Now more than ever we need your support!
Quietly, on the eve of the Labor Day weekend, the 9th Circuit Court of Appeals rolled down its opinion in the Hunter v. DOE appeal. The result was not what we had hoped for. Despite acknowledging “that the discrimination LGBTQ+ individuals face (both on religious campuses and outside of them) is invidious and harmful,” the three-judge panel affirmed the district court’s dismissal of the Plaintiffs’ claims.
The panel held that the district court did not err in dismissing the plaintiffs’ challenge under the Administrative Procedure Act (APA) to the Department of Education’s implementing regulations for Title IX as arbitrary and capricious and depriving them of due process and notice, holding that even if the Department’s rules are harmful to some LGBTQIA+ students, Plaintiffs lacked standing to bring such a claim.
The panel held that even though the district court erred in applying the wrong law to the Plaintiffs’ claim challenging Title IX’s religious exemption under the First Amendment’s Establishment Clause, it did not err in dismissing the Plaintiffs’ claim because the Title IX religious exemption it is akin to a tax exemption, which is allowed under the historical practices and understanding test outlined in Kennedy v. Bremerton School District, 597 U.S. 507 (2022).
The panel affirmed the district court’s dismissal of the plaintiffs’ claim that Title IX’s religious exemption violates the equal protection guarantee because it applies only when the enforcement of Title IX would directly conflict with a religious school’s exercise of religion.
The panel also held that because the Plaintiffs had not demonstrated how they could overcome these shortcomings by amending their complaint, the district court did not abuse its discretion in denying them an opportunity to do so.
We believe in incremental change, and sometimes the work is done over decades with small wins along the way in the midst of many more losses. As this ruling makes clear, we cannot simply rely on the courts to protect the rights and well-being of LGBTQIA+ students at religious schools but must use every tool at our disposal to expose the harms they experience and push for change. Although this is not the result we wanted to see, we will not give up. In times like these we must turn our eyes even more so to those who are harmed by this ruling.
The time is now!
We must protect students on campuses even if the law will not. It is imperative that we push back on this decision and continue to lay bare and make a record of its effects by giving students the support and resources they need to continue reporting the Title IX violations they suffer.
Right now we are committed to funding intercollegiate support groups, allowing students at the most non-affirming schools to find reprieve in allyship, organizing, mental health resources, and reporting on Title IX violations they experience. If you know of someone who may be in this dire position on a Christian campus, send them the REAP Support Group form and make a pledge to ensure this program succeeds.