College of the Ozarks fights transgender rules

Students at private Christian colleges and universities may have to share dorm rooms, locker rooms, and bathrooms with members of the opposite sex if a Biden administration policy stands.

The U.S. Department of Housing and Urban Development (HUD) on Feb. 11 issued a directive barring discrimination based on sexual orientation and gender identity in housing—including at private colleges and universities. The College of the Ozarks on Thursday filed a lawsuit challenging the mandate, contending the government exceeded its authority and violated the school’s constitutionally protected freedoms.

The small Point Lookout, Mo., college holds to the historic Christian belief that biological sex is not changeable and operates its dormitories accordingly, not allowing men and women to share dorms, bathroom, or locker facilities. “A religious institution should not be forced to betray its religious beliefs,” college President Jerry C. Davis told assembled students and faculty on Thursday. “The government’s threats include harmful fines that could easily be in the six-figure range, in addition to damages and unlimited attorney’s fees, if we don’t change our policies.”

HUD’s directive follows an executive order President Joe Biden issued on his first day in office requiring federal agencies to combat discrimination based on sexual orientation or gender identity “as soon as practicable.” Sidestepping formal rule-making procedures, HUD Acting Assistant Secretary Jeanine Worden’s memorandum reinterprets the Fair Housing Act, which bars discrimination on the basis of sex, to include sexual orientation and gender identity. Even schools that accept no federal money—such as Hillsdale College—would appear to fall under the directive.

In June 2020, the Supreme Court broadly interpreted a similar ban on sex discrimination contained in Title VII of the Civil Rights Act to cover sexual orientation and gender identity. But the majority in Bostock v. Clayton County insisted the ruling only applied to employment. The justices said they wanted to preserve “the free exercise of religion enshrined in our Constitution.” Since then, however, court rulings and agency directives under the Biden administration have undercut that hope.

The Trump administration released a memo in its last days concluding Bostock should be limited to its employment context. And a Jan. 8 U.S. Department of Education memorandum defined “sex” in Title IX of the Civil Rights Act as biological sex. But the Biden administration rescinded that guidance, meaning schools now violate the law by limiting restroom and locker room access or athletic team participation to one biological gender.

Alliance Defending Freedom counsel Ryan Bangert called the administration’s legal flip-flop unjustified, pointing to Title IX’s explicit protection for sex-based distinctions in women’s sports. “From the way Title IX is set up, Congress never intended for it to eliminate the possibility of sex-segregated facilities or sports programs,” he said. “There are situations where separating people based on their sex accomplishes an important objective, such as safety.”

In the end, executive agencies’ legal machinations will likely end up before the Supreme Court. The justices will have to decide whether to confine Bostock’s ruling to employment and protect religious Americans and institutions from a transgender ideology that permits no dissent.