The US Department of Education wants to make it easier for religious schools to reject the gender equity law Title IX, according to a leaked draft of new regulations.
The proposed Title IX regulations, which were leaked late Thursday by a higher education organization, would automatically exempt religious schools and universities from having to comply with the gender equity law if they have faith-based objections. Title IX already lets religious schools out of following the law, but the department asks them to submit a letter to the government explaining why an exemption is necessary. Schools would not have to do this anymore under the new policy, meaning there would be no way of tracking which educational institutions were opting out of Title IX rules, and why they were doing so.
“There’s no way now for advocates that help students understand what schools are intending to do,” Sarah Warbelow, legal director of the Human Rights Campaign, told BuzzFeed News.
Schools could use this exemption to justify their right to expel a student for taking birth control or coming out as gay or trans, according to Warbelow. “It’s incredibly infuriating that the administration is discouraging schools from ensuring that their students understand when the school may take disciplinary action against them,” Warbelow added.
A draft of the proposed regulations, dated Aug. 25, was uploaded to the website of the Association of Title IX Administrators, a professional group for school officials that deal with the gender equity law. The proposals were first reported last month by the New York Times.
The highly anticipated rules lay out how K–12 schools and colleges must deal with sexual harassment and assault allegations. They propose a number of ways to limit the circumstances in which a school has to investigate a sexual assault complaint and to raise the bar for the Education Department to find that a school violates Title IX. Secretary of Education Betsy DeVos said in 2017 that she wanted to change Title IX regulations because too many accused students were being treated unfairly, and many schools used too broad of a definition of sexual harassment.
Tucked away within the draft is a change to how the department handles religious exemptions to Title IX. In order to gain exemption from the civil rights law currently, the highest-ranking administrator at a religious school has to send a letter to the department explaining how a Title IX rule would go against their faith-based convictions — a practice that dates back to the Reagan administration. Religious colleges with rules that can result in punishing students for being gay or having an abortion, for example, would then be assured it was allowed to discriminate against those students without penalty.
During the Obama administration, LGBT rights groups like the Human Rights Campaign pressured the government to name which schools had these exemptions. The education department did so in early 2016, revealing that 248 schools — mostly colleges — had been granted exemption to Title IX. This set off objections from religious conservatives that the Obama administration was trying to shame schools into dropping their Title IX exemptions. The list of colleges with exemptions is no longer posted on the department’s website.
The department states in the draft regulations that because Title IX already allows religious exemptions, and doesn’t require a letter requesting that they be submitted, then the government “should not impose confusing or burdensome requirements on religious institutions that qualify for the exemption.” The change wouldn’t result in additional cost to schools or the government, the draft reads, since it “simply clarifies” that these schools don’t have to file paperwork to get out of Title IX.
But one consultant who reviewed the document called the change “a shift of 46 years of prior practice. I also don’t know that’s going to survive.”
The Education Department did not immediately respond to a request for comment.
The proposed regulations may change before the department officially releases it to the public, which is expected to happen in October. The White House Office of Management and Budget will meet with interested groups, such as LGBT rights organizations and victims advocacy groups, through the rest of September to solicit feedback on the proposal, according to sources.
The Trump administration has quietly extended religious exemptions in other agencies. Since August, the Department of Labor has allowed businesses that secure federal contracts to cite religious exemptions if they wanted to fire someone for being gay or transgender.