'If you are a religiously affiliated entity and you are providing housing, you can say we're an evangelical college and we will only allow evangelicals to live in our dorm, but that doesn't give you a free pass to discriminate,' said an attorney with Lambda Legal.
A federal judge has ruled against College of the Ozarks, refusing to block a memorandum issued by the U.S. Department of Housing and Urban Development enforcing fair housing rules for transgender students.
U.S. District Judge Roseann Ketchmark told the Christian conservative college in Point Lookout, Missouri, on May 19 that if it doesn't adhere to the instructions in the HUD memo enforcing the understanding of the Fair Housing Act contained in an executive order issued by President Joe Biden, it would be liable to lawsuits filed by people who feel they have been discriminated against by the school, according to the Springfield News-Leader.
Ketchmark said she made the ruling "after careful consideration of the law."
On his first day in office, Biden issued an executive order implementing the landmark Supreme Court decision in Bostock v. Clayton to all federal agencies. The ruling included discrimination against people on the basis of their sexual orientation or gender identity within the Fair Housing Act's prohibition of discrimination "on the basis of sex."
Experts on federal nondiscrimination law say the ruling has implications for discrimination against LGBTQ people in education, housing, and health care. In the states, there is only a patchwork of housing protections, with 22 states and the District of Columbia explicitly banning anti-LGBTQ discrimination in housing. Missouri law does not contain such protections.
In February, HUD's Office of Fair Housing and Equal Opportunity released a memo stating that it would investigate anti-LGBTQ discrimination and consider it when enforcing the Fair Housing Act. The federal law protects against discrimination based on sex, race, color, national origin, familial status, and disability when people seek a mortgage or rental assistance or buy a home, and includes bans on discrimination in college and university housing.
The college had claimed that the Biden administration policy violated its constitutional rights to free exercise of religion and free speech by forcing the school to house transgender girls and women in dormitories with cisgender girls and women.
In court, lawyers for HUD said the memo did not address the specific issues of living in dormitories and that there had been no concrete complaint made against the college. Said attorney Serena Orloff, "It would be particularly unfair to cut off an avenue of redress for a hypothetical student before he or she had even had the opportunity to make the complaint to HUD and HUD had the ability to investigate."
The College of the Ozarks, which teaches that "that sex as determined at birth is a person's God-given, objective gender, whether or not it differs from their internal sense of 'gender identity,'" filed the lawsuit in April. It argued that its student housing policies a matter of free speech.
The school also said in its complaint that it is a violation of the code of conduct to have any gender expression "inconsistent with sex determined at birth" and "homosexual conduct."
In response to the ruling, College of the Ozarks President Jerry C. Davis and the college's legal counsel, Alliance Defending Freedom, misgendered transgender people and reinforced false narratives that transgender women and girls are a threat to cisgender women and girls. They also said that they would keep fighting the memo in court.
Davis stated, "While we are disappointed in today's ruling, we expect to appeal so that schools are not forced to open women's dorm rooms to males and violate their religious beliefs."
Julie Marie Blake, senior counsel for the Alliance Defending Freedom, which is designated a hate group by the Southern Poverty Law Center, said, "Women shouldn't be forced to share private spaces—including showers and dorm rooms—with males, and religious schools shouldn't be punished simply because of their beliefs about marriage and biological sex. Government overreach by the Biden administration continues to victimize women, girls, and people of faith by gutting their legal protections, and it must be stopped."
Ketchmark hasn't published a written opinion yet. But Karen Loewy, senior counsel for Lambda Legal, said that the Fair Housing Act has a very narrow religious exemption. She said it makes sense for Ketchmark to look at the likelihood of the case's success based on the evidence and conclude the college will have to follow the law as any other institution would.
"It really is not a free pass to any sort of religiously affiliated entity to not have to comply with these generally applicable nondiscrimination provisions," Loewy said.
She added, "What she's setting forth is the Fair Housing Act exempts religious organizations that provide preferences to members of their own religion, right? If you are a religiously affiliated entity and you are providing housing, you can say we're an evangelical college and we will only allow evangelicals to live in our dorm, but that doesn't give you a free pass to discriminate on the basis of religion, color, national origin, sex, and all of the other protected categories."
The Biden administration has rolled back numerous Trump policies that infringed on LGBTQ rights.
It reversed the transgender military ban, withdrew a rule that encouraged anti-trans discrimination in homeless shelters, and brought back nondiscrimination protections for transgender people in health care. The U.S. State Department ditched guidance that minimized LGBTQ equality as a human right and reversed a policy that discriminated against same-sex couples, among other wins for queer, nonbinary, and transgender people.
Published with permission of The American Independent Foundation.
