Judge privileges discrimination over students’ well-being
The recent dismissal by a federal judge in Oregon of a class-action lawsuit brought forth by the Religious Exemption Accountability Project on behalf of 40 LGBTQ+ individuals against the U.S. Department of Education — a lawsuit that called into question whether or not religious colleges and universities should be able to receive federal funds while they actively discriminate against their queer students — is far from the end of this fight.
As one of the plaintiffs, who are current and former students at these institutions, I am helping challenge a Title IX religious exemption that allows schools to hide behind their so-called “sincerely held religious beliefs” when harming LGBTQ+ students.
In her ruling, U.S. District Judge Ann Aiken, erred — and erred she did — on the wrong side of history, ensuring that religious schools can indeed continue to discriminate against their LGBTQ+ students on the American taxpayer’s dime.
Despite acknowledging the harm done to the plaintiffs, Aiken washed her hands of those who have been targeted, marginalized, and victimized because of their sexualities and/or gender identities and expressions by religious bigots at these institutions. In the court’s opinion, Aiken started by claiming:
Plaintiffs have sufficiently alleged that [the federal government] caused Plaintiffs’ injuries by implementing a system that permits religiously affiliated schools to use religious exemptions to deny federally-funded educational services to current and prospective students.
She proceeded to recognize that if she were to give the plaintiffs what they were asking for, it would result in “the dignity and equal treatment they seek.”
However, the court further held that the U.S. Constitution enables the Department of Education to exempt religious schools from not only accountability but also transparency because holding them accountable would constitute an “unwarranted and substantial infringement” of their First Amendment rights.
In other words, the court argued that there was harm but that it would not provide a legal remedy, and thereby dismissed the case.
The court’s decision, in tandem with its claim about the infringement of First Amendment rights, would be laughable, if it were not for the fact that tens of thousands of LGBTQ+ students throughout the U.S. will continue to face discrimination at religious institutions — largely of the evangelical, Christian fundamentalist, and LDS (Mormon) varieties — for the sole reason that they are queer.
Many have asked why queer students attend such colleges and universities. In truth, there are several reasons. But regardless of why they study at these schools, they should not be punished for simply being themselves.
Some are there on scholarships; they would not be able to afford college otherwise. For some, their parents would only pay for their schooling if they were to attend a religious college or university. And for others, they just didn’t know any better after being reared in the insular, repressive bubble of religious fundamentalism.
Whatever the case may be, each year these schools receive billions of dollars from American taxpayers. On these grounds alone, these homophobic and transphobic institutions should not be able to discriminate — or, if they want to persist in their bigotry, they should have to find another way to finance their queer-hatred.
It really is that simple.
But for Judge Aiken, basic human decency and justice for queer students were too much to ask for. Apparently — as evidenced by her claim that there was no legal remedy for what the Plaintiffs sought — she doesn’t know how it could be possible to legally protect queer students from religion-based harm at these taxpayer-funded schools.
She might benefit from a quick history lesson.
For decades, courts in the American South privileged anti-Black Christian fundamentalist “values” over and above the safety, equality, and dignity of Black students. However, the Supreme Court in Bob Jones v. United States (1983) decided that religious schools cannot use taxpayer money to discriminate against Black students, regardless of their “sincerely held religious beliefs” (that is, racist convictions) concerning interracial dating and marriage.
Forty years later, such protections ought also to apply to LGBTQ+ students: Regardless of religious schools’ sincerely held prejudice and intolerance, they should not receive federal funds if they are to use those monies to discriminate against their students.
Judge Aiken’s decision is ultimately not only puzzling — but it is also reckless, dangerous, and indeed infuriating, insofar as she has given these backward schools the green light to persist in harming LGBTQ+ students. Because of Judge Aiken’s regrettable decision, queer students at these schools are still subject to harassment, fines, punishments, conversion “therapy,” expulsion, and beyond.
As one of the 40 plaintiffs in this case, and one who underwent conversion therapy for four years at Liberty University, I am livid about the court’s decision. Though the fight is far from over, it should have ended with this case.
I will continue fighting such injustice for LGBTQ+ students, and I only hope that all who read this do so too.
The Justice, Equity, and Transformation Postdoctoral Fellow at the University of Calgary, Dr. Lucas Wilson has contributed to The Advocate, Queerty, LGBTQ Nation, Religion Dispatches and RVA Magazine.