some guesswork and assumptions behind it.

The CCCU declined to comment on this story. 

The Davids

Former students are publicly sharing their stories of discrimination at religious schools. 

Some say they got kicked out or suspended for not following the school’s religious rules or expressing their own beliefs. Others claim they were kept from using school facilities or participating in extra-curricular activities because of their sexual orientation. A few say they were bullied or forced into religious stuff they didn’t want to do, and some even missed out on job opportunities just because of their gender.

The Hunter case is currently being appealed, which means that the plaintiffs are trying to get a higher court to overturn the decision of the lower court. 

Judge Ann Aiken dismissed the students’ lawsuit in her opinion in January, ruling that students hadn’t suffered a specific injury, although she acknowledged that the religious schools’ unequal treatment of the plaintiffs stemmed, in part, from the government’s allowance of religious exemptions to Title IX. She acknowledges that the exemption led to unequal treatment of queer students. Even so, she still dismissed the lawsuit. 

But Baxter would argue there was certainly a specific injury. For example, the religious exemption is not required to be communicated clearly — meaning a school can say they follow the rules but later claim they have special permission to avoid those rules due to their religious beliefs.

In their appeal, the plaintiffs argue that when schools don’t ask for exceptions ahead of time, students can’t know what rights they have, and that can lead to all sorts of problems, like psychological stress, money troubles from dropping out, and even physical harm if a campus offers them no protection. 

“I think [Judge Aiken] made the wrong decision,” Kalie Hargrove said. “I want people to know that. But I don’t want people to think that it’s done, because it’s not done.”

The Hunter v. Department of Education case was filed on March 31, 2021. The case is currently in the appeal stage at the United States Court of Appeals for the Ninth Circuit.

There is a path for the Hunter case to reach the Supreme Court, but it involves several key steps.

Initially, the plaintiffs must experience an unfavorable outcome in the United States Court of Appeals for the Ninth Circuit. Subsequently, they would need to submit a formal petition for certiorari to the Supreme Court, a request for a case review. To move forward, a minimum of four Supreme Court Justices must consent to hear the case. If the Supreme Court agrees, oral arguments are scheduled, followed by deliberations among the Justices and a final verdict.

But that journey feels far off. The students who experienced prejudice in their college days are tired. 

“If you want to discriminate, use your own money,” Wilson said. “If you want to receive taxpayer dollars, or money to fund your school from the government, then you need to abide by what should be a pretty obvious set of standards, which in this case would be, don’t discriminate and don’t harm your queer students.”

He added, “But they don’t really see us as people, so it doesn’t really matter to them.”

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