This week’s Supreme Court decision, intended to protect gay and transgender people from workplace discrimination, could infringe upon the exercise of faith, a group of religious colleges has warned.
The decision, handed down Monday in Bostock v. Clayton County, amends Title VII of the 1964 Civil Rights Act to include protections for gay and transgender people according to their sexual orientation and gender identity. It was the culmination of a yearslong legal battle over whether or not definitions of “sex” should be constricted by a gender binary.
The colleges, led by The Catholic University of America and Brigham Young University, warned that a redefinition of Title VII could lead to a new understanding of Title IX, a 1972 act that protects women from sexual discrimination at federally funded institutions. Along with the Council for Christian Colleges & Universities, these schools filed an amicus brief in August, warning that such revisions would threaten their ability to exercise their faith freely.
President of The Catholic University John Garvey said that his intention in filing the brief was to make the case that, in revising Title VII, the court would be taking on a multifaceted problem that would be better solved in Congress. Congress, he said, can act “much more precisely” than the court when it comes to statutory law.
“Congress can draw much better lines than the court can,” he said. “The court is just given the statute and has to operate with that. Congress can write anything it wants: It can exempt anybody and include anybody, making it much more receptive to the variety of viewpoints on this issue.”
The broad revision of Title VII, Garvey added, raises a host of questions that will have to be solved in the next few years of litigation. For colleges, he foresees issues rising in the placement of students in dormitories, healthcare plans at colleges, and, most pressingly, changes that will come to women’s sports.
Garvey’s concerns about women’s sports are similar to those of Justice Samuel Alito, who, in his dissent expressed fears that removing biological restraints on sports leagues will “force young women to compete against students who have a very significant biological advantage.” Garvey said that if the Title VII revisions are read into Title IX, it will create a headache for college sports teams that continue to draft biological women only.
“Will the NCAA make rules about this?” he asked. “Will conferences make their own rules about this? Or will we lose our position in our conference because we’re not playing by the same rules that everybody else is?”
“Or,” he added with a chuckle, “will we just never win?”
Despite the complications raised by Bostock, though, Garvey said he is glad that there is a process for religious schools to seek exemptions, a point which Justice Neil Gorsuch noted in his majority opinion.
The Council for Christian Colleges, which represented Liberty University, Wheaton College, and several other small religious schools in the brief, expressed a similar opinion when the court delivered its decision, saying that it left “important questions unanswered for religious employers.”
“We look forward to playing an important role in these vital conversations on behalf of our institutions and their First Amendment rights, and will continue to pursue strategies that protect the Christ-centered mission of our institutions and preserve and strengthen Christian higher education for the future,” the group said in a statement.
Brigham Young University could not be reached for comment before publication.
In the brief, the schools listed new rules for student housing, regulations in hospitals, and potential accreditation issues that might lead to a college’s tax-exempt status being revoked. All of these concerns, the schools argued, were grounded in a fear that a rewrite of Title VII will inevitably lead to a revision of Title IX since the amendment was “specifically crafted to extend sex discrimination prohibitions from Title VII to colleges and universities that receive federal funds.”
“The text and structure of Title IX confirm that its ban on sex discrimination refers only to women and men, not to other classes,” the brief said, adding that a “proposed rewrite of Title VII would render many aspects of Title IX nonsensical and would undermine its basic purpose — the empowerment of women.”
Concerns from religious colleges are among a series of potential legal questions raised by the Bostock ruling. John Bursch, a senior counsel at the nonprofit law firm Alliance Defending Freedom who argued against transgender protections in Bostock, previously told the Washington Examiner that he foresees transgender issues working through the courts for “years to come.”
“Now that they’ve queued up this religious question, you can expect that those conflicts will develop, and eventually, there will be more cases,” he said of Bostock.
