The fight for gender-specific dorms

MARY REICHARD, HOST: Coming up next on The World and Everything in It: college dorms.

Remember when dorm assignments were still based on biology? Well, they’re not any more in most cases, unless you go to a Christian college. On those campuses, young men and young women still stay in different buildings.

MEGAN BASHAM, HOST: But the Biden administration wants to change that. Back in February, the U.S. Department of Housing and Urban Development issued a directive barring so-called discrimination in housing based on sexual orientation and gender identity. And it applies to private colleges and universities as well as public ones.

Last week, the College of the Ozarks, a Christian college in Point Lookout, Missouri, challenged the mandate in court. It claims the government exceeded its authority and violated the school’s constitutionally protected freedoms.

REICHARD: And full disclosure here: I taught some classes at College of the Ozarks several years ago.

Joining us now to talk about the case is Steve West. He’s a lawyer who writes about religious liberty issues for WORLD Digital. Good morning, Steve!

STEVE WEST, REPORTER: Good morning, Mary!

REICHARD: So the federal government is directing who lives in dorms. So what triggered this directive and what’s it based on?

WEST: It does seem the federal government is into everything we do sometimes. Here, the Department of Housing and Urban Development—HUD—is acting on something President Biden did on his very first day in office. He signed an executive order that requires federal agencies to fight discrimination based on sexual orientation or gender identity. And he said to do it “as soon as practicable.” That’s lawyer language for “get busy.”

REICHARD: Help us understand the legal basis for this.

WEST: Well, the legal basis is debatable, and that’s where litigation over the directive will probably focus. Presidents can and do issue lots of executive orders, but they can’t change the law. They mostly affect how laws are enforced.

We can trace the executive order and HUD’s directive to last year’s Supreme Court decision in the case called Bostock v. Clayton County. The majority decided that the law that bars discrimination in employment based on sex would now also extend to discrimination based on sexual orientation and gender identity. Title VII of the Civil Rights Act had never been interpreted that way before.

In dissent, Justice Samuel Alito predicted this ruling wouldn’t stay confined to the employment realm. We see now he was right; now we’re talking dorm living.

REICHARD: College of the Ozarks is small, around 1,400 students. Is it the only school challenging the directive?

WEST: To my knowledge, at this point they are alone in challenging the HUD directive. But as other Christian colleges that take the same position on sexuality and marriage are in the same position, I expect we may see other colleges pile on or, at least, weigh in by friend of the court briefs—as will LGBTQ advocacy groups.

REICHARD: Steve, this case is about dorm life and College of the Ozarks seeking to respect the differences between men and women. But as we say, the law doesn’t always stay confined to its first purposes. Do you think the directive will spill over to college sports as well?

WEST: It already has. The Biden administration has also taken the position that the bar on sex discrimination in Title IX of the Civil Rights Act also extends to sexual orientation and gender identity. (Title IX is about education, just as Title VII is about employment.) So with Title IX, Biden’s position means men with gender dysphoria—biological males who identify as women—can compete against women on their sports teams. It means biological males will have a right to share female locker rooms and bathrooms. So right there you see how this executive order is rippling through the federal agencies.

REICHARD: Many times these federal mandates are tied to federal funds. The government will say, you take tax money? You do what we say. A few private colleges don’t take any government money, so they don’t have to worry about these types of orders. But this new order is different, and still affects them, correct?

WEST: That’s right. The Fair Housing Act isn’t tied to the government’s spending power. It’s tied to its ability to regulate interstate commerce, and that is a broadly interpreted phrase. So the same law that applies to apartment complex owners and landlords applies to colleges and universities that offer housing.

REICHARD: What’s the timeline for the lawsuit brought by College of the Ozarks against the government?

WEST: The lawsuit was just filed Thursday, but as the college asked for a temporary restraining order, the court should set a hearing within a matter of days to decide if implementation of the directive should be temporarily halted. Next step would be a preliminary injunction, which could put a stop to it until the trial of the matter. But regardless of what ultimately happens in this case, it won’t end here. Those justices that were in the majority in the Bostock case will have to step up and make good on their promise to protect religious freedom.

REICHARD: Steve West writes about religious liberty for WORLD Digital. You can read more of his work and sign up for the weekly Liberties newsletter at wng.org. Thanks, Steve!

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